BEFORE ROY NOBLE LEE, C.J.; PRATHER AND ROBERTSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
Following our remand for resentencing, Gardner v. State, 531 So. 2d 805, 808, 810 (Miss. 1988), Jackie Gardner reappeals to this Court and challenges his new misdemeanor sentence of six months imprisonment and payment of a $1,000.00 fine as having been imposed at a time when the Circuit Court had no jurisdiction
because it had not received the mandate from this Court on his prior appeal.
The record before us reflects the following course of proceedings. On September 28, 1988, this Court rendered a formal opinion and order finally denying Gardner's challenge to the judgment that he stand convicted of the offense of conspiracy to operate an insurance company in violation of state law. Miss. Code Ann. 83-5-5, 83-5-69, 83-19-75, and 97-1-1 (1972). The Court held, however, that this offense was a misdemeanor and not a felony and that the maximum punishment to which Gardner may lawfully be subjected was that provided by Miss. Code Ann. 99-19-31 (Supp. 1989). Gardner, 531 So. 2d at 808, 810.
On October 7, 1988, Gardner, personally and through counsel, appeared before the Circuit Court of Hinds County, Mississippi, whereupon that Court imposed the present six month/$1,000.00 fine sentence, to take effect in futuro. As of that date, the Circuit Court had not received this Court's mandate disposing of Gardner's prior appeal. By reason thereof, the Court announced
that imposition of this sentence shall be stayed until the 21st day of October, at which time the mandate of the Mississippi State Supreme Court should be received by this Court. In the event that the mandate is not received by that time, then that sentence will not be imposed until such time as the mandate is received.
Then, in the Court's formal sentencing order, the Circuit Court provided:
Sentence to be deferred until October 21, 1988, or the date of receipt of the mandate of the Mississippi Supreme Court.
The Court's mandate was issued by the clerk of this Court on October 21, 1988, but was not in fact received by the clerk of the Circuit Court of Hinds County until October 24, 1988. Gardner has not been brought before the Circuit Court for resentencing since that time. Instead, he has perfected an appeal to this Court from the resentencing order and has obtained release on bail pending appeal. Gardner argues that the hearing and sentencing order of October 7, 1988, are void and of no force and effect because on that date the Circuit Court was without jurisdiction to do anything, much less impose a new sentence.
It is certainly true that the Circuit Court had no authority to resentence Gardner until jurisdiction of the case was revested
there, although the view once that the jurisdiction of this Court wholly deprived the trial court of authority to take any action at all has been considerably amehorated. See, e.g., Rule 60, Miss. R. Civ. P.; Rules 3, 6, 8, 9, 10, 11, Miss. Sup. Ct. Rules; Ward v. Foster, 517 So. 2d 513, 516-17 (Miss. 1987); Wilson v. State, 461 So. 2d 728, 729 (Miss. 1984).
This Court's decision on Gardner's original appeal was rendered September 28, 1988. No petition for rehearing was filed. Rule 41 (a) provides:
The mandate of this Court shall issue twenty-one (21) days after the entry of judgment unless the time is shortened or enlarged by order.
No order shortening or enlarging the time having been entered, the mandate should have been issued on October 19, 1988. In fact and in law authority to resentence could become vested in the Circuit Court only upon that Court's receipt of the mandate. In Edmonds v. Delta ...