author: BARNES, J.,

text:
    Rena James LAWRENCE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KP-01917-COA.
    Court of Appeals of Mississippi.
    July 22, 2008.
    Rehearing Denied Dec. 9, 2008.
    Certiorari Denied March 5, 2009.
    Rodney A. Ray, attorney for appellant.
    Office of Attorney General By Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. On October 81, 2006, a jury found Rena James Lawrence guilty of aggravated assault for shooting her husband, Joe Willie Lawrence. She was sentenced to ten years in the custody of the Mississippi Department of Corrections, followed by five years of post-release supervision. Rena was also ordered to pay a fine, all court costs, and restitution to the victim. Aggrieved, Rena now appeals and asserts three issues: (1) whether the jury’s verdict was against the overwhelming weight of the evidence; (2) whether the trial court erred in granting the State’s jury instruction regarding voluntary intoxication; and (3) whether the accumulation of errors constituted reversible error. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 19, 2006, Joe Willie and Rena had been married a year and four months and were living on Harris Road in Starkville, Mississippi. After work, Rena went to visit her husband’s aunt, Lillie B. Bell, who lived nearby. Many family members, friends, and neighbors had gathered at Bell’s house to provide comfort and prepare food as Bell’s daughter had recently died.

¶ 8. State witness Minnie Tate, who was at the gathering but did not know Rena personally, testified that Rena was initially “real nice, real sweet.” However, after the arrival of more friends, particularly a young man in a newly painted car, Rena’s demeanor changed. Rena began shouting profanity at the young man, sitting on the young man’s car, and placing a beer can on it. Tate said Rena was holding a beer and a blue cup. As the night progressed, Tate said Rena was “acting weirder than I ever s[aw] her act.” Rena began harassing two of the neighborhood boys, slapping one and chasing another. Rena next went into Bell’s house and began harassing a little girl named Ashley. Rena pulled on Ashley’s ponytails, jerking her down backwards to the floor. After Ashley started crying, Rena was confronted by Joe Willie, who asked Rena why she was acting this way.

¶ 4. Joe Willie testified that he went to Bell’s house after getting off work. When he arrived at his aunt’s house, Joe Willie could hear Rena’s voice over the other voices. He said Rena was arguing with some young man about his car. Joe Willie stated that after talking with Rena, they went inside Bell’s house and discussed his leaving his previous job because the business closed. Joe Willie asserts that a little while later, he had just begun a discussion with a relative about his job situation when he heard Ashley crying. An argument ensued between Joe Willie and Rena regarding Ashley’s crying; so the couple went home. Joe Willie told Rena she needed to sober up and go to her mother’s house to “sleep this off.”

¶ 5. Testimony is in dispute as to the events that transpired when the couple returned home, but it is undisputed that the arguing continued, and Rena shot Joe Willie. His version of the incident is that Rena retrieved her .380 caliber pistol from a briefcase and put it in her pocket. Their argument progressed, and she threw beer in his face and scratched him on the face with her fingernails. He pushed her on to the bed. When he let her up, Rena pulled the gun from her pocket and shot him at close range in the abdomen. Joe Willie denied hitting Rena in the face until after he was shot, at which point he “went blank” and “started beating on her.” He disarmed her and put the gun to her head. He then put the gun down, walked outside, and told onlookers to call 911.

¶ 6. Rena testified that before the shooting, she was merely “playing” with the children and did not harm them. According to Rena, Joe Willie was jealous and became enraged when she spoke to the men outside regarding the car. Once they returned home, Joe Willie asked her to leave his house; so she started packing. She packed the pistol for her safety. When Joe Willie started beating her on the face, she shot him one time in the abdomen in self-defense. However, he was able to take the pistol from her. As she was leaving, Joe Willie knocked her off the porch. On cross-examination, she admitted to having three or four beers that evening starting at approximately 5:30 p.m.

¶ 7. After neighbors heard the shots, Rena was seen coming from the house, falling off the porch, getting up, and getting into her car. Tate testified that as Rena was driving off, Rena said, “y’all better come get [Joe Willie].... You [are] lucky I didn’t shoot him in his head.” Tate stated that as Rena left the scene, she did not appear to be in pain and did not ask for assistance. Deputies testified that they received a call from dispatch at approximately 8:27 p.m. that a shooting had occurred on Harris Road, and that the suspect had fled the scene in a vehicle.

¶ 8. Deputies stopped the car driven by Rena at a nearby intersection. Because it was unknown whether Rena possessed a weapon, the deputies drew their weapons and ordered Rena out of the car. Deputy Leslie West and the other deputies testified that Rena’s demeanor was uncooperative during the arrest. Deputy West also testified that he could tell Rena had been drinking alcohol, and Rena admitted to him that she had drunk several beers. The deputies subsequently placed Rena in handcuffs and into Deputy West’s patrol car to be transported to the jail. Deputy West stated that when they passed the scene of the crime, Rena stated that she shot Joe Willie. While in the patrol car, Rena told Deputy West that her eye and leg hurt because her husband had punched her in the eye and pushed her off the porch. At booking, it was noted one of her eyes was swollen.

¶ 9. Approximately three hours after Rena arrived at the jail, Deputy William Ford was advised to administer an intoxi-lizer test to her. Because Rena was driving a car when she was stopped, the test was administered to determine her blood alcohol content. The result of the test showed a blood alcohol content of 0.13. On the following morning, while conducting cell check, the jailers noticed that Rena’s eye was badly bruised and swollen. After the sheriff observed Rena’s condition, she was released on bond so that she could seek medical assistance.

¶ 10. Thereafter, Rena was indicted by an Oktibbeha County grand jury for aggravated assault pursuant to Mississippi Code Annotated section 97-3-7(2) (Rev. 2006). On October 31, 2006, a jury found Rena guilty of aggravated assault. The trial judge sentenced her to ten years in the custody of the Mississippi Department of Corrections, followed by five years of post-release supervision. Rena was also ordered to pay a fine of $1,000 and restitution to Joe Willie in the amount of $45,632.63 for his medical expenses related to the injuries he sustained. Rena filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial, which was denied.

ANALYSIS

I. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 11. On appeal, Rena asserts that the trial court erred in denying her motion for a new trial. She contends that to return a guilty verdict, the jury had to believe that: (1) she and Joe Willie were involved in a physical altercation, but Joe Willie did not strike her; (2) he withdrew from her immediate presence; and (3) then she shot him. Moreover, Rena argues that the jury had to believe it was only after she shot Joe Willie that he beat her on the face, wrestled the gun away from her, and held it to her head. Yet, she claims she shot him in self-defense after he threw her on the bed and began beating her. Rena asserts that no one else was present to witness the beating or the shooting, nor did the State present forensic or expert testimony as to the wounds or the gunshots. Rena claims Joe Willie’s account of the events are “simply preposterous” and “cannot be credited beyond a reasonable doubt.”

¶ 12. When reviewing the denial of a motion for a new trial, this Court will “only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss. 1997)). The appellate court sits as a thirteenth juror with the discretion to grant a new trial only in exceptional cases where the evidence preponderates heavily against the verdict. Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)). Reviewing the trial court’s decision to deny a motion for a new trial, the appellate court weighs the evidence in the light most favorable to the verdict. Id. (citing Herring, 691 So.2d at 957).

¶ 13. Despite the fact that the witnesses’ versions of the events that transpired on April 19, 2005, differ, the jury found Rena guilty of aggravated assault. In this case, the jury had to make a credibility decision as to which version of the story to accept. After a thorough review of the record, we find that allowing the verdict to stand does not sanction an unconscionable injustice.

¶ 14. At trial, evidence was presented that Rena had been drinking on the night in question and was in a combative mood before the altercations with her husband, as evidenced by her encounter with the young man in the freshly painted car and the altercation with the children. While there were no other eyewitnesses to the shooting besides Rena and Joe Willie, weighing the evidence in the light most favorable to the verdict, we find it is plausible the jury could have believed Joe Willie’s version of events over Rena’s and determined that Rena did not shoot Joe Willie in self-defense. Furthermore, testimony by Deputy West suggests Rena was not acting in self-defense. While transporting Rena to the jail, Deputy West passed the scene of the crime, and Rena voluntarily responded, “that’s where I shot that n* * * * However, Rena never stated before her arrest, during her transport to jail, or after arriving at the jail, that Joe Willie was trying to kill her, harm her, or that she shot him while defending herself.

¶ 15. As the trier of fact, the jury found that the overwhelming weight of the evidence showed that Rena deliberately and knowingly shot Joe Willie without authority of law and not in necessary self-defense. We find no error in this regard. Thus, the trial court did not abuse its discretion in denying the defendant’s motion for a new trial.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING THE STATE’S JURY INSTRUCTION S-4 ON VOLUNTARY INTOXICATION.

¶ 16. Rena alleges that the trial court erred in granting the State’s jury instruction S-4, over the defense’s objection, on voluntary intoxication. Rena argues that the trial court was not justified in granting a voluntary intoxication jury instruction because she did not claim voluntary intoxication as a defense, and she did not present any evidence at trial of being intoxicated. Instead, Rena’s sole defense is that she shot Joe Willie in self-defense to stop him from beating her.

¶ 17. Jury instruction S-4 reads:

The Court instructs the Jury that voluntary intoxication from alcohol and/or drugs is not a defense to a crime. If a Defendant, when sober, is capable of distinguishing between right and wrong, and then voluntarily intoxicates herself by using alcohol and/or drugs, and deprives herself of that ability, then she is criminally responsible for any offenses committed while in that condition.
Therefore, if you find from the evidence in this case beyond a reasonable doubt, that the Defendant voluntarily intoxicated herself through the use of alcohol and/or drugs, and then committed the offense for which she is charged, then that intoxication in no way relieves her of criminal responsibility.

¶ 18. In granting the instruction over the objection of defense counsel, the trial judge stated that there was evidence in the record supporting the grant of the instruction because the defendant had consumed alcohol and had tested positive for the use of alcohol some period of time after the incident. The trial judge acknowledged that while Rena was not relying on intoxication as a defense, the instruction was necessary to explain to the jury that the consumption of alcohol did not relieve her of criminal responsibility, nor did it provide her more leniency in her self-defense claim.

¶ 19. This Court’s standard of review regarding challenges to jury instructions is as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Austin v. State, 784 So.2d 186, 192(¶ 18) (Miss.2001) (citing Humphrey v. State, 759 So.2d 368, 380(¶ 33) (Miss.2000)). “[I]f the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Williams v. State, 803 So.2d 1159, 1161(¶ 7) (Miss.2001) (citing Hickombottom v. State, 409 So.2d 1337, 1339 (Miss.1982)).

¶ 20. Jury instruction S-4 is an expression of the rule articulated in McDaniel v. State, 356 So.2d 1151, 1161 (Miss.1978) (Sugg, J., specially concurring), which states voluntary intoxication does not negate criminal responsibility. In McDaniel, the defendant’s sole defense, which the supreme court rejected, was that he was intoxicated and could not distinguish right from wrong; therefore, he could not form the requisite intent for armed robbery. Id. at 1153-54. In our case, Rena relies on Taylor v. State, 597 So.2d 192 (Miss.1992) to support her contentions that the jury instruction was improper. In Taylor; the supreme court reversed Taylor’s murder conviction due to a jury instruction granted to the State. The jury instruction required the jury to find Taylor guilty of murder unless the jury entertained reasonable doubt as to whether the killing was done in self-defense. Id. at 194. However, Taylor’s sole defense was that the killing was an accident. Id. at 193-94. The supreme court reversed and remanded because no claim of self-defense was made, nor was any evidence of self-defense offered. The court concluded that the jury instruction was misleading as it prejudicially deflected the jury’s attention away from the defendant’s actual, sole defense of accident. Id. at 194-95. Furthermore, in Taylor, the evidence was circumstantial, and the court reasoned that were the jury to consider an extraneous matter, “the risk of a misdirected verdict bec[ame] intolerably high.” Id. at 195.

¶ 21. However, Taylor is distinguishable from the case at bar. While Rena’s sole defense was self-defense, the jury instruction on voluntary intoxication was not presented as an alternative defense, but as the trial judge explained, the instruction was given to explain to the jury that the evidence of Rena’s intoxication could not relieve her of criminal liability for the aggravated assault. Although Rena alleges that she was not intoxicated, there is evidence to suggest the contrary, and she even admitted on the stand to having three or four beers.

¶ 22. We find McGowen v. State, 859 So.2d 320 (Miss.2003) instructive. The Mississippi Supreme Court held that a voluntary intoxication instruction did not confuse the jury or divert attention from McGowen’s defense of total innocence for the charge of capital murder; rather, it informed the jury that McGowen’s culpability was not lessened because of his voluntary intoxication. McGowen, 859 So.2d at 343(¶ 81). Likewise, we find that the voluntary intoxication instruction here does not cancel out or confuse the jury on Rena’s own theory of self-defense. Furthermore, since this case was not a circumstantial evidence case, as in Taylor, and there was evidence presented of possible intoxication, the jury instruction was not interjecting an extraneous matter that could intolerably heighten jury confusion.

¶ 23. We find the trial court did not err in granting the voluntary intoxication jury instruction.

III. WHETHER THE PREVIOUSLY DESCRIBED ERRORS, EVEN THOUGH FOUND TO BE HARMLESS INDIVIDUALLY, CONSTITUTE REVERSIBLE ERROR WHEN ACCUMULATED.

¶ 24. Rena argues that even if the above errors are found to be harmless when considered alone, they nonetheless constitute reversible error when taken together. Therefore, her conviction should be set aside and the case remanded for a new trial.

¶ 25. This Court has the discretion to determine, on a case-by-case basis, whether errors, although not reversible standing alone, “when considered cumulatively require reversal because of the resulting cumulative prejudicial effect.” Byrom v. State, 927 So.2d 709, 730(¶66) (Miss.2006). We find no such errors in the present case.

CONCLUSION

¶ 26. We find that the verdict was not against the overwhelming weight of the evidence presented at trial, and the trial court did not err in granting a voluntary intoxication jury instruction. Accordingly, we affirm Rena Lawrence’s conviction and sentence.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,

WITH FIVE YEARS OF POST-RELEASE SUPERVISION, PAYMENT OF RESTITUTION OF $45,632.63 AND FINE OF $1,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


source: Caselaw Access Project

author: KING, C.J., IRVING, J.,

license: Public Domain

text:
    Thomas LITTLETON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-CA-01545-COA.
    Court of Appeals of Mississippi.
    July 22, 2008.
    Rehearing Denied Dec. 2, 2008.
    Certiorari Denied March 5, 2009.
    Guy N. Rogers, Jackson, attorney for appellant.
    Office of the Attorney General By Deirdre McCrory, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. Thomas Littleton pled guilty in the Circuit Court of Yazoo County to possession of cocaine with intent to distribute and was sentenced to eight years in the custody of the Mississippi Department of Corrections, with two years suspended and, upon release, to five years of supervised probation. Littleton filed a motion to withdraw or set aside his guilty plea and sentence with the circuit court, which was denied. Littleton now appeals.

¶ 2. Littleton raises the following issues on appeal:

I. The trial court erred in not following the plea recommendation of the district attorney.
II. The sentence imposed by the trial court was excessive and disproportionate in relation to the crime.
III. The sentence imposed was grossly disproportionate to the sentences received by other defendants charged with the same or similar crimes in the Circuit Court of Yazoo County during the trial judge’s tenure on the bench.

FACTS

¶ 3. On August 15, 2006, Littleton entered a guilty plea to possession with intent to distribute 0.5 grams of cocaine. The plea was taken by the Honorable Mike Smith, who was sitting as a special circuit judge. Judge Smith went through the process and asked the appropriate questions to qualify Littleton’s guilty plea. After doing so, Judge Smith accepted Lit-tleton’s plea of guilty to possession with intent to distribute 0.5 grams of cocaine. The district attorney recommended that Littleton be sentenced to ten years with two years to serve on house arrest (intensive supervision), followed by one year of supervised probation and payment of all court costs, court-appointed attorney’s fees, laboratory fees, and reimbursement of the “buy” money.

¶ 4. After entry of the guilty plea, Judge Smith stated that Littleton did not qualify for house arrest. In response, the district attorney informed Judge Smith that the practice in that circuit court district was to allow defendants charged with the crime of possession with intent to be placed on house arrest. The district attorney also offered to reduce the charge to the lesser-included offense of simple possession in order to allow Littleton to qualify for house arrest. Judge Smith declined this offer from the district attorney. In declining the request of the district attorney to accept a plea to the lesser-included charge of simple possession, Judge Smith stated that he was not going “to slap him [Little-ton] on the wrist” and “I’m not going to send a message that if there is something wrong with you, you’re going to be a dope dealer and get slapped on the wrist.”

¶ 5. Littleton’s attorney then asked Judge Smith if he intended to accept the State’s recommendation. Judge Smith responded that he would not accept the State’s recommendation, and he would not allow Littleton to withdraw his guilty plea. Judge Smith treated the discussion with Littleton’s attorney as an ore tenus motion to withdraw Littleton’s guilty plea and to request a trial. Judge Smith denied this motion.

¶ 6. Littleton then filed a written motion to withdraw or set aside his guilty plea and sentence, which was denied on August 31, 2006. Littleton has appealed from the denial of this motion.

DISCUSSION

¶ 7. While Littleton casts his issues as sentencing matters, a careful reading of the plea hearing, motions, and briefs indicate that the issue is more one of the process leading to his guilty plea and ultimately to the imposition of the sentence. Normally, this is a matter that is appropriately raised in a motion for post-conviction relief. Therefore, the first issue to be considered by this Court is whether or not it is required to exalt form over substance. This case is before the Court under a fairly unique set of circumstances. The record before this Court is fully developed as to all relevant facts and undisputed as to the process and circumstances leading to Littleton’s guilty plea, and ultimately to the imposition of his sentence. Pursuant to Mississippi Rule of Appellate Procedure 28(a)(3), this Court may take note of and address matters of plain error appearing in the record. Accordingly, this Court takes note of this issue as a matter of plain error, and in the interest of judicial economy believes the appropriate course is to treat this matter as a request for post-conviction relief to withdraw a guilty plea.

¶ 8. A negotiated plea agreement between the State and a criminal defendant is a contractual relationship. Allen v. State, 465 So.2d 1088, 1090 (Miss.1985). Whether that relationship actually comes into being must be judged by the same standards as any other contractual relationship. Those standards include: (1) the intent to make an agreement, (2) the capacity to make a agreement, (3) mutual understanding of the agreement, and (4) some consideration for the agreement. Rotenberry v. Hooker, 864 So.2d 266, 270(¶ 13) (Miss.2003). The absence of any of these negates the formation of a contract.

¶ 9. In this case, Littleton and the district attorney had: (1) the intent to make an agreement, (2) the capacity to make an agreement, and (3) a mutual understanding of the agreement. However, what was lacking was the consideration for that agreement. Consideration is defined as “[sjome right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other.” Black’s Law Dictionary, 306 (6th ed.2000). Here, Littleton gave up his right to plead not guilty in exchange for the prosecution recommending a sentence of house arrest. Because the law precludes house arrest for a conviction of possession of a controlled substance with intent to sell, pursuant to Mississippi Code Annotated section 47-5-1003(1) (Rev.2004), there was a failure of consideration flowing to Littleton. If the trial court properly applied the law, it could not accept the recommended sentence from the district attorney. In essence, the promise made by the district attorney promised nothing and was, therefore, illusory. Krebs ex rel. Krebs v. Strange, 419 So.2d 178, 182 (Miss.1982) (quoting 1 Corbin, Contracts, § 145 (1952)). An illusory promise cannot be the consideration for a return promise. Id. at 183. Because the consideration was illusory, no valid contract was created. In the absence of the creation of a valid contract, the agreement must be considered an improper inducement to plead guilty in violation of Rule 8.04(A)(3) of the Uniform Rules of Circuit and County Court. Robinson v. State, 585 So.2d 757, 759 (Miss. 1991). Therefore, Littleton should have been allowed to withdraw his guilty plea.

¶ 10. The refusal of the trial court to allow the withdrawal of the guilty plea, where the inducement for the plea was improper, was a clear abuse of discretion. See id. The trial court’s refusal to allow the withdrawal of Littleton’s guilty plea is reversed, and this matter is remanded to the active trial docket of the Yazoo County Circuit Court.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY DENYING POST-CONVICTION RELIEF IS REVERSED AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE AND CARLTON, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY ROBERTS, J. GRIFFIS, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

IRVING, J.,

Specially Concurring:

¶ 12. I agree with the majority that Littleton’s conviction and sentence should be reversed and this case remanded to the Circuit Court of Yazoo County. However, I write separately because I believe, in order to achieve that end, a different rationale than the one relied upon by the majority is required.

¶ 13. Littleton pleaded guilty. Therefore, he can appeal only the legality of his sentence. Trotter v. State, 554 So.2d 313, 315 (Miss.1989); Miss.Code Ann. § 99-35-101 (Rev.2007). None of his assignments of error directly address the legality of his sentence. However, issues not addressed in the appellant’s brief may be noticed as plain error by this Court. M.R.A.P. 28(a)(3). “[A] finding of plain error is necessary when a party’s fundamental rights are affected.” Williams v. State, 794 So.2d 181, 188(¶ 28) (Miss.2001) (citing Grubb v. State, 584 So.2d 786, 789 (Miss. 1991)). I believe Littleton has been robbed of his fundamental right not to be deprived of his freedom without due process of law. Stated another way, I believe Littleton’s right to both procedural and substantive due process is implicated by the unique facts of this case. Therefore, it is my view that we should address the legality of Littleton’s plea of guilty via the plain error doctrine, even though he did not raise that specific issue in his brief.

¶ 14. Littleton was indicted under Mississippi Code Annotated section 41-29-139(a)(1) (Rev.2005) for the sale of .5 grams of cocaine and pleaded guilty to possession of cocaine with intent. The penalty for possession of cocaine with intent to distribute is imprisonment for not more than thirty years and a fíne of not less than five thousand dollars nor more than one million dollars, or both. Miss. Code Ann. § 41-29-139(b)(l) (Rev.2005). In exchange for Littleton’s pleading guilty to the charge, the State agreed to recommend the following sentence to the trial judge:

On Mr. Littleton, I’m, going to make a recommendation, and ... I want to come back and say something about him. The recommendation is that he be sentenced to two years in the house arrest program; that he, upon his release, he [sic] be placed on one year of supervised probation. That’s a total of three years, with an additional seven years being suspended.

¶ 15. It is readily apparent that the recommended sentence is illegal because it does not fall within the range of permissible punishments allowed by section 41-29-139(b)(1). There is no doubt that the prosecutor knew at the time he made the recommendation as an inducement to Little-ton to forfeit his right to a jury trial that the recommended sentence could not legally be given. Likewise, before the trial court accepted Littleton’s plea as being freely and voluntarily given, the court knew that the recommended sentence could not be legally given and that the court was not going to give an illegal sentence, even if it could be convinced for reasons offered by the State that the sentence was acceptable, but for its illegality.

¶ 16. I believe it is, or should be, against public policy for the State to extract a guilty plea from a criminal defendant by offering to make an illegal sentence recommendation. I also believe it is a denial of procedural and substantive due process, as guaranteed by our federal constitution, for the State to cause a criminal defendant to forfeit his constitutional right to a jury trial based on an assumption and perception (both created in the defendant by the State) that the sentence recommendation that the State agrees to make on his behalf can, in the discretion of the court, be legally accepted when in fact it cannot.

¶ 17. The problem, in my judgment, was not cured by the fact that before accepting Littleton’s plea, the trial judge extracted an assurance from Littleton that the sole reason that Littleton was pleading guilty was because Littleton was in fact guilty. Nor was it cured by the fact that prior to accepting Littleton’s plea, the trial judge informed him that the court “is not part of the plea bargaining process and is not bound by any promise or recommendation made by anyone else.”

¶ 18. First, the problem was not cured by Littleton’s assurance of guilt because (1) every criminal defense lawyer who has represented a criminal defendant in a plea bargain, (2) every prosecutor who has made a sentencing recommendation, and (3) every trial judge who has accepted or rejected a sentencing recommendation knows that the only reason that the defendant pleaded guilty in exchange for the sentencing recommendation from the prosecutor was the hope and belief that the recommendation might be accepted, not that he in fact was guilty. With all due respect to all involved in the criminal justice process, to suggest otherwise is to engage in intellectual dishonesty. The oath that we took as judges, in my humble opinion, requires that we acknowledge this fact.

¶ 19. Second, the court’s admonition regarding the final sentencing arbiter was insufficient to cure the problem because Littleton was still left with the impression and understanding that, although the court was not bound by the recommendation, the court could, in its discretion, accept it, when in fact the court could not, as the court has no discretion to accept an illegal sentence recommendation. Thus, with the court’s admonition, Littleton could still cling to a sliver of hope that the court might accept the recommendation, especially since the prosecutor was prepared to go the last mile to convince the court to accept the sentence recommendation. On this point, the record reflects the following:

THE COURT: Well, let me tell you something to talk about. He doesn’t qualify for house arrest.
[PROSECUTOR]: Your Honor, we have been doing them on possession with intent. That’s why we knocked it down. They have been [taking] them on possession with intent here, but if the Court wants to accept it on the lesser-included offense of simple possession, the State has no objection to that.
THE COURT: Let’s look at the Code and make sure.
[DEFENSE ATTORNEY]: You were doing his just then; right?
[PROSECUTOR]: Yes. What I was going to tell you, Your Honor, I’m aware of his physical condition. And his offer would have been different. It’s just with the Littleton name around town, the Littleton’s have been, it’s the dope-dealingest family in Yazoo City. I tell you that to let you know that I don’t have any objection to the Court listening to him about his physical disability, and if he wants something less, if the Court deems fit to order it, I have no objection to that. It’s because of the Littleton reputation that it was two years house arrest on a first offender, followed by one year supervised probation, with the potential of serving seven years. That’s why.
Your Honor, I have got the house arrest officer here.
THE COURT: I want the Code, the Code section. The house arrest Code section.
[PROSECUTOR]: Yes, sir.
THE COURT: I’ve got a question if he can go on house arrest with intent.
MARTIN: Not supposed to, but if you put down possession, you can. But you’re the judge. You can do it if you want to. That’s what the policy says. Says that not with intent, just with simple possession. But y’all have a plea now to possession. If the judge orders it, it’s okay with me.
THE COURT: Just leave it up to the judge to reconcile his conscience for ordering something that the Code Section says you can’t do. Drop that on the judge, huh?
MARTIN: It’s up to you, Your Honor. MDOC is not going to fight it.
[PROSECUTOR]: Your Honor, I have a suggestion. I’ll stick with the Code. It was .5. It was five-tenths of a gram, which will put him in the two to eight, on a plea of simple possession.
THE COURT: Why have y’all got 30 and a million here?
[PROSECUTOR]: Because it was possession with intent. And in times past, we have been putting them on house arrest because the Court’s been ordering it, and that’s why. That’s the only reason. And I have no objection. In fact, I would ask the Court to find him guilty of the lesser-included offense of simple possession and give him eight years, suspended, conditioned on two years house arrest, followed by one year of supervised probation under the original terms. Is that okay?
THE COURT: We’ll come back and talk about him later. Let’s go on with your recommendation on Mr. Whitaker.

¶ 20. Based on this record, it seems pretty clear to me that the court recognized immediately that it was being asked to give an illegal sentence that it was not going to give. The question then becomes: did the court have an obligation to reject a guilty plea that it knew was induced by an offer from the State that was illegal. I think it did.

¶ 21. I am fully aware of our supreme court’s recent ruling in Callins v. State, 975 So.2d 219 (Miss.2008) and my responsibility as a subordinate appellate judge to follow it. However, I believe Callins is neither controlling nor applicable to the issue here. I will say more later.

¶ 22. I also hasten to add that I find no fault with the sentence given by the trial court, as it was within the limits prescribed by statute, but in my view, a lawful sentence must be predicated upon a guilty plea that facially passes constitutional muster. In my judgment, no plea that is extracted in violation of one’s due process rights can pass constitutional muster. I have already stated that, in my view, it is a denial of procedural and substantive due process, as guaranteed by our federal constitution, for the State to cause a criminal defendant to forfeit his constitutional right to a jury trial based on an assumption and perception (both created in the defendant by the State) that the sentence recommendation that the State agrees to make on his behalf can, in the discretion of the court, be legally accepted when in fact it cannot.

¶ 23. Returning to Callins, I acknowledge that in Callins our supreme court pointed out that if a trial court is not involved in the plea bargaining process and if the prosecutor makes the agreed upon recommended sentence, the trial court does not err if it does not follow the State’s sentencing recommendation, “so long as the sentence imposed is within the maximum limits prescribed by the applicable statute.” Callins, 975 So.2d at 229(¶ 23). The crucial distinction between today’s case and Callins is that in Callins the issue was not whether the offer of inducement by the State was illegal on its face, but whether the court was bound to accept the recommendation even though the court had informed Callins that the court would not be bound. A subsidiary issue was whether Callins was entitled to an evidentiary hearing to determine whether he had kept his end of the plea agreement.

¶ 24. There is no doubt that the judge in today’s case was not bound by the sentence recommendation, and Callins makes that clear. Indeed, he could not even, in his discretion, consider the recommendation, and that is the problem. In a typical plea bargain, a defendant pleads guilty in exchange for a sentencing recommendation that is not laden with a legal impediment to its being accepted. In Callins, no impediment, other than the judge’s discretion, stood between the sentencing recommendation and the acceptance of the recommendation by the court. Here, the will of the Mississippi Legislature stands between the sentencing recommendation and the court’s ability, not discretion, to accept it. The end result is that, although perhaps not intended, the prosecutor made an illusory sentencing recommendation in exchange for Littleton’s guilty plea. I do not believe that a plea made, as here, in exchange for an illusory sentencing recommendation is a facially constitutional plea. Therefore, I believe the trial court was duty bound to reject Littleton’s guilty plea and avoid the issue of sentencing altogether.

¶ 25. For the reasons presented, I find that Littleton’s guilty plea is violative of public policy, was induced in contravention of his due process rights, and is therefore void. Consequently, I agree with the majority that the case should be returned to the active trial docket of the Yazoo County Circuit Court.

¶ 26. I conclude by noting that I am very clear as to who is the final arbiter of Mississippi law and my obligation to follow that law as enunciated by our supreme court. Therefore, what I have said here is offered with the fervent hope that our supreme court will take another look at the convoluted plea bargaining process in our state.

ROBERTS, J., JOINS THIS OPINION IN PART.

      . Although it is not in the record, Littleton's brief states that he had both of his legs cut off just below his torso due to an accident many years earlier. Littleton's motion to reconsider also states that he is a paraplegic and has no legs. The trial court does state that Little-ton has a disability, which requires extensive care, but the exact nature of the disability is not stated.

      . I am pleased that the majority has belatedly recognized that its analysis should be grounded on plain error. However, since this separate writing was prepared before the majority chose to incorporate plain error as a part of its analysis, and further, because my analysis still remains different from the majority, I have decided not to withdraw it.

      . Mr. Martin is not identified in the record, but contextually, it appears that he is either the house arrest officer from MDOC or another prosecutor.

      . As noted, Littleton does not raise in his brief the legality of the plea agreement. However, it is the issue that I believe judicial notice should be taken and is the fulcrum of this special concurring opinion.


text:
    Doug M. CARROLL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-KP-01406-COA.
    Court of Appeals of Mississippi.
    Aug. 5, 2008.
    Rehearing Denied Dec. 2, 2008.
    Certiorari Denied Feb. 26, 2009.

      Doug M. Carroll, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., CHANDLER and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Doug M. Carroll appeals the Circuit Court of Union County’s denial of his motion to dismiss the indictment against him for violation of his right to a speedy trial. Finding no error, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 13, 2005, Carroll was indicted by a Union County grand jury for robbery with a deadly weapon pursuant to Mississippi Code Annotated section 97-3-79 (Rev.2006). On April 20, 2006, Carroll filed a motion to dismiss the indictment for violation of his right to a speedy trial. The circuit court denied the motion on June 19, 2006. Subsequently, on June 20, 2006, in the midst of his jury trial, Carroll pleaded guilty to one count of robbery with a deadly weapon. On June 21, 2006, Carroll was sentenced to forty-five years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended and five years’ post-release supervision.

¶ 3. On September 6, 2006, Carroll’s notice of appeal was received and filed in the Mississippi Supreme Court. The cover letter and the certificate of service, however, were both dated June 25, 2006. On appeal, Carroll asserts the following grounds of error: (1) the sentence imposed by the circuit court was illegal in light of the fact that he was a prior convicted felon and therefore was ineligible for a suspended sentence pursuant to Mississippi Code Annotated section 47-7-33; and (2) the circuit court erred in denying his motion to dismiss the indictment for violation of his right to a speedy trial. The State contends that this Court lacks jurisdiction to hear Carroll’s appeal on two grounds: (1) Carroll’s appeal was untimely, and (2) Carroll pleaded guilty and thus has no right to appeal his conviction and sentence. Finding proper jurisdiction and no error, we affirm.

ANALYSIS

I. Whether this Court lacks jurisdiction on the ground that Carroll’s appeal was untimely.

¶ 4. The State argues that this Court lacks jurisdiction to hear Carroll’s appeal because it was untimely filed. Mississippi Rule of Appellate Procedure 4(a) mandates that the “notice of appeal ... shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” “An appeal which is ‘not timely filed pursuant to Rule 4 or 5' shall be mandatorily dismissed.’ ” Minchew v. State, 967 So.2d 1244, 1246(¶ 4) (Miss.Ct.App.2007) (quoting M.R.A.P. (2)(a)(l)).

¶ 5. “When challenging an appeal as untimely, the State bears the burden of proving that, under the terms of the prison mailbox rule, the prisoner’s notice of appeal was not ‘filed’ within the thirty-day window of Rule 4.” Id. at 1246-47(¶4) (citing Sykes v. State, 757 So.2d 997, 1000-01(¶ 14) (Miss.2000)); Vance v. State, 941 So.2d 225, 227(¶ 5) (Miss.Ct.App.2006) (citation omitted). “Under the prison mailbox rule, a pro se prisoner’s notice of appeal is effectively ‘filed’ under Rule 4 when the prisoner delivers his notice of appeal to the proper prison authorities for mailing.” Id. (citing Sykes, 757 So.2d at 1000-01(114)).

16. In this case, Carroll’s notice of appeal indicates that the judgment from which he appeals is the circuit court’s June 19, 2006, denial of his motion to dismiss the indictment for violation of his right to a speedy tiial. Therefore, Carroll was required to file his notice of appeal within thirty days after June 19, 2006. The record indicates that Carroll’s notice of appeal was received and filed by the circuit court on September 6, 2006, clearly more than thirty days from the date of the judgment denying Carroll's motion to dismiss the indictment. The cover letter and certificate of service attached to the notice of appeal, however, are dated June 25, 2006, which is within thirty days of June 19, 2006. "While we have no way of knowing when Carroll actually delivered his appeal documents to prison authorities for mailing, the State has offered no evidence indicating that Carroll failed to do so within the thirty-day window provided in Rule 4(a). Accordingly, as the State has failed to meet its burden of proving that Carroll’s notice of appeal was untimely filed, we find that we are not deprived of jurisdiction to hear this appeal on such ground.

II. Whether this Court lacks jurisdiction to hear Carroll’s appeal on the ground that Carroll’s guilty plea precludes him from appealing his conviction and sentence.

¶ 7. The State also contends that this Court lacks jurisdiction to hear this appeal because Carroll relinquished his right to appeal his conviction and sentence when he pleaded guilty. The State cites Mississippi Code Annotated section 99-35-101 (Rev.2007), which states:

Any person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.

We find the State’s argument to be without merit. The Mississippi Supreme Court has held that, while a conviction resulting from a guilty plea may not be directly appealed, “an illegal sentence handed down pursuant to the plea is appealable.” Jennings v. State, 896 So.2d 374, 377(¶ 16) (Miss.Ct.App.2004) (citing Trotter v. State, 554 So.2d 313, 315 (Miss. 1989)). In this case, Carroll argues that his suspended sentence was illegal due to the fact that he was a prior convicted felon; therefore, this Court has jurisdiction to hear Carroll’s appeal in this regard. Accordingly, we proceed to consider Carroll’s appeal on its merits.

III. Whether Carroll’s suspended sentence was illegal due to his status as a prior convicted felon.

¶8. Carroll contends that because he was a prior convicted felon at the time he was sentenced, he was not eligible for a suspended sentence in accordance with Mississippi Code Annotated section 47-7-33 (Rev.2004). That section states as follows:

When it appears to the satisfaction of any circuit court or county court in the State of Mississippi, having original jurisdiction over criminal actions, or to the judge thereof, that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in termtime or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence.

Prior to pleading guilty to armed robbery, Carroll was convicted of the felony of burglary; therefore, he was not eligible to receive a suspended sentence. As support for his argument, Carroll relies on Weaver v. State, 785 So.2d 1085 (Miss.Ct.App.2001) and Cooper v. State, 737 So.2d 1042 (Miss. Ct.App.1999). In both Weaver and Cooper, this Court held in accordance with section 47-7-33 that the respective defendants should be allowed to withdraw their guilty pleas because the suspended sentences they received were improper inducements to plead guilty due to the fact that the defendants, both prior convicted felons, were not eligible for suspended sentences. Weaver, 785 So.2d at 1088(¶ 12); Cooper, 737 So.2d at 1045(¶ 13).

¶ 9. However, since Weaver and Cooper were decided, the Mississippi Supreme Court has held that an individual with a prior felony conviction is eligible for a suspended sentence. In Johnson v. State, 925 So.2d 86 (Miss.2006), the supreme court addressed the “ever-present sentencing problem that occurs when a prior convicted felon is given a split sentence of incarceration followed by MDOC supervision, whether it be classified as post-release supervision, or supervised probation.” Id. at 91(¶ 8). Johnson, who had a prior felony conviction, was convicted of the sale of cocaine and sentenced to fifteen years’ imprisonment, with eight years suspended and five years of post-release supervision. Id. at 88(¶ 2). On appeal,

Johnson argued that his suspended sentence was illegal due to the fact that he was a prior convicted felon, and this Court agreed. Id. at 89-90(¶ 4). The Court, however, chose not to remand the case for re-sentencing; rather, the Court removed the eight-year suspended sentence and replaced it with five years of post-release supervision. Id. at 90(¶ 6). Upon this Court’s invitation, the supreme court granted the State’s writ of certiorari. Id. The supreme court found that Johnson’s original sentence was legal; therefore, this Court erred in modifying the sentence. In so holding, the supreme court first noted that “suspending a sentence and granting probation are not interchangeable mechanisms.” Id. at 93(¶ 12). The supreme court then discussed two cases that played a particularly crucial role in the development of Mississippi’s law as it pertains to suspended sentences for prior convicted felons, the first of which was Robinson v. State, 585 So.2d 757 (Miss.1991).

¶ 10. In Robinson, a defendant with a prior felony conviction was sentenced to a suspended sentence in addition to supervised probation. Johnson, 925 So.2d at 96(¶ 20). On appeal of the circuit court’s denial of Robinson’s motion for post-conviction relief, the supreme court held that section 47-7-33 does not allow a convicted felon “to receive ‘suspension of sentence and probation,’ and that Robinson should therefore be permitted to withdraw his guilty plea and enter a new plea ... [or] be given the opportunity for a trial if he chose to offer a not guilty plea.” Id. at 97(¶ 20). According to the Johnson court, while the correct result was reached in Robinson, “the road ... traveled to get to [the] final destination was more than a little bumpy.” Id. The court noted the following language in Robinson as precipitating the need to clarify the court’s interpretation of section 47-7-33, stating:

Clearly, [section] 47-7-33 does not permit suspension of sentence and probation to a defendant with a prior felony conviction. Robinson’s suspended sentence and probation was without authority and, therefore, invalid. Because Robinson plead guilty on the improper inducement that he was eligible for a suspended sentence or probation, he is therefore permitted to withdraw his guilty plea and he must be allowed to enter a new plea and offered the opportunity of a new trial. Accordingly, we reverse the judgment below and restore Robinson’s plea of not guilty to the indictment for possession of more than one ounce and less than one kilogram of marijuana and remand for such further appropriate proceedings.

Id. (quoting Robinson, 585 So.2d at 759) (internal citation omitted).

¶ 11. The Johnson court then discussed Goss v. State, 721 So.2d 144 (Miss.1998), which it stated “galvanized” the Robinson holding and was “responsible for perpetuating the interpretation accorded to section 47-7-33.” Id. at (¶ 21). In Johnson, the supreme court quoted from Goss, which relied on Robinson, as follows:

In Robinson, we held the trial court suspended the defendant’s sentence in violation of [section] U7-7-33 due to the defendant’s prior felony conviction. The uncertainty in the instant case stems from the distinguishable fact that only part of Goss’s sentence was suspended by the lower court rather than the entire sentence as in Robinson. We find that the wording of the statute not only restricts the courts’ ability to place defendants with prior felony convictions on probation, but it also restricts their ability to wholly or partially suspend the sentence of a previously convicted felon. Therefore, the lower court erred in sentencing Goss, a convicted felon, to serve seven years in the state penitentiary followed by a conditional three year suspended sentence. Goss is simply not entitled to a suspended sentence in light of his prior conviction.

Johnson, 925 So.2d at 98-99(¶ 22) (quoting Goss, 721 So.2d at 146(¶ 12)). According to the Johnson court, the Goss court misinterpreted Robinson and section 47-7-33 as follows:

The unquestionable flaw in Goss is that it expanded the limiting language of [s]ection 47-7-33, which applies to convicted felons, by replacing the specific language provided for by the Probation Act, which specifically limits a judges’ ability to suspend a sentence and place a convicted felon on probation, with language that prevents judges from placing a convicted felon on probation or suspending the sentence. This new interpretation in Goss changed the landscape of sentencing under [sjection 47-7-33 by prohibiting trial judges not only from imposing supervised probation on a convicted felon, but also from suspending a convicted felon’s sentence, in whole or in part. We now find that Goss’s interpretation of this statute was error. If the legislature had intended for the prior felony exception to apply to both instances where a judge is considering imposition of a “straight” suspended sentence versus supervised probation, the legislature would have used the disjunctive “or” to assure that the prior felony exception applied in both sentencing situations. Importantly, the legislature opted for the conjunctive “and”, as opposed to “or”, which evidences the legislature’s intent that the prior convicted felon exception apply only when the sentencing judge seeks to suspend the imposition or execution of a sentence “and” place the defendant on probation under MDOC supervision.

Id. at 99(¶ 23). The court stated that the holding in Goss “treated suspended sentences and probation as interchangeable sentencing mechanisms born of the same legislative act” when, in fact, “suspending a sentence and imposing probation are distinct events.” Id. at (¶ 24).

¶ 12. The Johnson court found that by enacting Mississippi Code Annotated section 47-7-34, which created the PostARe-lease Supervision Program, the Legislature “return[ed] sentencing discretion back to our trial judges” and “provid[ed] [the supreme court] with the statutory impetus to uphold substantively proper sentencing, which might otherwise have been struck down as ‘illegal’ under Mississippi] Code Ann[otated] [s]ection 47-7-33(1).” Id. at 99-100 (¶¶ 24-25). The court then summarized its holding as follows:

For purposes of clarity, consistency and cohesion, we hold today that the circuit and county courts of this state have the power to suspend, in whole or in part, a convicted felon’s sentence under Mississippi] Code Annotated] section 47-7-33 inasmuch as this Court and the legislature have empowered them to do so under Mississippi] Code Annotated] section 47-7-34, and to the extent that the practice has been historically ingrained in our criminal courts’ sentencing practice. In this way, the appellate courts of this state should liberally read the Probation Act, as codified in 1956, along with the Post-Release Supervision Program, as codified in 1995, with an eye on the intentions of the trial courts, recognizing the trial courts’ ability to monitor or supervise prior convicted felons beyond the five-year maximum period statutorily assigned to the MDOC.
Today, we return the legislatively intended sentencing discretion to our trial courts by clarifying that (1) Mississippi] Code Annotated] section 47-7-33 prohibits the imposition of a suspended sentence and supervised probation on a pri- or convicted felon; however, this statute does not prohibit the imposition of a suspended sentence, in whole or in part, upon a prior convicted felon, so long as the sentence does not involve a period of supervised probation and does not exceed the maximum penalty statutorily prescribed for the felony offense committed; (2) when a suspended sentence and supervised probation are properly imposed upon a first-offender under the provisions of [s]ection 47-7-33, the period of supervision by the Mississippi Department of Corrections is limited to a maximum period of five years; (3) Mississippi] Code Annotated] section 47-7-34 does not prohibit the imposition of post release supervision upon a prior convicted felon, nor does this statute limit the period of post-release supervision to a period of five years; but instead, the period of post release supervision is limited only to the number of years, which when added to the total period of incarceration, would not exceed the maximum penalty statutorily prescribed for the felony offense committed; and, (4) importantly, the statutory limitation of five years applies only to that maximum period of post-release supervision which may be served under the supervision of the Mississippi Department of Corrections. To the extent that our decision in Goss v. State, 721 So.2d 144 (Miss.1998), is in conflict with today’s decision, Goss is expressly overruled.

Johnson, 925 So.2d at 103, 105 (¶¶ 32, 39).

¶ 13. We now turn to the facts of the case before us. Carroll, a prior convicted felon, was sentenced to forty-five years in the custody of the MDOC, with ten years suspended and five years of post-release supervision. In ordering that Carroll serve five years of post-release supervision, the circuit court specifically invoked section 47-7-34. Thus, in accordance with Johnson, Carroll’s prior felony conviction did not prevent him from receiving a suspended sentence. Moreover, Carroll’s sentence, including the period of post-release supervision, did not exceed the maximum penalty statutorily prescribed for the felony offense committed. Pursuant to Mississippi Code Annotated section 97-3-79 (Rev.2006), in the event that a defendant is sentenced by the judge, the penalty shall be “imprisonment in the state penitentiary for any term not less than three (3) years” but, less than a life sentence. See State v. Hayes, 887 So.2d 184, 187(¶ 11) (Miss.Ct.App.2004) (“Section 97-3-79 does not provide for a maximum sentence of life for armed robbery when the sentence is imposed by a judge rather than a jury.”). Thus, Carroll’s sentence of forty-five years, with ten years suspended and five years of post-release supervision, is clearly within the statutory guideline range. Accordingly, Carroll’s argument that his sentence is illegal is without merit.

IV. Whether Carroll was denied his right to a speedy trial.

¶ 14. Carroll contends that he was denied both his constitutional and statutory right to a speedy trial. However, it is well settled that a valid “guilty plea waives the right to a speedy trial, whether that right is of constitutional or statutory origin.” Rowe v. State, 735 So.2d 399, 400(¶ 3) (Miss.1999) (citing Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991)). In this case, Carroll does not challenge the validity of his guilty plea, and the record indicates that the guilty plea was voluntary. Accordingly, as Carroll waived his right a speedy trial when he pleaded guilty, this issue is without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY OF CONVICTION OF ROBBERY WITH A DEADLY WEAPON AND SENTENCE OF FORTY-FIVE YEARS, WITH THIRTY-FIVE YEARS TO SERVE AND TEN YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO UNION COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE AND CARLTON, JJ., CONCUR. IRVING AND ROBERTS, JJ., CONCUR IN RESULT ONLY.

      . We note that section 99-35-101 was recently amended to state that, effective July 1, 2008, "[a]ny person convicted of an offense in a circuit court may appeal to the Supreme Court. However, where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.” 2008 Miss. S.B. 2100. This amendment appears to indicate that even an illegal sentence may not be challenged on direct appeal, but rather must be challenged by way of a petition for post-conviction relief. The amendment, however, is inapplicable to Carroll's appeal as it was perfected prior to the amendment's effective date.

      . For the prior felony conviction Johnson was sentenced to fifteen years' imprisonment, with eleven years suspended and five years of post-release supervision; therefore,
      [t]he practical effect of the sentence ... imposed upon Johnson was that (1) upon completion of the sentence Johnson was serving at the time of the imposition of the sentence under review, Johnson would serve seven years of incarceration; (2) upon release from MDOC custody, Johnson would serve the remaining eight years of his fifteen-year sentence on post-release supervision pursuant to the provisions of Mississippi] Code Ann[otated] [sjection 47-7-34; (3) five years of Johnson's eight-year post-release supervision sentence would be served under MDOC supervision pursuant to the terms and conditions provided by Mississippi] Code Annotated] [s]ection 47-7-35; (4) the remaining three years of Johnson's eight-year post-release supervision sentence would be served as "non-reporting,” meaning that while Johnson would not be under MDOC supervision by reporting to a MDOC probation officer, Johnson would still be required to remain on "good behavior,” such as not committing another crime, not owning, carrying, or concealing a firearm, and not using or possessing illegal drugs; and, (5) if Johnson violated any of the terms of his post-release supervision during this eight-year period, the court would have authority to terminate any part of, or all of, his eight-year post-release supervision, and sentence Johnson to serve a term of up to eight years in the custody of the Mississippi Department of Corrections, pursuant to the provisions of Mississippi] Code Annfotated] [s]ection 47-7-34(2).

        Johnson, 925 So.2d at 89(¶ 3).
      In this case, the circuit judge who sentenced Carroll on the armed robbery conviction ordered that the sentence be served consecutive to the sentence Carroll was already serving; thus, the practical effect of Carroll’s sentence would be as follows; (1) upon the completion of the sentence he was already serving, Carroll would serve thirty-five years of incarceration; (2) upon release from the custody of the MDOC, Carroll would serve the remaining ten years of his forty-five-year sentence on post-release supervision pursuant to the provisions of Mississippi Code Annotated section 47-7-34; (3) five years of Carroll’s ten-year post-release supervision sentence would be served under MDOC supervision pursuant to the terms and conditions provided by Mississippi Code Annotated section 47-7-35; (4) the remaining five years of Carroll's ten-year post-release supervision sentence would be served as "non-reporting,” meaning that while Carroll would not be under MDOC supervision by reporting to a MDOC probation officer, he would still be required to remain on "good behavior”; and (5) if Carroll violated any of the terms of his post-release supervision during this ten-year period, the court would have authority to terminate any part of, or all of, his ten-year post-release supervision, and sentence him to serve a term of up to ten years in the custody of the Mississippi Department of Corrections pursuant to the provisions of Mississippi Code Annotated section 47-7-34(2).

      . The Court reasoned that there was "no practical difference between what the trial judge did and what he should have done, which would have been to sentence Johnson to a seven year term of incarceration and a five year term of post-release supervision.” Id. at 90(¶ 5).

      . After noting that recent supreme court decisions had indicated that there might be two ways to serve post-release supervision, one being five years under the supervision of the MDOC and the other being "unsupervised post-release supervision,” and the possibility that post-release supervision may be permitted for a longer period "so long as the total of the term to serve, the term of supervised supervision, and the term of unsupervised supervision does not exceed the maximum sentence for the offense,” the Court stated that "[l]ater decisions are needed to make the interpretation of post-release supervision more certain.” Johnson, 925 So.2d at 90(¶ 5) (quoting Johnson v. State, 924 So.2d 527, 530(¶ 10) (Miss.Ct.App.2004)).

      . We note that while Weaver and Cooper were not expressly overruled by Johnson, both cases cited Robinson and Goss as support for their conclusion. Weaver, 785 So.2d at 1087-88(119); Cooper, 737 So.2d at 1045(¶ 11). As was discussed above, Johnson expressly overruled Goss and held that Robinson is not to be interpreted as preventing a prior convicted felon from receiving a suspended sentence.