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JESSE ALLEN, JR., a/k/a JESSE JAMES ALLEN, JR. v. STATE OF MISSISSIPPI

SEPTEMBER 21, 1983

JESSE ALLEN, JR., a/k/a JESSE JAMES ALLEN, JR.
v.
STATE OF MISSISSIPPI



BEFORE, PATTERSON, C.J., BOWLING AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

On May 23, 1973, Jesse James Allen, Jr., and several companions robbed the Citizens Bank of Hattiesburg. He was subsequently indicted for armed robbery which at that time carried a maximum punishment of death except that

 in cases where the jury fails to fix the penalty at death, the court shall fix the penalty at imprisonment in the penitentiary for any term not less than three years. Miss. Code Ann. 97-3-79 (1972). [Emphasis added].

 Pursuant to this statute, Allen received a sixty year sentence.

 Subsequent to the date of his crime, but prior to the date of his sentence, the Legislature amended the statute. *fn1 The possible penalty of death was eliminated. The jury was empowered to sentence the defendant to life imprisonment. Where the jury failed to do so, the court was empowered to fix the penalty at imprisonment for a term reasonably expected to be less than life. Miss. Laws of 1974, ch. 576 4 (effective April 23, 1974). See Stewart v. State, 372 So. 2d 257 (Miss. 1979).

 To be sure, under the amended statute Allen's sentence is too long. He was 26 years old at the time he was ordered to serve 60 years in prison. This exceeds his life expectancy. Under the amended statute the Circuit Judge could only have imposed a sentence reasonably expected to be less than life. Stewart v. State, supra. Under the pre-April 23, 1974, version of the statute, a 60 year sentence was within the sentencing judge's power.

 Allen argues that he should have been sentenced under the amended statute. He presented the matter to the Circuit Court of Forrest County via a petition filed under Rule 8.07 of our Uniform Criminal Rules of Circuit

 Court Practice. On November 17, 1982, the Circuit Court entered its order denying Allen any relief. It is from that order that he has prosecuted the instant appeal.

 II.

 We are presented two questions, the first, one of power, the second, involving the exercise of discretion.

 A.

 1.

 The power to prescribe penalties to be exacted from those committing acts made unlawful under the criminal laws of this state is vested entirely in our Legislature. Purely and simply, our Legislature fixes the punishments for crimes. Gabriel v. Brame, 200 Miss. 767, 773, 28 So. 2d 581, 583 (1947); Howell v. State, 300 So. 2d 774, 780 (Miss. 1974); Upshaw v. State, 350 So. 2d 1358, 1360 (Miss. 1977). There can be no doubt but that it was in the lawful power of the Circuit Court of Forrest County to impose upon ...


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