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TURNER PAUL SMITH v. STATE OF MISSISSIPPI

MAY 08, 1985

TURNER PAUL SMITH
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, HAWKINS AND PRATHER

PRATHER, JUSTICE, FOR THE COURT:

ON APPLICATION FOR LEAVE TO FILE MOTION TO CORRECT SENTENCE

Constitutionality of sentence is the subject of this motion seeking correction of sentence. This Court affirmed the conviction of Turner Paul Smith on a charge of burglary. Turner Paul Smith v. State, 386 So.2d 1117 (Miss. 1980). Upon appeal, no issue was assigned regarding the sentence to life imprisonment as an habitual offender, and the court's opinion reflects this omission. 386 So.2d at 1118.

 On November 30, 1984, more than four years after affirmance of his conviction in this Court, Turner Paul Smith files his application for leave to file a motion to correct sentence in the Circuit Court of Forrest County, asserting two grounds, that he was

 (1) improperly indicted as an habitual offender under Miss. Code Ann. 99-19-83 (Supp. 1984); and

 (2) denied effective assistance of counsel both at trial and on his first appeal to this Court.

 I.

 The indictment against Smith charges burglary and alleges two" . . . separate incidences at different times and having been sentenced thereon to separate terms of one (1) year or more in various state penal institutions. . . . "On the back side of the indictment under the heading" charge "appear the words" Habitual Criminal Burglary 97-17-33 ".

 The Mississippi Code has two statutes permitting sentence as an habitual offender. Miss. Code Ann. 99-19-81 (Supp. 1984) is as 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 separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. The second statute is Miss. Code Ann. 99-19-83 (Supp. 1984) and provides as 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. As noted, section 99-19-81 does not require the serving of any time on the two prior felony crimes; whereas, section 99-19-83 does require that the defendant shall have" served separate terms of one (1) year or more in any state and/or federal penal institution . . . , "one of which felonies shall be a crime of violence. Likewise, the former statute provides a sentence" to the maximum term of imprisonment prescribed for such felony, "referring to the felony for which the defendant is currently being tried. The latter statute, section 99-19-83 requires a sentence of life imprisonment. Both statutes provide that the sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

 In the case sub judice, the indictment did not cite under which of the two habitual offender statutes the state was proceeding by reference to the code section number. This Court has held that the failure to include habitual offender section number in the indictment was not essential to the validity of the indictment, if the indictment itself was sufficient to apprise the defendant that the state was seeking to impose a life sentence. Dalgo v. State, 435 So.2d 628 (Miss. 1983).

 However, applying the Dalgo analysis to this case, several omissions are apparent.

 (1) The indictment against Smith does not allege that Smith had" . . . served separate terms of one (1) year or more . . . "in a penal institution as required by section 99-19-83 in order for a life sentence to be imposed. The partial transcript of the hearing is as follows:

 BY THE COURT:

 It is the finding of the Court, having heard the testimony offered and received, that the allegations of the indictment, specifically those allegations under Section 99-19-83 of the Mississippi Code of 1972, as annotated, are proven beyond a reasonable doubt. Accordingly, it's the finding of the Court that, Turner Paul Smith, you are guilty as charged in the indictment. At this

 time if you want to say anything, you may stand before the Bench. For the record, you are now adjudicated guilty as a habitual criminal, and as such, come within the provisions of the statute that I previously mentioned, which makes it mandatory on the sentencing judge to sentence you to life imprisonment. . . .

 The defendant himself replied to the sentence as follows:

 BY THE DEFENDANT

 Could I say something? See, I wasn't aware I could get life because what my lawyer told me yesterday, he said seven years. BY HON. JOHN M. DEAKLE:

 Your Honor, I did tell him that. That was my understanding and interpretation of the statute. However, I will assure the Court, and I think the Court's aware that we've done our utmost here today, whether it be seven years or seventy years, to provide a defense as well as possible for this Defendant. I can assure him here before the Court today that we will perfect an appeal post haste.

 BY THE COURT:

 Let me make this notation. The record in this case should reflect that prior to the selection of the jury there was held a conference with the Defendant being present and counsel present. At such time the Court then pointed out that this was being tried under the habitual criminal statute and that there were certain aspects of the indictment that could not be ...


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