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Wilkerson v. State11/12/1998
s could only find the accused not guilty. The trial court did not err in following the principle set forth in Steele. The decision of the trial court to overrule the defendant's Motion for Directed Verdict and Motion for Judgment Not Withstanding the Verdict is affirmed.
VII.
. The Appellant argues that the sentence he received is "manifestly disproportionate" to the crime committed and therefore requires extended proportionality analysis under the 8th Amendment. The law of this state holds that sentencing is within the complete discretion of the trial court and is not subject to appellate review if it is within the limits prescribed by statute. Hoops v. State, 681 So. 2d 521, 537 (Miss. 1996). The general rule in this state is that this Court cannot disturb a sentence on appeal so long as it does not exceed the maximum term allowed by statute. Id. at 538. The sentence given by the trial court was clearly within the boundaries of the statute. Section 63-11-30(4) of the Mississippi Code, provides a maximum sentence of twenty-five (25) years' imprisonment. The sentence received by Wilkerson was twenty (20) years' imprisonment with the last two (2) years suspended, pending the defendant's good behavior.
. The appellant attempts to apply the three prong test found in Solem v. Helm, 463 U.S. 277, 292 (1983), to determine if Wilkerson received a disproportionate sentence. However, Solem was overruled by Harmelin v. Michigan, 501 U.S. 957, 965-66 (1991) to the extent that it found a guarantee of proportionality in the Eighth Amendment. Hoops v. State, 681 So. 2d 521, 538 (Miss. 1996). "'In light of Harmelin, it appears that Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of 'gross disproportionality.''" Id. at 538 (quoting Smallwood v. Johnson, 73 F. 3d 1343, 1347 (5th Cir. 1996)).
. This Court in Hoops employed the threshold comparison. In that case, the eighteen-year-old defendant was sentenced to thirty years' imprisonment with a possibility of parole for shooting two rival street gang members. The trial Judge was statutorily empowered to sentence Hoops to twenty (20) years imprisonment for each count but failed to do that. This Court found that the facts did not lead to the Conclusion that the defendant received a sentence grossly disproportionate to his crime. There is likewise no need for an extended proportionality review under Solem in this appeal. Wilkerson was found guilty of causing death to another while driving under the influence of intoxicating beverages. The statute offers a maximum penalty of twenty-five (25) years' imprisonment for this crime. The trial court sentenced Wilkerson to twenty (20) of the twenty-five (25) years which he was statutorily empowered to give. In light of the facts before this Court, there was no cruel, unusual, or disproportionate punishment administered to Wilkerson.
VIII.
. For the above-cited reasons, the judgment of the circuit court is affirmed.
. CONVICTION OF FELONY DUI AND SENTENCE OF 20 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE LAST 2 YEARS SUSPENDED PENDING FUTURE GOOD BEHAVIOR; MAKE RESTITUTION OF $6,200.00 TO THE ESTATE OF JUANITA WILSON; MAKE RESTITUTION OF $12,000.00 TO CYNTHIA McGOWAN AND PAY ALL COSTS OF COURT AFFIRMED.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., ROBERTS, SMITH, MILLS AND WALLER, JJ., CONCUR. McRAE, J., NOT PARTICIPATING.
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