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DONALD E. SMITH v. STATE OF MISSISSIPPI

SEPTEMBER 11, 1985

DONALD E. SMITH
v.
STATE OF MISSISSIPPI



BEFORE WALKER, PRESIDING JUSTICE, HAWKINS AND PRATHER, JJ.

WALKER, PRESIDING JUSTICE, FOR THE COURT:

Donald E, Smith appeals from the decision of the Circuit

Court of Forrest County denying his petition for writ of habeas corpus and to withdraw guilty plea,

 Smith entered a plea of guilty in Causes 7771, 7772, and 7774 and was sentenced to life imprisonment for murder, forty-five years for armed robbery, and forty-five years for kidnapping Appellant alleges that his sentences should run concurrently rather than consecutively.

 Reviewing the record of the hearing conducted on appellant's petition, we find that appellant's petition was properly denied. We adopt as our own the opinion of the Circuit Judge stated as follows:

 That on July 11, 1973 Donald E. Smith was sentenced to Serve Life in the Mississippi State Penitentiary, in Cause 7771, Forrest County Circuit Court for the crime of Murder; that on July 11, 1973 Donald E. Smith was sentenced for Forty-five (45) Years in the Mississippi State Penitentiary, in Cause 7772, Forrest County Circuit Court, for the crime of Armed Robbery; that Donald E. Smith on July 11, 1973 was sentenced to serve Forty-Five (45) Years in the Mississippi State Penitentiary, in Cause 7774, Forrest County Circuit Court, for the crime of Kidnapping: that the Court reviewed the Minutes containing these sentences and took into consideration the testimony of Marian Brown (present Circuit Clerk), who, on July 11, 1973 was a Deputy Circuit Clerk, and who testified that, on that date, it was customary to type the actual sentences in the Minute Book pages (as opposed to the current practice of placing a Xerrox [sic] copy of the Sentencing Order in the Minute Book), and who further testified that it was the custom of the Court that separate sentences were to run consecutively, unless the typed sentence, contained in the Minute Book, specified that the separate sentences were to run concurrently; that there is no mention in these sentence orders that the three (3) separate sentences are to run concurrently.

 That the said Donald E. Smith was represented by competent counsel when he entered his separate pleas of guilty, and

 that the said counsel, Attorney Andrew Gambrell, testified that the said Donald E. Smith had been advised of all of his constitutional and statutory rights, and that Mr. Gambrell communicated to Mr. Smith that his sentences would run consecutively, and not concurrently, and that he, Mr. Gambrell, had spent 9.75 hours in conference with Mr. Smith concerning the investigation of his case, the plea bargain negotiations, and the discussion that the sentences would run consecutively. Mr. Gambrell further testified that Mr. Smith expressed" relief "concerning the disposition of these cases.

 That the sworn testimony of former Judge Stanton Hall, the sentencing judge, and of Mrs. Betty Sherrill, the former Court Reporter, who was present on the day of the sentencing, reflects that Mr. Donald E. Smith was" qualified "by the sentencing judge prior to accepting the Defendant's pleas of guilty and that the entered pleas of guilty were voluntary.

 That this Petitioner, on the day of sentencing, never indicated that he believed that the sentences would run anything other than consecutive with each other.

 Finally, the Court finds that the Petition for Writ of Habeas Corpus and to Withdraw Guilty Plea is not meritorious, and that the same should be overruled and denied, in all particulars.

 Although appellant does not raise the issue on appeal, the court notes that the sentence imposed in Cause 7774 for the crime of kidnapping exceeds that allowed by statute. Miss. Code Ann. 97-3-53, as it read at the time of appellant's sentencing and as presently enacted, provides that the maximum sentence that may be imposed by the court for the crime of kidnapping is thirty years, even though a jury might impose a sentence of life imprisonment.

 The denial of the writ of habeas corpus is affirmed; however, we remand this cause to the Circuit Court of Forrest County for ...


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