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  • Ramon L. Burgess, for appellant. The trial court erred in overruling the motion of the appellant for permission to withdraw former plea of guilty and enter a plea of not guilty. The petitioner-appellant has filed a motion in this cause requesting permission of the Court to withdraw plea of guilty and enter a plea of not guilty. The trial judge overruled the motion of the petitioner-appellant and we respectfully submit that in view of the reading of this entire record, especially as to the testimony of the petitioner-appellant in the hearing to impose sentence, there are indicated sufficient facts that petitioner-appellant is innocent of the offenses charged. Further, that petitioner-appellant's innocence can be assumed and a legal defense predicated upon such testimony and no doubt would have been had an attorney represented petitioner-appellant at that time. Crump v. Trapp, Sheriff, (Miss.) 36 So.2d 459. We are aware of the case of Edwards v. State, (Miss.) 46 So.2d 790, which indicates that the record did not allege or show any facts upon which innocence could be assumed or legal defense substantiated. We take the position that the testimony of the petitioner-appellant clearly and definitely indicates innocence and that in the absence of an attorney representing appellant at that time, this cause in its entirety is distinguishable from the aforementioned case. George H. Ethridge, Assistant Attorney General for appellee. I respectfully submit that there is no legal showing, or any evidence, in support of the petition to withdraw the plea of guilty and to be allowed to plead not guilty that would authorize the Court to sustain such application. No testimony appears in the record as to why the Court should set aside the plea of guilty, or that it was made under mistake of fact, or under duress, or under any other ground that would require the Court to sustain the motion and allow him to plead not guilty. Under the doctrine of Reed v. State, 143 Miss. 686, 109 So. 715, and Shaw v. State, 188 Miss. 549, 195 So. 581, a motion is at issue without further pleading, and it is the duty of the movant to produce proof to sustain the grounds of his motion. In other words, the law treats the motion as being denied and requires the movant to produce proof to sustain such motion. That was not done in this case, and no complaint can be heard here in regard to overruling the motion to withdraw the plea of guilty and enter a plea of not guilty. Appellant also in said brief says that the petitioner's innocence can be assumed and the legal defense predicated upon such testimony and that no doubt would have been had an attorney represented the petitioner-appellant at the time, and cites Crump v. Trapp, Sheriff, 36 So.2d 459, which does not support appellant's contention.
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  • Hall, J.
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  • Ramon L. Burgess, for appellant. The trial court erred in overruling the motion of the appellant for permission to withdraw former plea of guilty and enter a plea of not guilty. The petitioner-appellant has filed a motion in this cause requesting permission of the Court to withdraw plea of guilty and enter a plea of not guilty. The trial judge overruled the motion of the petitioner-appellant and we respectfully submit that in view of the reading of this entire record, especially as to the testimony of the petitioner-appellant in the hearing to impose sentence, there are indicated sufficient facts that petitioner-appellant is innocent of the offenses charged. Further, that petitioner-appellant's innocence can be assumed and a legal defense predicated upon such testimony and no doubt would have been had an attorney represented petitioner-appellant at that time. Crump v. Trapp, Sheriff, (Miss.) 36 So.2d 459. We are aware of the case of Edwards v. State, (Miss.) 46 So.2d 790, which indicates that the record did not allege or show any facts upon which innocence could be assumed or legal defense substantiated. We take the position that the testimony of the petitioner-appellant clearly and definitely indicates innocence and that in the absence of an attorney representing appellant at that time, this cause in its entirety is distinguishable from the aforementioned case. George H. Ethridge, Assistant Attorney General for appellee. I respectfully submit that there is no legal showing, or any evidence, in support of the petition to withdraw the plea of guilty and to be allowed to plead not guilty that would authorize the Court to sustain such application. No testimony appears in the record as to why the Court should set aside the plea of guilty, or that it was made under mistake of fact, or under duress, or under any other ground that would require the Court to sustain the motion and allow him to plead not guilty. Under the doctrine of Reed v. State, 143 Miss. 686, 109 So. 715, and Shaw v. State, 188 Miss. 549, 195 So. 581, a motion is at issue without further pleading, and it is the duty of the movant to produce proof to sustain the grounds of his motion. In other words, the law treats the motion as being denied and requires the movant to produce proof to sustain such motion. That was not done in this case, and no complaint can be heard here in regard to overruling the motion to withdraw the plea of guilty and enter a plea of not guilty. Appellant also in said brief says that the petitioner's innocence can be assumed and the legal defense predicated upon such testimony and that no doubt would have been had an attorney represented the petitioner-appellant at the time, and cites Crump v. Trapp, Sheriff, 36 So.2d 459, which does not support appellant's contention.
Judges
  • Hall, J.
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Smart Summary

MILES v. MONAGHAN, Sheriff.

1. Criminal procedure — plea of guilty, motion to be allowed to withdraw.

A motion to withdraw a plea of guilty is properly overruled when: (1) There is no showing that the accused was innocent of the charge; and (2) None that he had been misled into pleading guilty, and when (3) Not made within a reasonable time after the entry of the plea, two to three years being entirely too long a period of delay.

2. Criminal procedure — withdrawing plea of guilty — discretion of trial judge.

Trial judges are vested with a wide discretion in passing on a motion to withdraw a plea of guilty and the overruling thereof will not constitute reversible error unless it appears that the discretion has been abused.

3. Criminal procedure — revocation of suspension of sentence — jurisdiction not lost by elapse of time.

The jurisdiction of the circuit court to revoke a suspension of sentence is not lost by the mere elapse of time, and after three years a suspended sentence may be revoked in part and that part put into effective execution.

Headnotes as approved by Hall, J.

Hall, J.

On November 4, 1946, appellant entered a plea of guilty in the Circuit Court of Monroe County on a charge of the unlawful possession of intoxicating liquor on a second offense and was sentenced to pay a fine of $500.00 and costs and to serve a term of six months in the county jail, but the jail sentence and all the fine except $100.00 was suspended during good behavior. The $100.00 was paid. On October 31, 1949, the district attorney petitioned the court to impose the suspended sentence for the reason that appellant had been convicted or had pleaded guilty to other changes of the unlawful possession of intoxicating liquor since the said suspension. Due notice of this petition was given to appellant and a hearing was had thereon and on November 3, 1949, an order was entered imposing three months of the six months jail sentence and $200.00 of the remaining $400.00 fine, and continuing as suspended the remaining three months jail sentence and $200.00 fine.

Appellant then filed a motion for leave to withdraw his plea of guilty which had been entered in 1946 and on November 5, 1949, the court entered an order overruling said motion. On the same date appellant filed a petition for a writ of habeas corpus claiming that his confinement under the order of November 3, 1949, was illegal and void because the circuit court was without jurisdiction and without authority, after the lapse of three years, to impose a portion of the suspended sentence upon him. After a full hearing an order was entered denying the prayer of the petition for habeas corpus, from which this appeal is taken. (Hn 1) Appellant contends that the lower court erred in overruling his motion for leave to withdraw his plea of guilty entered three years previously. He testified in his own behalf and made no showing whatever that he was innocent of the charge to which he had entered the plea of guilty. A showing of innocence was necessary. Edwards v. State, Miss., 46 So.2d 790, not yet reported in the State Reports, and authorities therein cited. There was no contention that he had been misled into pleading guilty; this was essential under the case here presented. Fortenberry v. State, 147 Miss. 91, 113 So. 193. Moreover, appellant manifested no diligence whatever in permitting the judgment upon his plea of guilty to remain in force for a period of three years before moving for leave to withdraw his plea of guilty and after paying that portion of his fine which had not been suspended. An application for leave to withdraw a plea of guilty should be made within a reasonable time. 22 C.J.S., Criminal Law, Sec. 421(3), p. 644. In Hubble v. State, 41 Wyo. 275, 285 P. 153, it was held that a delay of two years and three months in making such an application was an unreasonable delay. (Hn 2) Trial judges are vested with a wide discretion in passing upon such motions and the overruling thereof will not constitute reversible error unless it appears that the discretion has been abused. McDonald v. State, 151 Miss. 566, 118 So. 628. There was certainly no abuse of discretion in this case, and the contention is wholly without merit.

(Hn 3) The assignment that the circuit court lost jurisdiction and was without authority to revoke the suspension and to put a portion of it into effect after the lapse of three years is likewise without merit. Crump v. Trapp, Sheriff, Miss., 36 So.2d 459. In that case there was a delay of more than five years before the suspension was revoked.

Affirmed.

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MILES v. MONAGHAN, SHERIFF
(Mar 12, 1951)