direct remand rule in Mississippi

2016Because the misdemeanor offense that Moore committed was not a lesser-included offense of the offense of which he was convicted, the direct remand rule could not have applied to Moore’s conviction. .As the Supreme Court has explained, under the direct remand rule, “no new trial is required and the defendant may be remanded for sentencing upon the lesser included offense where the proof establishes proof of the lesser offense.” Shields v. State, 722 So.2d 584, 585 (¶ 7) (Miss.1998) (emphasis added).

2015"Utilizing the direct-remand rule, an appellate court may remand a case to the trial court for sentencing- on a lesser-include.d offense where the greater offense was not proved, but the elements of the lesser-included offense were sufficiently met.” Snowden v. State, 131 So.3d 1251, 1259 (¶ 22) (Miss.Ct.App.2014) (citing Shields v. State, 722 So.2d 584, 587 (¶ 7) (Miss.1998)). 4 .

1999The Court, in supporting this direct remand rule, stated that its "logical underpinnings" "have long been grounded on the fact that guilt of a true lesser included offense is implicitly found in the jury's verdict of guilt on the greater offense," Id. at 585 , Anderson, 290 So.2d at 628-29; see also Yates v. State, 685 So.2d 715 (Miss.1996) (citing Washington v. State, 222 Miss. 782 , 787, 77 So.2d 260 , 263 (1955)); Alford v. State, 656 So.2d 1186 (Miss.1995); Bogard v. State, 624 So.2d 1313, 1320 (Miss.1993); Dedeaux v. State, 630 So.2d 30, 33 (Miss. 1993).

1997The Court, in supporting this direct remand rule, stated that its "logical underpinnings" "have long been grounded on the fact that guilt of a true lesser included offense is implicitly found in the jury's verdict of guilt on the greater offense," Id. at 585 , Anderson, 290 So. 2d at 628-29; see also Yates v. State, 685 So. 2d 715 (Miss. 1996) citing Washington v. State, 222 Miss. 782 , 787, 77 So 2d 260, 263 (1955)); Alford v. State, 656 So. 2d 1186 (Miss. 1995); Bogard v. State, 624 So. 2d 1313, 1320 (Miss. 1993); Dedeaux v. State, 630 So. 2d 30, 33 (Miss. 1993).

2026It is “only when the facts point so overwhelmingly in favor of the defendant that reasonable men could not have found, 4 The supreme court has noted that “[u]nder the direct-remand rule, an appellate court may remand a case to the trial court for sentencing on a lesser-included offense where the greater offense was not proved, but the elements of the lesser-included offense were sufficiently met.” Hall v. State, 187 So. 3d 133, 138 (¶18) (Miss. 2016).

2020“Under the direct-remand rule, an appellate court may remand a case to the trial court for sentencing on the lesser-included offense where the which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein . . . , shall be guilty of burglary.”). 7 greater offense was not proved, but the elements of the lesser-included offense were sufficiently met.” Id. (quoting Hall v. State, 187 So. 3d 133, 138 (¶18) (Miss. 2016)).

2016"Utilizing the direct-remand rule, an appellate court may remand a case to the trial court for sentencing on a lesser-included offense where the greater offense was not proved, but the elements of the lesser-included offense were sufficiently met.” Snowden v. State, 131 So.3d 1251, 1259 (¶ 22) (Miss.Ct.

2015"Utilizing the direct-remand rule, an appellate court may remand a case to the trial court for sentencing- on a lesser-include.d offense where the greater offense was not proved, but the elements of the lesser-included offense were sufficiently met.” Snowden v. State, 131 So.3d 1251, 1259 (¶ 22) (Miss.Ct.App.2014) (citing Shields v. State, 722 So.2d 584, 587 (¶ 7) (Miss.1998)). 4 .

2024Shields also noted that the direct-remand rule has been followed by other jurisdictions, “with varying rationales, either statutory, rule based or inherent power.” Id.

1999The Court, in supporting this direct remand rule, stated that its "logical underpinnings" "have long been grounded on the fact that guilt of a true lesser included offense is implicitly found in the jury's verdict of guilt on the greater offense," Id. at 585 , Anderson, 290 So.2d at 628-29; see also Yates v. State, 685 So.2d 715 (Miss.1996) (citing Washington v. State, 222 Miss. 782 , 787, 77 So.2d 260 , 263 (1955)); Alford v. State, 656 So.2d 1186 (Miss.1995); Bogard v. State, 624 So.2d 1313, 1320 (Miss.1993); Dedeaux v. State, 630 So.2d 30, 33 (Miss. 1993).

2016In reviewing the sufficiency of the evidence, “the relevant question, is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Nolan v. State, 61 So.3d 887, 893 (¶24) (Miss. 2011) (quoting *371 Bush v. State, 895 So.2d 836, 843 (¶16) (Miss. 2005)).

2015In reviewing the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Nolan v. State, 61 So.3d 887, 893 (¶ 24) (Miss.2011) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)).

2016Under the direct-remand rule, "when a conviction is reversed due to insufficient evidence, 'no new trial is required and the defendant may be remanded for re-sentencing on the lesser included offense where proof establishes the lesser offense," Hill v. State, 929 So.2d 338, 341 (¶10) (Miss.

2008Hill, 929 So.2d at 341 (¶¶ 10-11).

2016Id. at 714 . ¶ 14. ' In speaking to Jefferson’s argument that he met Section ll-44-3(l)(c)’s requirements because (according to Jeffer *137 son) the effect of the court’s exercise of the direct-remand rule was that his indictment was nol prossed, the Court of Appeals said as follows: Indeed, our goal in applying section 11-44-3(1) is “to give effect to the intent of the Legislature.” Lawson v. Honeywell Int’l, Inc., 75 So.3d 1024, 1027 (¶7) (Miss.2011) (citing City of Natchez, Miss. v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992)).

2016In speaking to Jefferson’s argument that he met Section 11-44-3(1)(c)’s requirements because (according to Jefferson) the effect of the court’s exercise of the direct-remand rule was that his indictment was nol prossed, the Court of Appeals said as follows: Indeed, our goal in applying section 11–44–3(1) is “to give effect to the intent of the Legislature.” Lawson v. Honeywell Int’l, Inc., 75 So. 3d 1024, 1027 (¶ 7) (Miss. 2011) (citing City of Natchez, Miss. v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992)).

2016Id. at 714 . ¶ 14. ' In speaking to Jefferson’s argument that he met Section ll-44-3(l)(c)’s requirements because (according to Jeffer *137 son) the effect of the court’s exercise of the direct-remand rule was that his indictment was nol prossed, the Court of Appeals said as follows: Indeed, our goal in applying section 11-44-3(1) is “to give effect to the intent of the Legislature.” Lawson v. Honeywell Int’l, Inc., 75 So.3d 1024, 1027 (¶7) (Miss.2011) (citing City of Natchez, Miss. v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992)).

2016In speaking to Jefferson’s argument that he met Section 11-44-3(1)(c)’s requirements because (according to Jefferson) the effect of the court’s exercise of the direct-remand rule was that his indictment was nol prossed, the Court of Appeals said as follows: Indeed, our goal in applying section 11–44–3(1) is “to give effect to the intent of the Legislature.” Lawson v. Honeywell Int’l, Inc., 75 So. 3d 1024, 1027 (¶ 7) (Miss. 2011) (citing City of Natchez, Miss. v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992)).

2016In reviewing the sufficiency of the evidence, “the relevant question, is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Nolan v. State, 61 So.3d 887, 893 (¶24) (Miss. 2011) (quoting *371 Bush v. State, 895 So.2d 836, 843 (¶16) (Miss. 2005)).

2015In reviewing the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Nolan v. State, 61 So.3d 887, 893 (¶ 24) (Miss.2011) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)).

1999The Court, in supporting this direct remand rule, stated that its "logical underpinnings" "have long been grounded on the fact that guilt of a true lesser included offense is implicitly found in the jury's verdict of guilt on the greater offense," Id. at 585 , Anderson, 290 So.2d at 628-29; see also Yates v. State, 685 So.2d 715 (Miss.1996) (citing Washington v. State, 222 Miss. 782 , 787, 77 So.2d 260 , 263 (1955)); Alford v. State, 656 So.2d 1186 (Miss.1995); Bogard v. State, 624 So.2d 1313, 1320 (Miss.1993); Dedeaux v. State, 630 So.2d 30, 33 (Miss. 1993).

1997The Court, in supporting this direct remand rule, stated that its "logical underpinnings" "have long been grounded on the fact that guilt of a true lesser included offense is implicitly found in the jury's verdict of guilt on the greater offense," Id. at 585 , Anderson, 290 So. 2d at 628-29; see also Yates v. State, 685 So. 2d 715 (Miss. 1996) citing Washington v. State, 222 Miss. 782 , 787, 77 So 2d 260, 263 (1955)); Alford v. State, 656 So. 2d 1186 (Miss. 1995); Bogard v. State, 624 So. 2d 1313, 1320 (Miss. 1993); Dedeaux v. State, 630 So. 2d 30, 33 (Miss. 1993).

1999The Court, in supporting this direct remand rule, stated that its "logical underpinnings" "have long been grounded on the fact that guilt of a true lesser included offense is implicitly found in the jury's verdict of guilt on the greater offense," Id. at 585 , Anderson, 290 So.2d at 628-29; see also Yates v. State, 685 So.2d 715 (Miss.1996) (citing Washington v. State, 222 Miss. 782 , 787, 77 So.2d 260 , 263 (1955)); Alford v. State, 656 So.2d 1186 (Miss.1995); Bogard v. State, 624 So.2d 1313, 1320 (Miss.1993); Dedeaux v. State, 630 So.2d 30, 33 (Miss. 1993).

1997The Court, in supporting this direct remand rule, stated that its "logical underpinnings" "have long been grounded on the fact that guilt of a true lesser included offense is implicitly found in the jury's verdict of guilt on the greater offense," Id. at 585 , Anderson, 290 So. 2d at 628-29; see also Yates v. State, 685 So. 2d 715 (Miss. 1996) citing Washington v. State, 222 Miss. 782 , 787, 77 So 2d 260, 263 (1955)); Alford v. State, 656 So. 2d 1186 (Miss. 1995); Bogard v. State, 624 So. 2d 1313, 1320 (Miss. 1993); Dedeaux v. State, 630 So. 2d 30, 33 (Miss. 1993).

1999The Court, in supporting this direct remand rule, stated that its "logical underpinnings" "have long been grounded on the fact that guilt of a true lesser included offense is implicitly found in the jury's verdict of guilt on the greater offense," Id. at 585 , Anderson, 290 So.2d at 628-29; see also Yates v. State, 685 So.2d 715 (Miss.1996) (citing Washington v. State, 222 Miss. 782 , 787, 77 So.2d 260 , 263 (1955)); Alford v. State, 656 So.2d 1186 (Miss.1995); Bogard v. State, 624 So.2d 1313, 1320 (Miss.1993); Dedeaux v. State, 630 So.2d 30, 33 (Miss. 1993).

1997The Court, in supporting this direct remand rule, stated that its "logical underpinnings" "have long been grounded on the fact that guilt of a true lesser included offense is implicitly found in the jury's verdict of guilt on the greater offense," Id. at 585 , Anderson, 290 So. 2d at 628-29; see also Yates v. State, 685 So. 2d 715 (Miss. 1996) citing Washington v. State, 222 Miss. 782 , 787, 77 So 2d 260, 263 (1955)); Alford v. State, 656 So. 2d 1186 (Miss. 1995); Bogard v. State, 624 So. 2d 1313, 1320 (Miss. 1993); Dedeaux v. State, 630 So. 2d 30, 33 (Miss. 1993).

1998United States v. Hunt, 129 F.3d at 746 (" [W]e find that the lack of instruction on the lesser included offense was not unduly prejudicial to Hunt....") ¶ 17.

1997United States v. Hunt, 129 F.3d at 746 ([W]e find that the lack of instruction on the lesser included offense was not unduly prejudicial to Hunt. . . .") ¶17.

1998In United States v. Dinkane the Ninth Circuit stated: We may nonetheless direct the trial court to enter a judgment on a lesser offense if the evidence is insufficient to support a guilty verdict on the greater offense but sufficient on the lesser offense when "(1) the lesser offense [is] a lesser-included offense — a `subset' of the greater one; (2) the jury [was] explicitly instructed that it could find the defendant guilty of the lesser-included offense and [was] properly instructed on the elements of that offense; and (3) the government [requested] on appeal that judgment be entered agains

1997In United States v. Dinkane the Ninth Circuit stated: We may nonetheless direct the trial court to enter a judgment on a lesser offense if the evidence is insufficient to support a guilty verdict on the greater offense but sufficient on the lesser offense when "(1) the lesser offense [is] a lesser-included offense--a 'subset' of the greater one; (2) the jury [was] explicitly instructed that it could find the defendant guilty of the lesser- included offense and [was] properly instructed on the elements of that offense; and (3) the government [requested] on appeal that judgment be entered agains

1998In United States v. Dinkane the Ninth Circuit stated: We may nonetheless direct the trial court to enter a judgment on a lesser offense if the evidence is insufficient to support a guilty verdict on the greater offense but sufficient on the lesser offense when "(1) the lesser offense [is] a lesser-included offense — a `subset' of the greater one; (2) the jury [was] explicitly instructed that it could find the defendant guilty of the lesser-included offense and [was] properly instructed on the elements of that offense; and (3) the government [requested] on appeal that judgment be entered agains

1997In United States v. Dinkane the Ninth Circuit stated: We may nonetheless direct the trial court to enter a judgment on a lesser offense if the evidence is insufficient to support a guilty verdict on the greater offense but sufficient on the lesser offense when "(1) the lesser offense [is] a lesser-included offense--a 'subset' of the greater one; (2) the jury [was] explicitly instructed that it could find the defendant guilty of the lesser- included offense and [was] properly instructed on the elements of that offense; and (3) the government [requested] on appeal that judgment be entered agains

1998See State v. Cummings, 229 Mich.App. 151 , 580 N.W.2d 480, 485 (Mich.Ct.App.1998)("Where a trial court improperly fails to include an instruction on a lesser included offense, the remedy is to remand for entry of a conviction on the lesser included offense and for resentencing, or, if the prosecution desires, for retrial on the charge for which the defendant was convicted."); State v. Robinson, 517 N.W.2d 336, 340 (Minn.1994); State v. Arlt, 9 Haw.App. 263 , 833 P.2d 902, 909 (Haw.Ct.App.1992)("Under the modern practice prevailing in most jurisdictions, the appellate courts have the power, in

1998See State v. Cummings, 229 Mich.App. 151 , 580 N.W.2d 480, 485 (Mich.Ct.App.1998)("Where a trial court improperly fails to include an instruction on a lesser included offense, the remedy is to remand for entry of a conviction on the lesser included offense and for resentencing, or, if the prosecution desires, for retrial on the charge for which the defendant was convicted."); State v. Robinson, 517 N.W.2d 336, 340 (Minn.1994); State v. Arlt, 9 Haw.App. 263 , 833 P.2d 902, 909 (Haw.Ct.App.1992)("Under the modern practice prevailing in most jurisdictions, the appellate courts have the power, in

1998See State v. Cummings, 229 Mich.App. 151 , 580 N.W.2d 480, 485 (Mich.Ct.App.1998)("Where a trial court improperly fails to include an instruction on a lesser included offense, the remedy is to remand for entry of a conviction on the lesser included offense and for resentencing, or, if the prosecution desires, for retrial on the charge for which the defendant was convicted."); State v. Robinson, 517 N.W.2d 336, 340 (Minn.1994); State v. Arlt, 9 Haw.App. 263 , 833 P.2d 902, 909 (Haw.Ct.App.1992)("Under the modern practice prevailing in most jurisdictions, the appellate courts have the power, in

1997See State v. Cummings, No. 199226, 1998 WL 151244 , at *11 (Mich. Ct. App. March 31, 1998)("Where a trial court improperly fails to include an instruction on a lesser included offense, the remedy is to remand for entry of a conviction on the lesser included offense and for resentencing, or, if the prosecution desires, for retrial on the charge for which the defendant was convicted."))(; State v. Robinson, 517 N.W.2d 336, 340 (Minn. 1994); State v. Arlt, 833 P.2d 902, 909 (Haw.

2016App.2014) (citing Shields v. State, 722 So.2d 584, 587 (¶ 7) (Miss. 1998)). , ' The State cites one out-of-state case for the proposition that possession of one controlled substance may be a lesser-included offense of possession of another, see People v. Valdez, 56 P.3d 1148, 1152 (Colo.App.2002), but there is also authority, albeit much of it unpublished, that suggests otherwise.

2016See Harrell v. State, 134 So.3d 266, 273 (¶ 25) (Miss.2014).

2012Id. at 437-38 (¶¶ 17-18).

2011Johnson v. State, 52 So.3d 384, 396 (¶ 37) (Miss.Ct.App.2009).

2010See, e.g., Wade v. State, 748 So.2d 771, 777 (¶ 20) (Miss.1999).

2010See, e.g., Wade v. State, 748 So.2d 771, 777 (¶ 20) (Miss.1999).

2002Clark v. State, 756 So.2d 730, 733 (¶ 12) (Miss. 1999).