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JACKIE GARDNER v. STATE OF MISSISSIPPI

SEPTEMBER 28, 1988

JACKIE GARDNER
v.
STATE OF MISSISSIPPI



EN BANC

PRATHER, JUSTICE, FOR THE COURT:

Jackie Gardner filed in the Circuit Court of the First Judicial District of Hinds County a motion for post-conviction relief attempting to have his guilty plea to a conspiracy indictment set aside or, alternatively, to have his sentence for that crime reduced. The motion was overruled after a hearing. Feeling aggrieved, Gardner brings this appeal and assigns as error the following:

(1) The indictment did not charge Jackie Gardner with a felony under Mississippi law and the lower court erred in sentencing him to serve a term of imprisonment in the Department of Corrections, in violation of the due process requirements of the Mississippi and United States Constitutions.

 (2) Section 97-1-1, Miss. Code (1972), as amended, is void for vagueness because it fails to meet the requisite minimum due process requirements of notice and definiteness under the Mississippi and United States Constitutions.

 (3) Jackie Gardner's plea of guilty was not made knowingly and voluntarily and the lower court erred in accepting his plea.

 (4) The lower court erred in refusing to allow Jackie to withdraw his plea of guilty.

 (5) The lower court erred in denying Jackie Gardner sufficient time to review his presentence report in violation of Mississippi law, the United States and Mississippi Constitutions and the Mississippi Uniform Rules of Criminal Procedure.

 STATEMENT OF THE FACTS

 On February 29, 1984, Gardner submitted to the Insurance Commission a statement of financial condition of his insurance company, State Security Life Insurance Company, a Mississippi Corporation. The statement showed that the company met the minimum surplus requirements under 83-19-31, Miss. Code Ann. (1972). In compiling this statement, Gardner valued a certificate of accrual of treasury shares (hereinafter referred to as CATS bond) at its matured value of three hundred thirty thousand dollars ($330,000.00) instead of its present value of approximately seventy thousand dollars ($70,000.00).

 At the January, 1985 term, the grand jury for the First Judicial District of Hinds County, Mississippi, indicted Jackie Gardner under 97-1-1, Miss. Code Ann. (1972) for conspiracy to operate an insurance company in violation of 83-5-55, 83-19-31, and 83-19-73, Miss. Code Ann., 1972, as amended.

 After denial of several preliminary motions, filed by his attorney, on July 28, 1986, Gardner pled guilty to the charge of conspiring to operate a financially impaired insurance company. He pled guilty pursuant to a plea agreement between his attorney with the State of Mississippi in which the State agreed to request that the court nol pros the charge of conspiracy to commit perjury and to not object to the imposition of a suspended sentence.

 In his petition to plead guilty, Gardner admitted his guilt of the offense charged in the indictment, acknowledged his understanding that the maximum sentence for his crime was five (5) years and five thousand dollars ($5,000.00), and further acknowledged the plea bargain.

 At the hearing on Gardner's petition to plead guilty, he testified that he understood: the nature of the charge; the rights he was relinquishing by pleading guilty; that the lower court was not bound by any plea bargain; that no one had assured him that the lower court would give him any

 particular sentence; and that if he pled guilty he had no right to appeal the sentence he received. The lower court accepted the guilty plea and delayed sentencing until a presentence report could be prepared.

 On August 15, 1986, Gardner filed a motion, and subsequently on amended motion, to withdraw his guilty plea, alleging that he was not guilty of the charged offense. The motion was denied after hearing.

 Thereafter, on October 10, 1986, Gardner was sentenced to a term of five years in the custody of the Mississippi Department of Corrections, with two years suspended and three years to serve.

 On October 23, 1986, Gardner filed a motion for post| conviction relief citing as grounds that: he was not indicted for a felony; he did not plead guilty to a felony; he should have been permitted to withdraw his guilty plea; his guilty plea was not entered voluntarily and knowingly; and he was denied a reasonable time to review the presentence report. At the hearing, both the district attorney and the assistant district attorney stated that the plea bargain was limited to neither opposing nor recommending a suspended sentence. Gardner's motion was denied on October 28, 1986; he now appeals that denial.

 I.

 DID THE INDICTMENT FAIL TO CHARGE A FELONY PERMITTING THE ...


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