BEFORE ROY NOBLE LEE, DAN LEE, and ANDERSON
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
James E. Pierce has appealed to this Court from an order of the Circuit Court, Kemper County, Mississippi, denying his motion to vacate and/or modify a judgment of the court sentencing him to ten (10) years in the custody of the Mississippi Department of Corrections, after entering a guilty plea to an indictment for manslaughter/culpable negligence. Appellant assigns three errors in the hearing on said motion, but we address only the question of whether or not the lower court erred in declining to set aside the guilty plea.
On January 22, 1983, appellant was driving an automobile while under the influence of intoxicating liquor
and collided with another automobile occupied by an 18-year-old young man named Marcus D. Purvis, resulting in the death of Purvis. The blood alcohol content of appellant measured .34.
Appellant was indicted for manslaughter/culpable negligence on March 22, 1983, and, after two continuances, trial date was set for March 21, 1984. Appellant was represented by Attorney Helen McDade, and on March 20, 1984, he filed a petition to enter a plea of guilty. The lower court conducted a hearing on the petition, and, after satisfying itself as to the voluntariness of the plea and the understanding of same by appellant, accepted the plea on March 21, 1984, and set sentencing November 5, 1984. The record reflects that the district attorney made known unto the court that at the sentencing he would recommend a sentence of five (5) years suspended, and payment to the family of the deceased the sum of five thousand dollars ($5,000) reimbursement for burial expenses and damage to the Purvis automobile.
Prior to the sentencing date, appellant paid into court the sum of one hundred thirty dollars ($130.00) on the agreed amount of $5,000. On November 5, 1984, the sentencing date was continued until November 9, 1984, at which time the district attorney announced to the court that there was no plea bargain because appellant had not fulfilled his part of the agreement by paying into court the sum of $5,000 as agreed upon. Thereupon, the court sentenced appellant to a term of ten (10) years in the custody of the Mississippi Department of Corrections.
Appellant contends that it was his understanding he was to receive a five-year suspended sentence and that he pay a sum of $5,000 for the benefit of the Purvis family. However, he argues that he was unable, and is unable, to raise and pay the sum of $5,000; that he is indigent; and that the sentence should be vacated and modified to a sentence of five (5) years suspended and payment of $5,000, when, and if, he can do so. Attorney Helen McDade testified at the hearing as follows:
I submitted to him in detail what the district attorney said that he would recommend to the court, that he pay the sum of $5,000 for burial expenses of the man he killed and damages to the automobile, and that amount was the amount that was set to cover it. He was to receive a 5-year sentence- suspended sentence if he abided by this agreement. He fully understood this . . . . I told him at the time that he couldn't play with the court, that he
would have to abide by the agreement or he wouldn't have any agreement with the court.
Q. During your negotiations with the State did you understand and did you convey to the defendant's understanding that he would have to meet his end of the bargain before we would make a five year recommendation? A. I did.
Q. On the day of the sentence.
A. I absolutely did and in addition to that when he came before this Court and I stood by him in this court room before this Court the Court, also, told him the same thing. Indeed I did and indeed the Court did.
Appellant testified at the hearing that he asked Attorney McDade" What would happen if I did not have all the money? "and that she told him," Well, the only thing I know they would do would be give you time to pay the money. The best thing to do is just plead guilty to five years. "Shirley Mobley testified for appellant and corroborated his testimony that Attorney McDade told him the court would probably give him more time. She ...