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ROBERT EARL MAY, JR., ALIAS BUBBA v. STATE OF MISSISSIPPI

AUGUST 10, 1983

ROBERT EARL MAY, JR., ALIAS BUBBA
v.
STATE OF MISSISSIPPI



EN BANC.

ROY NOBLE LEE, JUSTICE, FOR THE COURT:

This is the second appeal of Robert Earl May, Jr. (Bubba May) from a sentence of twelve (12) years in the custody of the Mississippi Department of Corrections for armed robbery. On the present appeal, May presents the following contentions:

I. Sentence to 12 years in the custody of the Mississippi Department of Corrections is not" in the best interests of the child and the public welfare; and constitutes cruel and unusual punishment as applied to Robert Earl "Bubba" May, Jr.

 II. Renewed sentence of twelve years in the Mississippi State Penitentiary, Department of Corrections, constitutes an abuse of discretion, a failure to follow the mandate of this Court and the law of this case, a violation of statutory law, and denies appellant equal protection and due process of the laws of this State and of the United States of America.

 May was born April 9, 1964. On December 26, 1978, at the age of 14 years, he and three other black males, ages 17, 18 and 25 years, one of whom was armed with a

 shotgun, committed a robbery in Lincoln County, Mississippi. Upon indictment and arraignment, all four entered pleas of guilty and each was sentenced to twelve (12) years in the custody of the Department of Corrections. Public criticism resulted from May's sentence, due to his age, and the court granted his motion to withdraw the guilty plea and entered a plea of not guilty for him. After a trial on the merits, appellant was found guilty by a jury and again was sentenced by the court to twelve years.

 That conviction and sentence were appealed to this Court and the judgment of conviction was affirmed, but the case was remanded to the lower court for hearing further evidence of extenuation or mitigation at the sentencing phase, since the record then before us did not indicate the judge's knowledge of the alternatives mentioned in the sentencing hearing. There was no way for this Court to determine what the trial judge considered. *fn1 In remanding the case, we said:

 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 an for sentencing not inconsistent with this opinion. (Emphasis supplied) [398 So. 2d at 1340].

 The record presently before us indicates that May's counsel introduced extensive evidence, exhibits and documents bearing upon the matter of extenuation and mitigation of the sentence; that the trial judge had full and complete knowledge

 of the facts and circumstances surrounding appellant and of the alternatives available to him in imposing sentence; and that he seriously considered them. Excerpts from his finding and opinion follow:

 So the Court is aware that there are some facilities within the State of Mississippi. There are public and private elementary and secondary schools in the county of the defendant's residence and throughout the State of Mississippi. The Court is aware that there are two State supported training schools located at Columbia and at Oakley, under the jurisdiction of the Department of Youth Services in Mississippi, and the Judge has visited each and observed their limited facilities. The Court is aware of the regional mental health services: the State Hospital at Whitfield; East Mississippi at Meridian, and the Ellisville State School at Ellisville, Mississippi; the North Mississippi Retardation Center at Oxford, and the Hudspeth Retardation Center at Whitfield. Each serves useful purposes and provides special facilities and treatment for those in their care.

 The Court is aware that under the provisions of Section 43-21-159 (3) of the Mississippi Code of 1972 as amended, known as the Youth Court Law alternative sanctions are provided wherein it is provided that if any child shall be convicted by a Circuit Court, the Trial Judge, if he deems it for the best interest of such child and the public welfare, may, in his discretion and in lieu of other statutory punishment, commit such child to any state institution now or hereafter established for delinquents, or may commit such child to the county jail for any term not in excess of one year, or he may suspend sentence and release on probation under such terms and conditions as he may prescribe, and said Court shall have the power to change the custody of such child and terminate jurisdiction over said child in the same manner as is provided in that Chapter for the Youth Court.

 This Court is aware the state institutions established for delinquents are at Columbia, Mississippi and at Oakley, and are under the jurisdiction of the Department of Youth Services. Section 41-21-605 of the Mississippi Code of 1972, as amended, being also a part of the Youth Court Law, provides that

 the training school may retain jurisdiction of the child until the child's 20th birthday but for no longer. The superintendent of a state training school may parole a child at any time he may deem it in the best interest and welfare of such child The Court is aware of the Juvenile Justice and Delinquent Prevention Act and the Congressional passage of the 1980 Amendment ...


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