Denton v. Maples

• Decision Date: 04 March 1981
• Docket Number: No. 1149,1149
• Citation: 394 So.2d 895
• Parties: Sue DENTON v. Honorable Darwin M. MAPLES. Misc.
• Court: Mississippi Supreme Court

Page 895

394 So.2d 895

Sue DENTON v. Honorable Darwin M. MAPLES.

Misc. No. 1149.

Supreme Court of Mississippi.

March 4, 1981.

Albert S. Johnston, III, Johnston & Steinberger, Pascagoula, for appellant.

Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, Boyce Holleman, Holleman & Krogstad, Gulfport, for appellee.

En Banc.

ROBERTSON, Presiding Justice, for the Court:

On January 21, 1981, Sue Denton filed a Petition for Writ of Mandamus against Circuit Judge Darwin M. Maples of the Nineteenth Circuit Court District, praying that this Court issue a Writ of Mandamus requiring Judge Maples to vacate the January 9, 1981, Order of the Circuit Court of Jackson County directing the Sheriff of the County:

"(T)o take the person of Sue Denton into custody and place her in the Adult Detention Center of Jackson County, Mississippi to begin her sentence in the above styled and numbered cause of this court of eighteen (18) years, said defendant having not yet begun to serve said sentence, as previously affirmed by the Mississippi Supreme Court on August 26, 1977, in Supreme Court Cause Number 49,811."

This Order was issued by Circuit Judge Clinton E. Lockard.

A chronology of events is in order:

On January 27, 1976, Sue Denton was convicted of the crime of aggravated assault with a deadly weapon on Doug Lee, and was sentenced to serve a term of eighteen years in the Mississippi State Penitentiary.

On May 28, 1976, a motion for a new trial and a separate motion for a judgment of acquittal non obstante veredicto were overruled by the Circuit Court of Jackson County.

On July 9, 1976, an appeal from the conviction and sentence was perfected to this Court.

On August 10, 1977, the opinion of this Court affirming both the conviction and sentence was announced and published.

On August 18, 1977, Judge Darwin M. Maples entered an Order stating:

"This day this cause came on to be heard on the petition of the Defendant, Sue Denton, for reconsideration of her previously imposed sentence and the court being fully advised in the premises as to all of the allegations contained in her petition and having heard statements made by the victim, Doug Lee, in this cause and having read a report by the said defendant's physician, Julius Bosco, M.D., is of the opinion that the petition should be and is hereby sustained.

"IT IS THEREFORE ORDERED AND ADJUDGED, that the sentence heretofore imposed upon the Defendant, Sue Denton, should be and is hereby suspended until further order of this court so that she may obtain medical care.

"IT IS FURTHER ORDERED AND ADJUDGED, that contemporaneous with the order entered herein there is an agreed order being entered in civil action cause number 9550 in this court which said order carried with it certain agreements made and entered into between the parties in said suit who are the victim in this cause, Doug Lee and the Defendant herein, Sue Denton, and a condition of the suspension of sentence in this cause should be and is hereby directed that the Defendant, Sue Denton, abide by and perform each and every agreement made and entered into in the agreed order in cause number in this court and should Sue Denton fail to perform any of the agreements therein then the suspension of sentence in this cause shall be immediately revoked and she shall thereupon be reincarcerated."

The "Agreed Judgment" in Civil Cause No. 9550 ordered Sue Denton to pay $15,000 damages to Douglas L. Lee, the victim of her aggravated assault.

On August 26, 1977, the mandate of this Court affirming the conviction and sentence was directed to the Circuit Court of Jackson County. The mandate closed with this language:

"YOU ARE THEREFORE HEREBY COMMANDED, That such execution and further proceedings be had in said cause, as according to right and justice, and the judgment of our SUPREME COURT and the law of the land ought to be had."

The mandate of this Court was ignored and the suspension of sentence remained in effect until Sue Denton was picked up and confined, in accordance with the January 9, 1981, order.

The Circuit Court of Jackson County had neither authority nor jurisdiction to issue its order of August 18, 1977, suspending the execution of the sentence of confinement affirmed by this Court on August 10, 1977. The Order of the Circuit Court of August 18, 1977, was a nullity and void ab initio. Black's Law Dictionary, Revised Fourth Edition (1968), at page 1114, defines mandate in this way:

"A command, order, or direction, written or oral, which court is authorized to give and person is bound to obey. Silverman v. Seneca Realty Co., 276 N.Y.S. 466, 154 Misc. 35. A judicial command or precept proceeding from a court or judicial officer, directing the proper officer to enforce a judgment, sentence, or decree. Seaman v. Clarke, 69 N.Y.S. 1002, 60 App.Div. 416; Horton v. State, 63 Neb. 34, 88 N.W. 146.

"A precept or order issued upon the decision of an appeal or writ of error, directing action to be taken, or disposition to be made of case, by inferior court. Egbert v. St. Louis & S. F. R. Co., 50 Okl. 623, 151 P. 228, 230."

The execution of the mandate of this Court is a purely ministerial act. 24B C.J.S. Criminal Law § 1952(1), (1962).

In Edmonds v. Delta Democrat Pub. Co., 221 Miss. 785, 75 So.2d 73 (1954), this Court stated the purpose and role of the mandate in clear and unmistakable language:

"When the circuit court heard and sustained appellant's motion to dismiss the counterclaim on January 26, 1954, no mandate had issued out of this Court for the reason that the costs taxed against appellant had not been paid. The circuit court had no jurisdiction, and all proceedings in the circuit court since appellant perfected his original appeal amount to a nullity. The appeal transferred jurisdiction to this Court, where it remains pending the appeal. This is the general rule. 3 Am.Jur., Appeal and Error, Par. 528. The circuit court, being divested of jurisdiction, had no power to proceed to dismiss the counterclaim.

"It is inherently necessary that this Court have some method of advising the lower court of the action taken here; under our practice the method used is the mandate, a certified copy of the judgment here entered on the appeal. The trial court may not receive any other intelligence of the action of this Court; and until the mandate is issued by the clerk of this Court no jurisdiction is reinvested in the lower court; and no proceedings may be had in the lower court until it receives and files the mandate. 3 Am.Jur., Appeal and Error, par. 1229; Roberson v. Quave, 211 Miss. 398, 401, 51 So.2d 62, 777.

221 Miss. at 787-88, 75 So.2d at 74. (Emphasis added).

In a later case, ...