ON MOTION TO VACATE AND SET ASIDE SENTENCE AS HABITUAL OFFENDER
BEFORE PATTERSON, HAWKINS AND PRATHER
HAWKINS, JUSTICE, FOR THE COURT:
Charlie Ellis has filed a motion pro se to vacate his sentence as habitual offender under Miss. Code Ann. 99-19-83 (1982). Because the state at trial failed to prove that he had actually served one year or more on his previous convictions, we sustain the motion and remand this case to the circuit court of Jefferson County.
Ellis was indicted by the grand jury of Jefferson County on April 21, 1982, for the crime of burglarizing a church building, and also charged in the same indictment with recidivism under Miss. Code Ann. 99-19-83 (1972). The indictment charged Ellis was a habitual criminal under this section in that he had been convicted on February 16, 1972, of assault with intent to commit rape and sentenced to serve five years, and convicted on May 2, 1980, of burglary and larceny and sentenced to serve three years. The indictment did not allege that he had actually served any time.
The jury returned a verdict of guilty on his burglary indictment. Following this, the record reveals the following proceedings before the circuit court:
Let the record show that a jury verdict having been rendered, that the Court now at the commencement of a pre-sentence investigation hearing, defendant being present in open court together with his counsel, Hon. Stanley Merritt, and the State being represented by Assistant District Attorney David Hall, the court asks Attorney Hall now, do you have any matters you want to put into the record prior to sentencing?
Yes sir, if it please the Court, your Honor.
At this time, I would submit as exhibits certified copies of convictions on Charlie Ellis, one being a conviction dated the 16th day of February, 1972, in which Charlie Ellis was convicted of the crime of assault with intent to rape, in which he was sentenced to serve a term of five years in the State Department of Corrections, that being Cause #2230 in the Circuit Court of Jefferson County, Mississippi, February term 1972.
The second exhibit which the State would tender is another certified copy of judgment of conviction against Charlie Ellis in Cause #2326 in the Circuit court of Jefferson County, Mississippi, April term 1980, in which Charlie Ellis was found guilty of the crime of burglary and larceny and was sentenced to serve a term of three years in the State Department of Corrections.
There's no objection to their being admitted ...