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[T] Kraft v. State5/12/1998
e case at bar, he was sentenced using Miss. § Code Ann. 41-29-147 (Rev. 1993) (second and subsequent offenses), and Miss. Code Ann. 99-19-81 (Rev. 1994) (sentencing of habitual criminals to maximum term of imprisonment). Utilizing both of these sections the trial court doubled Kraft's sentence to 60 years and provided the sentence would be without possibility of parole.
Kraft argues that the imposition of this sentence violated the proscriptions against cruel and unusual punishment under the Eighth Amendment to the United States Constitution and Article 3, § 28 of the Mississippi Constitution of 1890. Furthermore, Kraft maintains that because of the duration of the sentence, the sentence is disproportionate to the offense committed so as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances. Kraft bases his argument on a reading of Solem v. Helm , 463 U.S. 277 (1983).
Our supreme court has stated that declaring a sentence violative of the Eighth Amendment to the United States Constitution carries a heavy burden and only in rare cases should this be done. Stromas v. State , 618 So. 2d 116, 123 (Miss. 1993). Only where a sentence is "grossly disproportionate" to the crime committed is the sentence subject to attack on the grounds that it violates the Eighth Amendment prohibition of cruel and unusual punishment. Id. at 122. The § Mississippi Supreme Court has stated that the double enhancement of Miss. Code Ann 41-29-147 § (Rev. 1993), and Miss. Code Ann. 99-19-81 (Rev. 1994) is proper provided that the Solem test is met. Jones v. State , 523 So. 2d 957, 961 (Miss. 1988).
In Solem , the United States Supreme Court articulated a three-prong test for evaluating proportionality. Stromas , 618 So. 2d at 122. The elements include:
(1) The gravity of the offense and the harshness of the penalty;
(2) Comparison of the sentence with sentences imposed on other criminals in the same jurisdiction; and
(3) Comparison of sentences imposed in other jurisdictions for commission of the same crime with the sentence imposed in this case.
Id. at 122-23 (citing Solem , 463 U.S. at 292).
In light of the seriousness of the offense in this case we cannot say the sentence of 60 years without possibility of parole is "grossly disproportionate." Drug offenses are of the most serious kind, and the sentencing statutes respond accordingly. The legislature has deemed it necessary to impose stiff penalties in such cases. The trial Judge was within the statutory guidelines in imposing this sentence. Furthermore, this sentence was not unusual when compared to other drug sentences imposed here and in other states. This assignment of error is without merit.
II.
THE COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT SUSTAIN THE DEFENDANT'S MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE-IN-CHIEF AND AT THE CLOSE OF THE TRIAL.
III.
THE COURT COMMITTED REVERSIBLE ERROR BY NOT GRANTING DEFENSE JURY INSTRUCTION D-1 WHICH WAS A DIRECTED VERDICT OF "NOT GUILTY."
IV.
THE VERDICT OF GUILTY WENT AGAINST THE WEIGHT OF THE EVIDENCE AND WAS BASED ON BIAS AND PREJUDICE.
Kraft's motions for a directed verdict and for a peremptory instruction both test the legal sufficiency of the evidence. Johnson v. State , 642 So. 2d 924, 927 (Miss. 1994) (citing McClain v. State , 625 So. 2d 774, 778 (Miss. 1993)). Kraft argues that the evidence presented at trial was insufficient to support a guilty verdict by the jury for the crime of selling a controlled substance, and the evidence failed to prove beyond a reason
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