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ALBERT LEE FRIDAY, a/k/a BILLY FRIDAY v. STATE OF MISSISSIPPI

JANUARY 09, 1985

ALBERT LEE FRIDAY, a/k/a BILLY FRIDAY
v.
STATE OF MISSISSIPPI



ON PETITION FOR REHEARING

EN BANC.

The petition for rehearing is sustained, the former opinion of the Court is withdrawn, and the following opinion is substituted therefor.

I.

 HAWKINS, JUSTICE, FOR THE COURT:

 Albert Lee Friday was tried and convicted in the Circuit Court of Winston County for the crimes of kidnapping and rape and sentenced to a term of life imprisonment without parole on each crime. We vacate the conviction and sentence of life imprisonment without parole on the crime of kidnapping, without prejudice to the State. We affirm the conviction for the crime of rape, but vacate the sentence and

 remand to the lower court for resentencing.

 On October 28, 1981, Friday was indicted by the grand jury of Winston County in a well-drawn, four-court indictment as follows:

 Count One charged him with the crime of robbery of Vicki Inn Long in violation of Miss. Code Ann. 97-3-73.

 Count Two charged him with the crime of kidnapping Melanie Diane Long in violation of Miss. Code Ann. 97-3-53.

 Count Three charged him with the crime of kidnapping Tara Yarbrough in violation of Miss. Code Ann. 97-3-53.

 Count Four charged him with the crime of rape of Melanie Diane Long in violation of Miss. Code Ann. 97-3-65.

 The indictment also charged Friday with being a habitual criminal by four previous criminal convictions and sentences to a penitentiary. The first conviction charged was for the crime of forgery (uttering) in the Circuit Court of LeFlore County on May 20, 1955, and serving a term of one year or more in the state penitentiary. The second conviction was for the crime of forgery (uttering) in the same court on November 23, 1957, and serving a term of one year or more in the state penitentiary. The third conviction charged was for the crime of robbery by assault in a Texas state court on February 17, 1970, and sentenced to serve more than one year in a penitentiary of that state. The fourth conviction charged was for the crime of robbery by assault, also in a Texas state court on February 17, 1970, and sentenced to serve more than one year in a penitentiary in that state.

 The basis for the indictment was Friday's robbery of a convenience store in which Melanie, aged 15, was temporarily in charge, and abducting her and another child, and thereafter raping Melanie.

 Defense counsel filed a motion to quash the indictment or, in the alternative, require the State to elect which of the counts it intended to try Friday on, and ...


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