BEFORE ROY NOBLE LEE, P.J., ROBERTSON & SULLIVAN, JJ.
SULLIVAN, JUSTICE, FOR THE COURT:
In mid 1978 Odom was charged with capital murder while engaged in the commission of armed robbery. He was tried in the Circuit Court of Rankin County; at his trial the jury returned a verdict of guilty of the lesser-included offense of murder. Odom was successful in obtaining a new trial from the trial court. Prior to that second trial on December 19, 1978, Odom entered a plea of guilty of murder and was sentenced to life imprisonment.
On December 31, 1984, Odom sought to withdraw his guilty plea and filed a petition for writ of error coram nobis which was summarily dismissed by the Circuit Court of Rankin County on January 4, 1985. On February 6, 1986, this Court reversed that ruling and remanded the cause for a hearing to determine whether there was sufficient evidence to support Odom's claim. See Odom v. State, 483 So. 2d 343 (Miss. 1986).
On April 4, 1986, after hearing argument and considering briefs submitted by both parties, the Circuit Court of Rankin County denied the motion to set aside his guilty plea and petitioner has appealed that order to this Court.
This appeal presents a question of law as to whether
or not correct advice on the state of the law at the time of the guilty plea in 1978 is effective counsel when the law changes some three years later in the United States Supreme Court and some five years later in the State of Mississippi.
At the heart of Odom's contention is that he pled guilty prior to the second trial on the advice of his attorneys that the second trial could result in the imposition of the death penalty upon him. Rather than stand trial after that advice, Odom pled guilty to murder and was sentenced to life imprisonment.
In 1981, some three years after the guilty plea, the United States Supreme Court in Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L.Ed.2d 270 (1981), held that the federal double jeopardy clause precluded the imposition of the death penalty where the trial court had previously sentenced the defendant to life imprisonment for the same crime. Two years later this Court rendered Dycus v. State, 440 So. 2d 246 (Miss. 1983), holding that the double jeopardy clause of our State precluded the imposition of the death penalty where the trial court had previously sentenced a defendant to life imprisonment for the same crime.
Based upon these two cases Odom contends that his plea of guilty to murder should be set aside on the ground that such plea was coerced, based upon" grossly incorrect and erroneous "advice of counsel. Odom argues that the conviction for murder by the jury on November 3, 1978, effectively reduced the charge against him from capital murder to murder and consequently, he could have received no sentence greater than life imprisonment on retrial.
Clearly under the state of the law in this country and this State today, that argument is correct. The issue is, however, was the advice given to Odom in 1978 correct at the time it was given?
In 1978, Jones v. State, 144 Miss. 52, 109 So. 265 (1926), and Butler v. State, 177 Miss. 91, 170 So. 148 (1936), represented the state of the law in Mississippi. In those cases this Court explained that only an actual acquittal or actual conviction raised double jeopardy implication, and that under the precise and exact language of the constitution an implied or constructive acquittal or conviction was not sufficient for double jeopardy purposes.
We find no decisions in our caselaw prior to 1978 which contain holdings contradicting the correctness of the advice given to Odom by his counsel at that time.
Both Odom and the prosecution contend that Tiller v. State, 440 So. 2d 1001 (Miss. 1983), is controlling. In this contention both parties are in error. Tiller is readily distinguishable on its facts for in that case we held that if an appellant could prove that he entered a plea in reliance upon erroneous advice from his attorney, then that plea could be withdrawn. The advice given by the attorney to Tiller was in fact contrary to the law at the time the advice was given. See Tiller at 1004; see also, Mississippi Code Annotated, 47-7-3 and 47-5-139 (Supp. 1982).
That was not the case here. The advice of Odom's counsel at the time of his guilty plea was not erroneous so as to render that plea by Odom unintelligent and therefore involuntary. To the contrary, Jones, supra, held that Jones, who was indicted for murder and convicted of manslaughter and subsequently successful in his motion for a new trial, could again be tried for murder on the same indictment. Later, in Butler, supra, this Court again upheld its ruling in Jones, supra, ...