IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-IA-00617-SCT

STATE OF MISSISSIPPI, STEPHANIE TIMMONS AND MIKE TIMMONS

v.

ADAMS COUNTY CIRCUIT COURT

DATE OF JUDGMENT: 05/13/1997

TRIAL JUDGE: HON. LILLIE BLACKMON SANDERS

COURT FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: EMILY HAXTON

EILEEN M. MAHER

THOMAS L. ROSENBLATT

ATTORNEY FOR APPELLEE: LAWRENCE A. SCHEMMEL

DISTRICT ATTORNEY: RONNIE L. HARPER

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 03/25/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 4/15/99

EN BANC.

SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

¶1. Stephanie and Mike Timmons were indicted during the January, 1997, Term in Adams County Circuit

Court in Cause Number 10,953 for possession of more than one ounce and less than one kilogram of

marijuana. The Timmonses were also indicted during the same term in Cause Number 10,954 for

possession of cocaine within a church zone and possession of crystal methamphetamine within a church

zone. As part of a plea bargain, the State agreed to retire the charges in Cause Numbers 10,953 and 10,

954 in exchange for the couple pleading guilty to a separate set of charges in Cause Number 10,843. At a

March 24, 1997, hearing before Circuit Court Judge Forrest A. Johnson, Jr., Mrs. Timmons pled guilty to

sale of less than one ounce of marijuana and possession of more than one kilogram of marijuana in Cause

Number 10,843. Mr. Timmons pled guilty to possession of more than one ounce, but less than one

kilogram of marijuana in Cause Number 10, 843. Judge Johnson sentenced Mrs. Timmons to three years

and a $1,000 fine for sale of marijuana and three years and a $1,000 fine on the possession charge, the

sentences to run concurrently, plus all court costs. Mr. Timmons received a three-year suspended sentence

and a $1,000 fine with a five-year probation period for possession of more than an ounce, less than a
kilogram of marijuana.

¶2. On May 9, 1997, Circuit Court Judge Lillie Blackmon Sanders heard the State's motion to dismiss the

charges in Cause Numbers 10,953 and 10,954. Judge Sanders denied the State's motion and ordered that

the case proceed to trial. Again, on May 13, 1997, District Attorney Ronnie L. Harper appeared before

Judge Sanders requesting that she reconsider the State's motion to nolle prosequi the two indictments.

Judge Sanders explained that she would not sign an order dismissing charges before her based upon a plea

agreement made in another judge's court of which she was not made aware, particularly considering the light

sentence given as a result of the guilty pleas. She proposed instead that the district attorney have the guilty

pleas before Judge Johnson set aside. Judge Sanders also suggested that the reason the State was willing to

dismiss the charges against the Timmonses was because they were white. In her May 13, 1997, order,

Judge Sanders denied both the State's motion to dismiss and its request for interlocutory appeal.

¶3. On May 14, 1997, the trial date set in this case, Judge Sanders refused to reconsider her decision after

discussion with the attorneys in chambers. She required District Attorney Harper to appear in court, where

he declared that the State was not able ethically and legally to proceed based upon the previous plea

agreement. Judge Sanders announced that she would request a prosecutor from the Attorney General's

Office to proceed with the case.

¶4. We granted the State's motion for interlocutory appeal and entered an order staying the prosecutions.

On appeal the State assigns as error the following:

I. A DISTRICT ATTORNEY HAS BROAD DISCRETION IN HANDLING CRIMINAL

PROSECUTIONS AND MAY DISMISS INDICTMENTS AGAINST A DEFENDANT AS

PART OF A PLEA AGREEMENT. THESE PLEA NEGOTIATIONS UNDER THE CONTROL

OF THE DISTRICT ATTORNEY SHOULD NOT BE INTERFERED WITH BY THE COURT

OUT OF RESPECT FOR SEPARATION OF POWERS.

II. THE "CONSENT OF COURT" REQUIRED FOR A NOLLE PROSEQUI BY MISSISSIPPI

CODE ANNOTATED § 99-15-53 SHOULD NOT BE UNREASONABLY WITHHELD. EVEN

THOUGH THE STATUTE DOES NOT REQUIRE THE STATE TO "SHOW CAUSE,"

THERE WAS ABUNDANT CAUSE IN THIS CASE FOR THE COURT TO APPROVE THE

DISMISSAL.

III. BECAUSE THE TIMMONS DEFENDANTS RELIED ON THE PROMISE OF THE

STATE TO DISMISS OTHER CHARGES AGAINST THEM, THEY CANNOT NOW BE

PROSECUTED ON THOSE CHARGES.

¶5. These three assignments essentially boil down to one issue: whether the trial judge abused her discretion

in refusing the motion for nolle prosequi relied upon by the prosecutor and the defendant in reaching a plea

agreement in this case. We find that the district attorney's failure to obtain prior court approval for the plea

agreement in this case was error. However, once the Timmonses relied upon the plea agreement to their

detriment by entering their guilty pleas, both the district attorney and the trial court were bound to uphold

the State's end of the agreement by dismissing the charges in Cause Numbers 10,953 and 10,954.

Therefore, we hold that Judge Sanders abused her sound judicial discretion by denying the State's motion

to nolle prosequi the two indictments in these cases.
STATEMENT OF THE LAW

I.

WHAT IS THE EXTENT OF THE TRIAL JUDGE'S AUTHORITY IN DECIDING WHETHER

TO GRANT A MOTION FOR NOLLE PROSEQUI RELIED UPON DURING PLEA

NEGOTIATIONS BETWEEN THE PROSECUTOR AND THE DEFENDANT?

¶6. Both the State and the circuit court agree that § 99-15-53 is the primary authority in this case:

A district attorney, or other prosecuting attorney, shall not compromise any cause or enter a nolle

prosequi either before or after indictment found, without the consent of the court; and, except as

provided in the last preceding section, it shall not be lawful for any court to dismiss a criminal

prosecution at the cost of the defendant, but every cause must be tried unless dismissed by consent of

the court.

Miss. Code Ann. § 99-15-53 (Rev. 1994). The issue presented is the extent of the trial judge's authority in

granting or denying the court's consent. The State maintains that the consent of the court should not be

withheld without just cause. Its position is that district attorneys should be allowed wide discretion in

deciding which cases to prosecute and in conducting plea negotiations. The State also argues that because

the defendants detrimentally relied upon the plea agreement to nolle prosequi these causes, further

prosecution is legally and ethically barred.

¶7. "The state, whether it be through the prosecutor, the trial judge, or both, is bound by its plea-bargain

agreement with a defendant who pleads guilty pursuant to the agreement." Salter v. State, 387 So. 2d 81,

83 (Miss. 1980).

Disposition of charges after plea discussions is not only an essential part of the process but a highly

desirable part for many reasons.

However, all of these considerations presuppose fairness in securing agreement between an accused

and a prosecutor.

. . . [W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that

it can be said to be part of the inducement or consideration, such promise must be fulfilled.

Santobello v. New York, 404 U.S. 257, 261-62 (1971).

¶8. Generally speaking, a trial court is not bound to accept a defendant's guilty plea or enforce a plea

agreement reached between the prosecutor and defendant. Moody v. State, 716 So. 2d 592, 594 (Miss.

1998). "However, as we explained in Burkett v. Burkett, 537 So. 2d 443, 446 (Miss. 1989), when a

'trial court has discretion in a matter, [it is] impl[ied] that there is a limited right to be wrong.'" Moody, 716

So. 2d at 594 (footnote omitted). In Moody, we reversed the trial judge's refusal to accept the defendant's

guilty plea and enforce the plea agreement, finding that the defendant detrimentally relied upon the terms of

the agreement when he supplied the State with information and submitted to polygraph examinations. Id. at

592 & 595. We held that the reasons relied upon by the trial judge in rejecting the plea agreement (that he

did not want the defendant to receive less than a death penalty and that the district attorney exceeded his

authority in offering the plea bargain) were unreasonable and resulted in an abuse of discretion. Id. at 594-
95.

¶9. In Edwards v. State, 465 So. 2d 1085 (Miss. 1985), we reversed a conviction for extortion, because

the defendant detrimentally relied upon his agreement with the district attorney. According to the terms of

the agreement, the defendant "would resign his position as constable in exchange for immunity from

prosecution." Id. at 1085. Applying § 99-15-53, we held that the district attorney lacked authority to enter

into the agreement with the defendant and further erred in failing to move to nolle prosequi. Id. at 1086. We

also recognized the sound discretion given to trial judges in deciding whether to ratify plea agreements. Id.

However, based upon the defendant's detrimental reliance on the agreement when he resigned his position,

we held that the trial court abused its discretion in denying the defendant's motion to quash the indictment.

Id.

¶10. In Danley v. State, 540 So. 2d 619 (Miss. 1988), we reversed a murder conviction based upon the

district attorney's improper unilateral decision to rescind a plea agreement with the defendant. Under the

agreement, the defendant was to provide the prosecutor with information regarding the murder in exchange

for the State's recommendation that the defendant be tried under a reduced charge. Id. at 621. The

prosecutor suspected that the defendant had breached their agreement by giving him misinformation and,

therefore, decided to rescind the plea agreement and proceed with the murder charge. Id. at 621-22. In

analyzing the application of § 99-15-53 to the case, we stated, "There is no indication in the record that the

district attorney ever sought the approval of the trial court before reaching the plea bargain agreement with

Danley. The more serious error in this case however, was the unilateral decision by the district attorney to

rescind the memorandum of understanding." Id. at 622. We found that the defendant's detrimental reliance

on the plea agreement required reversal, despite any failure by the district attorney to obtain prior court

approval for the agreement. Id. at 623.

¶11. We find that the district attorney here erred in failing to gain Judge Sanders's approval of the plea

agreement which involved the nolle prosequi of two cases before her. However, once the Timmonses

detrimentally relied on the agreement by pleading guilty and testifying about their drug business at their plea

hearing before Judge Johnson, Judge Sanders abused her discretion by refusing to grant the State's motion

to dismiss. Although she did refer to the proportionally light sentence given to the defendants as part of her

concern, a review of the record indicates that Judge Sanders was primarily agitated at what she perceived

to be a usurpation of her judicial power. This was not a reasonable basis for refusing to uphold the plea

agreement in this case.

¶12. The requirement of court approval for dismissal of a criminal action "is primarily intended to protect the

defendant against prosecutorial harassment." United States v. Hamm, 659 F.2d 624, 628 (5th Cir. 1981)

(en banc) (interpreting Rule 48(a) of the Federal Rules of Criminal Procedure) (footnote omitted). The only

way to protect the rights of the defendants at this point is to reverse the decision of the circuit court and

order dismissal of the charges in this case, per the plea agreement.

¶13. We reverse the judgment of the trial court and remand this case to the Adams County Circuit Court

with specific instructions to dismiss with prejudice the indictments in Cause Numbers 10, 953 and 10, 954

on the criminal docket of the circuit court.

¶14. REVERSED AND REMANDED.

PRATHER, C.J., PITTMAN, P.J., MILLS AND WALLER, JJ., CONCUR. BANKS, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE AND SMITH, JJ.

SMITH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BANKS, J.

BANKS, JUSTICE, DISSENTING:

¶15. The perception of usurpation of judicial power, if entertained by Judge Sanders, was right on target.

There is simply no basis for a district attorney, or a circuit court, entering into an arrangement purporting to

bind another court. In most of our judicial districts where there are multiple judges, a system of random

assignment of cases has been established. We have found cause for disciplining judges who have violated

the random assignment scheme by acting upon cases assigned to another without the consent of all

concerned. Mississippi Comm'n on Judicial Performance v. Gunn, 614 So. 2d 387, 389 (Miss.

1993); Mississippi Comm'n on Judicial Performance v. Chinn, 611 So. 2d 849, 854 (Miss. 1992);

In re Hearn, 515 So. 2d 1225, 1227 (Miss. 1987). Compare Mississippi Comm'n on Judicial

Performance v. Dodds, 680 So. 2d 180, 197 (Miss. 1996) (holding that justice court judge who disposed

of cases assigned to another judge did not interfere with the rotation of cases where the judges were in

agreement). What happened here strikes a heavy blow to the system of random assignment. Because it

does, I reluctantly dissent.

¶16. To be sure, it is not the Timmonses' fault but neither should they gain from such a procedure. The

Timmons may be restored to "square one" without any loss to themselves or the system by simply allowing

them to withdraw their pleas on the basis that the trial court to which the other cases were assigned did not

approve of the nolle prosequi.

¶17. In my view, Salter v. State, 387 So. 2d 81, 83 (Miss. 1980), may be distinguished. Here, the

original bargain failed to gain complete judicial approval. In Salter there was a bargain to drop certain

charges, and they were in fact dropped. Id. Thereafter, first the state and then the court tried to reinstate

those charges for reasons which did not affect the validity of the bargain. Id. That is simply not the case

here.

¶18. Neither does Moody v. State, 716 So. 2d 592 (Miss. 1998), control. In addition to the prior

irreversible reliance upon the bargain there, unlike in this case, the judge had no sentencing option. Id. at

595. He could not impose the death penalty, and the death penalty could be sought only if the district

attorney pursued it. Id. The plea bargain bound the court to no more nor less than what the law required of

it. The Moody trial court's withholding approval of a plea, then, was completely arbitrary.

¶19. Here the trial judge has a great deal of sentencing discretion. I agree with the majority that sentencing

discretion should not be the sole basis for withholding approval of an otherwise valid plea agreement which

requires a nolle prosequi. Nor should the power of approval be used to frustrate prosecutorial discretion

concerning when to proceed with a given prosecution. In my view, however, the prophylactic effect of what

was done here is sufficient justification for it. A trial court should not be held hostage to a bargain struck

elsewhere. Judge shopping has potential dangers for the fair administration of justice. One way to stop the

practice is to avoid rubber stamping its result.

¶20. For the foregoing reasons, I would affirm the decision of Judge Sanders.
McRAE AND SMITH, JJ., JOIN THIS OPINION.

SMITH, JUSTICE, DISSENTING:

¶21. Most recently, this Court addressed detrimental reliance upon a plea bargain in Moody v. State, 716

So.2d 592 (Miss. 1998). There, this Court said:

We conclude that Moody is correct in arguing that he is entitled to have the plea agreement enforced

for two reasons. One, the trial court clearly abused its discretion in flatly refusing to accept Moody's

pleas of guilt based solely upon the reasons indicated in the record. Two, Moody did indeed

detrimentally rely on the agreement by substantially performing many of the terms of the agreement

before the trial court refused to accept the guilty pleas and enforce the agreement. As Moody argues,

his detrimental reliance and performance of the terms of the agreement mandate that the agreement be

enforced.

Id. at 594 (emphasis in original). Moody detrimentally relied on the agreement when he (1) gave several

statements to the State about his and others' participation and involvement in the various murders; (2) fully

disclosed all information and knowledge he possessed about the charged crimes, as well as another murder;

(3) buttressed the credibility of his statements by submitting, satisfactorily, to lie detector tests; and (4)

made himself available to testify against the co-defendants charged with the crimes. Id. at 593.

¶22. Furthermore, in Moody, this Court designed the proper standard for a trial court to follow in

determining whether detrimental reliance upon a plea agreement has occurred, as follows:

We recognize that a criminal defendant has no absolute right to have his guilty plea accepted by a trial

court. A trial judge may decline to accept such a plea in the exercise of sound judicial discretion.

Miss. Code Ann. § 99-15-53 (1994); Martin v. State, 635 So.2d 1352 (Miss.1994). However as

we explained in Burkett v. Burkett, 537 So.2d 443, 446 (Miss.1989), when a "trial court has

discretion in a matter, [it is] impl [ied] that there is a limited right to be wrong." When reviewing a

decision that is within a trial court's discretion, the first question we ask is if the court applied a correct

legal standard. Id. (citing Detroit Marine Engineering v. McRee, 510 So.2d 462, 467

(Miss.1987); Croenne v. Irby, 492 So.2d 1291, 1293 (Miss.1986)). If a correct legal standard was

applied, the next question is whether the trial court's "decision was one of those several reasonable

ones which could have been made." Burkett, 537 So.2d at 446 (emphasis added).

716 So.2d at 594.

¶23. Therefore, under the Moody analysis, the first question in the case sub judice is whether the trial court

applied the proper legal standard. The correct legal standard was applied by Judge Sanders in exercising

her discretion under Miss. Code Ann. § 99-15-53 (1994). The second question is whether that decision

was one of the several reasonable ones possible. The Majority thinks that it was not. Maj. Op. at 5.

¶24. The ultimate legal question is then whether the Timmonses did in fact detrimentally rely upon the plea

agreement. In Salter v. State, 387 So.2d 81 (Miss.1980), we held: "The state, whether it be through the

prosecutor, the trial judge, or both, is bound by its plea bargain agreement with a defendant who pleads
guilty pursuant to the agreement." Id. at 83. Moreover, in Salter, this Court held that the state was bound

by its agreement with Salter to nolle pros eight indictments against Salter after he pled guilty to two others.

Id. at 84.

¶25. In the case sub judice, the plea agreement with the Timmonses stated that the State would retire two

charges in exchange for the couple pleading guilty to two other charges. The Timmonses complied and pled

guilty to two charges before Judge Johnson. Subsequently, Judge Sanders denied the State's motion to

dismiss on other charges which were assigned to her, pursuant to the plea bargain. Therefore, under Salter,

it appears at first blush that the Timmonses have detrimentally relied upon the plea bargain.

¶26. However, both Moody and Salter are factually distinguishable despite the Majority's claims otherwise.

The key distinguishing fact in the case sub judice is that two circuit judges were involved, and the district

attorney only got prior consent for the plea bargain from one of them, Judge Johnson. This is an important

distinction, because Section 99-15-53 specifically states that "[a] district attorney, or other prosecuting

attorney, shall not compromise any cause or enter a nolle prosqui either before or after indictment found,

without consent of the court . . . " Miss. Code Ann. § 99-15-53 (1994) (emphasis added). It is

undisputed that the district attorney did not have the consent of Judge Sanders on the two charges pending

before her. Because of the district attorney's inexcusable lapse, Judge Sanders was placed in a very

awkward position before a jury ready to try the Timmonses. In reality, there was no plea bargain here

because Judge Sanders never approved the district attorney's recommendation. Nor have the Timmons

detrimentally relied on the agreement as in Salter or Moody. Therefore, they can simply be allowed to

withdraw their pleas and put back in their original prior position. (See Lanier v. State, 635 So. 2d 813,

818-19 (Miss. 1994)(defendant's plea bargain contract to life without parole was void as against public

policy and in violation of the statute, thus, on remand defendant is put back in original prior position subject

to death penalty or life imprisonment).

¶27. Furthermore, the Majority is overly critical and insensitive to her plight in stating that Judge Sanders

was "agitated at what she perceived to be a usurpation of her judicial power." Maj. Op. at 7. Rather than a

"perception" of usurpation, here there was a clear disregard by the district attorney for the statutory

mandate. The facts relating to Judge Sanders's role in this case clearly demonstrate my point.

¶28. The record indicates that Judge Sanders was informed previously by the district attorney that his office

would no longer plea bargain with criminal defendants. Moreover, according to Judge Sanders, the district

attorney had previously tried to do the same thing, ". . . and it has happened before, where the district

attorney without my consent, without informing me, enters into agreements with parties to dismiss cases and

to Nolle Pros cases. And this Court told them then when they did it before not to do it again."

¶29. In circumstances such as these where several criminal charges are presented against defendants in the

same circuit court but before different circuit judges, Section 99-15-53 requires the district attorneys of this

state to obtain the prior consent of all judges whose dockets will be affected by the plea arrangements. The

district attorney here failed in this responsibility and rightfully incurred the wrath of Judge Sanders for what

the district attorney incorrectly suggested was only an "administrative oversight." The circuit judges deserve

more respect and certainly more notice.

¶30. Accordingly, I respectfully dissent.

BANKS, J., JOINS THIS OPINION.