Before Bridges, C.j., Coleman, And Irving, JJ.
The opinion of the court was delivered by: Bridges, C.j.
DATE OF JUDGMENT: 02/10/1998
TRIAL JUDGE: HON. GRAY EVANS
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: FRANK CARLTON
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
TRIAL COURT DISPOSITION: PETITION FOR POST-CONVICTION RELIEF DENIED
DISPOSITION: AFFIRMED - 3/23/99
MOTION FOR REHEARING FILED:
¶1. This case involves an appeal from a Washington County Circuit Court order denying post-conviction relief to Robert L. Davis. In his motion for post-conviction relief, Davis attacked his 1972 conviction and life imprisonment sentence for the crime of forcible rape, arguing that the Judge was without authority to sentence him to life imprisonment absent a recommendation by a jury. The trial Judge denied Davis's motion finding Bullock v. Harpole, 233 Miss. 486, 102 So. 2d 687 (1958), to be the controlling case law. On appeal, Davis challenges the denial of his motion. We affirm.Like the appellant in Bullock, Davis was indicted and entered a plea of guilty under Miss. Code § 2358 (1942), which provided that a person convicted of the crime of rape, as defined in the statute, shall suffer death, unless the jury shall fix the punishment at imprisonment in the penitentiary for life, as it may do in case of murder. Upon acceptance of Davis's guilty plea, the trial Judge sentenced Davis to life imprisonment, which was the milder sentence of only two possible penalties (death or life imprisonment) for the crime of rape under the law as it existed at the time Davis was convicted. There was no provision in § 2358 for a sentence of a term of years upon conviction of rape.
¶2. The Mississippi Supreme Court recently stated with approval the holding in Bullock that § 2358 does not expressly require a jury be empaneled on a plea of guilty for the purpose of fixing the punishment at life imprisonment:
In Bullock v. Harpole [233 Miss. 486, 102 So. 2d 687 (1958)] this Court addressed the entry of a guilty plea on the crime of rape. The defendant argued on appeal that the statute required sentencing by a jury; and thus, that the imposition of sentence by the trial Judge upon entry of his guilty ...