DocketNumber: No. 2011-CT-00269-SCT
Citation Numbers: 166 So. 3d 24
Judges: Chandler, Coleman, Dickinson, King, Kitchens, Lamar, Pierce, Randolph, Waller
Filed Date: 2/14/2013
Status: Precedential
Modified Date: 9/22/2021
for the Court:.
¶ 1. In 2000, McCalpin pleaded guilty to one count of fondling and two counts of sexual battery involving a child under the age of fourteen and was sentenced to serve a term of fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with ten years of his sentence suspended, and five years of post-release supervision upon his release from incarceration. In 2005, the circuit court revoked McCalpin’s post-release supervision for the first time due to his failure to reside at the residence given to his supervising officer, failure to notify his supervising officer of at least three changes of residence, and failure of a drug test for marijuana. At that time, the circuit court judge revoked McCalpin’s suspended ten-year sentence, ordering McCalpin to serve three years in the custody of the MDOC with seven years to remain suspended, conditioned upon McCalpin’s “good behavior and that he does not violate any laws upon his release from custody.”
¶ 2. After his second release from incarceration, McCalpin’s post-release supervision was revoked for a second time. Thereafter, McCalpin filed a motion for post-conviction relief (PCR) in the circuit court, which was denied. McCalpin appealed the denial of his motion for PCR, and we assigned the case to the Court of Appeals. The Court of Appeals affirmed. McCalpin petitioned this Court for writ of certiorari, which was granted by the vote of four justices of this court.
¶ 3. The following dates are relevant to McCalpin’s petition for writ of certiorari:
April 10, 2012 The Court of Appeals affirms the circuit court’s denial of McCalpin’s motion for post-conviction relief.
May 1, 2012 The Court of Appeals issues mandate.
May 10, 2012 McCalpin files his motion for rehearing.
May 22, 2012 The Court of Appeals dismisses MeCalpin’s motion for rehearing.
June 6,2012 McCalpin files his petition for writ of certiorari with this Court.
¶ 5. McCalpin did not comply with our rules of appellate procedure in seeking rehearing before the Court of Appeals. Mississippi Rule of Appellate Procedure 40(a) states that “a motion for rehearing may be filed within 14 days after a decision is handed down by the ... Court of Appeals.”
¶ 6. The Court of Appeals correctly dismissed McCalpin’s motion for rehearing, filed more than two weeks past the deadline, because it was untimely. Because McCalpin failed properly and timely to seek review of the Court of Appeals decision, we will not consider his petition for writ of certiorari, as he failed to fulfill the necessary prerequisites. As this Court has recognized, “[t]o hold otherwise would be to deny finality to the Court of Appeals decisions.”
¶ 7. Alternatively, if McCalpin’s petition was not procedurally barred, we would deny it and affirm the circuit court judgment for the several reasons set forth by the Court of Appeals. A probationer does not have to be convicted of a crime to be in violation of his probation but, rather, probation may be revoked when it is more
¶ 8. For the foregoing reasons, we dismiss the writ of certiorari.
¶ 9. DISMISSED.
. Miss. R.App. P. 17(a).
. Id.
. Miss. R.App. P. 17(b).
. Harris v. State, 704 So.2d 1286, 1288 (Miss.1997), abrogated by Jackson v. State, 732 So.2d 187 (Miss.1999) (emphasis added). See also Miss. R.App. P. 40.
. Harris, 704 So.2d at 1288.
. Miss. R.App. P. 40(a).
. Harris, 704 So.2d at 1288.
. Miss. R.App. P. 2(c).
. Berdin v. State, 648 So.2d 73, 79 (Miss.1994), overruled on other grounds by Smith v. State, 742 So.2d 1146 (Miss.1999). See also Diss. Op. at ¶ 11.