        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-KA-00819-COA

CRAIG D. SALLIE A/K/A CRAIG D. SALLIE,                                     APPELLANT
SR. A/K/A CRAIG SALLIE

v.

STATE OF MISSISSIPPI                                                         APPELLEE

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
TRIAL COURT DISPOSITION:                  ON REMAND, REMOVED FIREARM
                                          ENHANCEMENT BUT ORDERED TWO
                                          REMAINING SENTENCES TO BE SERVED
                                          CONSECUTIVELY TO ONE ANOTHER
                                          INSTEAD OF CONCURRENTLY
DISPOSITION:                              AFFIRMED - 12/06/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      ISHEE, J., FOR THE COURT:

¶1.   In 2012, Craig D. Sallie was convicted by a jury of aggravated assault after Sallie was

found to have shot Gregory Johnson in the back, resulting in Johnson’s paralysis. The jury

also found Sallie guilty of being a felon in illegal possession of a firearm. The Madison

County Circuit Court sentenced Sallie to thirty years in the custody of the Mississippi

Department of Corrections (MDOC) for the two convictions – twenty years for the
aggravated-assault conviction and ten years for being a felon in possession of a firearm, with

the sentences to run concurrently. The circuit court went on to enhance Sallie’s sentence by

ten years for his use of a deadly weapon in the commission of the aggravated assault. The

ten-year enhancement was ordered to run consecutively to the other sentences, with all

sentences in the custody of the MDOC. Sallie appealed the convictions and sentences.

Ultimately, the Mississippi Supreme Court affirmed Sallie’s initial two convictions but

reversed the ten-year enhancement. The supreme court then remanded the case to the circuit

court for resentencing based on the removal of the enhancement. The circuit court

subsequently resentenced Sallie to twenty years for the aggravated-assault conviction and

ten years for being a felon in possession of a firearm, which mirrored the previous sentence.

However, the circuit court ordered the sentences to run consecutively to one another instead

of concurrently. Sallie appeals, claiming the circuit court was without authority to alter the

sentences from running concurrently to running consecutively. Finding no error, we affirm.

                                STATEMENT OF FACTS

¶2.    Sallie has previously appealed his conviction and sentence to this Court. As such, we

will glean from our original recitation of the facts for an overview of Sallie’s underlying

circumstances:

       On November 28, 2011, an unarmed Johnson walked past Sallie’s house en
       route to his own home. According to Johnson, as he walked past Sallie’s
       house, Sallie yelled to him, demanding that Johnson come into his yard.
       Johnson refused and told Sallie to come into the street so that they could settle
       [their] dispute like men.1 Johnson admitted that he called Sallie a coward and

       1
         Sallie had previously accused Johnson of stealing a bottle of whiskey from him.
Sallie v. State, 155 So. 3d 872, 873 (¶3) (Miss. Ct. App. 2013) (vacated in part).

                                              2
       a b****. He testified that Sallie then pulled out a gun and stated, “Naw, you
       come in my yard.” When Johnson turned to walk away, Sallie started shooting
       at him. Sallie shot Johnson five times, with one bullet hitting Johnson in the
       spine, paralyzing him from the waist down. In his statement to the police,
       Sallie claimed that Johnson came into his yard acting like he was drunk and
       “maybe high.” He also stated that Johnson initiated the dialogue and that he
       was “mumbling” words to Sallie. Sallie added that he “reacted without
       conscious” and shot Johnson, but that he did not initially intend to get violent
       with him.

Sallie v. State, 155 So. 3d 872, 873 (¶3) (Miss. Ct. App. 2013) (vacated in part).

¶3.    We upheld the circuit court’s judgment in its entirety on appeal. Id. at 875 (¶13).

However, on certiorari, the supreme court affirmed the convictions and sentences but

reversed the sentence enhancement. Sallie v. State, 155 So. 3d 760, 764 (¶14) (Miss. 2015).

Specifically, the supreme court stated:

       We decline to find error that would reverse Sallie’s conviction. . . . However,
       we find that Sallie did not receive timely or sufficient notice that the State
       intended to enhance his sentence using the firearm enhancement[,] . . . [which]
       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.

¶4.    After the case was remanded for resentencing, the circuit court conducted a sentencing

hearing on May 12, 2015. At that time, the circuit court sentenced Sallie to twenty years for

the aggravated-assault conviction and ten years for being a felon in possession of a firearm

– the same length of time contained in the original sentence imposed by the circuit court.

However, the circuit court ordered that the sentences run consecutively to one another instead

of concurrently. On appeal, Sallie asserts that this change was illegal.

                                       DISCUSSION

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¶5.    On appeal, Sallie asserts that the circuit court illegally issued a greater sentence to him

on remand than was previously ordered following the trial. Sallie relies on a line of cases

originating with Leonard v. State, 271 So. 2d 445 (Miss. 1973), for the notion 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.” Id. at 447. This legal

tenet was reiterated by this Court more recently in Eastman v. State, 909 So. 2d 171 (Miss.

Ct. App. 2005).

¶6.    However, Leonard and Eastman are both easily distinguishable from the case at hand.

In Leonard, Walter Leonard pleaded guilty in the Washington County Circuit Court to two

offenses, and was sentenced to two years on each offense, with the sentences to run

consecutively. However, his sentences were suspended, and he was put on probation for the

entirety of the sentence. Leonard soon violated his probation. The circuit court resentenced

him to ten years for each offense, with the sentences to run consecutively for a total of twenty

years. The supreme court reversed the circuit court’s sentence since the final sentence was

much greater, and varied distinctly, from the original sentence. Leonard, 271 So. 2d at 447.

¶7.    In Eastman, James Thomas Eastman pleaded guilty to two counts and was sentenced

to ten years on Count I, and fifteen years on Count II. Eastman was recommended to an

MDOC program that, if completed, would negate the ten-year sentence for the first offense.

The second sentence was also suspended, and it appears Eastman never actually served any

jail time. Instead, Eastman was placed on five years of supervised probation after successful

completion of the MDOC program. His probation was soon revoked for just cause. After



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completing another probationary program offered through MDOC, Eastman was again

released on supervised probation for five years. However, his probation was revoked for a

second time shortly after his release.

¶8.    At his revocation hearing, the State requested that the circuit court impose the fifteen-

year sentence originally issued for Count II, which was concurrent to Count I. Instead, the

circuit court imposed a consecutive ten-year sentence for Count II. Eastman appealed the

circuit court’s judgment because it imposed a greater overall sentence than the original

sentence (twenty years to serve as opposed to fifteen). Using Leonard as a basis, this Court

determined that the circuit court was not allowed to restructure the overall sentence into

consecutive ten-year sentences as opposed to the original concurrent ten- and fifteen-year

sentences because it made the total sentence greater than originally imposed. Eastman, 909

So. 2d at 174 (¶¶12-13).

¶9.    Here, the circuit court did not alter the number of years to which Sallie was originally

sentenced. Likewise, the circuit court did not restructure Sallie’s sentence to increase the

number of years he would serve. The original sentence entailed twenty years for the

aggravated-assault conviction and ten years for the felon-in-possession-of-a-firearm

conviction, with ten years added for the enhancement. The first two sentences were to run

concurrently and the enhancement was to run consecutively – this gave Sallie an original

sentence of thirty years. The supreme court vacated Sallie’s entire sentence on remand and,

hence, the circuit court was with authority to impose upon Sallie a new sentence within the

original thirty-year parameter. The circuit court sentenced Sallie to twenty years and ten



                                               5
years on each offense, respectively, as had been the original sentence. By changing the

sentences from concurrent to consecutive, the circuit court kept the new sentence within the

original thirty-year window. Therefore, the restructuring of the sentence does not fall within

the confines of Leonard or Eastman. We fail to find error in the circuit court’s judgment.

This issue is without merit, and the circuit court’s judgment is affirmed.

¶10. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON
COUNTY.

     GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, JJ.,
CONCUR. LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED
BY JAMES, J.; IRVING P.J., JOINS IN PART.

       LEE, C.J., DISSENTING:

¶11.   The majority affirms the trial court’s resentencing of Sallie on remand following the

supreme court’s decision to vacate a portion of Sallie’s sentence based upon the firearm

enhancement.     Because the supreme court had affirmed Sallie’s original sentences,

notwithstanding the vacation of the firearm enhancement, I find that the trial court lacked

jurisdiction to restructure Sallie’s sentences to run consecutively where the original sentences

were ordered to run concurrently. Furthermore, the restructuring of the sentences resulted

in a greater sentence than the original sentence, which violates well-settled caselaw on the

matter. Thus, I respectfully dissent.

¶12.   In 2012 Sallie was convicted and sentenced to serve twenty years for aggravated

assault and ten years for felon in possession of a firearm, ordered to run concurrently, with

an additional ten years under the firearm-enhancement statute, for a total of thirty years. On



                                               6
appeal this Court affirmed both the convictions and the sentences of Sallie. Sallie v. State,

155 So. 3d 872, 875-76 (¶13) (Miss. Ct. App. 2013) (vacated in part).

¶13.   On writ of certiorari, the supreme court affirmed in part and reversed in part the

judgments of the trial court and this Court. Sallie v. State, 155 So. 3d 760, 764 (¶14) (Miss.

2015). The supreme court clearly indicated that its review of Sallie’s appeal was limited only

“to address the issue of whether Sallie was entitled to notice of the firearm enhancement to

his sentence.” Id. at 761 (¶1). The supreme court affirmed the convictions and sentences of

Sallie but “reverse[d] the portion of Sallie’s sentence that constitute[d] the firearm

enhancement,” due to the “lack of notice . . . [and] unfair surprise by the post-conviction

notice that the firearm enhancement would be considered.” Id. at 764 (¶13) (emphasis

added). Accordingly, the case was remanded to the trial court for resentencing. Id. at (¶14).

¶14.   On remand the trial court sentenced Sallie again to serve twenty years for aggravated

assault and ten years for felon in possession of a firearm, to run consecutively for a total of

thirty years, as opposed to the original sentence ordered to run concurrently.            The

resentencing resulted in the same amount of time imposed by the original sentence, which

included the ten-year firearm enhancement that was vacated by the supreme court as

unconstitutional. With the vacation of the firearm enhancement, the new sentence now

exceeds the original sentence of twenty years.

¶15.   The trial court lacked jurisdiction to alter Sallie’s sentences from concurrent to

consecutive because the supreme court had affirmed these portions of Sallie’s sentences as

noted in the court’s mandate: “[t]he judgements of the Court of Appeals and the Madison



                                              7
County Circuit Court are affirmed in part and vacated in part . . . .” Id. at 765 (¶15). The

“vacated in part” refers only to the firearm enhancement as indicated by the court’s grant of

a limited review only “to address the issue of whether Sallie was entitled to notice of the

firearm enhancement to his sentence.” Id. at 761 (¶1). The court’s review dealt only with

the addition of the firearm enhancement “to his sentence” and not the sentence itself. Again,

the court accordingly stated, “[W]e must reverse the portion of Sallie’s sentence that

constitutes the firearm enhancement.” Id. at 764 (¶13) (emphasis added). Because the court

reversed only a portion of Sallie’s sentence – namely the firearm enhancement – the

remaining portions of the sentence were included in the “affirmed in part” order of the court

and thus were not within the jurisdiction of the trial court to alter upon remand.

¶16.   In addition to the trial court’s lack of jurisdiction to alter the sentence on remand, its

resentencing was illegal. The supreme court has also held that “once a circuit or county court

exercises its option to impose a definite sentence, it cannot subsequently set such a sentence

aside and impose a greater sentence.” Leonard v. State, 271 So. 2d 445, 447 (Miss. 1973).

That principle was further reiterated by this Court in Eastman, where we held that a court

may “enforce the terms of the original sentence . . . [but] act[s] improperly by amending the

initial sentence [to a greater sentence], as our caselaw has long held such alterations are

improper.” Eastman v. State, 909 So. 2d 171, 173 (¶10) (Miss. Ct. App. 2005). The trial

court’s resentencing of Sallie on the convictions of aggravated assault and felon in

possession of a firearm improperly amended Sallie’s original sentence of twenty years on

those two convictions to a greater sentence of thirty years.



                                               8
¶17.   The majority acknowledges that a trial court cannot issue a greater sentence on

remand than that which was previously ordered following trial, nor can it restructure

concurrent sentences into consecutive sentences to result in a greater overall sentence.

However, the majority believes that this principle is not violated here because Sallie’s

original overall sentence (including the firearm enhancement) was thirty years, and he was

resentenced (without the firearm enhancement) to thirty years, resulting in no greater

sentence but rather the same length of time. The configuration is misguided. The supreme

court’s vacation of the firearm enhancement left in effect the original sentence of twenty

years for aggravated assault and ten years for felon in possession of a firearm, to run

concurrently for a total of twenty years. The trial court’s resentencing exceeds by ten years

the original sentence as it remains after the supreme court’s mandate to vacate the firearm

enhancement.

¶18.   The trial court lacked jurisdiction to amend the portions of Sallie’s sentence that were

affirmed by the supreme court. Further, I do not find that the supreme court’s vacation of

the firearm enhancement was simply to allow the trial court to reconfigure Sallie’s sentence

again to achieve the same amount of time as the original and vacated sentence by disrupting

well-settled law that a trial court cannot impose a greater sentence than that which it has

already ordered. I believe the trial court erred in restructuring Sallie’s original concurrent

sentences to run consecutively, both violating the supreme court’s mandate and resulting in

a greater sentence than that which was originally imposed for the two convictions; thus, the

sentence is illegal. Therefore, I respectfully dissent.



                                              9
    JAMES, J., JOINS THIS OPINION; IRVING, P.J., JOINS THIS OPINION IN
PART.




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