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CHARLIE ELLIS, JR. v. STATE OF MISSISSIPPI

FEBRUARY 17, 1988

CHARLIE ELLIS, JR.
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, P.J., PRATHER and GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

The appellant was convicted in Jefferson County for grand larceny as an habitual offender under Miss. Code Ann. 99-19-83 (Supp. 1982). *fn1 The conviction and sentence was affirmed in Ellis v. State, 469 So. 2d 1256 (Miss. 1985). Later a motion to vacate sentence which was treated as a petition for post-conviction collateral relief was filed, alleging that the necessary elements under 99-19-83 were not proven inasmuch as the proof did not show that he served separate terms of one year or more. This Court agreed with the contention and remanded the case for" appropriate sentencing. "485 So. 2d 1062 (1986).

On remand the circuit court held a second sentencing hearing over the defendant's objections. No good purpose would be served in reciting the evidence, inasmuch as the question here is whether or not evidence should have been allowed. However, on the second hearing it was proven beyond purview of doubt that the appellant was an habitual offender within the meaning of 99-19-83, and at conviction proof was offered that showed the defendant to be an habitual offender within the meaning of 99-19-81. *fn2 One of appellant's prior convictions was a crime of violence so the only question today is whether or not the appellant should be sentenced to a term of five years without hope of probation or parole, or to a life sentence with the same likelihood of any relief.

 It is apparent that the learned circuit judge misunderstood the language," appropriate sentencing. "We can understand how the language could have misled the judge into believing that another sentencing hearing was in order. We could have used words to better express our intentions.

 Mississippi Constitution, Art. 3, 22 (1890) reads," No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution. "Consistent with the above, this Court has held that an habitual offender's sentencing hearing, as a trial on the sentence, constitutes jeopardy; therefore, when a defendant's conviction" has been overturned due to a failure of proof at trial, . . . the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. "DeBussi v. State, 453 So. 2d 1030 (Miss. 1984), quoting Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L.Ed.2d 1 (1978).

 It is seen, then, that the case was not remanded for a sentencing hearing but for sentencing under 99-19-81. If there was any doubt as to the view of the Court on this

 question after DeBussi, supra, it was removed in Young v. State, 507 So. 2d 48 (Miss. 1987).

 The State argues that DeBussi was erroneously decided and premises this argument on the ground that the above-quoted code sections are not for criminal offenses and affect only sentencing. Without question this would make an interesting debate between learned legal scholars; however, it avails the State nothing here inasmuch as the issue has been previously decided.

 We therefore reverse and remand the case for a five-year sentence without hope of probation or parole in accordance with 99-19-81.

 REVERSED AND REMANDED FOR SENTENCING CONSISTENT WITH THIS OPINION.

 ROY NOBLE LEE, C.J.; HAWKINS and DAN LEE, P.JJ.; PRATHER, ROBERTSON, SULLIVAN, ANDERSON and ZUCCARO, JJ., CONCUR.

 reduced or suspended nor shall such person be eligible for parole or probation.   ¬†Opi ...

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