IN THE SUPREME COURT OF MISSISSIPPI

NO. 1998-CA-01325-SCT

CHUCK TUNSTALL

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 07/31/1998

TRIAL JUDGE: HON. GEORGE B. READY

COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: ROBERT P. CHAMBERLIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JOHN R. HENRY, JR.

DISTRICT ATTORNEY: JOHN W. CHAMPION

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

DISPOSITION: AFFIRMED - 11/18/1999

MOTION FOR REHEARING FILED: 11/30/99; denied 2/3/2000

MANDATE ISSUED: 2/10/2000

EN BANC.

SMITH, JUSTICE, FOR THE COURT:

¶1. Chuck Tunstall appeals to this Court after a denial of post conviction relief by the DeSoto County

Circuit Court. The lower court held that Tunstall was on probation for the 1990 crime of felony possession

of cocaine with intent when he was arrested later for disorderly conduct, possession of a firearm by a

convicted felon, and possession of cocaine. The court revoked the suspended sentence and ordered

Tunstall to serve the previously suspended 11 years.

¶2. This very issue previously was presented to this Court for consideration by Tunstall. Tunstall v. State,

No.97-CA-000252-SCT (Miss. April 2,1998)(unpublished opinion)(Tunstall I). In Tunstall I, in

remanding for a hearing, this Court found that we were unable to determine whether or not the lower court

placed Tunstall on probation and whether Tunstall was told of the conditions of that probation.

¶3. On remand the lower court again concluded that Tunstall was placed on probation, but that the magic

word probation was not used. Thus, this Court is again presented with the question of whether Tunstall was

in fact placed on probation for his crimes committed in 1990. In the interim, this Court decided Wilson v.

State, 735 So. 2d 290 (Miss. 1999) which now controls the case at bar. After consideration of the

argument and the record, we find that Tunstall was placed on probation and told of the conditions of that

probation. We therefore affirm the circuit court's denial of Tunstall's post conviction relief request.

STATEMENT OF THE FACTS
¶4. On November 2, 1990, Olive Branch Police Officers Norris and Lincoln identified Chuck Tunstall while

in a convenience store. The officers informed Tunstall that there was a warrant out for his arrest and that he

would have to go with them. Before leaving with the officers, Tunstall stopped by his car and dropped a

bag of white substance on the floorboard. The officers confiscated the bag which contained 27 rocks of

crack cocaine. Tunstall was arrested and charged with felony possession of cocaine with intent to distribute.

He pled guilty to the charge and was sentenced to 15 years, with the last 11 years suspended pending

"good behavior."

¶5. Later, Tunstall was arrested and charged with disorderly conduct, possession of a firearm by a

convicted felon, and possession of cocaine. As a result, the State filed a petition to revoke Tunstall's

suspended sentence. See Tunstall I. slip op. at 1-2 (cited in this case pursuant to Miss. R. App. P. 35-

A(c)). The circuit court revoked the suspended sentence ordering Tunstall to serve the previously

suspended 11 years.

¶6. On November 22, 1996, Tunstall filed an unsuccessful motion for post-conviction relief ["PCR"]

arguing he was not placed on probation in the manner required by Miss. Code Ann. § 47-7-33. See

Tunstall, I.,slip op. at 2. The Court reversed and remanded the case in an unpublished opinion. See

Tunstall, I.. The Court concluded:

Since it is unclear from the record whether Tunstall was placed on probation, this Court reverses the

circuit courts denial of the post-conviction relief motion and remands for such determination. If on

remand the circuit court finds that Tunstall was not placed on probation, then it is without authority to

revoke his suspended sentence.

Tunstall, I., slip op. at 6.

¶7. During the July 31, 1998, remand hearing, the circuit court found that Tunstall was placed on probation.

The circuit court reasoned that since the sentence explained that if another crime was committed, Tunstall

should be returned to prison, that the sentence was legal and done correctly. The July 31, 1998, order

denied Tunstalls request for relief and dismissed the PCR motion with prejudice. Tunstalls motion for

rehearing was denied and on appeal to this Court, Tunstall poses the following issue:

WHETHER THE CIRCUIT COURT OF DESOTO COUNTY, MISSISSIPPI, ERRED BY

DENYING THE RELIEF REQUESTED IN THE POST-CONVICTION RELIEF

MOTION. MORE PARTICULARLY, WHETHER THE RECORD REFLECTS THAT

THE CIRCUIT COURT OF DESOTO COUNTY, MISSISSIPPI, PLACED TUNSTALL

ON PROBATION, AND, IF NOT, WHETHER SUCH FAILURE TO SO DO REQUIRED

A FINDING IN FAVOR OF TUNSTALL ON HIS POST-CONVICTION RELIEF

MOTION.

ANALYSIS OF THE LAW

¶8. Because of the lack of sufficient record to support the trial court's decision, this Court previously

reversed and remanded Tunstall's case to the trial court for determination of whether or not the lower court

placed Tunstall on probation and whether Tunstall was told of the conditions of that probation. Tunstall,

I., slip op at 5-6. The Tunstall I Court was concerned that if he was not placed on probation, then the

lower court would be without authority to revoke his suspended sentence. On remand, the trial court
opined that although the magic word "probation" was not used, nonetheless, Tunstall was in fact placed on

probation.

¶9. Tunstall originally pleaded guilty to possession of cocaine with intent to distribute and on July 10, 1991,

was sentenced to 15 years with the last 11 years suspended. These new charges occurred on September

25, 1995, and formed the basis for the revocation. Tunstall was arrested and charged for additional crimes

on May 31, 1996, approximately four-years and eleven months after his prior plea and sentence on July 10,

1991, prompting the State to file its petition to revoke his suspended sentence. Thus, Tunstall's revocation

occurred during the five-year maximum probation time period allowed by statute.

¶10. We cannot distinguish this Court's decision in Wilson v. State, 735 So. 2d 290 (Miss. 1999) from the

case at bar. Wilson was decided in the interim after Tunstall I. There we held that if the sentencing

proceeding sufficiently conveyed reasonably specific conditions of behavior required, we will find an implied

"period of probation" for the maximum of period allowed by law such that a suspended sentence under

those conditions is deemed to be accompanied by a period of probation as required by the statute. In

Wilson the trial court placed Wilson on unsupervised probation which did not require reporting and

supervison of the Department of Corrections. Wilson thus argued that he was not placed on probation.

However, Wilson was in fact given specific conditions and terms by the trial judge and was told that he was

not to violate any of these conditions, as was Tunstall in the case at bar. Accordingly, Wilson controls this

case. Here, as in Wilson, Tunstall was told that he would "be subject to the jurisdiction of [the] court for a

term of fifteen years, and that, if the prisoner found hiself in trouble anytime in that fifteen years, he could be

hauled into court for ". . .a violation of [his] suspended sentence." Tunstall was further advised that upon any

violation of his suspended sentence, ". . .if [he committed another crime. . ." --, he could be required to

serve in prison the portion of the sentence suspended. Tunstall was specifically told to maintain "good

behavior." The term clearly means to avoid further criminal misconduct. Tunstall's sentence imposed was

thus suspended upon the condition that he avoid further criminal misconduct. Tunstall's probation arises

from the judicial act of the trial judge in setting a condition upon his suspended sentence. Under

Wilson, that admonition was valid and sufficient for a maximum probationary period of five years. Here,

Tunstall transgressed the law within the five year period. The imposition of the suspended portion of his

sentence was therefore valid.

¶11. Although the word "probation," per se, does not appear in the record, nonetheless, Tunstall was in fact

placed on probation. In Artis v. State, 643 So. 2d 533 (Miss. 1994), where the defendant was simply

given an unconditioned suspended sentence, this Court held that the advice given the prisoner at the time

was insufficient to meet the requirement of notice of the terms or conditions appurtenant to a suspended

sentence, because the court failed to apprise the defendant of those terms and conditions. Id. at 538. Here,

unlike Artis, Tunstall was not given an unconditioned suspended sentence, and he was also informed by the

trial court of both the existence of a condition as well as the meaning and effect of the condition. Tunstall

knew that his commission of future crimes could result in revocation of his suspended sentence.

¶12. Wilson was sentenced to a term of ten years with the last eight years suspended. In imposing Wilson's

sentence, the trial judge conditioned the sentence with the specific language "pending your future good

behavior. . . Do you understand that?" Wilson replied, "Yes, sir." The trial judge also told Wilson "that

whenever your get out from serving these sentences, then you'll still have basically eight years hanging over

your head, understand that?" Wilson responded, "Yes, sir." The trial judge also advised Wilson, "If you

mess up in eight years from the time you get out of Parchman, if you mess up, commit another crime,
don't pay this money within ninety days after you are released from Parchman, then you could end up

having eight years to actually go back and serve, understand that, what is called a revocation or a

taking away of your eight years suspended sentence and having to actually serve out the

remainder of the sentence, do you understand that?" (emphasis added). Wilson responded, "Yes, sir."

No probationary period was established, and Wilson claimed that he in fact had not been placed on

probation. Wilson's probation was unsupervised, and he was not under MDOC control. This Court stated,

"Although a probationary period was not described, a probationary period was in fact established based on

the terms of Wilson's release. Such implied period is binding up to the five-year limitation of Miss. Code

Ann. § 47-7-37."

¶13. Returning to the case at bar, this Court finds that a five-year probationary period was in effect. Tunstall

was clearly advised of the terms and conditions of his suspended sentence. In Goss v. State, 721 So. 2d

144 (Miss. 1998), this Court stated, "However, in its order allowing suspension of a sentence, the court will

generally prescribe terms and conditions which the prisoner must follow in order for the suspension period

to continue. These conditions serve as the terms of 'probation.' Probation restricts the prisoner's rights

rather than those of the State. If a prisoner is under court imposed probation, he or she may be placed in

prison if the conditions of probation are not followed." Id. at 4.

¶14. Tunstall now maintains that previously in his case, this Court "made it clear that the magic, talismanic

term 'probation' must be used. (citing Tunstall,I., slip op. at 2, 4-5). We find that Tunstall I did not

require the use of the word "probation" in order for a person to in fact be placed on probation. Instead, the

Court merely noted that the word probation had not been used in the lower court's order. While the Court

did note the absence of a reference to probation, this Court did not intend to intimate that such absence was

controlling as we clearly held that we were unable to determine whether the lower court had in fact placed

Tunstall on probation. The case was remanded for that sole determination.

¶15. Tunstall is also concerned that courts may only revoke during the period of probation, and then,

only if "the defendant violated the conditions of his probation/suspended sentence." (See Tunstall, I., slip

op. at 4; citing Artis, 643 So. 2d at 537 (emphasis in original) citing Moore v. State, 585 So. 2d 738

(Miss. 1991)). However, in Goss and Wilson, this Court has made it very clear that with minor exceptions

which do not apply here, the period of probation to be served while out of prison on suspended sentence

may not exceed five years. Miss. Code Ann. § 47-7-37 limits probation to five years (except in desertion

or failure to support minor children cases), and further provides 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." Thus, the time

period of probation for Tunstall was five years as allowed by statute. Tunstall violated the conditions of his

probation/suspended sentence by being charged with multiple criminal offenses within the five years. The

trial judge was correct in holding that Tunstall was placed on probation and correct in revoking that

probation when Tunstall, less than five years after original sentencing violated our criminal statutes again by

being charged with three serious felonies.

CONCLUSION

¶16. We hold that Tunstall was in fact placed on probation at the time of sentencing. Tunstall was advised

of terms and conditions of his probation. He was aware that if he violated the law he would be subject to

revocation of his probation. This probation was for a maximum statutory period not to exceed five years.

Wilson controls this case. We therefore affirm the judgment of the DeSoto County Circuit Court in denying
Tunstall his request by way of post-conviction relief.

¶17. DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

PRATHER, C.J., PITTMAN, P.J., BANKS, MILLS, WALLER AND

COBB, JJ., CONCUR. McRAE, J., DISSENTS WITH SEPARATE

WRITTEN OPINION JOINED BY SULLIVAN, P.J.

McRAE, JUSTICE, DISSENTING:

¶18. At issue on this appeal is that which this Court previously stated begged determination, i.e., does the

record include language of putting Tunstall on probation? The Court, on the first hearing of this case,

required specific use of the term "probation." The record of the hearing does not include such language.

Even the majority admits this requirement but claims that since it was only dicta in an unpublished, nonprecedential case that we should overlook it. Pursuant to this Courts previous opinion on this matter, the

suspended sentence should not be revoked because the record reflects Tunstall was not placed on

probation. Adhering to the law of the case, a reversal of the revocation of Tunstall's suspended sentence is

the only proper choice for this Court. Accordingly, I dissent.

¶19. The majority holds that this Court's decision in Wilson v. State, 735 So.2d 290 (Miss. 1999), cannot

be distinguished from the case at bar. I disagree. Granted in Wilson the judges conditional statement of

"pending your future good behavior" coupled with defendants acknowledgment of his understanding of that

statement was sufficient to recognize probation. Wilson, 735 So.2d at 291. However, while Wilson is

similar to the instant case, in Wilson, the word "probation" was actually used by the lower court. Hence,

Wilson is distinguished.

¶20. This Court has already considered the pertinent sections of several statutes, Miss. Code Ann. §§ 47-

7-33 (1993), 47-7-35 (Supp. 1999) and 47-7-37 (Supp. 1999), relative to Tunstall's case. See Tunstall

v. State, No. 97-CA-00252-SCT. In the Courts first hearing of this case, the Court recognized that Artis

v. State, 643 So. 2d 533 (Miss. 1994), provided language pertinent to Tunstall's situation. Tunstall, No.

97-CA-00252-SCT, slip op. at 3. Yet, the Court acknowledged that this case took Artis one step further

in that here a condition upon which the suspended sentence is contingent was given while due process was

violated in Artis because such a consideration was absent. Tunstall, No. 97-CA-00252-SCT, slip op. at

3.

¶21. In Tunstall, this Court made it clear that the magic term "probation" must be used. See Tunstall,

No. 97-CA-00252-SCT, slip op. at 2, 4-5. The Court stated:

The language of the controlling statutes seems to mandate that when a circuit court judge decides to

suspend the execution of part of a sentence he must place the defendant on probation. . . .

. . . .

The State argues that the present appeal can be distinguished from Artis v. State in that Tunstalls

suspended portion of his sentence was conditioned upon his good behavior, unlike the defendant in

Artis. Therefore, Tunstall had notice of the condition of his suspended sentence as required by the

due process clause. However, that alone does not satisfy the requirements of Miss. Code Ann. §§
47-7-33 and 47-7-3 7. Even if a court has the authority to suspend a sentence without placing the

defendant on probation, this Court stated, "it does not logically follow that the court could thereafter

revoke the suspended sentence." Artis [sic], 643 So. 2d at 537. The express statutory language

states, "[alt any time during the period of probation. . . ." Miss. Code Ann. § 47-7-3 7 (Supp.

1997) (emphasis added.).

. . . .

. . .[T]his Court upholds the clear language of the statute and requires the imposition of probation at

the time of sentencing in order for a circuit court to have the authority to later revoke the suspension.

. . .There is no mention of probation in the sentencing order and the transcript of the sentencing

hearing is not part of the record. Also, there is nothing in the record pertaining to Tunstalls release

after serving part of the fifteen year sentence in prison or any parole supervision.

Tunstall, No. 97-CA-00252-SCT, slip op. at 2, 4-5. Even the dissent of Justice Smith acknowledged the

Courts requirement of the use of the word "probation": "[t]he majority requires the use of the actual word,

probation." See Tunstall, No. 97-CA-00252-SCT, slip op. at 6 (Smith, J., dissenting). On this appeal

from the remand, perusal of the transcript of the sentencing hearing fails to uncover any explicit

discussion of probation. All one finds is the language "pending good behavior" and placement in the

control of MDOC.

¶22. Therefore, the determining factor today is the previous finding by the trial court that there was no

mentioning of probation in the original case. See Tunstall, No. 97-CA-00252-SCT, slip op. at 2, 4-5. As

such, the law of the case must apply. This Court has explained the law of the case doctrine as follows:

The doctrine of the law of the case is similar to that of former adjudication, relates entirely to questions

of law, and is confined in its operation to subsequent proceedings in the case. Whatever is once

established as the controlling legal rule of decision, between the same parties in the same case,

continues to be the law of the case, so long as there is a similarity of facts. This principle expresses the

practice of courts generally to refuse to reopen what has previously been decided. It is founded on

public policy and the interests of orderly and consistent judicial procedure.

Fortune v. Lee County Bd. of Supervisors, 725 So.2d 747, 751 (Miss. 1998)(quoting Simpson v.

State Farm Fire &Cas. Co., 564 So.2d 1374, 1376 (Miss.1990).

¶23. Abiding by the law of the case, post-conviction relief should be granted by this Court. Without the aid

of the record in the first appeal of Tunstall's case, this Court previously stated that his suspended sentence

could not be revoked if the hearing on remand provided that the trial judge did not use the term "probation"

in the sentencing. In response, the trial court specifically stated that there was no finding of the use of the

word or term probation, nor that Tunstall was put on probation for 5 years or placed under the supervision

of the MDOC. The recommendation of the State was to suspend 11 years of a 15 year sentence, fine him

$100 and "discuss" with him good behavior. Pursuant to the law of the case and our previous declaration

that we would adhere to the trial judge's finding, this Court must accept the recommendation of the State.

As a result, Chuck Tunstall's post conviction relief request should be granted, the revocation of his

suspended sentence overturned, and his case remanded.

¶24. Accordingly, I dissent.
SULLIVAN, P.J., JOINS THIS OPINION.