         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2018-KA-00296-COA

AUTRAVIOUS GASTON A/K/A TRE A/K/A                                             APPELLANT
AUTRAVIOUS TIYON GASTON A/K/A OG

v.

STATE OF MISSISSIPPI                                                            APPELLEE

DATE OF JUDGMENT:                           02/16/2018
TRIAL JUDGE:                                HON. JAMES T. KITCHENS JR.
COURT FROM WHICH APPEALED:                  LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     OFFICE OF STATE PUBLIC DEFENDER
                                            BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY:                          SCOTT WINSTON COLOM
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                REVERSED AND REMANDED - 04/30/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       TINDELL, J., FOR THE COURT:

¶1.    Autravious Gaston (“Gaston”) appeals his sentence of life imprisonment for

kidnapping from the Lowndes County Circuit Court. His sole argument is the legality of the

sentence, pursuant to Mississippi Code Annotated section 97-3-53 (Rev. 2014), whereby a

trial court may only sentence a defendant to life imprisonment for kidnapping if a jury pre-

fixes that sentence in its verdict. Because the jury did not authorize this sentence, we find

that the trial court exceeded its statutory sentencing authority, and we reverse and remand this

case for re-sentencing.
                       FACTS AND PROCEDURAL HISTORY

¶2.    On February 16, 2018, a jury convicted Autravious Gaston (“Gaston”) of one count

of grand larceny (Count I), two counts of kidnapping (Counts II and III), two counts of armed

robbery (Counts IV and V), two counts of sexual battery (Counts VI and VII), and one count

of possession of a firearm by a felon (Count VIII). The trial court held a sentencing hearing

the same day and sentenced Gaston as follows: five years in the custody of the Mississippi

Department of Corrections for Count I; life imprisonment for Count II; thirty years for Count

III; life imprisonment for Counts IV and V; thirty years for Count VI and VII; and ten years

for Counts VIII—all to be served consecutively except for Counts IV and V, which were to

be served concurrently.

¶3.    Gaston now appeals the trial court’s sentence of life imprisonment for kidnapping in

Count II, arguing that the sentence was illegal pursuant to Mississippi Code Annotated

section 97-3-53. In its responsive brief, the State acknowledged that the trial court erred by

sentencing Gaston beyond the statutory maximum without proper authority.

                               STANDARD OF REVIEW

¶4.    Generally, this Court applies “a highly deferential standard of review for sentencing

matters, leaving the imposition of the sentence to the trial court’s discretion.” Perryman v.

State, 120 So. 3d 1048, 1052 (¶10) (Miss. Ct. App. 2013). A trial court’s sentence will not

be disturbed unless it exceeds the statutory maximum for the particular crime in question.

Wallace v. State, 607 So. 2d 1184, 1188 (Miss. 1992).

                                        ANALYSIS



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¶5.    Gaston’s first and only assignment of error was that the trial court illegally imposed

the sentence of life in prison upon his conviction of kidnapping, contrary to statutory

authority. Mississippi Code Annotated section 97-3-53 states that any person convicted of

kidnapping

       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.

(Emphasis added). Mississippi law is clear that a jury must pre-fix a sentence of life

imprisonment for kidnapping in its verdict or else the trial court is bound by the statutory

maximum of thirty years. Brooks v. State, 236 So. 2d 751, 754 (Miss. 1970). Where a trial

court fails to follow the statute, the failure constitutes plain error, and the case must be

remanded for re-sentencing. Erwin v. State, 557 So. 2d 799, 801 (Miss. 1990).

¶6.    There is no evidence here that the jury fixed Gaston’s sentence at life in prison during

the trial of this matter. The jury merely found Gaston guilty of kidnapping, among other

charges, without addressing any possible punishment for this crime. The State acknowledges

in its brief that the trial court exceeded its statutory authority by imposing this sentence.

Further, the State agrees that Gaston’s case must be returned to the trial court for a new

sentencing hearing on the kidnapping charge. By imposing a sentence of life imprisonment

without authority from the jury, the trial court reached beyond its statutory limits, and we

have no choice but to find error in this case. Accordingly, we reverse and remand this case

for re-sentencing as to Count II.



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¶7.   REVERSED AND REMANDED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ.,
CONCUR.




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