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CLARENCE E. MILLER v. STATE OF MISSISSIPPI

AUGUST 06, 1986

CLARENCE E. MILLER
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, P.J.; PRATHER AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Two issues are presented on this appeal arising from an oft-convicted felon's midnight flight from the George County Jail. First is the question whether it be necessary that the prosecution prove his escape attended by force or violence, a question we answer in the negative. Second, we are asked whether the Circuit Court had authority in vacation to conduct a recidivism hearing and impose a mandatory sentence as authorized by Miss. Code Ann. 99-19-81 (Supp. 1985) and we answer in the affirmative. Overall, we affirm.

 II.

 Clarence E. Miller, Defendant below and Appellant here, was born February 2, 1957. Shortly after his 28th birthday, Miller found himself in the George County Jail awaiting trial on a charge of armed robbery.

 At approximately 1:30 a.m. on the morning of February 13, 1985, Miller haled the night jailer, Curtis Leggett, who was sitting out in the office reading a book. Leggett went back into the jail and responded, "What do you want," but no one answered. Leggett remained there for a few seconds and then returned to his desk when he noticed "some white tennis shoes" near the back door. Thinking some kids had come in, Leggett turned on the siren which was in his flashlight. He was immediately startled as a man, obviously Miller, came around the corner, rushed past him and out the front door.

 Leggett did not recognize Miller as he had never personally seen Miller in daylight. He had seen the occupant of Clarence Miller's cell in the dark when that person was asleep; the occupant of Clarence Miller's cell wore a stocking on his head; the person Leggett saw flee the jail had a stocking on his head.

 When Leggett came on duty at midnight, February 12, he checked all of the cells and determined that the occupant of the cell assigned to Clarence Miller was present and accounted for. After the escape, he went back into the jail and found Miller's cell empty.

 Two weeks later, Miller was found in Leesville, Louisiana, was taken into custody, and was ultimately returned to George County.

 On April 23, 1985, Miller was formally charged with escape, Miss. Code Ann. 97-9-49(1) (Supp. 1985), in an indictment returned by the George County Grand Jury. The indictment further charged that Miller was a recidivist within the meaning of Miss. Code Ann. 99-19-81 (Supp. 1982). Miller entered a plea of not guilty to all charges. A July 25, 1985, trial resulted in a jury finding that Miller was guilty on the principal charge of escape.

 Immediately thereafter the Circuit Court sentenced Miller to serve a term of five years within the custody of the Mississippi Department of Corrections but specified that the sentence was conditional subject to a later hearing on the recidivism issue.

 On August 15, 1985, Miller appeared before the same Circuit Judge, this time sitting in Jackson County, Mississippi, for a sentencing hearing. *fn1 Without contradiction, the evidence established that Miller had, prior to that date, been convicted of two separate felonies, larceny in the State of Mississippi and sodomy in the State of Alabama. Under the authority of Section 99-19-81, the Circuit Court sentenced Miller to serve a term of five years without eligibility of probation or parole.

 From this conviction and sentence, Miller appeals. We affirm.

 III.

 Miller first assigns as error the Circuit Court's refusal to grant his alternative post-trial motions for judgment notwithstanding the verdict or for a new trial. Miller argues that the State simply didn't prove all of the elements of the crime of escape.

 Escape is an offense subject to criminal sanctions to the extent it has been so declared by the positive law of this state. Today's charge emanates from a 1983 enactment of our legislature, codified as Miss. Code Ann. 97-9-49(1) (Supp. 1985) ...


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