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PHILLIP J. DALGO v. STATE OF MISSISSIPPI

MARCH 30, 1983

PHILLIP J. DALGO
v.
STATE OF MISSISSIPPI



ON PETITION FOR REHEARING

EN BANC.

ROY NOBLE LEE, JUSTICE, FOR THE COURT:

The petition for rehearing is granted, the former

 opinion in this case rendered October 6, 1982, is withdrawn, and this opinion is substituted therefor.

 Phillip J. Dalgo was indicted and tried in the Circuit Court of the Second Judicial District, Harrison County, Honorable J. Ruble Griffin, presiding, for carrying a concealed weapon after conviction of a felony and for being an habitual criminal. The jury having found Dalgo guilty as charged, he was sentenced by the trial judge to life imprisonment as a habitual criminal under Mississippi Code Annotated 99-19-83 (Supp. 1981), and he has appealed here.

 On October 31, 1979, Detective James Bessee was driving in the area of the west gate, Keesler Air Force Base, when he observed a small group of people in front of Mother Tucker's Lounge. One of the persons in the crowd appeared to be Dickey Foster, for whom there was an outstanding warrant. Bessee drove his car up to the curb, got out, and then realized the person was not Foster, but Dalgo (whom he knew). He observed a marijuana cigerette in Dalgo's hand, which was passed to a companion. Bessee radioed for assistance and when a backup unit arrived, he placed Dalgo under arrest and asked Patrolman Kevin Ladnier to frisk Dalgo for weapons. Ladnier found a .22-caliber Colt revolver, Huntsman model, loaded with a full nine-round clip, inside the waistband of Dalgo's pants and covered by his shirt.

 Dalgo's defense at trial was that he had been threatened previously with bodily harm and was authorized to carry a concealed weapon for protection. The jury rejected that defense. We have carefully examined the assignments of error and find no merit in them. However, we address the question of whether or not the lower court conducted a proper sentencing hearing prior to imposing sentence upon Dalgo.

 The indictment sets forth the substantive crime and the habitual criminal requirements in clear and unambiguous language. [See Appendix] The habitual criminal portion of the indictment charges Dalgo with four previous convictions; that he served at least one year of each conviction in the Mississippi State Penitentiary at Parchman, Mississippi; and that one such conviction, assault with intent to rape, involved a crime of violence. the indictment sets forth with certainty that the habitual criminal statute violated is Mississippi Code Annotated 99-19-83 (Supp. 1981), which follows:

 Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately

 brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. (Emphasis added)

 The events occurring in the courtroom from the time the jury returned its verdict until imposition of sentence follow:

 AFTER COMPLETION OF ARGUMENT BY COUNSEL, THE JURY WAS THEREUPON RETIRED FROM THE COURTROOM TO CONSIDER ITS VERDICT, AND RETURNED TO THE COURTROOM, AFTER THIRTY-ONE MINUTES, AND THE FOLLOWING VERDICT WAS READ BY A MEMBER OF THE JURY:

 "We, the jury, find the Defendant, Phillip Joseph Dalgo, guilty of carrying a concealed weapon after conviction of a felony."

 THE JURY WAS THEREUPON POLLED, AT THE REQUEST OF THE DEFENSE ATTORNEY, WHICH RESULTED IN A UNANIMOUS VERDICT OF GUILTY.

 * * * *

 BY MR. THOMAS: If Your Honor Please, in view of the jury's verdict, I move at this time to introduce into evidence certified records, under the hand of Christine Houston, Director of Record, at the time of this certification, on the Defendant, Phillip Joseph Dalgo, showing previous convictions for assault with intent to rape, and a three year sentence, two separate indictments taken at the same time by pleas of guilty of delivery of a controlled substance, and also another sentence under a conviction for carrying a concealed weapon after conviction of a felony. The certified records, and you can look at them, Judge, indicate a sentence on each charge of one year or more in the State Penitentiary under conviction for a felony. And they also certify and show the confinements for each of the charges.

 SAID RECORDS WERE THEREUPON MARKED AS STATE'S EXHIBIT "C" , AND ARE AS FOLLOWS:

 * * * *

 BY THE COURT: With that having been marked in evidence, the Court now makes the finding that Phillip Joseph Dalgo is an habitual offender, as contemplated by the statutes of the State of Mississippi on that subject, having previously served separate sentences of one year or more, imposed at separate times, one of ...


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