Justin Dale Peterson v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CP-00407-COA

JUSTIN DALE PETERSON APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 02/05/2019
TRIAL JUDGE: HON. CLAIBORNE McDONALD
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JUSTIN DALE PETERSON (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ABBIE EASON KOONCE
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 04/07/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE J. WILSON, P.J., GREENLEE AND LAWRENCE, JJ.

GREENLEE, J., FOR THE COURT:

¶1. Justin Peterson appeals from the Pearl River County Circuit Court’s denial of post-

conviction collateral relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In August 2006, Peterson pled guilty to one count of grand larceny in the Pearl River

County Circuit Court. On September 5, 2006, the court sentenced Peterson to serve ten years

in the custody of the Mississippi Department of Corrections (MDOC), with the entire period

of incarceration suspended pending the completion of five years of probation. The court also
ordered Peterson to pay a $1,500 fine, restitution, and court costs.1

¶3. On August 18, 2011, an MDOC officer filed an affidavit alleging that Peterson had

violated the terms of his probation. The affidavit stated that Peterson had failed to report to

his probation officer since April 2011 and that he had failed to make payments on his fine,

restitution, and court costs since August 2009. That same day, the circuit court issued a

warrant for Peterson’s arrest.2

¶4. On November 21, 2011, Peterson signed (1) a “waiver of rights to notice and/or

waiting period prior to preliminary probation hearing,” (2) a “waiver of rights to notice

and/or waiting period prior to probation revocation hearing,” and (3) a “waiver of right to

preliminary probation revocation hearing.” At the probation-revocation hearing, Peterson

admitted to violating the terms of his probation. As a result, the court revoked Peterson’s

probation and sentenced him to serve five years in the MDOC’s custody, with the remainder

of his sentence to be served on post-release supervision. The court’s order was filed on

November 30, 2011.

¶5. In February 2017, Peterson filed a PCR motion in the circuit court claiming that his

probation was unlawfully revoked because it was revoked after the term of his probation had

expired. Subsequently, Peterson filed an addendum to his PCR motion, claiming (1) he was

denied a preliminary probation-revocation hearing/probable-cause hearing, (2) he was not

informed of his right to counsel at the probation-revocation hearing, and (3) he was denied

1
The order was stamped as filed on September 7, 2006.
2
The record indicates that the warrant was received and executed on September 20,
2011.

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due process when he was deprived of the right to counsel at the probation-revocation hearing.

¶6. In February 2019, the circuit court denied the PCR motion. Now, Peterson appeals.

STANDARD OF REVIEW

¶7. “When reviewing a [circuit] court’s denial or dismissal of a PCR motion, we will only

disturb the [circuit] court’s decision if it is clearly erroneous; however, we review the

[circuit] court’s legal conclusions under a de novo standard of review.” Williams v. State,

228 So. 3d 844, 846 (¶5) (Miss. Ct. App. 2017) (quoting Thinnes v. State, 196 So. 3d 204,

207-08 (¶10) (Miss. Ct. App. 2016)).

DISCUSSION

¶8. Peterson challenges the circuit court’s denial of post-conviction relief, claiming his

probation was unlawfully revoked because it was revoked after the term of his probation had

expired. Although Peterson’s PCR motion was untimely filed, the three-year time-bar does

not apply when the petitioner claims his probation has been unlawfully revoked. Miss. Code

Ann. § 99-39-5(2)(b) (Rev. 2015).

¶9. Mississippi Code Annotated section 47-7-37 provides in part:

At any time during the period of probation, the court, or judge in vacation, may
issue a warrant for violating any of the conditions of probation or suspension
of sentence and cause the probationer to be arrested. Any probation and parole
officer may arrest a probationer without a warrant, or may deputize any other
officer with power of arrest to do so by giving him a written statement setting
forth that the probationer has, in the judgment of the probation and parole
officer, violated the conditions of probation. Such written statement delivered
with the probationer by the arresting officer to the official in charge of a
county jail or other place of detention shall be sufficient warrant for the
detention of the probationer.

Miss. Code Ann. § 47-7-37 (Rev. 2011).

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¶10. Peterson’s five-year probationary period began to run on September 5, 2006. See

Leech v. State, 994 So. 2d 850, 853 (¶13) (Miss. Ct. App. 2008). Therefore, his probationary

period expired on September 5, 2011. A court issued a warrant for Peterson’s arrest on

August 18, 2011.

¶11. This Court has held that “[p]robation may be lawfully revoked beyond the

probationary period if a revocation petition is filed prior to the end of the probationary

period—an act deemed to ‘toll’ the running of the probationary period—and the State acts

on the petition with a reasonable time.” Id. at 853 (¶14) (citing Jackson v. State, 483 So. 2d

1353, 1356 (Miss. 1986)). The State concedes that no revocation petition was filed in this

case. However, the State asserts that an arrest warrant signed by “the court or judge in

vacation” tolls the running of the probationary period as well.

¶12. In Ellis v. State, 748 So. 2d 130 (Miss. 1999), our supreme court held that “our

statutes do not specifically require the filing of a petition of revocation” and declined to

adopt a rule that “the filing of such petition is a specific requirement for tolling the running

of the probationary period.” Id. at 134 (¶14). Ellis was arrested, and her probation was

revoked several months after her probationary period ended. Id. at 134 (¶¶13-15). “[T]he

only action taken by the State to pursue revocation prior to the end of the probationary period

was the completion of a form warrant by a probation officer; . . . the State filed no revocation

petition prior to the end of the probationary period.” Leech, 994 So. 2d 854 (¶16) (citing

Ellis, 748 So. 2d at 132 (¶¶4-6)). Our supreme court held that the probationary period was

not tolled because the State did not take “proper action” to revoke the defendant’s probation.

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Id. (citing Ellis, 748 So. 2d at 134 (¶17)). However, the court “distinguished the probation

officer’s warrant from an arrest warrant ‘issued by the court or a judge in vacation’ within

the meaning of section 47-7-37.” Id. (citing Ellis, 748 So. 2d at 134 (¶14)).

¶13. In the instant case, an arrest warrant was issued by the court. This was sufficient to

toll the probationary period. “If this were not the law, then a probationer who violates his

probation on the last day of the five-year period would have to be caught and given a hearing

that day or his probation could not be revoked. Such reasoning would be absurd and is not

the law.” Jackson, 483 So. 2d at 1356.

¶14. Although not raised as a separate issue, Peterson also claims that he was denied due

process. Peterson suggests that he was entitled to a probable-cause hearing, and he argues

that he was denied due process because he was not informed of his right to counsel or

represented by counsel during the probable-cause hearing or the probation-revocation

hearing. This Court has noted that due process requires both “(a) a preliminary proceeding,

in the nature of a probable cause hearing, to be held promptly after a probationer is detained

for an alleged parole or probation violation, and (b) a more formal final revocation

hearing[.]” Rusche v. State, 813 So. 2d 787, 789-90 (¶7) (Miss. Ct. App. 2002). However,

Peterson signed a “waiver of right to preliminary probation revocation hearing.”

Additionally, this Court has held that “defendants do not necessarily have a right to counsel

at probation-revocation hearings.” Smith v. State, 94 So. 3d 335, 341 (¶18) (Miss. Ct. App.

2011). “However, when the issues relevant to the hearing are complex or difficult to

develop, then the court should appoint counsel for the defendant.” Id. In this case, the issue

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was neither complex nor difficult to develop. Therefore, Peterson was not denied due

process.

¶15. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., WESTBROOKS,
TINDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

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