MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Corrections; Judiciary, Division B
By: Senator(s) Hudson
AN ACT TO AMEND SECTION 47-7-29, MISSISSIPPI CODE OF 1972, TO CLARIFY THE STATUS OF A PERSON WHO COMMITS A FELONY WHILE ON ANY TYPE OF SUPERVISED RELEASE; TO AMEND SECTION 47-7-33, MISSISSIPPI CODE OF 1972, TO AUTHORIZE PAYMENT SCHEDULES FOR OFFENDERS WHO OWE FINES, FEES, COSTS, ASSESSMENTS OR RESTITUTION; TO AMEND SECTIONS 47-7-34, 47-7-35, 47-7-37, 47-7-47 AND 99-19-48, MISSISSIPPI CODE OF 1972, TO CONFORM; TO AUTHORIZE LOCAL GOVERNMENTS TO CONTRACT WITH A PRIVATE ATTORNEY, PRIVATE COLLECTION AGENT OR AGENCY, OR THE OFFICE OF THE DISTRICT ATTORNEY FOR THE CIRCUIT COURT DISTRICT IN WHICH THE COUNTY OR MUNICIPALITY IS LOCATED TO COLLECT FROM ANY DEFENDANT WHO HAS FAILED TO MAKE RESTITUTION TO ANY VICTIM OR VICTIMS OR TO PAY ANY FINES, FEES, COSTS OR ASSESSMENTS AS PART OF THE SENTENCE FOR THE CRIME OF WHICH CONVICTED; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 47-7-29, Mississippi Code of 1972, is amended as follows:
47-7-29. Any prisoner who commits a felony while at large upon probation in lieu of the sentence suspended, parole, post-release supervision or earned-release supervision and who is convicted and sentenced therefor shall be required to serve that sentence after the original sentence has been completed, and not concurrently.
SECTION 2. Section 47-7-33, Mississippi Code of 1972, is amended as follows:
47-7-33. (1) 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 the sentence. In placing any defendant on probation, the court, or judge, shall direct that the defendant be under the supervision of the Department of Corrections.
(2) When any circuit or county court places an offender on probation, the court shall give notice to the Mississippi Department of Corrections within fifteen (15) days of the court's decision to place the offender on probation. Notice shall be delivered to the central office of the Mississippi Department of Corrections and to the regional office of the department which will be providing supervision to the offender on probation.
(3) When any circuit court or county court places a person on probation in accordance with the provisions of this section and that person is ordered to make any payments to his family, if any member of his family whom he is ordered to support is receiving public assistance through the Department of Human Services, the court shall order him to make the payments to the Department of Human Services. * * *
(4) When any circuit court or county court places a person on probation in accordance with the provisions of this section and that person is ordered to make restitution to any victim or victims or to pay any fines, fees, costs or assessments as part of the sentence for the crime of which convicted, or is required to make payments as part of the Department of Corrections' program of supervision, the court as a part of the order may set a payment schedule for the fines, fees, costs, assessments, restitution and supervision payments. If the court does not set a payment schedule, the probation officer may set a payment schedule. The person's probation officer shall make a report to the court and to the office of the prosecutor of the original offense at approximately one (1) year before the projected ending time of the period of probation as to whether the probationer is current on the scheduled payments, and if the probationer is not current, the prosecutor may move that the probationer be held in contempt, or the court on its own motion may hold the probationer in contempt if the probationer does not show good cause for the failure to have made the payments as scheduled.
SECTION 3. Section 47-7-34, Mississippi Code of 1972, is amended as follows:
47-7-34. (1) When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision. * * * The total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed. The defendant shall be placed under post-release supervision upon release from the term of incarceration. The period of supervision shall be established by the court; the court at any time may amend its order to set a payment schedule for any fines, fees, costs, assessments, restitution and supervision payments the defendant may owe.
(2) The period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by any terms and conditions as the court may establish, including any payment schedule that has been imposed. Failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released. Procedures for termination and recommitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.
(3) Post-release supervision programs shall be operated through the probation and parole unit of the Division of Community Corrections of the department. The maximum amount of time that the Mississippi Department of Corrections may supervise an offender on the post-release supervision program is five (5) years.
SECTION 4. Section 47-7-35, Mississippi Code of 1972, is amended as follows:
47-7-35. (1) The courts referred to in Section 47-7-33 or 47-7-34 shall determine the terms and conditions of probation or post-release supervision and may alter or modify, at any time during the period of probation or post-release supervision, the conditions imposed and may include among them the following or any other:
That the offender shall:
(a) Commit no offense against the laws of this or any other state of the United States, or of any federal, territorial or tribal jurisdiction of the United States;
(b) Avoid injurious or vicious habits;
(c) Avoid persons or places of disreputable or harmful character;
(d) Report to the probation and parole officer as directed;
(e) Permit the probation and parole officer to visit him at home or elsewhere;
(f) Work faithfully at suitable employment so far as possible;
(g) Remain within a specified area;
(h) Pay his fine in one (1) or several sums;
(i) Support his dependents;
(j) Submit, as provided in Section 47-5-601, to any type of breath, saliva or urine chemical analysis test, the purpose of which is to detect the possible presence of alcohol or a substance prohibited or controlled by any law of the State of Mississippi or the United States;
(k) Register as a sex offender if so required under Title 45, Chapter 33.
(2) When any court places a defendant on misdemeanor probation, the court must cause to be conducted a search of the probationer's name or other identifying information against the registration information regarding sex offenders maintained under Title 45, Chapter 33. The search may be conducted using the Internet site maintained by the Department of Public Safety Sex Offender Registry.
(3) A person sentenced to a term of probation or post-release supervision is required to pay all fines, fees, costs and assessments owed by the person that arose from the adjudication of the offense, as well as all court-ordered restitution to a victim. The officer supervising the person's probation or post-release supervision shall make a report to the court and to the office of the prosecutor of the original offense no less than one (1) year before the projected ending time of the period of probation or post-release supervision as to whether the person on probation or under supervision is current on any scheduled payments, and if not, the prosecutor may move that the probationer or person under supervision be held in contempt, or the court on its own motion may hold him in contempt absent a showing of good cause for the failure to have made the payments as scheduled.
SECTION 5. Section 47-7-37, Mississippi Code of 1972, is amended as follows:
47-7-37. (1) The period of probation shall be fixed by the court, and may at any time be extended or terminated by the court, or judge in vacation. Such period with any extension thereof shall not exceed five (5) years, except: * * *
(a) In cases of desertion and/or failure to support minor children, the period of probation may be fixed or extended by the court for so long as the duty to support such minor children exists;
(b) The period of probation may be fixed or extended by the court until all fines, fees, costs, assessments and any court-ordered restitution have been paid if the probationer reasonably is able to make the payments.
(2) At any time during the period of probation, the court, or judge in vacation, may issue a warrant for violating any of the conditions of probation or suspension of sentence and cause the probationer to be arrested. Any probation and parole officer may arrest a probationer without a warrant, or may deputize any other officer with power of arrest to do so by giving him a written statement setting forth that the probationer has, in the judgment of the probation and parole officer, violated the conditions of probation. Such written statement delivered with the probationer by the arresting officer to the official in charge of a county jail or other place of detention shall be sufficient warrant for the detention of the probationer.
(3) If a probationer or offender is subject to registration as a sex offender, the court must make a finding that the probationer or offender is not a danger to the public before release with or without bail. In determining the danger posed by the release of the offender or probationer, the court may consider the nature and circumstances of the violation and any new offenses charged; the offender or probationer's past and present conduct, including convictions of crimes and any record of arrests without conviction for crimes involving violence or sex crimes; any other evidence of allegations of unlawful sexual conduct or the use of violence by the offender or probationer; the offender or probationer's family ties, length of residence in the community, employment history and mental condition; the offender or probationer's history and conduct during the probation or other supervised release and any other previous supervisions, including disciplinary records of previous incarcerations; the likelihood that the offender or probationer will engage again in a criminal course of conduct; the weight of the evidence against the offender or probationer; and any other facts the court considers relevant.
(4) (a) The probation and parole officer after making an arrest shall present to the detaining authorities a similar statement of the circumstances of violation. The probation and parole officer shall at once notify the court of the arrest and detention of the probationer and shall submit a report in writing showing in what manner the probationer has violated the conditions of probation. Thereupon, or upon an arrest by warrant as herein provided, the court, in termtime or vacation, shall cause the probationer to be brought before it and may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.
(b) If the probationer is arrested in a circuit court district in the State of Mississippi other than that in which he was convicted, the probation and parole officer, upon the written request of the sentencing judge, shall furnish to the circuit court or the county court of the county in which the arrest is made, or to the judge of such court, a report concerning the probationer, and the court or the judge in vacation shall have authority, after a hearing, to continue or revoke all or any part of probation or all or any part of the suspension of sentence, and may in case of revocation proceed to deal with the case as if there had been no probation. In such case, the clerk of the court in which the order of revocation is issued shall forward a transcript of the order to the clerk of the court of original jurisdiction, and the clerk of that court shall proceed as if the order of revocation had been issued by the court of original jurisdiction. Upon the revocation of probation or suspension of sentence of any offender, the offender shall be placed in the legal custody of the State Department of Corrections and shall be subject to the requirements thereof.
(5) Any probationer who removes himself from the State of Mississippi without permission of the court placing him on probation, or the court to which jurisdiction has been transferred, shall be deemed and considered a fugitive from justice and shall be subject to extradition as now provided by law. No part of the time that one is on probation shall be considered as any part of the time that he shall be sentenced to serve.
(6) The arresting officer, except when a probation and parole officer, shall be allowed the same fees as now provided by law for arrest on warrant, and such fees shall be taxed against the probationer and paid as * * * provided by law.
(7) The arrest, revocation and recommitment procedures of this section also apply to persons who are serving a period of post-release supervision imposed by the court.
SECTION 6. Section 47-7-47, Mississippi Code of 1972, is amended as follows:
47-7-47. (1) The judge of any circuit court may place an offender on a program of earned probation after a period of confinement as set out herein and the judge may seek the advice of the commissioner and shall direct that the defendant be under the supervision of the department. If the defendant is under order to make restitution to any victim or victims or to pay any fines, fees, costs or assessments as part of the sentence for the crime of which convicted, or is required to make payments as part of the Department of Corrections' program of supervision, the earned-release probation must be conditioned that the defendant agree to a payment schedule for any fines, fees, costs, assessments and restitution, absent a showing that the defendant is not reasonably able to make any payments.
(2) (a) Any circuit court or county court may, upon its own motion, acting upon the advice and consent of the commissioner not earlier than thirty (30) days nor later than one (1) year after the defendant has been delivered to the custody of the department, to which he has been sentenced, suspend the further execution of the sentence and place the defendant on earned probation, except when a death sentence or life imprisonment is the maximum penalty which may be imposed or if the defendant has been confined two (2) or more times for the conviction of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof or has been convicted of a felony involving the use of a deadly weapon.
(b) The authority granted in this subsection shall be exercised by the judge who imposed sentence on the defendant, or his successor.
(c) The time limit imposed by paragraph (a) of this subsection is not applicable to those defendants sentenced to the custody of the department prior to April 14, 1977. Persons who are convicted of crimes that carry mandatory sentences shall not be eligible for earned probation.
(3) When any circuit or county court places an offender on earned probation, the court shall give notice to the Mississippi Department of Corrections within fifteen (15) days of the court's decision to place the offender on earned probation. Notice shall be delivered to the central office of the Mississippi Department of Corrections and to the regional office of the department which will be providing supervision to the offender on earned probation.
(4) If the court places any person on probation or earned probation, the court may order the person, as a condition of probation, to a period of confinement and treatment at a private or public agency or institution, either within or without the state, which treats emotional, mental or drug-related problems. Any person who, as a condition of probation, is confined for treatment at an out-of-state facility shall be supervised pursuant to Section 47-7-71, and any person confined at a private agency shall not be confined at public expense. Time served in any such agency or institution may be counted as time required to meet the criteria of subsection (2)(a).
(5) If the court places any person on probation or earned probation, the court may order the person to make appropriate restitution to any victim of his crime or to society through the performance of reasonable work for the benefit of the community.
(6) If the court places any person on probation or earned probation, the court may order the person, as a condition of probation, to submit, as provided in Section 47-5-601, to any type of breath, saliva or urine chemical analysis test, the purpose of which is to detect the possible presence of alcohol or a substance prohibited or controlled by any law of the State of Mississippi or the United States.
SECTION 7. Section 99-19-48, Mississippi Code of 1972, is amended as follows:
99-19-48. The following form, to be furnished by the county, shall be used in transmitting the required data for any individual placed on probation under the supervision of the Division of Community Corrections of the Department of Corrections:
"Circuit Court, County of ________________.
To the Mississippi Department of Corrections:
You are hereby notified that at the ________ term, 2___, of the circuit court, Judge _____________ presiding, the following named person was tried, convicted and sentenced to a term in the State Penitentiary. The sentence was suspended and the person was placed on probation:
Name _______________________ Alias ___________________
Date of sentence ___________ Crime ___________________
Term of sentence ___________ Sex _____________________
Race _______________________ Appealed ________________
Remarks: Give brief summary of crime committed. _______
________________________________________________________
________________________________________________________
________________________________________________________
Any fine imposed: _____________________________________
Assessments imposed:____________________________________
Restitution ordered:____________________________________
________________________________________________________
Dated ___________, 2___. ___________________ Clerk."
SECTION 8. The board of supervisors of any county, in its discretion, may proceed under Section 19-3-41(2) to contract with a private attorney, private collection agent or agency, or the office of the district attorney for the circuit court district in which the county is located to collect from any defendant who has failed to make restitution to any victim or victims or to pay any fines, fees, costs or assessments as part of the sentence for the crime of which convicted.
SECTION 9. This act shall take effect and be in force from and after July 1, 2012.