Craig D. Sallie v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2015-CT-00819-SCT

CRAIG D. SALLIE a/k/a CRAIG D. SALLIE, SR.
a/k/a CRAIG SALLIE

v.

STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 05/12/2015
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: CYNTHIA ANN STEWART
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY: MICHAEL GUEST
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 03/08/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

BEAM, JUSTICE, FOR THE COURT:

¶1. Craig Sallie was charged with one count of aggravated assault for shooting Gregory

Johnson in the back and one count of possession of a weapon by a convicted felon. A

Madison County jury found Sallie guilty of both counts, and the circuit court sentenced him

to twenty years and ten years, respectively, with sentences to run concurrently in the custody

of the Mississippi Department of Corrections (MDOC). The circuit court also sentenced

Sallie to an additional ten years pursuant to the firearm-enhancement statute under
Mississippi Code Section 97-37-37 (Rev. 2014), with that sentence to run consecutively to

the other sentences, for a total sentence of thirty years in the MDOC. The Court of Appeals

affirmed. Sallie v. State, 155 So. 3d 872 (Miss. Ct. App. 2013) (Sallie I).

¶2. On writ of certiorari, a majority of this Court found “Sallie was not given adequate

pretrial notice that an enhanced punishment would be sought until after his conviction,”

which violated his right to due process. Sallie v. State, 155 So. 3d 760 (Miss. 2015) (Sallie

II).1 The majority affirmed Sallie’s convictions for aggravated assault and felon in

possession of a firearm but vacated Sallie’s sentence and remanded the case to the circuit

court for resentencing.

¶3. On remand, the circuit court restructured Sallie’s remaining sentences to run

consecutively instead of concurrently, resulting in a thirty-year sentence without the

enhanced penalty portion prescribed by Section 97-37-37. Finding no error, the Court of

Appeals affirmed. Sallie v. State, ____ So. 3d _____, 2016 WL 7636895, 2015-KA-00819-

COA (Miss. Ct. App. Dec. 6, 2016) (Sallie III).2

¶4. Sallie petitions this Court for certiorari review, raising one issue:

Whether the trial court’s decision to change the sentences to run
[consecutively] on Count I and Count II was error because the Court of

1
King, J., for the Court. Waller, C.J., Kitchens, Chandler and Coleman, JJ.,
concurring. Dickinson, P.J., concurring with separate, written opinion joined by Kitchens,
Chandler, and Coleman, JJ. Randolph, P.J., concurring in part and dissenting in part with
separate, written opinion joined by Lamar and Pierce, JJ.
2
Ishee, J., writing. Griffis, P.J., Barnes, Carlton, Fair, Wilson and Greenlee, JJ.,
concurring. Lee, C.J., dissenting with separate, written opinion, joined by James, J.; Irving,
P.J., joining in part.

2
 Appeals affirmed those convictions and sentences and the Mississippi
Supreme Court remanded only the sentence pursuant to [Section 97-37-37].

FACTS AND PROCEDURAL HISTORY

¶5. On November 28, 2011, Johnson walked past Sallie’s house en route to his own home.

Sallie, who previously had accused Johnson of stealing a bottle of whisky from him, yelled

at Johnson, demanding that Johnson come into his (Sallie’s) yard. Johnson refused and told

Sallie to come into the street so they could settle the dispute “like men.” Johnson called

Sallie an expletive and then turned to walk away. Sallie pulled out a gun and started

shooting. Sallie shot Johnson five times, with one bullet hitting Johnson in the spine,

paralyzing him from the waist down.

¶6. Sallie was charged with aggravated assault and possession of a firearm by a convicted

felon. The jury found Sallie guilty of both counts. Afterward, the trial court scheduled a

sentencing hearing and stated, “I also wish to consider the firearm enhancement as provided

by 97-37-37(2).” See Miss. Code Ann. § 97-37-37(2) (“any convicted felon who uses or

displays a firearm during the commission of any felony shall . . . be sentenced to an

additional term of imprisonment . . . of ten (10) years”).

¶7. At the sentencing hearing, Sallie objected to application of Section 97-37-37 based

on lack of notice from the State and based on the trial court raising the enhancement sua

sponte. The trial court sentenced Sallie to twenty years for aggravated assault, ten years for

felon in possession of a firearm; the court then enhanced the sentence by ten years under

Section 97-37-37(2).

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¶8. Sallie appealed, claiming the trial court erred by limiting Sallie’s cross-examination

of Johnson at trial, and that the firearm enhancement to his sentence post-trial was illegal

given that Sallie did not receive pretrial notice that he might be sentenced under that statute.

The Court of Appeals found no merit in either assignment of error raised by Sallie.

¶9. Addressing the latter issue, the Court of Appeals found the enhanced portion of

Sallie’s sentence did not run afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,

147 L. Ed. 2d 435 (2000), and therefore was legal. Sallie (I), 155 So. 3d at 875. In

analyzing Apprendi, the court found that all the elements of the firearm enhancement had

been submitted properly to the jury and had been found by the jury beyond a reasonable

doubt. Id. The court concluded that the indictment did not need to reference the

enhancement statute; therefore, there was no unfair surprise regarding the firearm

enhancement. Id.

¶10. This Court granted certiorari, stating:

We agree that the trial court did not abuse its discretion by limiting Sallie’s
cross-examination of Johnson. Therefore, we limit our review to the question
of whether Sallie received fair notice of the firearm enhancement. See Guice
v. State, 952 So. 2d 129, 133 (Miss. 2007) (Supreme Court “unquestionably”
has the authority to limit the issues on review).

Sallie (II), 155 So. 3d at 762.

¶11. In analyzing the issue, this Court agreed with the Court of Appeals as to Apprendi,

that the jury had found the elements of the firearm enhancement beyond a reasonable doubt.

Id. at 762-63. But the majority also found that Sallie did not receive fair notice that an

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enhanced punishment would be sought until after his conviction, which violated Sallie’s right

to due process. Id. at 764.

¶12. The majority concluded as follows:

We decline to find error that would reverse Sallie’s convictions. Therefore, we
affirm in part the judgments of the Court of Appeals and the trial court.
However, we find that Sallie did not receive timely or sufficient notice that the
State intended to enhance his sentence using the firearm enhancement. Using
the firearm enhancement to increase Sallie’s sentence resulted in unfair
surprise. Accordingly, we reverse in part the judgments of the Court of
Appeals and the trial court, vacate Sallie’s sentence, and remand the case to the
Madison County Circuit Court for resentencing.

Id.

¶13. On remand, the trial court held a sentencing hearing, after which the trial court stated

for the record as follows:

All right. I’m going to impose the same sentence as to Count I: 20
years in the custody of the [MDOC.]

The same sentence in Count II: 10 years in the custody of the of the
[MDOC], but I’m going to order that those sentences run consecutively to each
other.

When I imposed the original sentence and ordered that they run
concurrently, I believe[d] that he was going to have another 10-year sentence
that would be running consecutively to those sentences, and the [Supreme]
Court has now found that that particular enhancement was improper, so that’ll
be the sentence of the [c]ourt.

¶14. Sallie appealed, claiming the trial court was without authority to alter the sentences

from running concurrently to running consecutively. The case was assigned to the Court of

Appeals.

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¶15. On appeal, Sallie relied primarily on two cases for his claim that the change to his

original sentence was illegal: Leonard v. State, 271 So. 2d 445 (Miss. 1973); and Eastman

v. State, 909 So. 2d 171 (Miss. Ct. App. 2005). Sallie (III), 2016 WL 7636895, at **2-3. In

Leonard, this Court held that “once a circuit or county court exercises its option to impose

a definite sentence it cannot subsequently set that sentence aside and impose a greater

sentence.” Leonard, 909 So. 2d at 447. Eastman reiterated the same.

¶16. The Court of Appeals affirmed the trial court’s sentencing order. Sallie (III), 2016

WL 7636895, at *3. Finding both Leonard and Eastman inapplicable, the Court of Appeals

reasoned that this Court had vacated Sallie’s entire sentence in Sallie (II); therefore, the trial

court had the authority to impose upon Sallie a new sentence within the same thirty-year

parameter structured by the trial court in its original sentencing order. Sallie (III), 2016 WL

7636895, at*3. We agree with the Court of Appeals.

DISCUSSION

¶17. Sentencing lies within the complete discretion of a sentencing judge and is not subject

to appellate review if it is within the limits prescribed by statute. Hoops v. State, 681 So. 2d

521 (Miss. 1996). Generally, as was the case in both Leonard and Eastman, once a criminal

case “has been terminated and the term of court ends, a circuit court is powerless to alter or

vacate its judgment.” Creel v. State, 944 So. 2d 891, 893-94 (Miss. 2006) (quoting Harrigill

v. State, 403 So. 2d 867, 868-69 (Miss. 1981), partially superseded by statute, Miss. Code

Ann. § 99-39-3(1) (Rev. 2015)).3 As well, the circuit court in most instances loses

3
“[U]nless the circuit court has deferred sentence, or placed the defendant upon a
suspended sentence and retained jurisdiction for this specific purpose as authorized by

6
jurisdiction to amend or modify its sentence once a case has been appealed from the circuit

court to this Court. Harrigill, 403 So. 2d at 868 (citing Denton v. Maples, 394 So. 2d 895

(Miss. 1981)).4 On appeal, both this Court and the Court of Appeals “ha[ve] appellate

jurisdiction to either affirm, reverse and remand, or reverse and render the judgment the

lower court should have rendered.” Id. Neither court has the authority to review a case “and

make an arbitrary decision to amend the original sentence in any way.” Ethridge v. State,

800 So. 2d 1221, 1225 (Miss. Ct. App. 2001) (citing Harrigill, 403 So. 2d at 869).

¶18. If a case is affirmed on appeal, “the lower court is issued a mandate to perform purely

ministerial acts in carrying out the original sentence.” Harrigill, 403 So. 2d at 868. But if

the case is remanded for a new trial, the circuit court again is invested with jurisdiction and

discretionary sentencing authority with regard to that particular case. Id. at 869. In such

statute, the power of the circuit court to alter or mend its sentence is terminated.” Harrigill,
403 So. 2d at 869. Also, the Uniform Mississippi Post-Conviction Collateral Relief Act
provides jurisdiction to the circuit court to consider resentencing a criminal when certain
criteria as set forth in Mississippi Code Section 99-39-5 are present. Creel, 944 So. 2d at
894.
4
But see also Gardner v. State, 547 So. 2d 806, 807 (Miss. 1989), explaining:

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 ameliorated. 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, 516-517 (Miss. 1987); Wilson v. State, 461 So. 2d
728, 729 (Miss. 1984).

See also Creel, 944 So. 2d at 893, explaining that trial courts retain jurisdiction under
the provisions of Mississippi Code Section 47-7-47, which does not pertain to resentencing
but “pertains only to a suspension of the further execution of a sentence and to the placement
of the convicted felon on earned probation.”

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instances, the same or even a greater sentence than the one previously ordered may be

imposed upon the defendant following a new trial and conviction for the same charge(s). See

Ross v. State, 480 So. 2d 1157, 1160 (Miss. 1985) (explaining that as long as there is no

vindictive motivation against the defendant for having successfully challenged his first

conviction, “[t]he imposition of a harsher sentence by a judge following a new trial and

conviction is not violative of the federal, or Mississippi’s, Constitution”);5 see also Tiller v.

State, 440 So. 2d 1001, 1006 (Miss. 1983); Sanders v. State, 440 So. 2d 278, 288 (Miss.

1983), superseded by statute on other grounds.

¶19. The question here, though, is whether the circuit court had discretionary sentencing

authority to modify its original sentence after this Court affirmed Sallie’s convictions but

vacated Sallie’s sentence on the finding that using the firearm enhancement to increase his

sentence violated Sallie’s right to due process.

¶20. We find the answer to this question is yes.

¶21. While we know of no prior decision either from this Court or the Court of Appeals

that has addressed the precise question presented in this case, a number of cases illustrate the

general understanding that when an original sentence has been vacated for illegality, a

subsequent sentencing court has discretionary authority over the new sentence.

¶22. Grubb v. State, 584 So. 2d 786 (Miss. 1991), is one example. There, the circuit court

attempted to correct an illegal sentence it previously had imposed upon a defendant who had

5
Ross adopted the Supreme Court’s pronouncement in North Carolina v. Pearce,
395 U.S. 711, 726, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), which held that a presumption
of vindictiveness attaches when a defendant receives a harsher sentence on resentencing by
the same judge who imposed the previous sentence.

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pleaded guilty to kidnapping. Id. at 790. The trial judge originally had sentenced the

defendant to life in prison following the guilty plea, with eligibility for parole. Id. at 787.

But under the kidnapping statute, only a jury could impose a life sentence, whereas the trial

judge could fix the penalty at no more than thirty years and no less than one year. Id. at 789

(citing Miss. Code Ann. § 97-3-53). Following a number of post-conviction relief (PCR)

requests filed by Grubb, the trial judge resentenced him to twenty years through a nunc pro

tunc order relating back to the defendant’s guilty plea for kidnapping. Id. at 787-791.

However, when the trial judge resentenced Grubb, an appeal already had been perfected to

this Court from the trial court’s previous denial of Grubb’s PCR petition on the basis it

constituted a successive writ. Id. at 789-90. Reviewing the matter on appeal, this Court

agreed the life sentence was illegal and vacated it. Id. But the Grubb Court could not affirm

the trial court’s new, twenty-year sentence because the trial court had lost jurisdiction over

the case once an appeal was perfected to this Court. Id. at 790. In remanding the matter to

the trial court, the Grubb Court stated as follows:

This remand is expressly without prejudice to Grubb’s right to seek imposition
of the same twenty (20) year sentence imposed by the trial court at his
resentencing hearing and without prejudice to the circuit court’s right to
favorably consider that request, if it so desires.

Id. (emphasis added).

¶23. Perryman v. State, 120 So. 3d 1048 (Miss. Ct. App. 2013), also illustrates the

discretionary authority a subsequent sentencing judge has with a new sentence upon vacation

of a defendant’s original sentence. There, the defendant pleaded guilty to four counts of

aggravated assault and one count of felon in possession of a firearm. Id. at 1050. He was

9
sentenced as a habitual offender (under Mississippi Code Section 99-19-81) to twenty years

on each aggravated-assault count and to three years on the firearms count, with all sentences

running concurrently. Id. at 1051. Years later, Perryman filed a motion to correct or modify

his sentence, claiming his habitual-offender status was illegal. Id. A new circuit judge

presiding over the matter treated it as a PCR motion and agreed with Perryman that the

statutory requirements for his habitual-offender status were not met. Id. The judge vacated

the original sentence and ordered resentencing. Id. After conducting a resentencing hearing,

the judge sentenced Perryman to twenty years on each of the four aggravated-assault counts

and three years on the firearm charge. Id. The judge then ordered two of the twenty-year

sentences to run consecutively, not concurrently, as the previous judge had ordered, which

effectively gave Perryman forty years, without habitual-offender status. Id.

¶24. On appeal, the Court of Appeals vacated the new sentence and remanded for

resentencing on the basis that Perryman’s purported waiver of his right to counsel at the new

sentencing hearing was involuntary. Id. at 1057. But in reaching its decision, the Court of

Appeals expressly found no merit in Perryman’s claim that the new, harsher sentence gave

rise to a presumption of judicial vindictiveness in violation of Ross and Pearce. Id. at 1052-

54. Justice Maxwell, then serving on the Court of Appeals and writing for the court, first

explained that the vindictiveness-presumption standard emanating from Pearce has since

“been substantially watered down” by the United State Supreme Court, “and even rendered

inapplicable in some instances, depending on the particular resentencing.” Id. at 1052 (citing

Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972), and Chaffin v.

10
Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973)). Pointing to this

Court’s decision in Bush v. State, 667 So. 2d 26 (Miss. 1996), the Perryman Court noted

that, like the United States Supreme Court, this Court has rejected the Pearce presumption

in cases in which successor judges had imposed new sentences. Id. at 1053.

¶25. Next, in finding that Perryman had presented no proof of actual vindictiveness, the

Court of Appeals noted that “[n]ot only was the second sentence well below the statutory

maximum terms, . . . it was also crafted to address the violent nature of Perryman’s admitted

criminal acts.” Id. at 1054. The second judge was concerned with Perryman’s criminal

history, which indicated Perryman had “some violent tendencies.” Id. (quoting the trial

judge). But the judge also ordered that Perryman receive credit for time served, and ordered

MDOC “‘to treat the sentence is if it had been imposed as the original sentence’ and to afford

Perryman consideration of ‘any and all parole, good time, earned time, etc.,’ to which he

would have been entitled if he had not been improperly sentenced as a habitual offender by

the first judge.” Id. (quoting the trial judge).

¶26. Indeed, this fundamental view with regard to sentencing discretion has been espoused

in numerous federal cases addressing the type of circumstance we have before us here. In

United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir. 1989), a defendant was convicted

of two drug-related offenses and sentenced by the federal district court to five years on each

count, with each sentence running consecutively. Id. at 11. On appeal, the First Circuit

affirmed one of the counts but reversed the other count and remanded the case for

resentencing. Id. at 12. On remand, the federal district court resentenced the defendant to

11
ten years on the affirmed count. Id. The defendant again appealed to the First Circuit,

claiming he was denied due process of law by the district court’s enhancement of his

sentence and that the enhanced sentence violated the Double-Jeopardy Clause. Id. The First

Circuit found no merit to these claims and affirmed the district court’s “retrofitted” sentence.

Id.

¶27. The First Circuit reiterated that “[c]riminal sentences do not possess the constitutional

finality and conclusiveness that attach to a jury’s verdict of acquittal,” and “[c]onsequently,

neither appellate review of sentences, . . . nor increases after appeal . . . will ordinarily

implicate double jeopardy considerations.” Id. at 16 (citing United States v. DiFrancesco,

449 U.S. 117, 132-39, 101 S. Ct. 426, 434-39, 66 L. Ed. 2d 328 (1980)). “A defendant ‘has

no legitimate expectation of finality in the original sentences when he has placed those

sentences in issue by direct appeal and has not completed serving a valid sentence.’” Id.

(quoting United States v. Anderson, 813 F.2d 1450, 1461 (9th Cir. 1987)).

¶28. The First Circuit explained that numerous factors underlie a sentencing judge’s

ultimate sentencing plan, such as an “accused’s actual conduct during the criminal enterprise,

as well as his life, health, habits and background.” Id. at 14. And in a multicount case, these

factors “are not necessarily altered when a defendant successfully appeals his conviction on

one count.” Id. The First Circuit reasoned that “[a]fter an appellate court unwraps” the

original sentencing package by removing “one or more charges from its confines, . . .

common sense dictates that the judge should be free to review the efficacy of what remains

in light of the original plan,” and be allowed “to reconstruct the sentencing architecture upon

12
remand, within applicable constitutional and statutory limits, if that appears necessary in

order to ensure that the punishment still fits both crime and criminal.” Id. (citing United

States v. Bentley, 850 F.2d 327, 328-29 (7th Cir. 1988), cert. denied, 488 U.S. 970, 109 S.

Ct. 501, 102 L. Ed. 2d 537 (1988) (“whenever a reversal on appeal undoes a sentencing plan,

or even calls the plan into question, the district court should be invited to resentence the

defendant on all counts in order to achieve a rational, coherent structure in light of the

remaining convictions”); United States v. Diaz, 834 F.2d 287, 290 (2d Cir.1987) (trial judge

could change sentence on remand to carry out original intention), cert. denied, 488 U.S. 818,

109 S. Ct. 57, 102 L. Ed. 2d 35 (1988); United States v. Busic, 639 F.2d 940, 947 (3d Cir.

1981), cert. denied, 452 U.S. 918, 101 S. Ct. 3055, 69 L. Ed. 2d 422 (1981) (same)).

¶29. In United States v. Shue, 825 F.2d 1111 (7th Cir. 1987), the Seventh Circuit held that

the district court had authority to resentence the defendant to effectuate its original

sentencing intent after partial reversal of the defendant’s convictions under a multicount

indictment. The Seventh Circuit said, “we are mindful of the Supreme Court’s admonition

in DiFrancesco that ‘the Constitution does not require that sentencing should be a game in

which a wrong move by the judge means immunity for the prisoner.’” Id. at 1114 (quoting

DiFrancesco, 449 U.S. at 135). The Seventh Circuit explained that “[w]hen a defendant is

convicted of more than one count of a multicount indictment, the district court is likely to

fashion a sentencing package in which sentences on individual counts are interdependent.”

Id. And “[b]ecause the sentences are interdependent, reversal of convictions underlying

some, but not all, of the sentences renders the sentencing package ineffective in carrying out

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the district court’s sentencing intent as to any one of the sentences on the affirmed

convictions.” Id.

¶30. That is what occurred here. Following this Court’s order of remand for resentencing,

the circuit judge stated for the record that when he imposed Sallie’s original sentence, he

thought Sallie “was going to have another 10-year sentence that would [run] consecutively”

to the two sentences running concurrently, effectively giving Sallie a thirty-year sentence in

the custody of the MDOC. The circuit judge then restructured Sallie’s sentence to implement

his original intention. As the Court of Appeals held, the circuit court had authority to do so,

and we affirm.

CONCLUSION

¶31. The judgments of the Madison County Circuit Court and the Court of Appeals are

affirmed.

¶32. AFFIRMED.

RANDOLPH, P.J., COLEMAN, MAXWELL AND CHAMBERLIN, JJ.,
CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY WALLER, C.J., AND KITCHENS, P.J. ISHEE, J., NOT PARTICIPATING.

KING, JUSTICE, DISSENTING:

¶33. Because I disagree that the trial court had the authority to restructure Sallie’s

sentences for aggravated assault and possession of a weapon by a convicted felon, I

respectfully dissent.

¶34. In Sallie’s first appeal, the Court of Appeals affirmed his conviction, and this Court

granted certiorari for the limited purpose of “address[ing] the issue of whether Sallie was

14
entitled to notice of the firearm enhancement to his sentence.” Sallie v. State, 155 So. 3d

760, 761 (Miss. 2015). Indeed, “we limit[ed] our review to the question of whether Sallie

received fair notice of the firearm enhancement[]” because we otherwise agreed with the

Court of Appeals opinion affirming Sallie’s conviction and sentence. Id. at 761, 762. In our

opinion, we only addressed the issue of the firearm enhancement to Sallie’s sentence; we did

not address his sentences for the underlying crimes. See id. That is why we specifically

reversed only the firearm enhancement to Sallie’s sentence, and not the underlying sentences,

explicitly stating “we must reverse the portion of Sallie’s sentence that constitutes the firearm

enhancement.”6 Id. at 764 (emphasis added). The only authority granted the circuit court

by this Court was to remove the firearm enhancement from Sallie’s sentence. Indeed, neither

Sallie nor the State appealed or even raised the legality or appropriateness of Sallie’s

sentences for the underlying crime, thus it was not within either appellate court’s purview to

reverse them, as they were not raised by the parties as being in error. See, e.g., Davis v.

State, 660 So. 2d 1228, 1246 (Miss. 1995) (This Court is “precluded” from considering

issues on appeal that were not raised at trial or in post-trial motions.). It would have been

error for this Court to reverse the underlying sentences. Winston v. State, 754 So. 2d 1154,

6
While this language specifying that the Court reversed only the enhancement portion
of the sentence could have been repeated several more times for clarity’s sake (and perhaps,
given the misinterpretations of the Court’s opinion, such repetition would have been wise),
given that the underlying sentences were not raised or addressed and this Court specified
once that it was only reversing the enhancement portion of the sentence, such repetition was
unnecessary. It appears that, even absent repetition, this was clear even to the Court of
Appeals majority, which stated “the supreme court affirmed the convictions and sentences
but reversed the sentence enhancement.” Sallie v. State, __ So. 3d __, 2016 WL 7636895,
at *2 (Miss. Ct. App. Dec. 6, 2016) (emphasis added).

15
1156-57 (Miss. 1999) (Court of Appeals erred by sua sponte vacating sentence when neither

party assigned the sentence as error on appeal). The sentencing order was vacated only to

allow the trial court to complete the ministerial duty of removing the enhancement and

issuing an order without the illegal portion of the sentence.

¶35. “[W]here a convicted defendant receives an illegal sentence, the sentence must be

vacated and the case remanded to the trial court for resentencing because the defendant

suffered prejudice.” Sweat v. State, 912 So. 2d 458, 461 (Miss. 2005). Sentencing is

generally the province of trial courts, and appellate courts do not have the authority to issue

sentencing orders, which is why this Court remands cases for resentencing by the trial court

even when the required contents of the new sentencing order are obvious.7 The cases cited

by the majority address resentencing defendants to a different sentence after a new trial or

after the particular sentence at issue was reversed. They are therefore inapposite, as this

Court did not address or reverse the underlying sentences.

¶36. Circuit courts do not generally have jurisdiction to resentence defendants. Creel v.

State, 944 So. 2d 891, 893-94 (Miss. 2006).8 The mandate of this Court commanded the trial

7
Would the majority’s analysis in this case be the same if, for example, on
resentencing, the trial court had sentenced Sallie to time served for the aggravated assault
and felon in possession convictions? This unfettered discretion the Court gives to trial
courts to amend any sentence when only a portion of the sentence is reversed works both
ways– a trial court may, upon remand, reduce sentences that this Court affirmed.
8
It necessarily follows, as explained by the dissent to the Court of Appeals majority,
that the circuit court could not resentence Sallie to a sentence greater than its original
sentence. Sallie v. State, __ So. 3d __, 2016 WL 7636895 (Miss. Ct. App. Dec. 6, 2016)
(Lee, J., dissenting); Leonard v. State, 271 So. 2d 445 (Miss. 1973); Ethridge v. State, 800
So. 2d 1221 (Miss. Ct. App. 2001) (even when the defendant files a motion for
reconsideration of sentence, the trial court could not impose a sentence higher than the

16
court to conduct further proceedings “consistent with this judgment,” which specifically

addressed and reversed only the enhancement portion of the sentence. Because this Court

did not reverse, or even address, Sallie’s sentences for aggravated assault and possession of

a weapon by a convicted felon, the circuit court lacked jurisdiction to modify that portion of

Sallie’s sentence. Therefore, I respectfully dissent.

WALLER, C.J., AND KITCHENS, P.J., JOIN THIS OPINION.

original sentence imposed).

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