ROBERTS, J., Specially Concurring: ¶ 15. While I agree with the majority's analysis and resolution of the substantive issues raised on appeal by Tadarryl Rew, I again, as I did in Lamar v. State, 983 So.2d 364 (Miss.Ct.App. 2008) and Perkins v. State, 37 So.3d 656 (Miss.Ct.App. 2009), write separately to express concern over another example of the failure of a trial court to adhere to the Legislature's mandate in regard to the sentencing of habitual offenders. The State chose not to file a cross-appeal under Mississippi Code Annotated section 99-35-103(c) (Rev. 2007) and attack the sentence imposed as illegal. As such, this Court is without authority to remand the case for resentencing. Nevertheless, when the judiciary of this state fails to follow the mandatory sentencing laws, I feel it is my duty to comment.
Harris v. State , 527 So.2d 647, 651 (Miss. 1988) ("Sentencing under [section 99–19–81 ] is not discretionary. If a defendant is a repeat offender falling within the provisions of [section 99–19–81,] the trial judge has no alternative but to sentence him under said statute."); Lamar v. State , 983 So.2d 364, 371 (¶ 27) (Miss. Ct. App. 2008) (Roberts, J., specially concurring) (Section 99–19–81 provides that a habitual offender "shall be sentenced to the maximum term of imprisonment prescribed " for his present offense, so "the circuit court [is] required to sentence [the defendant] to the maximum sentence for each of his convictions."). Thus, Moran's petition for post-conviction relief and appeal attack a sentence that is less than half the mandatory sentence that he should have received under the law.
While the State is correct that trial courts have occasionally disregarded the statute to award more lenient sentences than it permits, it is not true that the practice has passed without comment. See, e.g., Philips v. State, 25 So. 3d 404, 408 (¶12) (Miss. Ct. App. 2010); Lamar v. State, 983 So. 2d 364, 370-73 (¶¶21-32) (Miss. Ct. App. 2008) (Roberts, J., specially concurring) ("It is statutorily impossible for a habitual offender's sentence to include a period of post-release supervision."). We take this opportunity to state that, while we recognize that the trial courts may deviate from the statute in exceptional circumstances if it is constitutionally required, the laws of our State should not be casually disregarded as a matter of day-to-day plea bargaining, as appears to have happened here.
In reviewing a challenge to the weight of the evidence, we will only disturb the verdict "when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Lamar v. State, 983 So.2d 364, 367 (¶ 5) (Miss.Ct.App. 2008) (quoting Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss. 2005)).
¶ 29. Our system of government dictates that the legislative branch of the government writes the laws, and as long as the laws are in place and they have not been determined to be unconstitutional, it is irrelevant whether we "feel" the laws are too harsh. Therefore, I must reiterate my position, which was stated in Lamar v. State, 983 So.2d 364, 372-73 (¶¶ 31-32) (Miss.Ct.App. 2008) (Roberts, J., specially concurring): The Mississippi Legislature has clearly removed discretion from sentencing as to the duration of sentences in the context of habitual offenders.
However, when reviewing whether the verdict is against the overwhelming weight of the evidence, we sit as a hypothetical "thirteenth juror," and "we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Lamar v. State, 983 So.2d 364, 367 (¶ 5) (Miss.Ct.App. 2008) (citing Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss. 2005)).
However, because the State did not cross-appeal based on this error, it is not properly before the Court, and we do not have the authority to remand this case for resentencing. See Lamar v. State, 983 So.2d 364, 370 n. 1 (Miss.Ct.App. 2008) (Roberts, J., specially concurring). 3. Whether the circuit court incorrectly held that the decision to release Phillips is now an executive decision to be determined by the MDOC.
However, when reviewing whether the verdict is against the overwhelming weight of the evidence, we sit as a hypothetical "thirteenth juror," and "we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Lamar v. State, 983 So.2d 364, 367 (¶ 5) (Miss.Ct.App. 2008) (citing Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss. 2005)). If an appellate court disagrees with the verdict of the jury, the proper remedy is to grant a new trial.