58 So. 3d 715
Miss. Ct. App.2011Background
- Cummings was convicted of embezzlement under Miss. Code Ann. §97-23-19 after being the manager of three Stinsons-owned stores in Jones County, Mississippi.
- The State presented evidence that missing deposits at the Daphne store totaled $7,309.59; evidence about the other two stores was not admitted at trial.
- Cummings admitted responsibility for handling deposits but denied taking the money and offered excuses for missing deposits.
- The circuit court sentenced her to ten years with restitution of $34,411.04, post-release supervision, and community service; restitution was to be paid.
- Cummings moved for a new trial; conviction and sentence were appealed on sufficiency of evidence, restitution amount, and whether restitution violated her Sixth Amendment rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for embezzlement | Cummings argues no evidence of conversion. | State contends circumstantial proof meets element of conversion. | Sufficient circumstantial evidence supported conversion. |
| Restitution amount legally supported | State failed to prove $34,411.04 was embezzled. | Judge had discretion; amount not properly proven at sentencing. | Restitution amount reversed; remanded for proper determination. |
| Sixth Amendment jury-trial issue on restitution | Restitution must be submitted to jury per Apprendi. | Apprendi does not apply to restitution. | Issue procedurally barred; no plain error established. |
Key Cases Cited
- Bush v. State, 895 So.2d 836 (Miss. 2005) (standard for reviewing directed verdicts and sufficiency of evidence)
- Patterson v. State, 724 So.2d 920 (Miss. Ct. App. 1998) (conversion element may be proven circumstantially)
- Powell v. State, 536 So.2d 13 (Miss. 1988) (restitution evidence cannot be based on testimony not in evidence)
- Dohrmann v. U.S., 442 F.3d 1279 (11th Cir. 2006) (Apprendi not applied to restitution rulings)
- U.S. v. Garza, 429 F.3d 165 (5th Cir. 2005) (Sixth Amendment not violated by restitution fact-finding)
- Mingo v. State, 944 So.2d 18 (Miss. 2006) (procedural bar against appeals for certain issues)
- Flora v. State, 925 So.2d 797 (Miss. 2006) (plain-error standard in appellate review)
- Hoops v. State, 681 So.2d 521 (Miss. 1996) (discretion in sentencing within statutory limits)
- Owens v. State, 17 So.3d 628 (Miss. Ct. App. 2009) (abuse of discretion standard for sentences)