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Gabriel McDowell v. State of Mississippi ( 2008 )


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  • Serial: 158550
IN THE SUPREME COURT OF MISSISSIPPI
No. 2008-KA-01139-SCT
GABRIEL McDOWELL                a/k/a   GARY
McDOWELL
v.
STATE OF MISSISSIPPI
ORDER
¶1.    This matter is before the Court en banc on the issue of the Hancock County Circuit
Court’s imposition of a life sentence upon Gabriel McDowell as a habitual offender pursuant
to Mississippi Code Section 99-19-83 (Rev. 2007). The lengthy procedural history of this
case may be gleaned from a reading of McDowell v. State,
    807 So. 2d 413
     (Miss. 2001);
McDowell v. State,
    917 So. 2d 801
     (Miss. Ct. App. 2005); and McDowell v. Mississippi,
    552 F. Supp. 2d 602
     (S.D. Miss. 2008). After the federal district court’s decision to remand this
case to state court for a third resentencing hearing, the Hancock County Circuit Court
resentenced McDowell to a term of life imprisonment as a Section 99-19-83 habitual
offender. The record reveals that the trial court’s imposition of a life-without-parole sentence
was due in large part to the trial court’s dutiful reliance upon an order entered by a three-
justice panel of this Court on October 17, 2002. Upon consideration, this Court has
determined that this panel order should be vacated, and this case should be remanded to the
Circuit Court of Hancock County for the imposition of a thirty-year sentence without parole.
See Dycus v. State,
    440 So. 2d 246
    , 257-58 (Miss. 1983).
¶2.    IT IS THEREFORE ORDERED that the October 17, 2002, order of a three-justice
panel of this Court is vacated; the judgment of the Hancock County Circuit Court imposing
on Gabriel McDowell a life sentence without parole is vacated; and this case is remanded to
the Circuit Court of Hancock County with instructions to resentence Gabriel McDowell to
a term of imprisonment of thirty years in the custody of the Mississippi Department of
Corrections, and such sentence shall not be reduced or suspended, nor shall McDowell be
eligible for parole or probation. McDowell, 807 So. 2d at 426 ¶40. See also Gill v. State,
    962 So. 2d 552
    , 555 (Miss. 2007). McDowell, however, is entitled by law to credit for time thus
far served on the original sentence imposed on January 7, 2000.
¶3.    SO ORDERED, this the 9th           day of November, 2009.
/s/ George C. Carlson, Jr.
GEORGE C. CARLSON, JR.,
PRESIDING JUSTICE
GRAVES, P.J., NOT PARTICIPATING.
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