IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-CT-00058-SCT
CHARLES BESTER
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 09/26/2012
TRIAL JUDGE: HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: CHARLES BESTER (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 04/14/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
LAMAR, JUSTICE, FOR THE COURT:
¶1. Charles Bester pleaded guilty to forcible rape, and the trial judge sentenced him to life
imprisonment. Bester petitioned for post-conviction relief (PCR), arguing that the forcible-
rape statute allows only a jury to impose a life sentence, and absent a recommendation from
a jury, a trial judge is powerless to impose such a sentence. The trial court and the Court of
Appeals rejected this argument and denied Bester’s PCR motion. We agree with both courts
and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. The following facts are adopted from the Court of Appeals’ decision:
During the January 1992 Jones County term, a grand jury indicted Bester in
cause number 7791 on two counts: Count I was the forcible rape of [name
deleted] in violation of Mississippi Code annotated section 97-3-65 (Rev.
1985); Count II was the Robbery of [name deleted] in violation of Mississippi
Code Annotated section 97-3-73 (1972).
On August 31, 1992, and pursuant to a plea agreement, Bester pled guilty to
both counts. According to the sentencing order filed the same day, the circuit
court accepted Bester’s pleas as “entered freely, voluntarily, and intelligently.”
The sentencing order also states: “The circuit court is further advised by
Bester, Bester’s counsel, and the State’s attorneys that plea negotiations have
been conducted and that the recommendation of the State is mutually
acceptable to all parties.” The circuit court accepted the State’s
recommendation that Bester be sentenced to life in the custody of the MDOC
for the charge of rape and to seven years in the custody of the MDOC for the
charge of robbery, with both sentences to run concurrently to each other. It
was so ordered.
On September 14, 2012, Bester filed a “motion to correct an illegal
sentence,”[1] alleging that a life sentence for the crime of forcible rape must
only be imposed by a jury. And because a jury did not impose his life
sentence, he claimed he was “laboring under a sentence, of which the circuit
judge had no authority to impose. Thus making his current sentence of life .
. . an illegal sentence.” Additionally, Bester claimed that because his sentence
is illegal, he has presented an exception to the time-bar. Analyzing Bester’s
motion as a PCR motion, the circuit court summarily dismissed the motion as
time-barred, and found “the merits of Bester’s PCR motion entitled him to no
relief and no hearing . . . .”
Bester v. State, 2014 WL 3720550, at *1 (Miss. Ct. App. July 29, 2014) (alterations omitted).
¶3. The Court of Appeals rejected both of Bester’s arguments and affirmed the trial
court’s judgment. We granted Bester’s petition for certiorari. After reviewing Bester’s pro
se arguments, we invited the Appellate Practice Section of the Mississippi Bar to designate
1
This was Bester’s second PCR; he filed his first in 2006.
2
one or more of its members to brief several additional issues on Bester’s behalf, as pro bono
amici curiae. We have carefully reviewed the supplemental briefs filed by Bester, the State
and the amici curiae, and we now affirm the judgments of the Court of Appeals and the trial
court.
STANDARD OF REVIEW
¶4. “When reviewing a trial court’s decision to deny a petition for post-conviction relief,
this Court will not disturb the trial court’s factual findings unless they are found to be clearly
erroneous.” Twillie v. State, 892 So. 2d 187, 189 (Miss. 2004) (citation omitted). But we
review questions of law de novo. Id.
DISCUSSION
¶5. The sole issue before us is whether the trial judge had the authority to sentence Bester
to life imprisonment, absent a recommendation from the jury. We hold that he did.
¶6. Bester pleaded guilty and was sentenced under Mississippi Code Section 97-3-65(2)2
which states, in pertinent part:
[U]pon conviction, [the defendant] shall be imprisoned for life in the State
Penitentiary if the jury by its verdict so prescribes; and in cases where the jury
fails to fix the penalty at life imprisonment the court shall fix the penalty at
imprisonment in the State Penitentiary for any term[3] as the court, in its
discretion, may determine.
2
Presently, the forcible-rape statute is codified as Mississippi Code Section 97-3-
65(4)(a) (Rev. 2014).
3
We emphasize that our statute allows the court to fix the penalty of imprisonment
“for any term,” rather than for “a term of years” or “any term of years.” And despite the
protestations of the dissenters, we note that this Court and the Court of Appeals have used
the phrase “term of life imprisonment” in at least 233 opinions.
3
(Emphasis added.) The statute’s plain language authorizes a trial judge to sentence a
defendant to imprisonment “for any term as the court, in its discretion, may determine.”
Miss. Code Ann. § 97-3-65(4)(a) (Rev. 2014) (emphasis added). “Any term” includes life
imprisonment. “Our law has long provided that the imposition of sentence following a
criminal conviction is a matter within the discretion of the Circuit Court, subject only to
statutory and constitutional limitations.” Jackson v. State, 551 So. 2d 132, 149 (Miss. 1989)
(emphasis added). Bester’s sentence violates neither. And “[s]o long as these are not
offended, we rarely interfere.” Id. As such, Bester’s sentence is not illegal.
¶7. Bester argues, and we acknowledge, that this Court previously has interpreted this
statute to prohibit a trial judge from sentencing a defendant to life imprisonment without a
jury recommendation.4 We also are cognizant of the principle of stare decisis: “[e]ven
though this Court’s previous interpretation of a statute was (in the current Court’s view)
erroneous, we must continue to apply the incorrect interpretation.” Bell v. State, 160 So. 3d
188, 195 (Miss. 2015).
¶8. But “stare decisis is not an inexorable command.” Payne v. Tennessee, 501 U.S. 808,
828, 111 S. Ct. 2597, 115 L. Ed. 2d. 720 (1991). And this Court has declined to continue
applying an incorrect interpretation when we find that it is “‘pernicious,’ ‘impractical,’ or
‘mischievous in . . . effect, and resulting in detriment to the public.’” Id. (citations omitted).
“‘Pernicious’ is defined as ‘having a harmful effect, especially in a gradual or subtle way.’”
Hye v. State, 162 So. 3d 750, 765 n.6 (Miss. 2015) (Kitchens, J., dissenting). We think it
4
See, e.g., Luckett v. State, 582 So. 2d 428 (Miss. 1991); Friday v. State, 462 So. 2d
336 (Miss. 1985); and Lee v. State, 322 So. 2d 751 (Miss. 1975).
4
pernicious, i.e., harmful, for this Court to continue to exceed its constitutional authority by
judicially amending Section 97-3-65(4)(a) and limiting a judge’s sentencing authority as
established by the Legislature.
¶9. Sentencing is solely within the Legislature’s purview, and for a conviction of forcible
rape, the Legislature has chosen to give a trial judge the authority to sentence a defendant to
any term he or she deems appropriate, if a jury fails to fix the term at life. And in other
contexts when the Legislature has chosen to restrict a trial judge’s sentencing options to a
term of years, it has clearly and specifically done so. For example, the kidnapping statute
contains almost identical language regarding the jury’s “fixing” of the penalty and states that
one convicted of kidnapping
upon conviction, shall be imprisoned for life in the custody of the Department
of Corrections if the punishment is so fixed by the jury in its verdict. If the jury
fails to agree on fixing the penalty at imprisonment for life, the court shall fix
the penalty at not less than one (1) year nor more than thirty (30) years in the
custody of the Department of Corrections.
Miss. Code Ann. § 97-3-53 (Rev. 2014) (emphasis added). These minimum and maximum
sentencing guidelines are noticeably absent from Section 97-3-65(4)(a).
¶10. In short, we simply cannot continue to ignore the plain language of Section 97-3-
65(4)(a). The Legislature chose not to limit a trial judge’s sentencing options, and today we
return to a faithful application of Section 97-3-65(4)(a)’s plain language. We do so because
of our “constitutional mandate to faithfully apply the provisions of constitutionally enacted
legislation.” Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 820 (Miss. 2006). To
5
the extent that Luckett v. State, Friday v. State, and Lee v. State hold otherwise, they are
hereby expressly overruled.
¶11. As a final note, because Bester’s sentence is not illegal, we agree with the Court of
Appeals that Bester’s motion is barred as a successive writ and is time-barred as well.
Bester, 2014 WL 3720550, at *4. See also Rowland v. State, 98 So. 3d 1032, 1035-36
(Miss. 2012).
CONCLUSION
¶12. The trial judge had statutory authority to sentence Bester to life imprisonment, absent
a recommendation from the jury. We therefore affirm the trial court’s and the Court of
Appeals’ denial of his PCR motion.
¶13. AFFIRMED.
DICKINSON AND RANDOLPH, P.JJ., COLEMAN AND BEAM, JJ.,
CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY WALLER, C.J., AND KING, J. KING, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND KITCHENS,
J. MAXWELL, J., NOT PARTICIPATING.
KITCHENS, JUSTICE, DISSENTING:
¶14. I fully concur with the well-reasoned dissent authored by Justice King. Nevertheless,
the gravity of the majority’s decision today constrains me to write, inasmuch as Charles
Bester was sentenced to, and is serving, an illegal sentence that the trial court lacked the
authority to impose upon him. I, therefore, respectfully dissent.
¶15. Mississippi Code Section 97-3-65(4)(a) (Rev. 2014) provides that:
Every person who shall have forcible sexual intercourse with any person . . .
upon conviction, shall be imprisoned for life in the State Penitentiary if the
6
jury by its verdict so prescribes; and in cases where the jury fails to fix the
penalty at life imprisonment, the court shall fix the penalty at imprisonment in
the State Penitentiary for any term as the court, in its discretion, may
determine.
Miss. Code Ann. § 97-3-65(4)(a) (Rev. 2014) (emphasis added).
¶16. Today’s majority, which purportedly returns this Court’s jurisprudence to a “plain
language” interpretation of Section 97-3-65(4)(a), omits from consideration the clauses
which qualify the trial court’s discretion to fix the penalty “for any term.” Here, no jury
prescribed a sentence of life imprisonment for Bester. In truth, no jury prescribed, or failed
to prescribe, any penalty, as Bester pled guilty to forcible rape. The statute’s plain language
predicates the trial court’s consideration of a life sentence upon a jury’s failure “to fix the
penalty at life imprisonment.” This Court specifically has held that “[a] defendant convicted
under this statute may not be sentenced to life imprisonment unless the jury fixes the penalty
at life imprisonment.” Luckett v. State, 582 So. 2d 428, 430 (Miss. 1991), overruled on other
grounds by Rowland v. State, 42 So. 3d 503 (Miss. 2010). The majority’s statement that
“[t]he Legislature chose not to limit a trial judge’s sentencing options,” is not a faithful
representation of the totality of the statutory language, which explicitly limits the trial court’s
consideration of imprisonment “for any term” to “cases where the jury fails to fix the penalty
at life imprisonment.” Maj. Op. ¶10. The trial court lacked authority to sentence Bester to
imprisonment “for any term” because no jury had failed “to fix the penalty at life
imprisonment.” In fact, no jury had done or failed to do anything at all concerning Bester’s
sentence.
7
¶17. Additionally, a life sentence is not a “term.” A “term” has an easily defined beginning
and ending. A life sentence has an indeterminate ending not capable of human calculation.
Only God can tell how long a life sentence will be. It is not a term, for a term must terminate
at some predetermined point in time. “The statute presupposes, absent a jury recommendation
of life imprisonment, that the judge will sentence the defendant to a definite term reasonably
expected to be less than life.” Lee v. State, 322 So. 2d 751, 753 (Miss. 1975) (emphasis
added); Stewart v. State, 372 So. 2d 257, 259 (Miss. 1979) (In context of armed-robbery
statute, the sentencing authority of the trial judge limited to a “definite term reasonably
expected to be less than life.”) This Court consistently has distinguished “life imprisonment”
from “term” for nearly forty years:
The standard established in Stewart and Lee has been consistently applied for
almost four decades to both armed-robbery and forcible-rape statutes. See
Johnson v. State, 29 So. 3d 738, 744 (Miss. 2009); Cannon v. State, 919 So.
2d 913, 916 (Miss. 2005); Foley v. State, 914 So. 2d 677, 692 (Miss. 2005);
Cox v. State, 793 So. 2d 591, 599 (Miss. 2001); Lawson v. State, 748 So. 2d
96, 99 (Miss. 1999); Lindsay v. State, 720 So. 2d 182, 185 (Miss. 1998);
Kennedy v. State, 626 So. 2d 103, 105 (Miss. 1993); Luckett v. State, 582 So.
2d 428, 430 (Miss. 1991) (overruled on other grounds); Mitchell v. State, 561
So. 2d 1037, 1038 (Miss. 1990); Erwin v. State, 557 So. 2d 799, 801 (Miss.
1990); Evans v. State, 547 So. 2d 38, 40 (Miss. 1989); Watkins v. State, 500
So. 2d 462, 463 (Miss. 1987); Davis v. State, 477 So. 2d 223, 224 (Miss.
1985); Cunningham v. State, 467 So. 2d 902, 906 (Miss. 1985); Harper v.
State, 463 So. 2d 1036, 1041 (Miss. 1985); Friday v. State, 462 So. 2d 336,
339 (Miss. 1985); Warren v. State, 456 So. 2d 735, 738–39 (Miss. 1984);
Ware v. State, 410 So. 2d 1330, 1332 (Miss. 1982); Hickombottom v. State,
409 So. 2d 1337, 1340 (Miss. 1982); Henderson v. State, 402 So. 2d 325, 328
(Miss. 1981); Wilson v. State, 390 So. 2d 575, 580 (Miss.1980); Parker v.
State, 367 So. 2d 456, 458 (Miss. 1979).
Hampton v. State, 148 So. 3d 992, 1010-11 (Miss. 2014) (Chandler, J., dissenting).
¶18. Many federal courts take a similar approach:
8
Multiple circuits . . . consistently have concluded in various similar contexts
that only a jury has the authority to impose a life sentence and that the judge
can impose a sentence for a term of years less than life. See United States v.
Tocco, 135 F.3d 116 (2d Cir.1998), cert. denied, 523 U.S. 1096, 118 S.Ct.
1581, 140 L. Ed. 2d 795 (1998); United States v. Gullett, 75 F.3d 941 (4th
Cir.), cert. denied, 519 U.S. 847, 117 S. Ct. 134, 136 L. Ed. 2d 83 (1996);
United States v. Hansen, 755 F.2d 629 (8th Cir.1985); U.S. v. Grimes, 142
F.3d 1342, 1352 (11th Cir.1998).
Hampton, 148 So. 3d at 1012 (Chandler, J., dissenting). See U.S. v. Williams, 775 F.2d
1295, 1299 (5th Cir. 1985) (Pursuant to the “clear meaning” of the federal statute fixing the
punishment for malicious destruction of a building used in interstate commerce, “Williams
may be sentenced by the district court only to ‘any term of years’ and not to life
imprisonment in the absence of a jury recommendation . . . . To include life imprisonment
within the phrase ‘any term of years’ is contrary to the unambiguous statutory language.
Absent the recommendation of the jury, this sentence was improper and must be vacated and
the cause remanded to the district court for resentencing.”)
¶19. In dispensing with four decades of this Court’s interpretation of the phrase “for any
term,” the majority attempts to circumvent the doctrine of stare decisis: “[w]e think it
pernicious, i.e., harmful, for this Court to continue to exceed its constitutional authority by
judicially amending Section 97-3-65(4)(a) and limiting a judge’s sentencing authority as
established by the legislature.” Maj. Op. ¶8. Again, the statute predicates the trial court’s
consideration of the sentence, which the statute limits to a “term,” upon the jury’s rejection
of a life sentence. As troubled as this Court may be by the statute’s perceived
unconstitutional lenience in sentencing rapists and armed robbers, today the Court itself acts
unconstitutionally by overruling an interpretation of the statute that has been as consistently
9
ratified by the legislature as it has been consistently applied by this Court. See Caves v.
Yarbrough, 991 So. 2d 142, 153 (Miss. 2008).
¶20. I cannot sanction such a departure from decades of this Court’s well-established
jurisprudence and I join Justice King in repudiating the majority’s decision.
WALLER, C.J., AND KING, J., JOIN THIS OPINION.
KING, JUSTICE, DISSENTING:
¶21. As is consistent with decades of this Court’s precedent, I believe that the trial court
was without authority to impose a life sentence in this case; therefore, I dissent. I also
believe that the sua sponte manner in which the majority makes this significant change in the
law is improper given that the State did not ask for nearly forty years of precedent to be
overruled. Such action on the part of this Court is surely to be an unpleasant shock to the
criminal defense bar of this state.5
¶22. The forcible rape statute states that persons convicted of forcible rape “shall be
imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in
cases where the jury fails to fix the penalty at life imprisonment, the court shall fix the
penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion,
may determine.” Miss. Code Ann. § 97-3-65(4)(a) (Rev. 2014) (emphasis added). This
Court has specifically held that a sentence of life imprisonment may be imposed only by a
jury. Lee v. State, 322 So. 2d 751, 753 (Miss. 1975) (interpreting the forcible rape statute
5
See M.R.A.P. 28(a), (c) (“No issue not distinctly identified shall be argued by
counsel, except upon request of the court, but the court may, at its option, notice a plain error
not identified or distinctly specified.”). Given that the precedent at issue has been the law
for nearly forty years, it can hardly be classified as “plain error” that this Court may “notice.”
10
and holding that the statute “places the imposition of a life sentence within the sole province
of the jury, and, in our opinion, no such sentence can be imposed by a judge unless he has
the authority from the jury so to do”) (emphasis added) (“The statute presupposes, absent a
jury recommendation of life imprisonment, that the judge will sentence the defendant to a
definite term reasonably expected to be less than life.”) (emphasis added). This applies even
in cases in which a defendant pleads guilty. Luckett v. State, 582 So. 2d 428 (Miss. 1991),
overruled on other grounds by Rowland v. State, 42 So. 3d 503 (Miss. 2010) (analyzing the
forcible rape statute in a case in which defendant entered a guilty plea and was sentenced to
life imprisonment and finding that, because a jury did not fix the penalty at life
imprisonment, “the judge must sentence the defendant to a definite term reasonably expected
to be less than life”). Thus, the only sentence that a judge has the authority to impose for
forcible rape is one of a term of years. More specifically, this Court’s precedent makes clear
that “any term” does not include life imprisonment; yet today the Court overrules that
precedent, finding that “‘[a]ny term’ includes life imprisonment.” Maj. Op. ¶ 6.
¶23. In Lee, the Court examined the forcible rape statute, which provided, and to this day
provides, that the defendant
upon conviction shall be imprisoned for life in the state penitentiary if the jury
by its verdict so prescribes; and in cases where the jury fails to fix the penalty
at life imprisonment the court shall fix the penalty in the state penitentiary for
any term as the court, in its discretion, may determine.
Lee, 322 So. 2d at 753 (quoting Miss. Code Ann. § 97-3-65 (Supp. 1974)). The Court found
that under Section 97-3-65, a trial judge may not impose a sentence of life when the jury has
failed to do so. Lee, 322 So. 2d at 753. It held that
11
The statute before us places the imposition of a life sentence within the sole
province of the jury and, in our opinion, no such sentence can be imposed by
a judge unless he has the authority from the jury so to do. The statute
presupposes, absent a jury recommendation of life imprisonment, that the
judge will sentence the defendant to a definite term reasonably expected to be
less than life.
Id.
¶24. The majority, however, believes that the “plain language” of the forcible rape statute
mandates that “any term” includes life imprisonment. Maj. Op. ¶ 6. Yet, the plain language
of the statute affirmatively states that a defendant “shall be imprisoned for life in the State
Penitentiary if the jury by its verdict so prescribes.” Miss. Code Ann. § 97-3-65(4)(a) (Rev.
2014) (emphasis added). First, to interpret “any term” that the court may prescribe as
including “life,” as the majority does, renders the distinction carefully placed in the statute
by the Legislature utterly meaningless.6 If the court may sentence a defendant to life
imprisonment, why then, would it be necessary for the Legislature to specify that a jury must
recommend life imprisonment in its verdict? Such a provision is not necessary if the court
may also sentence the defendant to life. Second, the plain meaning of the terms used by the
Legislature belies the majority’s interpretation. “Life imprisonment” means “[c]onfinement
of a person in prison for the remaining years of his or her natural life.” Life imprisonment,
6
In interpreting a similar statute, federal courts have held that only a jury may impose
a life sentence. See United States v. Gullett, 75 F.3d 941, 950 (4th Cir. 1996) (the absence
of a jury recommendation for a life sentence “disempowered the sentencing judge to choose
between a life term and a term of years, so if he used a term of years to impose a life sentence
he was evading a limitation on his authority” (quoting United States v. Prevatte, 66 F.3d 840,
843 (7th Cir. 1995) (Posner, J., concurring))); United States v. Williams, 775 F.2d 1295,
1299 (5th Cir. 1985); United States v. Hansen, 755 F.2d 629, 631 (8th Cir. 1985),
abrogated on other grounds by United States v. Boss, 787 F.2d 393 (8th Cir. 1986).
12
Black’s Law Dictionary (10th ed. 2014). Conversely, a “term” means “[a] fixed period of
time.” 7 Term, Black’s Law Dictionary (10th ed. 2014). To clarify that definition, “fixed”
means “not fluctuating or varying; definite” and “period” means “any specified division or
portion of time.” Fixed, Webster’s Unabridged Dictionary 727, 1440 (2d ed. 2001). Thus,
a “term” means a definite period of time, in the case of sentences, that usually means a period
of months or years. The length of a person’s natural life is not fixed or definite; it is an
unknown, and not quantifiable. A term is quantifiable, and is fixed and definite. It is clear
from the plain language of the statute that “any term” does not include “life imprisonment.”
¶25. The majority attempts to bolster its argument by way of the kidnapping statute,
arguing that “in other contexts when the Legislature has chosen to restrict a trial judge’s
sentencing options to a term of years, it has clearly and specifically done so,” citing the
kidnapping statute as capping the sentence that the court is allowed to fix at thirty years.
Maj. Op. ¶ 9. Yet, by that same token, when the Legislature chooses to allow a trial judge
to have the sentencing option of life imprisonment, it has done so clearly and unequivocably.
7
The majority affirmatively states that “this Court and the Court of Appeals have used
the phrase ‘term of life imprisonment’ in at least 233 opinions.” Maj. Op. ¶ 6 n.3. While
it is true that a Westlaw search in Mississippi law for “term of life imprisonment” yields 233
results (opinions and orders), in some of these results, the phrase is found only in the
Westlaw synopsis or in quoting the trial court, defendant, or other cases, and thus is not
really “used” by the Courts. And while the term may appear in some opinions in which it
is used improperly, the improper use of the word does not change the proper usage of the
word “term.” Moreover, it is noteworthy that when discussing life sentences, this Court and
the Court of Appeals appear to use the word “term” relatively rarely. A Westlaw search of
“life imprisonment” yields 2,182 results, “life sentence” yields 1,121 results, “life in prison”
yields 537 results, and “sentence of life” yields 1,355 results.
13
For example, another subsection of the exact same statutory provision providing for the
sentences for statutory rape provides that
Upon conviction for statutory rape, the defendant shall be sentenced as
follows:
...
(c) If eighteen (18) years of age or older and convicted under subsection (1)(b)
of this section, to imprisonment for life in the State Penitentiary or such lesser
term of imprisonment as the court may determine, but not less than twenty (20)
years.
Miss. Code Ann. § 97-3-65(3)(c) (Rev. 2014). Thus, had the Legislature intended for a court
to have the authority to sentence a defendant convicted of forcible rape to life, it could and
would have simply so provided. Instead, it specifically provided that a jury must fix a life
sentence, otherwise the judge must fix the sentence at a term of years.8 Thus, Lee was clearly
correctly decided and we should today follow its mandate that when a court, rather than a
jury, fixes the sentence of a defendant under the forcible rape statute, the sentence must be
“a definite term.” Lee, 322 So. 2d at 753. To hold otherwise allows the sentencing judge to
evade the clear, legislatively imposed limit on his authority.
¶26. However, even assuming the Court’s interpretation in Lee of Section 97-3-65 was
incorrect, we should still decline to overrule the Court’s unanimous decision in Lee, a
decision that has stood for almost forty years. The doctrine of stare decisis “proceeds from
that first principle of justice, that, absent powerful countervailing considerations, like cases
ought to be decided alike.” State ex rel. Moore v. Molpus, 578 So. 2d 624, 634 (Miss.
8
Not only does the majority’s holding contravene the statute itself, it contravenes the
notion that “criminal statutes must be strictly construed in favor of the accused.” Lewis v.
State, 765 So. 2d 493, 499 (Miss. 2000). If there is any ambiguity in the statute, it should
be resolved in Bester’s favor.
14
1991). It stands for the proposition “that long established legal interpretations ought not
lightly be disturbed.” Id.
The doctrine of stare decisis is the bedrock of our system of jurisprudence. It
has given direction and stability to the common law whose precepts constitute
the larger part of the rules by which we live and are governed. It demands
definiteness in the law, and that its rules be consistent so that they may be
known. It has been said to be the most fundamental characteristic of the
common law as distinguished from other systems.
Id. (quoting Laurel Daily Leader, Inc. v. James, 80 So. 2d 770, 780-81 (Miss. 1955)
(Gillespie, J., Special Opinion)). Because of the importance of stare decisis, overturning
settled caselaw requires more than a mere academic or historical demonstration of error.
Molpus, 578 So. 2d at 635. In finding error, this Court must “look largely in the area of
public or widespread disadvantage[,]” and will not overrule longstanding “precedent unless
it is ‘pernicious,’ ‘impracticable,’ or is ‘mischievous in its effect, and resulting in detriment
to the public.’” Id. (internal citations omitted). Thus, when a holding has produced “great
and substantial harm,” i.e., “over time the precedent has repeatedly had a substantial adverse
or significantly harmful effect upon the people,” overruling that precedent may be
appropriate. Id. In this case, the majority has not described how Lee “has repeatedly had
a substantial adverse or significantly harmful effect upon the people.” Its bare assertion that
“[w]e think it pernicious, i.e., harmful, for this Court to continue to exceed its constitutional
authority” does not describe how Lee has had an substantial adverse or significantly harmful
effect upon the public. Rather, such a cerebral justification would allow courts to disregard
stare decisis whenever they merely disagreed with precedent.
15
¶27. Furthermore, weighty factors in a challenge to precedent are whether people have
“justifiably placed their faith” in the prior precedent, and the fact that there exists a “the need
to have [the] law settled so that [the people] may rely upon it.” Id. at 637. “[P]ublic
confidence in the law requires substantial stability in the face of” changes with the times and
judicial personnel. Id. at 638. “Popular and professional confidence in the judiciary rests
on the impersonality of decisions and their reasoned foundation, which in turn are built upon
the respect accorded them by successor justices and by their staying power.” Id. “Principled
consistency and respect for precedent promote acceptance. They reflect a consensus about
law. They contribute to the notion that law binds judges as well as litigants, and not just
when we agree. Good judges know this and will change legal interpretations only for the
most persuasive reasons.” Id. at 638-39.
¶28. Moreover, since the decision in Lee, the Legislature has amended Section 97-3-65 five
times. 1977 Miss. Laws Ch. 458, § 7; 1985 Miss. Laws Ch. 389, § 3; 1993 Miss. Laws Ch.
497, § 1; 1998 Miss. Laws Ch. 549, § 2; 2007 Miss. Laws Ch. 335, § 1. These amendments
have included changes to both sentencing provisions in Section 97-3-65 and changes to the
forcible rape subsection of the statute, illustrating the Legislature’s willingness to change
each if it felt it necessary.9 None of the five amendments that have occurred in the nearly
9
For example, the 1977 amendment changed the penalty for statutory rape from death
to death or life imprisonment. See Miss. Code Ann. § 97-3-65(1) (Supp. 1974); 1977 Miss.
Laws Ch. 458, § 7. The 1985 amendment raised the age of the victim for statutory rape, and
thereby raised the age to which forcible rape applies, and it also eliminated the gender
requirement, allowing victims to be male or female, thus changing the elements of the crime
of forcible rape. See 1977 Miss. Laws Ch. 458, § 7; 1985 Miss. Laws Ch. 389, § 3. The
1998 amendment changed the entire statutory rape scheme, including sentencing. It also
changed the elements of forcible rape, eliminating the age requirement, and changing the
16
forty years since Lee was decided has changed the sentence for forcible rape. When this
Court finds that a statute was incorrectly interpreted in a previous case, it
will nevertheless continue to apply the previous interpretation, pursuant to the
doctrine of stare decisis, upon finding the Legislature amended or reenacted
the statute without correcting the prior interpretation. In our view, such action
on the part of the Legislature amounts to incorporation of our previous
interpretation into the reenacted or amended statute. The Legislature is, of
course, free to preclude our incorrect interpretation by specific provision,
failing which, we must conclude that the legislative silence amounts to
acquiescence. Stated another way, the incorrect interpretation becomes a
correct interpretation because of the Legislature’s tacit adoption of the prior
interpretation into the amended or reenacted statute.
Porter v. Porter, 23 So. 3d 438, 448 (Miss. 2009) (quoting Caves v. Yarbrough, 991 So. 2d
142, 153-54 (Miss. 2008)). The Legislature has tacitly adopted the interpretation in Lee not
once, not twice, but five times, thus incorporating the interpretation into the statute.
It would be a great evil if questions once settled on full argument and mature
deliberation were subject to be reopened and decided differently upon every
change in the members of this court, and consequent changes in the temper and
mental organism of the judges. . . . It is safe . . . to say that the rule of stare
decisis, so far as it relates to decisions of this court, should not be disregarded,
except on the fullest conviction that the law has been settled wrong; and even
then it is better to leave the correction to the legislature in all cases where a
departure from it would have the effect to disturb vested rights . . . . In such
cases, a departure from former rulings should never take place except upon the
clearest necessity and the most assured conviction that the former ruling was
erroneous.
Lombard v. Lombard, 57 Miss. 171 (1879).
¶29. Even if Lee was wrongly decided, which it was not, any alleged error was certainly
not pernicious, impracticable, or mischievous in its effect. Nor has any alleged error cause
language of “ravish” and “carnal knowledge” to “forcible sexual intercourse” and “sexual
intercourse not constituting forcible sexual intercourse or statutory rape.” See 1993 Miss.
Laws Ch. 497, § 1; 1998 Miss. Laws Ch. 549, § 2.
17
any harm or detriment to the public, much less any significant harm. Furthermore, the bench,
bar, and defendants have come to rely on the interpretation of Section 97-3-65(4)(a) as
provided by Lee. Lastly, the Legislature has tacitly adopted the interpretations in Lee, and
thus they are incorporated into the statute. For these reasons, Lee should not be disturbed
even upon a finding of error in its interpretation of Section 97-3-65(4)(a).10
¶30. Because the plain language of Section 97-3-65(4)(a) belies the majority’s
interpretation that “any term” includes “life imprisonment,” because, to the extent the statute
is ambiguous, it must be construed in favor of the defendant, and because, even if the
interpretation in Lee is incorrect, the doctrine of stare decisis should apply in this case, I
cannot join the majority’s opinion, and therefore dissent.
WALLER, C.J., AND KITCHENS, J., JOIN THIS OPINION.
10
I note that the majority does not bother to address the argument made by amicus that
applying any new interpretation of the sentencing provision of the forcible rape statute
would violate the prohibition against ex post facto law, notwithstanding the fact that the
Court requested this briefing.
18