BEFORE WALKER, PRATHER AND GRIFFIN
PRATHER, JUSTICE, FOR THE COURT:
Gary Dale Lightsey was convicted in the Circuit Court of Jones County of the burglary of his in-laws' home. He was sentenced to a term of seven years in prison. On appeal, the Court will consider the following assignments of error:
(1) The court erred in failing to dismiss this cause on a plea of double jeopardy.
(2) The defendant, Gary Dale Lightsey, was denied a speedy trial as guaranteed by the Constitution of the United States and the Constitution of the State of Mississippi.
(3) The court erred in allowing the fingerprints obtained from Gary Lightsey on an embezzlement charge into evidence.
(4) The court erred in granting instructions to the jury pertaining to flight.
Gary Dale Lightsey pled guilty in the Circuit Court of Jones County to embezzlement and was given a suspended sentence of six years in the Mississippi State Penitentiary. Lightsey was also fined some $2,000.
In fulfillment of the court's sentence, Lightsey paid the fines levied against him. Subsequently, Lightsey was arrested for the burglary now on appeal. A petition charging Lightsey with violating the terms of his parole on the embezzlement charge was filed, and Lightsey was incarcerated in the state penitentiary upon revocation of parole.
Lightsey challenged this revocation of parole by habeas corpus.
On appeal from the denial of habeas corpus, this Court, in an unpublished opinion, held that the trial court was without statutory authority to sentence Lightsey to the penitentiary and to impose upon him a fine, since Miss. Code Ann. 97-23-19 (1972) is written in the disjunctive. Because Lightsey had already paid his fine, he was released from prison after serving ten months.
FACTS OF THE BURGLARY CONVICTION
At approximately 7:00 p.m. the evening of October 22, 1982, Gary Dale Lightsey borrowed Jerry Mayberry's car at the American Legion in Laurel, Mississippi. Lightsey explained he was using the car to go on a date. At the time, Lightsey was separated from his wife who was living with her parents, Curtis and Donnie Parker, on Larry Drive in Laurel, Mississippi.
At approximately 7:30 p.m. the same evening, Eric Parker, a grandson of Curtis and Donnie Parker, was standing outside the home of other relatives who lived on Larry Drive. After hearing glass breaking at the home of his grandparents, Eric moved closer to investigate. Eric saw someone in dark clothes enter a window of his grandparents' home. It was too dark for him to identify the culprit, but Eric returned to his other relatives' home and called the police.
The police arrived and searched the Parkers' home, but found no intruder. Instead, they found a bedroom in disarray and a gun rack with no guns. A search of the immediate area surrounding the house uncovered three guns that had been dropped on the fringes of a wooded area. The guns were taken back to the house and dusted for fingerprints. A fingerprint removed from one of the guns was later identified as that of Gary Dale Lightsey.
A more extensive search of the neighborhood revealed the car Lightsey borrowed parked only 150 yards from the Parkers' home. The hood of the car was still warm and a cup on the front seat contained ice that had not yet melted.
Later that evening, Gary Lightsey telephoned the American Legion. After conversing with Jerry Mayberry, Lightsey persuaded another friend, Billy Tittle, to pick him up at a local grocery store. Lightsey explained that he had abandoned the car he was driving because his wife had almost caught him with a married woman and that his wife was continuing to watch the borrowed car. When Tittle picked him up, Lightsey was wearing a brown jacket.
Gary Lightsey was subsequently arrested and charged with burglary. He was convicted on the burglary charge and sentenced to a term of seven years in prison. In that sentence, Lightsey was given credit for the ten months he had already served for parole violation on the embezzlement charge. From the burglary conviction, Lightsey perfects this appeal.
Did the court err in failing to dismiss this cause on a plea of double jeopardy?
Lightsey's contention in this assignment is that he was placed in double jeopardy when tried for burglary after having had the charge of burglary used to revoke his parole on the embezzlement charge. This Court ...