Jackson Jambalaya

Whiteside attorney says sentence is legal, re-sentencing is not.  

The Lindsey Whiteside story is not fading away despite her conviction in DeSoto County Circuit Court of sexual exploitation of a child last week.  A federal grand jury indicted Lindsey Whiteside on Wednesday for transporting a minor across state lines to engage in sexual activity.  The indictment states:

From on or about July 1, 2024 through on or about July 31, 2024, in the No1thern District of Mississippi and elsewhere, LINDSEY ALDY WHITESIDE, defendant, did knowingly transport in interstate commerce an individual who had not attained the age of 18, being Minor Victim 1, from Tennessee to Mississippi, with the intent that Minor Victim 1 engage in sexual activity with LINDSEY ALOY WHITESIDE, for which sexual activity LINDSEY ALOY WHITESIDE could be charged with a criminal offense, being Sexual Battery under the laws of the State of Mississippi, in violation of Mississippi Code, Section 97-3-95(2). In violation of Title 18, United States Code, Section 2423(a).

The indictment includes two counts of transporting the victim across state lines to engage in sexual activity and one count for transporting a minor for sex.   The penalty for all three counts ranges from ten years in prison to life and/or a fine up to $250,000. The indictment is posted below.  

Whiteside was a Youth Pastor at Getwell Church in Desoto County.  The victim was a teen girl who came to her for counseling.  Whiteside was 26 years old.  The former Youth Pastor and girls basketball coach groomed the victim and had sex with her for six months.  

Controversy erupted when Special Circuit Judge Andrew Howorth sentenced Whiteside to three years of house arrest after a jury convicted her.  The victim bravely testified against her and there were over 60,000 messages between Whiteside and the victim.  

Desoto County District Attorney Matthew Barton called the sentence illegal in a motion he filed for re-sentencing.  Indeed, Section 47-5-1003 of the Mississippi Code states: 

1) An intensive supervision program may be used as an alternative to incarceration for offenders who are not convicted of a crime of violencepursuant to Section 97-3-2 as selected by the court and for juvenile offenders as provided in Section 43-21-605. Any offender convicted of a sex crime shall not be placed in the program.

 

 

Whiteside's attorney, Joseph Cooper of who else but Farese, Farese, & Farese argued the prosecutor could not appeal the sentence if it was illegal.  

Cooper claimed: 

This Court has no legal avenue to “re-sentence” the Defendant. There is no mechanism under Mississippi law to re-sentence a criminal Defendant at the request of the prosecution. The State’s request is tantamount to an appeal. The State’s appeal rights to final criminal orders are contained in Miss. Code Ann. § 99-35-103.

The prosecution can only appeal a successful motion to quash an indictment or a question of law that was adversely decided against the prosecution. There is no avenue for a resentencing because the District Attorney is "unhappy with the result." 

Whiteside's lawyer takes strong exception to the District Attorney's claim the sentence of house arrest for three years is illegal.  The reply argues a sentence is only illegal if it exceeds the maximum penalty.  Since the defendant's sentence did not exceed the maximum sentence of thirty years in prison, the District Attorney has no claim. 

Judge Howorth was well within his rights to sentence Whiteside to house arrest.  Her reply posits: 

The State cites Miss. Code Ann. § 47-5-1003 to support its notion that the Defendant’s sentence is illegal. The aforementioned statute states that offenders convicted of sex crimes are not eligible for the Intensive Supervision Program. The statute rendering the Defendant ineligible for home confinement does not render the sentence illegal. The Defendant can simply be placed on home monitoring with a private probation company if the Court deems it appropriate. The use of private probation monitoring is commonplace for offenders in Desoto County whenever they are ineligible for house arrest under MDOC. This Court has the inherent power to correct clerical errors and modify sentencing orders on its own Motion if the Court sees fit to place the Defendant under private home monitoring.

Stay tuned.  

Kingfish note:  This case will present a rather interesting dilemma if it makes it to the Mississippi Supreme Court.  The defense argues the state has no power to get a re-sentencing even if the sentence is illegal.  However, such a claim sets a precedent that judges can ignore mandatory minimum sentences and sentence as they see fit.  It would not be surprising if the Supremes found some point of law that so they can prevent the creation of such a precedent.