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GEORGE DEXTER DARBY v. STATE OF MISSISSIPPI

SEPTEMBER 25, 1985

GEORGE DEXTER DARBY
v.
STATE OF MISSISSIPPI



BEFORE WALKER, HAWKINS AND DAN M. LEE

DAN M. LEE, JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of Jones County, wherein George Dexter Darby seeks to have his conviction overturned on the basis of 99-17-1, Miss. Code Ann. (Supp. 1984). Mr. Darby was indicted on July 14, 1981, on charges of burglary and being a habitual criminal, and he was arraigned on July 29, 1981. On November 25, 1981, Darby pled guilty to the charge of receiving and possessing stolen property. He was sentenced to five years. On December 16, 1983, the Circuit Court of Jones County sustained his petition for writ of error coram nobis, on the basis of his allegations that he pled guilty to a charge which was not included in the indictment. Darby was retried on March 2, 1984, on the original indictment charging burglary. He was found guilty, and sentenced to ten years. It is from this conviction that Darby appeals, assigning as error that:

1. The trial court erred in not dismissing the charges against the appellant in violation of 99-17-1 Miss. Code Ann. (1972 as amended) and the Sixth Amendment of the United States Constitution.

 2. The imposition of a more severe sentence upon retrial violated the due process clause of the United States Constitution.

 Darby makes no appeal based on the merits of his case; therefore, the details of the burglary for which he was charged need not be discussed here. The relevant facts for this appeal are summarized in the table below:

 EVENT DATE

 Indictment on charges of burglary and being a habitual criminal 7-14-81 Arraignment; not guilty plea 7-29-81 Motion for continuance to November term 7-29-81 Continuance granted 7-29-81

 Guilty plea to receiving and possessing stolen property 11-25-81 Sentenced to five years 11-25-81

 Petition for writ of error coram nobis to Circuit Court 10-11-83 Order overruling petition 11-08-83

 Supplemental petition for writ of error coram nobis to Circuit Court 12-2-83

 Order sustaining supplemental petition and vacating guilty plea 12-16-83

 Trial 3-2-84

 Sentenced to ten years 3-2-84

 Based on the facts as shown in the table above, the total time for arraignment on July 29, 1981, to trial on March 2, 1984 was 946 days. The time from arraignment to his original entering of a guilty plea was approximately 119 days. Of that time, 112 days could be charged to the defendant's motion for a continuance, as the original trial date was August 6, 1981. The elapsed time from ...


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