                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 96-CP-01420-SCT
LAWRENCE BROWN
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                 11/18/96
TRIAL JUDGE:                                      HON. MICHAEL RAY EUBANKS
COURT FROM WHICH APPEALED:                        MARION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           PRO SE
ATTORNEY FOR APPELLEE:                            OFFICE OF THE ATTORNEY GENERAL
                                                  BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                                RICHARD DOUGLASS
NATURE OF THE CASE:                               CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                      AFFIRMED - 1/14/99
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                   4/8/99




     BEFORE SULLIVAN, P.J., BANKS AND ROBERTS, JJ.


     BANKS, JUSTICE, FOR THE COURT:




¶1. We have for review a petition for post conviction relief in which it is claimed that the wording of a re-
sentencing order on remand revoked parole eligibility and subjected the defendant to multiple prosecutions
and punishments for the same crime in violation of his Fifth Amendment right to be free from double
jeopardy. We conclude that the trial court had no authority to revoke parole eligibility and did not do so and
that the defendant was not subjected to multiple prosecutions or punishments. Accordingly, we affirm.

                                                      I.

¶2. In 1991, Lawrence Brown ("Brown") was convicted of raping Toni Sue Davis. During the same trial
Brown was also convicted of aggravated assault for threatening Toni Sue Davis' eight-year old daughter
with a gun when she tried to come to the aide of her mother. The facts leading to Brown's conviction are
further summarized in Brown v. State, 633 So. 2d 1042 (Miss. 1994), and reported in detail in the
companion case of Davis v. State, 611 So. 2d 906 (Miss. 1992). There is no need to fully repeat the facts
here.
¶3. Upon conviction, Brown was sentenced to twenty (20) years for rape and ten (10) years for aggravated
assault to run consecutively. Brown, 633 So. 2d at 1042. On appeal this Court affirmed the rape
conviction, but held that the evidence presented at trial was insufficient to support a conviction for
aggravated assault. Id. at 1044. This Court further found, however, that the evidence was sufficient to
support a finding that Brown had committed the lesser included offense of simple assault. Id. The case was
remanded to the lower court for re-sentencing on a conviction of simple assault. Id. On remand the circuit
court sentenced Brown to six (6) months for simple assault, to run consecutively with the sentence to be
served on the rape conviction.

¶4. In 1996, Brown filed a motion to vacate the judgment and sentence, which the trial court construed to
be a petition for post conviction relief.(1) Brown claims that he has been deprived of various liberty interests
by the language in the sentencing order. The language of which Brown complains states, "that said six (6)
months sentence shall run consecutive to and begin after he has completely served his sentence on the
Rape charge in this same case." Brown argues that the trial court revoked his parole eligibility by requiring
him to "completely serve" the twenty year sentence on the rape conviction before he can start to serve the
six months on the simple assault conviction. Brown also claims that because the sentences are to run
consecutively, he has been subjected to multiple punishments for the same crime in violation of the double
jeopardy clause of the Fifth Amendment.

¶5. The circuit court denied the petition for post conviction relief holding that the power to grant or deny
parole is vested in the parole board and that the language in the sentencing order had no bearing on the
parole board's consideration. Aggrieved, Brown filed this appeal.

                                                      II.

¶6. When reviewing a lower court's decision to deny a petition for post conviction relief this Court will not
disturb the trial court's factual findings unless they are found to be clearly erroneous. Bank of Mississippi
v. Southern Mem'l Park, Inc., 677 So. 2d 186, 191 (Miss. 1996). However, where questions of law are
raised the applicable standard of review is de novo. Id. The issues of whether the language of the
sentencing order operated as a revocation of Brown's parole eligibility or whether the imposition of
consecutive sentences subjected Brown to double jeopardy are questions of law and should be reviewed
de novo.

                                                       A.

¶7. Brown claims that the wording of the sentencing order turned his twenty (20) year sentence on the rape
conviction into a mandatory sentence, thereby revoking his parole eligibility. However, exclusive power
over the granting and revoking of parole is vested in this State's parole board. Miss. Code Ann. § 47-7-5
(Supp. 1998). Generally, a trial court has no authority to remove or a revoke a prisoner's parole eligibility.
See Shanks v. State, 672 So. 2d 1207, 1208 (Miss. 1996) (holding that "[t]he parole board, not the trial
court, has jurisdiction over parole matters."). Certain statutes specify that a trial court may or must impose a
sentence "without the possibility of parole." E.g., Miss. Code Ann. § 97-3-21 (1994) (person convicted of
capital murder may be sentenced to life without parole). But this sentencing authority is separate and distinct
from the parole board's authority to grant or revoke parole. Mitchell v. State, 561 So. 2d 1037, 1039
(Miss. 1990). Here the trial court's sentencing options upon a conviction of rape did not include
imprisonment without parole. Miss. Code Ann. § 97-3-65(3)(a) (Supp. 1998). Therefore, the trial court
had no authority to revoke or limit Brown's parole eligibility.

¶8. The language in the sentencing order, of which Brown complains, states, "that said six (6) months
sentence shall run consecutive to and begin after he has completely served his sentence on the Rape charge
in this same case." The sentencing order does not specifically set out that the twenty (20) year sentence is
"mandatory" or "without parole." Moreover, this Court has held that where the trial court has no statutory
authority to limit parole, language purporting to do so is without legal effect. Mitchell v. State, 561 So. 2d
1037, 1039 (Miss. 1990). Language contained in a sentencing order which amounts to conditions which the
trial court has no authority to impose "would be treated as surplusage and would not affect the enforcement
of the valid portion of the sentence." Cain v. State, 337 So. 2d 935, 936 (Miss. 1976). See also Kincaid
v. State, 711 So. 2d 873, 876 (Miss. 1998); Gardner v. State, 514 So. 2d 292, 294 (Miss. 1987).
Because the trial court had no authority to revoke Brown's parole eligibility the "completely served"
language, of which Brown complains, is surplusage and in no way binds the parole board in the exercise of
its discretion in granting or denying Brown parole. Thus, this assignment of error is without merit.

                                                       B.

¶9. Brown claims that the remand and the re-sentencing subjected him to double jeopardy. The Fifth
Amendment's double jeopardy clause of the U.S. Constitution provides that "nor shall any person be
subject for the same offence to be twice put in jeopardy of life." U.S. Const. amend. V. This prohibition is
made applicable to the states through the Fourteenth Amendment's Due Process Clause. White v. State,
702 So. 2d 107, 109 (Miss. 1997).

¶10. "Double jeopardy consists of three separate constitutional protections. 'It protects against a second
prosecution for the same offense after acquittal. It protects against a second prosecution for the same
offense after conviction. And it protects against multiple punishments for the same offense.'" Id. at 109
(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). The test for determining whether a
defendant has been subjected to double jeopardy is the "same elements" test as set out in Blockburger v.
United States, 284 U.S. 299 (1932), and applied by this Court in analyzing double jeopardy claims, see,
e.g., Thomas v. State, 711 So. 2d 867 (Miss. 1998). Where a defendant is charged with violating
separate and distinct statutory provisions the "same elements" test requires an inquiry into whether each
offense charged requires proof of an element not contained in the other. Where different elements are
required by each offense "'an acquittal or conviction under either statute does not exempt the defendant
from prosecution and punishment under the other.'" Blockburger, 284 U.S. 299, 304 (1932) (quoting
Gavieres v. United States, 220 U.S. 338, 342 (1911). This Court finds, as discussed infra, that Brown's
Double jeopardy claim must fail because the two convictions involved distinctly different offenses and nor
was Brown subjected to multiple prosecutions or multiple punishments.

¶11. Here, Brown was convicted of two separate and distinct offenses. He was convicted and sentenced
for the rape of Toni Sue Davis and he was convicted and sentenced for simple assault on Toni Sue Davis'
eight-year old daughter. This Court has held that "'where two or more persons are injured by a single
criminal act, there are as many separate and distinct offenses as there are persons injured by the unlawful
act.'" Burton v. State, 226 Miss. 31,47, 79 So. 2d 242, 250 (1955) (quoting Fay v. State, 71 P.768,
771 (Okla. Crim. App. 1937)). In addition to the fact that the two violations charged were perpetrated on
two different individuals, the provisions Brown was convicted of violating require proof of different
elements. The crime of rape involves "forcible sexual intercourse with any person." Miss. Code Ann. § 97-
3-65(3)(a) (Supp. 1998). The crime of simple assault involves an attempt "by physical menace to put
another in fear of imminent serious bodily harm." Miss. Code Ann. § 97-3-7(1)(c) (1994). Therefore, a
conviction of either violation did not exempt Brown from prosecution and punishment on the other.

¶12. Brown alleges that the six month sentence for simple assault is an additional punishment and is,
therefore, equivalent to a second prosecution in violation of the Dual Sovereignty doctrine of the double
jeopardy clause. The Dual Sovereignty doctrine recognizes that more than one offense results where a single
criminal act violates the laws of more than one State or a State and the Federal Government. Heath v.
Alabama, 474 U.S. 82, 86 (1985). When such is the case, the defendant is not subjected to double
jeopardy in successive prosecutions by the separate sovereigns for the same criminal act. Id. The Supreme
Court has held that:

     the crucial determination is whether the two entities that seek successively to prosecute a defendant
     for the same course of conduct can be termed separate sovereigns. This determination turns on
     whether the two entities draw their authority to punish the offender from distinct sources of power.

Heath, 474 U.S. at 88.

¶13. However, the Dual Sovereignty doctrine is not applicable to this action because Brown was not
subjected to successive prosecutions. Brown was subjected to only one trial. Nor, as suggested by Brown,
did the remand for re-sentencing on the simple assault charge amount to a successive prosecution. Where it
is determined that the evidence presented at trial was insufficient to support the conviction, but there is
sufficient evidence to support a conviction of a lesser included offense, this Court may enter a conviction
against the defendant on the lesser included offense and remand to the lower court for re-sentencing.
Alford v. State, 656 So. 2d 1186, 1191 (Miss. 1995). Remanding the case for re-sentencing on the lesser
included offense does not subject defendant to additional punishments or prosecutions in violation of the
double jeopardy clause; rather it puts the "defendant in the position he would have been in absent the trial
court's error." Dickenson v. Israel, 482 F.Supp. 1223, 1226 (E.D. Wis. 1980), aff'd, 644 F.2d 308 (7th
Cir. 1981). In Brown v. State, 633 So. 2d 1042, 1044 (Miss. 1994), this Court found that the evidence
presented at trial was insufficient to support a conviction of aggravated assault. The evidence did support,
however, a finding that Brown was guilty of committing the lesser included offense of simple assault. Id. As
a result, this Court remanded the case for re-sentencing on a simple assault conviction. Id. The remand
merely put Brown in the position he would have been in absent the error of the trial court below.

¶14. Brown further argues that the Dual Sovereignty doctrine is invoked in light of the fact that once he has
completed serving the twenty year sentence on the rape conviction he is to be moved from the state
penitentiary, so that he can serve the six year sentence in another municipality, the Marion County jail. As
stated previously, the Dual Sovereignty doctrine is not implicated where, as is the case herein, there are no
successive prosecutions. Additionally, this Court has held on numerous occasions that a sentence will not be
set aside if it is within the limits of the applicable statute. Herring v. State, 691 So. 2d 948, 958 (Miss.
1997); Sanders v. State, 678 So. 2d 663, 669 (Miss. 1996); Jones v. State, 669 So. 2d 1383, 1393
(Miss. 1995). Miss. Code Ann. § 97-3-7 (1994) specifically provides that upon a conviction of simple
assault a defendant "shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by
imprisonment in the county jail for not more than six (6) months, or both." (emphasis added). On the other
hand, Miss. Code Ann. § 97-3-65(3)(a) (Supp. 1985) provides that upon a conviction of rape a defendant
is be imprisoned in the State Penitentiary. The sentences as prescribed by the trial court comported with
the statutes under which Brown was convicted. Thus Brown was in no way subjected to multiple
prosecutions.

¶15. Nor was Brown subjected to multiple punishments. Brown argues that multiple punishments resulted
from the lower court's decision to run the six (6) month sentence on the simple assault charge consecutive to
the sentence on the rape charge. However, the imposition of consecutive or concurrent sentences is within
the discretion of the trial court. Miss. Code Ann. § 99-19-21 (1994). Brown also alleges that the wording
of the sentencing order "enhanced" his sentence under the rape conviction, because he continues to be
detained on the rape conviction in order to have him serve another sentence arising out of the same set of
facts. This contention was found to be without merit above, in the first assignment of error, and need not be
reiterated.

¶16. Along the same lines Brown claims that the wording of the sentencing order has operated to deprive
him of his liberty interests, not only in being paroled, but also in attaining a more privileged custody
classification. However, prisoners do not have liberty interests in being paroled, Vice v. State, 679 So. 2d
205, 208 (Miss. 1996), or in a particular classification, Tubwell v. Griffith, 742 F.2d 250, 253 (5th Cir.
1984). Therefore, this assignment of error is also without merit.

                                                      III.

¶17. For the above and foregoing reasons the trial court's Order is affirmed.

¶18. DENIAL OF POST-CONVICTION COLLATERAL RELIEF AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., McRAE, ROBERTS, SMITH, MILLS
AND WALLER, JJ., CONCUR.




1. The Appellant's petition for relief is not in the record. As a result the State alleges that the Appellant is
procedurally barred from maintaining this appeal and that the record is insufficient for the State to respond.
However, the issues raised by the Appellant can be determined from the trial court's findings of fact and
conclusions of law and from the Appellant's Brief.
