Burns v. StateBurns v. State
A.F. Summer, Atty. Gen., by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
BROOM, Justice, for the Court:
By habeas corpus petition Burns (appellant) challenged the legality of his sentence and confinement which followed his plea of guilty to the sale of marijuana. Burns was charged under
The state does not challenge habeas corpus as Burns’ form of action here where he seeks post-conviction relief from his sentence upon a guilty plea entered on November 16, 1976. Next day he gave notice of appeal. Then on December 1, 1976, well within the time to perfect his appeal, he filed his Petition for Writ of Habeas Corpus which was heard and denied the same day. An order was entered leaving Burns’ sentence unchanged except his commitment was then made to the Department of Corrections rather than to the penitentiary as ordered on November 16, 1976.
Nelson v. Tullos, 323 So. 2d 539 (Miss. 1975), held that habeas corpus has the principal function of testing the legality of a petitioner‘s detention prior to conviction. We said in Nelson that habeas corpus as a post-conviction remedy may be used to release a petitioner from confinement only where his conviction rests upon an invalid statute, or was by a court lacking jurisdiction. See also, Keller v. Romero, 303 So. 2d 481 (Miss. 1974); State v. Ridinger, 279 So. 2d 618 (Miss. 1973). In the instant case, after the lower court entered its final order dated December 1, 1976, Burns gave a second notice of appeal to the court reporter
Burns contends that because he is under twenty-one years of age,
Any person who has not reached his twenty-first (21st) birthday and who is convicted of a first offense under subsections (a), (b), or (c) of section 41-29-139, shall, or of a second or subsequent offense under subsections (d) or (e) of section 41-29-139, in the discretion of the court, may be confined under the terms set out in subsection (c) above for all or any portion of the sentence imposed.
Subsection (c), relied upon by Burns, provides that a juvenile first offender under age twenty-one shall be confined at East Mississippi State Hospital at Meridian, or Mississippi State Hospital at Whitfield, for the term of his sentence. This statute was interpreted by this Court in Worthy v. State, 308 So. 2d 921 (Miss. 1975), to require sentencing of “juvenile first offenders” to one of the two state hospitals. Worthy does not hold that the indictment must charge a prior conviction in order to constitute basis of a sentence to confinement other than in a hospital. Language from earlier cases is cited in Worthy to the effect that “when there is substantial doubt as to which of the two (statutes) is to be applied,” the statute providing lesser punishment is to be applied. Conflicting statutes or statutes ambiguous as to punishment are not involved in the instant case where Burns himself does not contend he is a “first offender” — thus Burns’ case is the opposite of Worthy. The resolution of “substantial doubt” was applied favorably to Worthy because he was a true first offender. Davis v. State, 323 So. 2d 741 (Miss. 1975), says that the holding in Worthy does not preclude the trial judge in sentencing juvenile first offenders from utilizing other legislative provisions which would promote his rehabilitation. In Davis we required the sentence to be changed to require confinement in a hospital rather than in the penitentiary, but there according to the record he was factually a first offender, which is not true of Burns here.
Burns admitted on questioning by the judge prior to sentencing that he had previously pleaded guilty to two other similar offenses (sale of marijuana). Clearly he was not a first offender but one who previously had been twice convicted of selling marijuana.
Burns contends that
Burns argues that under this Court‘s decision in Lay v. State, 310 So. 2d 908 (Miss. 1975), in order for him to be sentenced as was done in this case, the indictment with particularity must state the prior conviction. In essence he says that his prior convictions cannot be considered by the sentencing judge unless the indictment charges the prior convictions. Applying the rationale of his argument to the facts, if the judge is unable to look outside the indictment for facts to help him decide upon an appropriate sentence, he could not consider Burns as under twenty-one because Burns’ age is not mentioned in the indictment. Clearly judges need to know all available data about a defendant in order to determine judiciously the type sentence to be meted out. Prior convictions and age of a defendant about to be sentenced are two vital factors which judges universally consider regardless of whether such information appears on the face of the indictment. Obviously Burns confuses Lay with and fails to note its distinguishing features from his case. Lay dealt with a conviction under
Burns was not indicted or sentenced under
(2) Any other controlled substance classified in Schedules I, II or III, as set
out in sections 41-29-113 to 41-29-121, is guilty of a felony and upon conviction may be imprisoned for not more than twenty (20) years, or fined not more than thirty thousand dollars ($30,000.00), or both;
Careful reading of the above language shows that it merely provides limits of the penalty which may be imposed upon a defendant charged under said
The original sentence imposed in this case directed Burns to be confined at the Mississippi State Penitentiary. In dealing with the habeas corpus petition, the judge corrected his order by committing Burns to the Mississippi Department of Corrections pursuant to
AFFIRMED.
GILLESPIE, C.J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER and LEE, JJ., concur.
SUGG, J., took