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BARRY CHARLES SMITH v. STATE OF MISSISSIPPI

OCTOBER 11, 1989

BARRY CHARLES SMITH
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, PRATHER AND ROBERTSON.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

This appeal is from the Circuit Court of Bolivar County, wherein the appellant was tried and convicted of aggravated assault and carrying a concealed weapon, and was sentenced as an habitual criminal to a total term of twenty-five years imprisonment, without benefit of probation or parole. Because we find that the appellant was denied his constitutional right to a speedy trial, we reverse.

STATEMENT OF THE FACTS

 On the afternoon of May 20, 1986, the appellant Barry Charles Smith went to a pool hall in Cleveland, Mississippi, where he and Eddie "Bubba" Sanders engaged in shooting pool. An argument ensued between the two men, and Smith started to leave.

 As he reached the door, Smith fired a .25 caliber automatic pistol toward Sanders. The bullet missed Sanders and hit a soft drink machine. Sanders ran out of the building, followed by Smith. Smith did not fire at Sanders again. Sanders then went to the Cleveland Police Department, where he filed an affidavit against Smith for simple assault. A warrant was issued for Smith's arrest, and later that afternoon he was taken into custody. When officers searched Smith, they found the pistol concealed in his right sock. Smith was then charged with carrying a concealed weapon, in addition to the charge of simple assault.

 At the time of the shooting incident, Smith was on parole, having served four and one-half years of an eighteen-year sentence for a 1979 aggravated assault conviction. Following his arrest on May 20, 1986, Smith was incarcerated in the Bolivar County jail without bond and then returned to Parchman penitentiary. However, a parole revocation hearing was not held until May 18, 1987.

 On April 1, 1986, less than two months prior to the shooting incident, Smith had purchased the .25 caliber pistol from a pawn shop in Cleveland, Mississippi. In purchasing the pistol, Smith knowingly made a false statement on Treasury Department Form No. 4473, in which he denied, by sworn statement, that he had ever been convicted of a felony.

 On September 19, 1986, Smith was indicted by a federal grand jury on one count of making a false statement in the acquisition of a firearm, and on one count of unlawfully possessing a firearm.

 On October 22, 1986, Smith was indicted by the Bolivar County Grand Jury on charges of aggravated assault and carrying a concealed weapon. Neither of the indictments charged Smith under Mississippi's Habitual Offender Statute, Miss. Code Ann. 99-19-81 (Supp. 1986 & 1988), nor could they have, since at that time Smith had only one prior conviction.

 On February 23, 1987, Smith was convicted, on a plea of guilty, in U.S. District Court for the Northern District of Mississippi on the charge of making a false statement in the acquisition of a firearm. He was sentenced to four years imprisonment. The other federal charge was dismissed.

 Thereafter, the prosecution resubmitted the two state charges to the Bolivar County Grand Jury. On April 21, 1987, the Grand Jury re-indicted Smith on the charges of aggravated assault and carrying a concealed weapon. The new indictments, however, charged Smith as an habitual offender under Miss. Code Ann. 99-19-81 (Supp. 1986 & 1988). The two convictions on which

 habitual offender status was based were the 1979 conviction for aggravated assault and the February, 1987 conviction on the federal charge of making a false statement in the acquisition of a firearm.

 Smith was arraigned on May 18, 1987. On May 20, 1987, Smith filed a motion to quash the habitual offender portion of the indictments. The motion alleged that the State had knowingly delayed Smith's trial from the scheduled date of December 3, 1986, until after his conviction in federal court, in order to re-indict under the habitual offender statute. According to Smith, this delay had the result of denying him a speedy trial. The motion further alleged that the State, having committed itself to an indictment without habitual offender charges, could not re-indict for the sole purpose of adding the habitual offender charges, especially since the case had been continued at the instance of the prosecution. Hearing on the motion was postponed until after the trial.

 After a three-day trial which began May 25, 1987, Smith was convicted on both the charge of aggravated assault and that of carrying a concealed weapon. A bifurcated hearing was held on June 8, 1987. At this hearing, the trial judge denied Smith's motion to quash the habitual offender portion of the indictments, ruling that the re-indictment was proper. Pursuant to section 99-19-81, Smith was sentenced to the maximum term of imprisonment prescribed for each felony: twenty years on the aggravated assault conviction, and five years on the conviction for carrying a concealed weapon, with the provisions that the sentences would be served consecutively to any other sentences previously imposed, that neither of the sentences could be reduced or suspended, and that Smith would be ineligible for parole or probation.

 From these convictions and sentences, Smith has perfected an appeal to this Court. Although Smith assigns numerous errors in the trial proceedings, only one ...


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