Before Thomas, P.j., King, And Southwick, JJ.
The opinion of the court was delivered by: King, J.
DATE OF JUDGMENT: 08/27/96
TRIAL JUDGE: HON. ROBERT G. EVANS
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: COUNT IV SUBMITTING FRAUDULENT DOCUMENTS TO A GOVERNMENTAL ENTITY: SENTENCED TO SERVE A TERM OF 12 MONTHS IN THE CUSTODY OF THE MDOC, SENTENCE SHALL NOT BE REDUCED OR SUSPENDED, NOR SHALL THE DEFENDANT BE ELIGIBLE FOR PAROLE OR PROBATION;
DISPOSITION: SENTENCE IS REVERSED; THIS MATTER IS REMANDED FOR AN ADDITIONAL SENTENCING HEARING AND PROPER PROPORTIONALITY ANALYSIS-12/18/98
¶1. Johnny Pool was convicted of submitting a fraudulent invoice to the Jones County Board of Education, in violation of Miss. Code Ann. § 97-7-10 (Rev.1994). He was sentenced to serve a term of one year, without the benefit of parole, in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Pool has appealed and assigned two points of error:
I. THE COURT ERRED IN NOT DIRECTING A VERDICT FOR THE DEFENDANT AT THE CONCLUSION OF THE STATE'S CASE AND AT THE CONCLUSION OF ALL THE EVIDENCE FOR THE FOLLOWING REASONS, AND THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
A. THE INVOICE UPON WHICH THE DEFENDANT'S CONVICTION IS BASED WAS NEVER PRESENTED TO THE SCHOOL BOARD OR ITS REPRESENTATIVES FOR PAYMENT, NOR INDEED WAS IT EVER PAID.
B. THE STATE TOTALLY FAILED TO MAKE OUT A PRIMA FACIE CASE OF FALSE PRETENSE OR INTENT TO FRAUD.
II. THE COURT ERRED IN GRANTING JURY INSTRUCTION S-5A.
¶2. On cross appeal, the State of Mississippi alleges that the circuit court committed reversible
error by sentencing Pool to serve only one year. The State argues that because the circuit court
determined Pool to be an habitual offender pursuant to Miss. Code Ann. §99-19-81, he should have
received a mandatory sentence of five years.
¶3. This Court finds that Pool's two assignments of error are without merit. On the State's cross-appeal, this Court finds that the trial court, when sentencing Pool, failed to fully articulate its proportionality analysis in accordance with Harmelin v. Michigan, 501 U.S. 957 (1991) and Hoops v. State, 681 So.2d 521 (Miss.1996). Accordingly, this Court reverses the sentence imposed and remands this matter for an additional sentencing hearing and proper proportionality analysis.
¶4. During the fall of 1994, the Jones County Board of Education contracted with Pool's Tree Service to perform activities such as tree branch trimming, tree cutting, and stump grinding. Pool completed job assignments on the campuses of two schools in the Jones County School District, Northeast Jones High School and West Jones High School. ¶5. Under the contract, Pool priced all completed work and submitted invoices to Denny Johnson, the school district's sixteenth section land manager, for approval. Johnson testified that he personally inspected each job site, signed the invoices and then returned them to Pool. Upon receiving Johnson's approval, Pool submitted the invoices to the Jones County Board of Education for payment.
¶6. From September 23, 1994 to November 15, 1994, Pool submitted five invoices for work performed on the West Jones High School campus. In the first four invoices, he billed for cutting 195 trees and grinding seven stumps. The school district paid for these services. In the last invoice dated November 15, 1994, Pool billed for cutting an additional 46 trees and grinding 46 stumps on the West Jones campus. Questioning whether Pool had actually performed this work, the school district refused to pay. The Jones County Board of Education initiated an investigation of Pool's activities.
¶7. On November 21, 1994, Scott Lewis, the business manager for the school district, and Joey Landrum, the purchasing agent, viewed the West Jones High School campus to determine the extent of work completed by Pool. Both men testified that they found a total of 70 stumps on this campus. Approximately eight wood chip piles were found indicating that only eight stumps had been ground.
¶8. Seven months later, Warren Emfinger, an investigator for the Public Integrity Division of the Mississippi Attorney General's Office, also viewed the West Jones campus. Emfinger testified that he found seven "soft" spots where sawdust from ground stumps had apparently scattered. He also ...