State ex rel. Mayes v. Wiggins

150 S.W.3d 290, 2004 Mo. LEXIS 142, 2004 WL 2796389

• Court: Supreme Court of Missouri
• Decided: December 7, 2004
• Docket: No. SC 85657
• Status: Published

Opinions

ORIGINAL PROCEEDING IN PROHIBITION

RONNIE L. WHITE, Chief Justice.

I.

Relator, Bobby Jo Mayes, was convicted of two counts of first-degree murder and two counts of armed criminal action. Mr. Mayes’ convictions were affirmed on direct appeal, but this Court reversed his original sentence and remanded for a retrial of his penalty phase.¹ At the completion of the retrial, the jury returned findings of the presence of aggravating circumstances in connection with the murders, but could not agree on punishment. Respondent discharged the jury, overruled Relator’s motion for a life sentence and ordered a new penalty phase trial. Relator seeks alterna-five writs of mandamus and/or prohibition to prevent Respondent from ordering the retrial and requiring him to enter an order of life imprisonment. This Court issued its preliminary writ of prohibition, which is made absolute as modified. This Court has jurisdiction. Mo. Const, article V, section 4.

II.

“Prohibition is a discretionary writ, and there is no right to have the writ issued. Prohibition will lie only to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power.”² Prohibition is an appropriate remedy in this instance because Respondent’s order granting a new penalty phase trial is an interlocutory order and is not subject to an appeal.³

Earlier this year, this Court confronted the same issues raised by Relator and specifically held that when the jury is unable to agree on punishment and the verdict fails to show that the jury found all facts necessary for the imposition of death, that Respondent’s only option would be to impose a life sentence.⁴ The record is clear that the jury found the presence of aggravating circumstances; however, it is devoid of findings of mitigating circumstances or as to what circumstances the jurors relied upon when not finding that these aggravators warranted an imposition of death. As the prior analysis dictates, under such circumstances Respondent had but one option — to declare a sentence of life without probation, parole, or release except by act of the governor.⁵

III.

The preliminary writ is made absolute as modified to prohibit Respondent from taking any action other than to order a sentence of life in prison.

WOLFF, STITH and TEITELMAN, JJ., concur. PRICE, J., dissents in separate opinion filed. LIMBAUGH and RUSSELL, JJ., concur in opinion of PRICE, J.

1 . State v. Mayes, 63 S.W.3d 615 (Mo. banc 2001).

2 . State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 856-57 (Mo. banc 2001).

3 . State v. Harris, 486 S.W.2d 227, 229 (Mo.1972).

4 . State ex rel. Baker v. Kendrick, 136 S.W.3d 491 (Mo. banc 2004); State v. Whitfield, 107 S.W.3d 253, 270-271(Mo. banc 2003); section 565.030, RSMo 2000.

5 . Id.