KITTRELL v. STATE

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Docket Number

No. 36233.

Attorney(S)

Arthur G. Busby, Jr., of Waynesboro, for appellant. The proof at the hearing did not substantiate a violation of the suspended sentence. Fields et al. v. State (Miss.), 21 So.2d 412; Ex parte Hamm, 24 N.M. 33, 172 P. 190; State of Utah v. Zolantakis (Utah), 259 P. 1044, 54 A.L.R. 1463; Code of 1942, Sec. 2543. Due to the fact that the appellant was a minor at the time execution of his sentence was stayed, the court would have lost jurisdiction of same upon appellant reaching his majority. Higginbotham v. State, 19 Fla. 577; Code of 1942, Secs. 7185-7213. Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee. There is no appeal from judgment of this character. Cooper v. State, 175 Miss. 718, 168 So. 53; Reynolds v. State (Miss.), 187 So. 528. Violation of condition of suspended sentence, as basis for annulment and revocation of suspended sentence, need not be established beyond reasonable doubt, but only by evidence convincing court that condition was violated. McLemore v. State, 170 Miss. 641, 155 So. 415.

Judges

Griffith, P.J., delivered the opinion of the court.

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KITTRELL v. STATE.

1. CRIMINAL LAW.

An order revoking a suspension of sentence is not appealable.

2. HABEAS CORPUS.

Where there is a fundamental issue which, if found in convict's favor, would make proceedings vacating suspension of sentence void, issue may be raised and reviewed in habeas corpus.

Griffith, P.J., delivered the opinion of the court.

At the May term 1935 of the Circuit Court of Greene County appellant was convicted of a misdemeanor and was sentenced to a term of six months in the county jail, but it was further ordered that the sentence be suspended during good behavior.

At the May term 1946 of the Circuit Court appellant was indicted for an assault and battery, and upon the petition of the district attorney and upon a hearing thereof the court revoked the suspension of sentence in the previous case and appellant has appealed.

An order revoking a suspension of sentence is not appealable. Cooper v. State, 175 Miss. 718, 168 So. 53, and Reynolds v. State (Miss.), 187 So. 528. When in such a matter there is a fundamental issue which if found in the convict's favor would make the proceedings null and void, the issue may be raised and reviewed in habeas corpus, but no such step has been taken here.

Appeal dismissed.

KITTRELL v. STATE.

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