                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 98-CT-00303-SCT
CEDRIC CARTER
v.
STATE OF MISSISSIPPI
                                     ON WRIT OF CERTIORARI
DATE OF JUDGMENT:                                 01/23/1998
TRIAL JUDGE:                                      HON. KEITH STARRETT
COURT FROM WHICH APPEALED:                        PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           PRO SE
ATTORNEY FOR APPELLEE:                            OFFICE OF THE ATTORNEY GENERAL
                                                  BY: DEWITT T. ALLRED, III
DISTRICT ATTORNEY:                                DUNN LAMPTON
NATURE OF THE CASE:                               CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                      REVERSED AND RENDERED - 01/20/2000
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                   2/10/2000



      EN BANC.
      COBB, JUSTICE, FOR THE COURT:

¶1. Cedric Carter, a first offender, pled guilty to manslaughter on July 1, 1994. He was sentenced to the
statutory maximum of 20 years in prison but with six months suspended. He was also sentenced to five
years probation. On January 21, 1998, Carter filed a motion for post-conviction relief in the trial court,
asserting that the combination of the prison time and the probationary term constituted an illegal sentence
because the overall length exceeded the 20 year maximum. The trial court denied the motion on grounds
that the petition was time barred. The Court of Appeals initially affirmed but, after rehearing, reversed and
remanded for re-sentencing because of this Court's intervening decision in Goss v. State, 721 So. 2d 144
(Miss. 1998). Carter v. State, No. 98-CP-00303-COA, 1999 WL 228861 (Miss. Cr. App. Apr. 20,
1999).

¶2. Because the appellate decision was issued on Carter's motion for rehearing, the State did not file a
second motion for rehearing prior to seeking review on writ of certiorari. M.R.A.P. 17(b) provides:

      A party seeking review of a judgment of the Court of Appeals must first seek review of that court's
      decision by filing a motion for rehearing in the Court of Appeals. If a party seeks review in the
      Supreme Court, a petition for writ of certiorari for review of the decision of the Court of Appeals
      must be filed in the Supreme Court and served on other parties within fourteen (14) days from the
      date of entry of judgment by the Court of Appeals on the motion for rehearing, unless such time be
      extended upon motion filed within such time. . . .

The rule does not provide that a successive motion for rehearing be filed by the party aggrieved by a
decision issued on rehearing, and the State filed its petition for writ of certiorari within fourteen days of the
decision's issuance. To the extent that M.R.A.P. 17(b) literally requires that a motion for rehearing be filed
under any circumstances prior to seeking review, we suspend that rule in the present case pursuant to the
authority of M.R.A.P. 2(c).

¶3. To determine the proper course of action in the present case, we first carefully review our decision in
Goss. Daniel Goss, a prior felon, entered a plea of guilty on May 15, 1995, to burglary and was sentenced
to ten years in prison with three years suspended plus a five year probation even though, as a repeat
offender, Goss was not eligible for probation. The statutory maximum sentence for burglary of a dwelling is
ten years pursuant to Miss. Code Ann. § 97-17-27(1994). In 1997, Goss filed a motion for post-
conviction relief which was denied by the trial court. Goss appealed and argued that his combined sentence
and probation exceeded the statutory maximum. Although this Court found that the probation itself was not
in excess of Miss. Code Ann. § 47-7-37 (Supp. 1999)(5 year maximum probation) and that Miss. Code
Ann. § 47-7-34 (Supp. 1999) was not applicable, we vacated the sentence and remanded the matter for
re-sentencing. This Court found "the sentence in its totality violates the limits imposed by the statutes and
offends the intent of the legislature in restricting the duration of punishment imposed by the courts." 721 So.
2d at 145. This Court concluded that, "[t]he sentence imposed by the trial court was erroneous due to the
possibility that Goss would serve more than ten years for the crime of burglary of a dwelling as prescribed
by Miss. Code Ann. § 97-17-27." Id. at 147.

¶4. Miss. Code Ann. § 47-7-34 created the post-release supervision program which provides for a term of
post-release supervision in addition to any term of incarceration imposed upon those already convicted of a
felony. The program creates a split-sentencing option for repeat offenders. The program is different from
§ 47-7-33(1993) probation in that it does not allow the combined terms to exceed the statutory maximum
period of incarceration. Post-release supervision is a legislative creation separate and distinct from
probation. This is evidenced by the statutory provision that a "period of post-release supervision shall be
conducted in the same manner as a like period of supervised probation. . . ." Miss. Code Ann. § 47-7-
34(2)(Supp. 1999).

¶5. Probation under § 47-7-33 is a conditional term that is not a part of the prison sentence and is therefore
not subject to the "totality" of sentence concept found in § 47-7-34. In Moore v. State, 585 So.2d 738,
741 (Miss. 1991), this Court stated that "'[p]robation' denotes a release of the defendant, under suspension
of sentence, into the community under the supervision of a probation officer." There, this Court distinguished
the differences between probation and parole, as follows:

      There is a distinction between release on probation by the circuit or county courts, Miss. Code Ann.
      § 47-7-33 (1972) and release on parole by the State Parole Board. The authority to place a prisoner
      on parole and the subsequent revocation of parole is vested in the State Parole Board. The board has
      the exclusive responsibility for the granting of parole as well as the exclusive authority for the
      revocation of parole. See Miss. Code Ann. § 47-7-5(3) (Supp.1990).

      Miss. Code Ann. § 47-7-33 (1972), on the other hand, authorizes a circuit or county court "... to
      suspend the imposition or execution of sentence, and place the defendant on probation ..." See
      Sisson v. State, 483 So.2d 1338 (Miss.1986); Leonard v. State, 271 So.2d 445 (Miss.1973).

      Likewise, Miss. Code Ann. § 47-7-37 grants to the circuit and county courts the authority to revoke
      probation. It provides that "[t]he period of probation shall be fixed by the court, and may at any time
      be extended or terminated by the court, or judge in vacation [but] [s]uch period with any extension
      shall not exceed five (5) years. " See Leonard v. State, supra. This statute does not say that a
      suspended sentence must be revoked within five (5) years after initial sentencing. Rather, it says the
      maximum duration for the period of probation shall not exceed five (5) years.

Id. at 740-41.

¶6. The Moore Court ultimately held that Moore's parole was a "by-product of the fifteen (15) year
unsuspended portion of his sentence" and his probation was "a by-product of the fifteen (15) year
suspended portion of the original sentence." Id. at 741.

¶7. Miss. Code Ann. § 47-7-37 (Supp. 1999) provides, in pertinent part, that "[n]o part of the time that
one is on probation shall be considered as any part of the time that he shall be sentenced to serve." In brief,
a probationary period does not equal time served. Carter was sentenced under Miss. Code Ann. § 97-3-
25 (1994) which states that "[a]ny person convicted of manslaughter shall be fined in a sum not less than
five hundred dollars, or imprisoned in the county jail not more than one year, or both, or in the
penitentiary not less than two years, nor more than twenty years." (emphasis added). Our decision turns
on the explicit wording of the statutory scheme. The plain language computes the statutory maximum of the
sentence based on time actually served in the county jail or penitentiary. Absent parole or some other
intervening circumstance, Carter will serve nineteen and one-half years in the penitentiary. Further, if he
violates the conditions of his five-year probationary period, he would also have to serve the one-half year
suspended, resulting in a total of twenty years served, but no more.

¶8. This Court attempted to distinguish Goss in Wilson v. State, 735 So.2d 290 (Miss. 1999). In Wilson,
this Court stated that "[t]he Goss reasoning should not be expanded beyond its facts since other statutes
exist which allow for suspended sentences, lengthy probationary periods, and other sentencing options.
See, e.g., §§ 43- 21-625; 47-7-37 Miss. Code Ann."(1) Id. at 292. Even though Goss was sentenced
under Section 47-7-33, this Court held that sentence time plus probation time is limited to the maximum
sentence. The subsequent effect of the Goss holding has been to restrict unnecessarily the trial courts' ability
to impose a split-sentence upon a previously convicted felon. This Court's holding in Goss that "the
sentence in its totality violates the limits imposed by the statutes and offends the intent of the legislature in
restricting the duration of punishment imposed by the courts" is incorrect and is therefore overruled.

¶9. In the present case, Carter's sentence of nineteen and one-half years incarceration and six months
suspended plus five years of probation does not equate to twenty-five years of time-served, and the
sentence is not in violation of the statute. The judgment of the Court of Appeals is, therefore, reversed and
rendered, and the judgment of the Pike County Circuit is reinstated.

¶10. REVERSED AND RENDERED.

      PITTMAN, P.J., BANKS, SMITH AND WALLER, JJ., CONCUR.
      McRAE, J., CONCURS IN RESULT ONLY. MILLS, J., DISSENTS
      WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER, C.J.
      SULLIVAN, P.J., NOT PARTICIPATING.
      MILLS, JUSTICE, DISSENTING:
¶11. I am sympathetic with the difficulty that this Court and the trial courts have endured in our mutual
attempts to comply with Miss. Code Ann. § 47-7-33 (1993) which states in pertinent part:

      When it appears to the satisfaction of any circuit court or county court in the state of Mississippi,
      having original jurisdiction over criminal actions, or to the judge thereof, that the ends of justice and
      the best interest of the public, as well as the defendant, will be served thereby, such court, in term time
      or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a
      death sentence or life imprisonment is the maximum penalty which may be imposed or where the
      defendant has been convicted of a felony on a previous occasion in any court or courts of the United
      States and of any state or territories thereof, to suspend the imposition or execution of sentence,
      and place the defendant on probation as herein provided, except that the court shall not suspend
      the execution of a sentence of imprisonment after the defendant shall have begun to serve such
      sentence. In placing any defendant on probation, the court, or judge, shall direct that such
      defendant be under the supervision of the department of corrections.

(emphasis added).

¶12. This statute either incorrectly or inadvertently equates probation with suspension of sentence. There is
a difference between the two. Under probation the court releases the defendant into the community under
the supervision of a probation officer. The defendant's freedom after conviction is subject to the condition
that for a stipulated period of time he shall conduct himself in a manner approved by a special officer to
whom he must make periodic reports. Black's Law Dictionary, 1082 (5th ed. 1979). A suspended
sentence is one that is given formally but not actually served. The defendant is not required, at the time the
sentence is imposed, to actually serve the sentence. This suspension is contingent upon the good behavior
of the defendant. Id. at 1223, 1297. Under a suspended sentence the defendant is not required to report to
an officer as he is while on probation. However, the trial court does possess the power to revoke the
suspended sentence.

¶13. Clearly, the obligations, duties and expectations of the defendant on probation are distinct from a
defendant's responsibilities while "serving" a suspended sentence. Furthermore, a trial court may impose a
suspended sentence for a term up to the maximum sentence allowed by law. Under Mississippi law, a trial
court may only impose probation for a maximum of five (5) years. Miss. Code Ann. § 47-7-37 (Supp.
1999). In spite of these differences between the suspended sentence and probation, section 47-7-33
confuses suspended sentences and probation and treats them as one in the same. This is evidenced by the
language, ". . . to suspend the imposition or execution of sentence, and place the defendant on probation as
herein provided . . . ." Miss Code Ann. § 47-7-33 (1993). A suspension of a sentence does not
automatically mean that the defendant will be on probation and under a duty to report to a probation officer.
It simply means that part of his entire sentence has been postponed pending the defendant's good behavior
or such other conditions as the court may see fit to establish.

¶14. The majority's reading of this statute concludes that "probation . . . is a conditional term imposed in lieu
of, rather than in addition to, a sentence . . . ." The majority regards a sentence of probation as a suspended
sentence. Inasmuch as the majority's conclusion is consistent with the language of section 47-7-33 I must
reluctantly agree. However, that is not to say that I concur in the result. The fact remains that these two
sentencing options are discreet concepts. Section 47-7-33 uses suspended sentence and probation
interchangeably in obvious derogation to the plain meaning of the words. Inasmuch as the statute fails to
distinguish between a suspended sentence and probation, we are obligated to interpret the statute to give a
consistent meaning to each of the statutes related to and concerning these two concepts. Furthermore, and
perhaps more importantly, when the meaning of a statute is unclear we are compelled to interpret it in a
manner most consistent with rights of individuals rather than the convenience of the State. Accordingly, I
must insist that Carter's sentence as imposed by the trial court exceeds the statutory maximum and is
therefore in error. Ultimately, this is a matter of law to be determined in the halls of the legislature not a
matter of justice to be determined in court.

      PRATHER, C.J., JOINS THIS OPINION.
1. The Goss ruling has also adversely affected the trial judges' ability to utilize fully other sentencing options
such as those contemplated in Miss. Code Ann. §§ 99-15-25 (1994) and -26.(Supp. 1999).
