Gardner v. State, 56636
| Citation | 514 So.2d 292 |
| Decision Date | 13 May 1987 |
| Docket Number | No. 56636,56636 |
| Parties | Timothy Lenwood GARDNER v. STATE of Mississippi. |
| Court | United States State Supreme Court of Mississippi |
Tyree Irving, Walls & Irving, Greenville, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and PRATHER and GRIFFIN, JJ.
This matter first appeared before this Court in 1984 when appellant's conviction of the crime of armed robbery was affirmed. Gardner v. State, 455 So.2d 796 (Miss. 1984). The appellant was sentenced to a 15-year term and to this sentence the Court stated the following:
However, in view of the fact that the appellant was only fourteen years of age at the time of the commission of the crime and was only fifteen years of age at the time of sentence, justice requires that the trial court consider alternative sentences provided for under the Youth Court Act and make a record of that consideration and ultimate findings as outlined in May v. State, 398 So.2d 1331 (Miss. 1981). (emphasis in original)
The case was reversed and remanded to the trial court for proceedings on the sentencing question only. The trial court conducted a full hearing, as mandated by May v. State, 398 So.2d 1331, and the case appears here again for review of the sentence.
In May, we reviewed the various alternative methods of sentencing minors and stated the following:
We think the Legislature, in providing alternative methods of sentencing of minors, intended in cases involving special circumstances surrounding a minor defendant, that the trial judge consider seriously those alternatives enumerated in the statute and that the presence or absence of facilities for care of a minor offender be considered in mitigation of the punishment provided by statute. In our opinion, in addition to his consideration of the expert testimony, which became a part of the record on the sentencing phase, the trial judge should have placed in the record the sources and facts of his study and should have permitted appellant's counsel to introduce evidence of the presence or absence of facilities at Mississippi State Penitentiary for care of the appellant, and the availability of other institutions or facilities which could be utilized by appellant. Therefore, we remand the cause to the lower court for hearing further evidence of extenuation or mitigation and for sentencing not inconsistent with this opinion.
May, at 1340.
The trial judge, after giving everyone concerned and their witnesses a full opportunity to be heard and express opinions as to the proper sentence, found that under Miss.Code Ann. Sec. 43-21-159(3), the sentencing section of the Youth Court Act, his alternatives were to:
1. Commit Defendant to the county jail for any term not in excess of one (1) year.
2. Suspend sentence and release on probation.
3. Commit such child to the custody of the Department of Corrections.
4. Impose a fine as though such child was an adult under such terms and conditions as may be prescribed.
5. The Circuit Court shall not have the authority to commit such child to the custody of the Department of Youth Services for placement in a state supported training school.
The circuit judge is correct. These are the alternatives under the Youth Court Act. The circuit judge further found that at the time of the sentencing order, April 4, 1985, defendant was then 18 years of age and, under Sec. 43-21-159 Chapter 435, General Laws of 1983, he no longer could be sentenced to a state training school. The trial judge concluded that the alternatives did not provide proper and sufficient punishment for this defendant, and sentenced him to the aforesaid 15-year term for armed robbery under Miss. Code Ann. Sec. 97-3-79.
When we decided May, the circuit judges could, in addition to the above mentioned alternatives, commit such child to any state institution now or hereafter established for delinquents (Sec. 43-21-159 before amendment).
In 1983 House Bill No. 354 was introduced to establish a Drug Identification Program under the Department of Corrections. This was the sole purpose of the Bill as originally introduced, except to provide for the manner of administration. The bill passed the House with no dissent. House Journal 1983, page 230. This popular piece of legislation had a strange thing happen to it once it reached the inner sanctum of a Senate committee; matters foreign to its original purpose were inserted. 1
The authority of a circuit judge to commit a minor to a training institution was not only removed by Committee Amendment 1 but expressly prohibited:
"The circuit court shall not have the authority to commit such child to the custody of the Department of Youth Services for placement in a state-supported training school."
Committee Amendment 1 also contained the following:
"... judge may, in his discretion, commit such child to the county jail for any term not in excess of one (1) year, or he may suspend sentence and release on probation, or commit such child to the custody of the Department of Corrections or impose a fine as though such child were an adult, under ..." [this was the only authority left to the circuit judges].
And the title to the Act was amended by Committee Amendment 1 to include the following:
"to amend Section 43-21-159, Mississippi Code of 1972, in conformity thereto and to remove the authority of circuit courts to sentence children convicted in such courts to the custody of the Department of Youth Services for placement in a state training school; "
We next have committee amendment No. 3, as follows:
"(4) In no event shall a court sentence an offender over the age of eighteen (18) to the custody of the Department of Youth Services for placement in a state-supported training school."
Senate Journal 1983, pp. 830-31.
The Act was finally passed as Chapter 435 of the General Laws of 1983 and approved by the Governor on March 30th of that year; this was the reason for our statement that the circuit judge was correct in his statement as to the alternatives afforded by the present law.
While we are at a loss to understand any societal need for the legislation, still it was within the power of...
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