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Jenkins v. State

March 11, 1999

GLENDORA JENKINS AND WENDELL WOODARD
v.
STATE OF MISSISSIPPI



The opinion of the court was delivered by: Mills, Justice

ON MOTION FOR PRE-HEARING CONFERENCE

DISTRICT ATTORNEY: LAWRENCE Y. MELLEN

NATURE OF THE CASE: MOTION FOR PRE-HEARING CONFERENCE

DISPOSITION: DENIED - 3/11/99

EN BANC.

¶1. Appellants Glendora Jenkins and Wendell Woodard (a.k.a. Henry Woodard, Jr.) were convicted of the crime of making a false representation with intent to defraud the State, in violation of Miss. Code Ann. § 97-7-10 (1994) as amended. The case involves an alleged scheme by which the appellants used alias names and obtained payments for grain in avoidance of a lien held by the State. The Court of Appeals affirmed the convictions and granted the appellants' motion to stay the issuance of a mandate. The appellants have now filed a motion for prehearing conference pursuant to M.R.A.P. 33, in addition to a Petition for Writ of Certiorari, consideration of which is presently suspended pending a determination of the instant motion.

¶2. M.R.A.P. 33 provides that:

"At any time after the filing of a notice of appeal, the Supreme Court or the Court of Appeals may direct the attorneys for the parties to appear before the court, a Justice of the Supreme Court or a Judge of the Court of Appeals, or a person designated by the appropriate court for a prehearing conference to consider the simplification of the issues and such other matters as may aid in the Disposition of the proceeding by the court, including settlement. The court, Justice, Judge, or person designated shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues to those not disposed of by admissions or agreements of counsel. Such order, when entered, controls the subsequent course of the proceeding, unless modified to prevent manifest inJustice."

¶3. The motion seeking the conference asserts that the parties have reached a settlement but makes no specific statement as to what that settlement may be. The State joins the motion and indicates that an agreement has been reached whereby Jenkins and Woodard would make full restitution to the State in exchange for a suspension or partial suspension of their sentence under the provisions of Miss. Code Ann. § 47-7-47 (Supp. 1998).

¶4. The language of M.R.A.P. 33 does not exclude or limit its application in criminal cases. However, we hold that this rule was not intended to facilitate post-trial settlement or "plea bargains" in criminal cases by the appellate courts. Sound policy considerations dictate that neither this Court nor the Court of Appeals should actively engage or participate in any capacity in the post-conviction negotiation of plea bargains or sentencing and/or re-sentencing matters during the pendancy of any criminal appeal at any stage. This is quite simply not a proper or legitimate function of the appellate courts and would interfere with the appellate courts' legitimate function of impartial review of the record on appeal. We have stated:

" 1. The jurisdiction of this court is fixed by section 146, Const., which reads: "The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals." Under this section, the proper jurisdiction of this court is only "'to review and revise the judicial action of an inferior tribunal,' *** and such incidental jurisdiction 'of a quasi-original character as is necessary to preserve its dignity and decorum and to give full and complete operation *** to its appellate powers."' (citations omitted).

Brown v. Sutton, 158 Miss. 78, 83-84, 121 So. 835, 837 (1929). Neither our jurisdiction, nor that of the Court of Appeals, extends to the negotiation and imposition of plea bargains or original sentencing issues. Such matters are properly left to the discretion of the various trial courts of this State with original jurisdiction in criminal cases. ¶5. The parties have some question as to whether the trial court has jurisdiction to take any action at this stage of the case. However, the record reveals that the trial court originally retained sentencing jurisdiction under the provisions of Miss. Code Ann. § 47-7-47 (2) &(4) (Supp. 1998), which states in relevant part as follows:

". . . .

(2)(a) Any circuit court or county court may, upon its own motion, acting upon the advice and consent of the commissioner at the time of the initial sentencing only, not earlier than thirty (30) days nor later than one (1) year after the defendant has been delivered to the custody of the department, to which he has been sentenced, suspend the further execution of the sentence and place the defendant on earned probation, except when a death sentence or life imprisonment is the maximum penalty which may be imposed or if the defendant has been confined for the conviction of a felony on a previous occasion ...


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