IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CT-00753-SCT

RICHARD SMITH a/k/a "BO HOG"

v.

STATE OF MISSISSIPPI

ON PETITION FOR WRIT OF CERTIORARI

09/09/99

DATE OF JUDGMENT: 05/20/97

TRIAL JUDGE: HON. LEE J. HOWARD

COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JIM WAIDE

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JO ANNE M. McLEOD

DISTRICT ATTORNEY: FORREST ALLGOOD

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

DISPOSITION: REVERSED AND REMANDED - 8/19/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

McRAE, JUSTICE, FOR THE COURT:

¶1. This matter is before this Court on Richard Smith's appeal from the denial of postconviction relief by the Lowndes County Circuit Court. The Court of Appeals affirmed

the circuit court's denial of post-conviction relief. On grant of certiorari the question

presented to this Court is whether Smith may have his probation and suspended

sentence revoked for conduct which occurred before the guilty plea was accepted and

resulting sentence handed down. Also in question is whether Berdin v. State, 648

So.2d 73 (Miss. 1994), as relied on by the Court of Appeals in its decision, should
remain the law of this state. After consideration we reverse that the judgment of the

Court of Appeals and we overrule Berdin v. State, 648 So.2d 73 (Miss. 1994), to the

extent that it holds that probation and/or a suspended sentence may be revoked for

conduct which had occurred before the imposition of that probation and/or suspended

sentence.

I.

¶2. On May 25, 1995, Richard Smith pled guilty in the Circuit Court of Lowndes

County, Mississippi, to the crime of conspiracy to distribute cocaine, cause no. 94-

556-CR1. The trial court sentenced Smith to a term of twenty years in the custody of

the Mississippi Department of Corrections; however, the court suspended the

sentence and placed Smith on probation for a period of five years. The court

subjected Smith's probation and the suspension of his sentence to several conditions,

including the following: "[The] Defendant shall hereafter commit no offense against

the laws of this or any state of the United States."

¶3. On July 14, 1995, Smith entered a guilty plea in Clay County Circuit Court to a

charge of sale of cocaine, cause no. 7205. Smith committed this offense in August

1994, nine months prior to entering his plea of guilty in Lowndes County for

conspiracy to distribute cocaine. During his plea colloquy Smith admitted that he

committed the offense and affirmatively answered the questions posed by the court.

¶4. After accepting Smith's second guilty plea, the trial court judge requested a

sentencing recommendation from the State. The State suggested that Smith serve a

term of three years in the MDOC based on his cooperation in another investigation.

Additionally, the State advised the judge in the presence of Smith that a motion to

revoke the defendant's probation would be filed in the Circuit Court of Lowndes

County. Smith was sentenced to three years.

¶5. On August 24, 1995, the Circuit Court of Lowndes County conducted revocation

proceedings. Smith's attorney stated that he would "confess the petition" and admitted

that he had been convicted of a violation of the law in Clay County while he was on

probation from his Lowndes County conviction. The circuit court revoked Smith's

probation and suspended sentence and ordered Smith to serve twenty years for

conspiracy to distribute cocaine.

¶6. On March 6, 1997, Smith filed his Petition for Post-Conviction Relief in Lowndes

County, alleging that his probation and suspended sentence had been improperly

revoked. Smith claimed that he had been deprived of his liberty interest without due

process since the revocation was based on an event that had happened prior to the

imposition of probation. He also asserted that his guilty plea was not voluntary
because he was not told that his probation and suspended sentence could be revoked

due the second subsequent charge.

¶7. The circuit court reviewed the petition and the State's response, and, relying on this

Court's decision in Berdin v. State, 648 So.2d 73 (Miss. 1994), dismissed the petition

without a hearing. Smith appealed.

¶8. The Court of Appeals, relying on Berdin v. State, found that there was no due

process violation in revocation of probation based on a crime that had occurred before

the probation was levied. The Court of Appeals further found that Smith's guilty plea

was not rendered involuntary by the circuit court's failure to inform him that a previous

act for which he had not yet pled guilty could result in revocation of probation.

II.

¶9. In Berdin v. State, 648 So.2d 73 (Miss. 1994), Berdin pled guilty to felony

shoplifting, cause no. 22,311 and was sentenced to three years in prison, suspended,

and probation. She subsequently was charged with grand larceny, cause no. 22,405,

based on an act which occurred before her guilty plea in 22,311. After accepting her

guilty plea in 22,405, the trial court found that she was on probation in 22,311. Berdin's

probation was revoked, and her three-year sentence in 22,311 was reinstated. She also

received a five-year sentence in 22,405, with four years suspended, to run

consecutively to her earlier three-year sentence. Berdin, 648 So.2d at 75. Berdin

moved in the trial court to have her guilty plea in 22,405 withdrawn, which was denied.

Id. at 76.

¶10. On appeal this Court found that there was lack of notice to Berdin as to how she

had violated her probation and lack of hearing on the revocation. There was also

confusion as to the reason for the revocation; while the trial court stated that it ultimately

revoked the probation in 22,311 because of the guilty plea in 22,405, it appeared that a

greater factor might have been Berdin's failure to pay court costs imposed in 22,311.

This Court stated, as to whether a crime committed before a suspended sentence was

imposed could serve as grounds for revocation of the suspended sentence, the

following:

Condition (a) of Berdin's probation Order stated that the suspension of her

sentence was based on the condition that "[d]efendant shall hereafter commit no

offense against the laws of this or any state of the United States, or of the United

States." This language is derived from Mississippi Code Annotated § 47-7-35,

which provides a non-exclusive list of items which a court may impose as
conditions of probation. However, Berdin actually committed the second offense

on August 14, 1991 which was nearly three months before being given probation

on November 4, 1991 for the first offense. The issue becomes whether she

violated her probation conditions by pleading guilty to a crime committed before

being put on probation. Berdin argues that she did not violate the express

language of condition (a). However, committing an offense should be interpreted

as analogous to being convicted or given one's due process after having allegedly

committed the act. It should be remembered that a conviction is not necessary for

the court to revoke probation. Murphy v. Lawhon, 213 Miss. 513, 517, 57 So.2d

154 (1952) (probation violation need not be proven beyond reasonable doubt).

The trial judge may revoke probation "upon a showing that the defendant has

more likely than not violated the terms thereof." Wallace v. State, 607 So.2d

1184, 1190 (Miss.1992). This result may have been the intent of the drafters of this

condition. We find that Berdin violated condition (a) of her probation order by

pleading guilty to charge 22,405. This basis for probation revocation would not,

however, excuse the absence of the procedural due process requirements of

Morrissey, Gagnon, and Mississippi Code Annotated § 47-7-37.

Berdin, 648 So.2d at 79. This Court found reversible error due to the revocation of

probation in 22,311 without notice and a hearing. Id. at 80.

¶11. One cannot violate a condition of probation that does not exist. Entry of a guilty

plea in July 1995 based on conduct committed in August 1994 does not amount to a

violation of a condition in a May 1995 guilty plea to "hereafter commit no offense

against the laws of this or any state of the United States." It follows that Richard Smith

could not have his probation and suspended sentence revoked for violation of a

condition which did not exist, and specifically for something he had already done at

the time the probation and suspended sentence were handed down. We overrule

Berdin v. State, 648 So.2d 73 (Miss. 1994), to the extent that it holds that probation

and/or a suspended sentence may be revoked for conduct which had occurred before

the imposition of that probation and/or suspended sentence. The judgment of the

Court of Appeals is reversed, the judgment of the circuit court is reversed, the circuit

court's order revoking Smith's probation and suspended sentence and sentencing

Smith to twenty years for conspiracy to distribute cocaine is reversed, and this matter

remanded to the Lowndes County Circuit Court for imposition of the original sentence

in cause no. 94-556-CR1.

¶12. REVERSED AND REMANDED.

SULLIVAN AND PITTMAN, P.JJ., BANKS, MILLS AND WALLER, JJ., CONCUR. SMITH,

J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER, C.J., AND

COBB, J.
SMITH, JUSTICE, DISSENTING:

¶13. The majority opines that Berdin v. State should be overruled. The rationale is

that a condition of probation cannot be violated due to an act that happened before the

probation conditions exist. However, this rationale is inconsistent with established law.

In Berdin, this Court held that probation is violated by pleading guilty to a crime that

was committed prior to being put on probation. Berdin's plea of guilty to grand

larceny, after probation was imposed, was a violation of a probation condition, even

though the larceny actually occurred prior to imposition of probation. This holding is

consistent with other established case law from this state. See Berdin v. State, 648

So.2d 73, 79 (Miss. 1994); Artis v. State, 643 So.2d 533, 537 (Miss. 1994) (holding

that at any time during period of probation, if upon hearing it is determined that

probationer violated any specified conditions of probation, court has authority to

revoke any part or all of probation or any part or all of suspended sentence as if

decision to suspend sentence and place defendant on probation had never been made).

¶14. The Supreme Court of the United States held that conviction of a crime violates

the terms of probation. Carchman v. Nash, 473 U.S. 716 (1985). In Carchman, the

Court stated that a conviction "conclusively establishes [the] probation violation." Id.

at 731.

¶15. Next, the majority suggests that Smith did not knowingly and intelligently plead

guilty to the second offense. In contrast to this suggestion, the record reflects that

Smith was given a list of conditions of his suspended sentence, which constitute

proper notice of the conditions of his probation. One probation condition specifically

stated that Smith not "violate the law. Don't break the laws of the State of Mississippi,

the laws of any other state or the laws of the United States." Based on this excerpt,

Smith was given fair warning of the conditions of his probation. Also, more

importantly, Smith was fully aware that he had another drug charge pending in another

county before a different circuit judge; however, neither Smith, nor his attorney, who

represented him on both proceedings, mentioned that fact during this court

proceeding.

¶16. There is language in the record that clearly suggests a plea bargain was reached by

Smith, his attorney and the district attorney. The State recommended three years, and

the Defendant agreed. This recommendation was made due to the fact that Smith had

cooperated with the State in the successful prosecution of a previous investigation of

armed robbery. The district attorney made reference to the fact that Smith was facing an

immediate revocation of his sentence on probation back in Lowndes County. The
record shows, in pertinent part:

BY MR. ALLGOOD:

". . . Additionally, your Honor, at the conclusion of these proceedings, over in

Lowndes County there will be a revocation. This defendant is currently on

probation and of course, he will be subject to the sentence on probation

revocation also at that time."

Smith was present in the courtroom when the district attorney made this statement.

Even if not previously aware of the conditions of his probation, both he and his

attorney certainly heard the district attorney state that this conviction would be a

violation of his probation. Then, Smith entered a waiver stating that he understood the

100 percent rule and that he waived any right to challenge the legality of his sentence.

When asked, by the Court, "is [that] what you want to do?," Smith replied, "[y]es,

sir."

¶17. I dissent to the majority opinion for the foregoing reasons. Established law

dictates that a conviction of a crime violates probation. Carchman v. Nash, 473 U.S.

716 (1985) Also, it is a violation of probation to be subsequently convicted of a crime

that occurred prior to the imposition of probation. Berdin v. State, 648 So.2d 73, 79

(Miss. 1994). Based on the record, Smith knowingly and intelligently pled guilty to

both crimes. He was informed of his rights and knowingly agreed to the conditions. A

valid plea bargain clearly existed in this case, and it was accepted by the trial court.

For these reasons, Smith's revocation of probation should be upheld, and Berdin

should not be overruled.

PRATHER, C.J. AND COBB, J., JOIN THIS OPINION.