Odom v. State, 56232
| Decision Date | 05 February 1986 |
| Docket Number | No. 56232,56232 |
| Citation | 483 So.2d 343 |
| Parties | Richard Lloyd ODOM v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Richard Lloyd Odom, pro se.
Edwin Lloyd Pittman, Atty. Gen. by Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
Richard Lloyd Odom's petition for a writ of error coram nobis was denied without hearing by the Circuit Court of Rankin County, Mississippi. Odom seeks to have his guilty plea set aside and a new trial granted.
Odom avers that he had previously been tried for capital murder and found guilty but the jury did not impose the death penalty and he was sentenced to life. He was granted a new trial but entered a plea of guilty to murder prior to his second trial. In his petition Odom alleges that he entered the plea of guilty because his attorney advised him that he could be given the death penalty upon retrial. If the events surrounding this case are as alleged by the petitioner, this advice was erroneous.
In Dycus v. State, 440 So.2d 246 (Miss.1983), this Court held that the question of the maximum sentence possible was irrevocably settled when, at the end of the defendant's first trial for capital murder, the judge sustained the defense motion and sentenced Dycus to life imprisonment. The Court reasoned that the judge had made a judicial determination on the maximum sentence as life imprisonment and this was tantamount to a directed verdict on that issue. Dycus' death sentence from his second trial was reversed, and he was sentenced to life imprisonment.
In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the Supreme Court held that the death penalty could not be imposed at a second capital murder trial where the defendant had been sentenced to life imprisonment at the first trial by a jury using a bifurcated sentencing procedure.
Because the sentencing proceedings at petitioner's first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury also is available to him, with respect to the death penalty, at his retrial. 451 U.S. at 446, 101 S.Ct. at 1862, 68 L.Ed.2d at 284.
This case is remanded for a full hearing on the issue of whether the petitioner was advised by his attorney that he could be given the death penalty upon retrial and, not wanting to take that chance, entered a plea of guilty based upon this erroneous advice. Should the court find sufficient evidence to support the petitioner's claim, the petitioner should be allowed to withdraw his guilty plea and be given a new trial.
We would also point out that, in dismissing the petition, the trial judge erroneously applied the three-year statute of limitations provided for under the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA), Miss.Code Ann. § 99-39-1...
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