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JOHNNY LEE HUNTLEY v. STATE OF MISSISSIPPI

APRIL 20, 1988

JOHNNY LEE HUNTLEY
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, C.J., ROBERTSON AND ZUCCARO, JJ.

ZUCCARO, JUSTICE, FOR THE COURT:

On August 22, 1983, the appellant was convicted of the crime of receiving embezzled funds. He was sentenced to

serve life imprisonment without eligibility of parole pursuant to Miss. Code Ann. 99-13-83 (1972) (habitual offender statute). Huntley appeals assigning four errors, three of which merit discussion.

 STATEMENT OF FACTS

 The appellant was charged with receiving embezzled funds, found guilty by a jury and sentenced to life imprisonment without eligibility of parole pursuant to Mississippi Code Annotated 99-19-83 (1972).

 The following previous convictions of appellant were considered by the court: On August 21, 1979 appellant was found guilty of receiving stolen property and was sentenced to five (5) years in the Mississippi State Penitentiary. On September 26, 1973 appellant pled guilty to uttering a forgery and was sentenced to three (3) years which was suspended. He was placed on probation. Probation was revoked on October 22, 1974 at which time appellant was sentenced to three (3) years. On September 26, 1973 appellant pled guilty to the sale of controlled substance and received a three (3) year suspended sentence. He was placed on probation for three (3) years. On October 29, 1974 the appellant's probation was revoked and he was sentenced to three (3) years. On September 3, 1975 appellant pled guilty to a second count of armed robbery and was sentenced to three (3) years.

 As a result of the aforementioned previous convictions the appellant was sentenced under Miss. Code Ann. 99-19-83 (1972) which reads as follows:

 99-19-83. Sentencing of habitual criminals to life imprisonment.

 Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

 During the sentencing phase the lower court judge stated:

 The Court finds and determines that the Defendant, Johnny Lee Huntley, has been twice previously convicted of felonies in this Court upon charges separately brought and arising out of separate incidents, at different times. That he has been sentenced to serve separate terms of one year or more in the Mississippi State Penitentiary and that at least one of the felonies, the record actually reflects two and the Court so finds it is two, have been crimes of violence.

 The record reflects that he served separate sentences of one year or more and I so find.

 I sentence you as an habitual criminal, previously determined to meet all the terms of 99-19-83. I have no alternative in making that finding. So, I sentence you under that Act to a term of Life Imprisonment and the sentence shall not be reduced or suspended nor shall you be eligible for parole or probation. That will be the sentence of the Court.

 I. DID THE TRIAL COURT ERR IN SENTENCING THE APPELLANT UNDER MISSISSIPPI'S VIOLENT HABITUAL OFFENDER STATUTE, 99-19-83 OF THE MISSISSIPPI CODE ANNOTATED, BECAUSE THE DEFENDANT HAD NOT SERVED SEPARATE TERMS OF ONE (1) YEAR OR MORE IN ANY ...


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