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TIMOTHY LENWOOD GARDNER v. STATE OF MISSISSIPPI

MAY 13, 1987

TIMOTHY LENWOOD GARDNER
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., PRATHER AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This matter first appeared before this Court in

1984 when appellant's conviction of the crime of armed robbery was affirmed. Gardner v. State, 455 So. 2d 796 (Miss. 1984). The appellant was sentenced to a 15-year term and to this sentence the Court stated the following:

 However, in view of the fact that the appellant was only fourteen years of age at the time of the commission of the crime and was only fifteen years of age at the time of sentence, justice requires that the trial court consider alternative sentences provided for under the Youth Court Act and make a record of that consideration and ultimate findings as outlined in May v. State, 398 So. 2d 1331 (Miss. 1981). (emphasis in original)

 Id. at 800-801.

 The case was reversed and remanded to the trial court for proceedings on the sentencing question only. The trial court conducted a full hearing, as mandated by May v. State, 398 So. 2d 1331, and the case appears here again for review of the sentence.

 In May, we reviewed the various alternative methods of sentencing minors and stated the following:

 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

 and for sentencing not inconsistent with this opinion.

 May, at 1340.

 The trial judge, after giving everyone concerned and their witnesses a full opportunity to be heard and express opinions as to the proper sentence, found that under Miss. Code Ann. 43-21-159 (3), the sentencing section of the Youth Court Act, his alternatives were to:

 1. Commit Defendant to the county jail for any term not in excess of one (1) year.

 2. Suspend sentence and release on probation.

 3. Commit such child to the custody of the Department ...


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