Gulley v. State
| Decision Date | 26 February 2004 |
| Docket Number | No. 2002-CA-01301-SCT.,2002-CA-01301-SCT. |
| Citation | 870 So.2d 652 |
| Parties | Charles Douglas GULLEY, Jr. v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
R. Charles Robb, Jackson, attorney for appellant.
Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
EN BANC.
¶ 1. This appeal arises from an Order of the Jackson County Circuit Court Dismissing Post-Conviction Proceedings. Charles Douglas Gulley, Jr., argues that after being sentenced for the same offenses under both the misdemeanor and felony portions of then-existent Miss.Code Ann. § 97-23-19 (Rev.2000), he was unlawfully imprisoned and is now entitled to be released because he has completed the misdemeanor sentence. Finding that the trial court sentenced Gulley under the felony portion of the statute and had additional statutory authority to impose a fine pursuant to Miss.Code Ann. § 99-19-32 (Rev.2000), we affirm the trial court's dismissal of Gulley's post-conviction proceedings.
¶ 2. On July 7, 1998, the Jackson County Grand Jury returned a 35-count indictment against Gulley, charging him with the embezzlement of funds by a bailee under Miss.Code Ann. § 97-23-19. By way of this indictment, Gulley was charged with having embezzled $3,144,828.90 between September 1990, and March 1998, while serving as an agent for Minnesota Mutual Life Insurance Company, Inc., a Minnesota corporation. The State elected to put Gulley to trial on seven of the thirty-five counts in the indictment. Gulley's trial in the Jackson County Circuit Court commenced on May 24, 1999, and concluded on May 29, 1999, with the jury finding Gulley guilty of each of the seven counts. Pursuant to the jury verdicts, Judge James W. Backstrom imposed penitentiary sentences upon Gulley on June 3, 1999. The sentencing order entered that day stated, inter alia:
[U]pon the Defendant's conviction on the seven counts of Embezzlement, the Defendant, C. Douglas Gulley, be, and he is hereby, sentenced to serve Ten (10) years in custody of the Mississippi Department of Corrections on each of the above Counts 1 through 6, to run concurrent with each other, and to serve Ten (10) years in custody of the Mississippi Department of Corrections on the above Count 7, consecutive to the sentences in Counts 1 through 6, with the sentence in Count 7 suspended, and the Defendant to be placed on 10 years Post Release Supervision upon release from custody pursuant to and in accordance with the terms and provisions of Section 47-7-34 and Section 47-7-35 of the Mississippi Code as set forth in Exhibit "A" attached hereto, and should the Defendant fail to abide by the terms and provisions of the Post Release Supervision, then such Post Release Supervision shall be revoked, and the Defendant recommitted to the correctional facility from which he was previously released for a period of up to Ten (10) additional years, and the Defendant is assessed the costs of this proceeding and a fine of $1,000.00 on each count for a total fine of $7,000.00.1
¶ 3. Aggrieved by the judgment of conviction, Gulley perfected a direct appeal of the trial court's denial of post-conviction motions for a J.N.O.V. or, in the alternative, a new trial. Gulley remained at liberty on bond pending his appeal to this Court, and he thus paid the court-ordered $7,000 fine on July 27, 2000. We assigned Gulley's appeal to the Court of Appeals which affirmed the trial court judgment on January 9, 2001. Gulley v. State, 779 So.2d 1140 (Miss.Ct.App.2001). Gulley then filed a motion in this Court for leave to file a post-conviction motion in the Circuit Court of Jackson County. Gulley's application was granted by this Court and remanded to the Jackson County Circuit Court. Gulley v. State, No.2001-M-00256-SCT (Miss. March 18, 2002).
¶ 4. Upon remand, Judge Backstrom, on June 11, 2002, entered his Order Dismissing Post-Conviction Proceedings. Pursuant to Miss.Code Ann. § 99-39-19 (Rev. 2002), Judge Backstrom found that there was no material fact in dispute and that Gulley was not entitled to an evidentiary hearing on a question of law. Out of an abundance of caution, Judge Backstrom did however delete from the original sentencing order any reference to a fine and ordered the $7,000 fine returned to Gulley; however, Gulley refused to accept the proffered refund.
¶ 5. At the time of Gulley's conviction, Miss.Code Ann. § 97-23-19 (Rev.2000) read as follows:
If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bailee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, or employment, either in mass or otherwise, with a value of Five Hundred Dollars ($500.00) or more, he shall be guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the penitentiary not more than ten years, or fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.
(emphasis added). While not applicable here, we note that 2003 Miss. Laws ch. 499 § 7, effective July 1, 2003, amended Miss. Code Ann. § 97-23-19, to revise the values and penalties for embezzlement. The 2003 amendment states:
If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bailee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, or employment, either in mass or otherwise, with a value of Five Hundred Dollars ($500.00) or more, he shall be guilty of felony embezzlement, and, upon conviction thereof, shall be imprisoned in the Penitentiary not more than ten (10) years, or fined not more than Ten Thousand Dollars ($10,000.00), or both. If the value of such goods, rights in action, money or other valuable security, effects, or property of any kind is less than Five Hundred Dollars ($500.00), he shall be guilty of misdemeanor embezzlement, and, upon conviction thereof, shall be imprisoned in the county jail not more than six (6) months, or fined not more than One Thousand Dollars ($1,000.00), or both.
Miss.Code Ann. § 97-23-19 (Supp.2003) ().
¶ 6. Gulley was sentenced under the felony portion of the statute, as it then existed, by being ordered to serve ten years per counts one through six, with the sentences to run concurrently, and Gulley was sentenced to serve ten years on count seven consecutive to counts one through six, with the sentence in count seven to be suspended. Gulley was placed on ten years' post-release supervision upon his release from the custody of MDOC. As part of his "Post Release Terms and Provisions," Gulley was ordered to pay a fine in the amount of $7,000. These sentences and terms evidence that the trial judge intended Gulley to be sentenced under the felony portion of the embezzlement statute. We also find the provisions of Judge Backstrom's Order Dismissing Post-Conviction Proceedings to be compelling:
It is clear that the sentence in this case was legal, although it can be argued that the fine was excessive [footnote omitted]. This argument, however, overlooks Section 99-19-32 of the Mississippi Code that allows a fine in felony cases of $10,000 per case where no fine is allowed by the felony sentencing statute. Nevertheless, the Court will proceed arguendo with the proposition that the fine in these cases was excessive and not a sentencing alternative. The small fine in these cases was ancillary to imprisonment, as it was the intention of this Court to send this Petitioner to the penitentiary for the commission of these very serious crimes. This small fine should be treated as surplusage and deleted, and the amount of the fine returned to the Petitioner. [citations omitted]. An excessive sentence can be corrected, and the entire sentence does not have to be discharged. Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). Additionally, even though this Court in the interests of justice will require the fine to be returned to the Petitioner, this Petitioner should have raised this issue that the sentence exceeds the maximum allowed by law pursuant to § 99-39-5(1)(d) in the trial court on appeal, but he did not. Since the sentence was not void, or the sentence had not expired, or the prisoner had not been unlawfully held in custody pursuant to § 99-39-5(1)(g), he has waived his right to present this issue under the post-conviction act. [citation omitted].
¶ 7. Gulley took offense to some of the language in Judge Backstrom's order and filed with this Court his Motion to Strike Order Dismissing Post-Conviction Proceedings.2 In this motion, Gulley alleged inter alia that Judge Backstrom, in denying Gulley's post-conviction (PCR) motion, had "interjected evidence not of record before that Court" such as (1) Gulley's subsequent guilty pleas to the remaining 28 counts in the indictment, (2) Judge Backstrom's stated "intention" that the punishment should fit the crimes, (3) Gulley's misappropriation of funds in excess of $3,000,000, (4) Judge Backstrom's stated reliance on Miss.Code Ann. § 99-19-32 to undergird his assessment of the fines, and (5) Judge Backstrom's finding that the fine was "ancillary to imprisonment"...
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