BEFORE WALKER, SULLIVAN AND ANDERSON
SULLIVAN, JUSTICE, FOR THE COURT:
Willie James Ross was indicted and convicted, in the Circuit Court of DeSoto County, Mississippi, of robbery. He was sentenced to a term of ten years; however, his motion for a
new trial was granted. Ross was retried, with a different judge presiding, reconvicted, and sentenced to twelve years, out of the maximum of fifteen, in the custody of the Department of Corrections. From this conviction, he has appealed, and raised five assignments of error.
We have carefully reviewed the record and applicable law, and conclude that only the assignment concerning Ross's sentence has merit; therefore, the details of the robbery and the subsequent arrest and trial need not be discussed.
DID THE TRIAL COURT ERR IN SENTENCING ROSS TO A TERM OF 12 YEARS, WHICH WAS A GREATER SENTENCE THAN THE PREVIOUS SENTENCE OF 10 YEARS?
The United States Supreme Court, in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L.Ed.2d 656, (1966), had before it the issue of whether the Constitution limited the imposition of a harsher sentence upon retrial when, at the urgence of the defendant, a prior conviction for the same offense had been set aside and a new trial ordered. The issue presented itself in two companion cases. In both, the defendants were successful in having their convictions reversed in post-conviction proceedings and were then retried, convicted and sentenced to prison terms which were longer than those originally imposed.
The Court, through Justice Potter Stewart, held," that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. "395 U.S. at 723, 89 S. Ct. at 2079, 23 L.Ed.2d at 668.
The court went on to explain this holding as follows:
A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant's" life, health, habits, conduct, and mental and moral propensities. ". . . Such information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or possibly from other
sources. The freedom of a sentencing judge to consider the defendant's conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, supra, that a State may adopt the" prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime. "(cites omitted).
The Court next considered the impact of the Due Process Clause of the Fourteenth Amendment, and held that, though it does not prohibit a harsher sentence, due process would not allow vindictiveness against a defendant for having successfully attacked his first conviction to play a part in the sentence he receives after a new trial. The Court held as follows:
Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a ...