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NOVEMBER 22, 1989





Lester Lee Jefferson appeals his conviction of burglary and sentence of seven years imprisonment without parole as a habitual offender, Miss. Code Ann. 99-19-81 (Supp. 1989). Our principal concern is the enforceability of Jefferson's two prior larceny convictions and the Circuit Court's reliance thereon to adjudge Jefferson an habitual offender.

 For the reasons set forth below, we find no error and affirm.


 During the May, 1987, term of the Circuit Court of the Second Judicial District of Bolivar County, the grand jury indicted Lester Lee Jefferson for the crime of burglary of a business Miss. Code Ann. 97-17-33 (1972), and as an habitual offender, Miss. Code Ann. 99-19-81 (Supp. 1986). In June of 1987, Jefferson stood trial and was convicted by a jury on the principal charge laid in the indictment.

 Thereafter, the Court put Jefferson to trial on the charge that he was an habitual offender. See Rule 6.04, Miss.Unif.Crim. R.Cir.Ct.Prac. (1979, as amended). The Court found that on May 26, 1981, Jefferson had been twice convicted of larceny, those convictions arising out of separate incidents committed at separate times, and that Jefferson was otherwise an habitual offender within Section 99-19-81. The Circuit Court sentenced Jefferson to seven years imprisonment without parole. Jefferson now appeals.


 The background facts and circumstances of the two previous convictions used for punishment enhancement are as follows:

 On May 12, 1981, Jefferson was indicted in Case No. 5839 in the Circuit Court of the Second Judicial District of Bolivar County for the February 21, 1981, burglary of a 1976 Chevrolet automobile belonging to Walter Boswell. On the same date, in Case No. 5840 in the same Circuit Court, Jefferson was indicted for the crime of burglary of a 1980 Lincoln automobile also belonging to Walter Boswell. That indictment charged that Jefferson committed this second burglary also on February 21, 1981. Thus, Jefferson stood indicted for two separate crimes of burglary of two separate automobiles belonging to Walter Boswell, each committed on the same day.

 On May 26, 1981, Jefferson appeared in Circuit Court with his attorney and announced that on each indictment he wished to

 withdraw his plea of not guilty to burglary and enter a plea of guilty to the related offense of grand larceny. See Rule 4.03, Miss.Unif.Crim.R.Cir.Ct.Prac. (1979). The Circuit Court told Jefferson he was under oath, and first inquired of Jefferson's age (23), education (12th grade), and occupation. The Court then told Jefferson that his attorney had represented to the Court that he, Jefferson, wished to enter a plea of guilty" to the related crime of grand larceny "in each of the two cases. Did he understand that?" Yes, sir, "was the answer. In the case of each charge, the Court asked Jefferson if he knowingly and feloniously stole the personal property belonging to Boswell and worth more than $100.00. Jefferson said that he had. In the end the Court announced that the charge in each indictment was changed and reduced to grand larceny. Jefferson then entered a plea of guilty to each, and in each testified that he committed the crime. The Court accepted each plea and adjudged Jefferson guilty of grand larceny in each case.

 Back to the present. At his recidivism hearing in June, 1987, Jefferson objected to the prosecution's offer of these prior convictions under Section 99-19-81. The Circuit Court expressed concern regarding its authority in 1981 to have accepted pleas of guilty to larceny on indictments for burglary. The Court concluded, however, Rule 4.03 *fn1 authorized acceptance of a plea of guilty to a" lesser or related offense. "The Court then sentenced Jefferson as an habitual offender.

 Jefferson now appeals and argues that because he had not been indicted for grand larceny in 1981, a separate and distinct crime from burglary, the two judgments of conviction may not now be used to enhance his current sentence.


 Preliminarily, a procedural question is presented - whether the rule of Phillips v. State, 421 So. 2d 476 (Miss. 1982) and progeny, see Moore v. State, 508 So. 2d 666, 669 (Miss. 1987), pretermits this process. The Phillips rule is this: At a recidivism hearing the circuit court should not retry the merits of the defendant's two prior convictions. Convictions such as those Jefferson today challenges may be used for purposes of enhancement under Section 99-19-81 so long as they are regular on their face. The purpose of the rule is to avoid a trial within a trial. Under Phillips the offender is remitted to the process of the Mississippi Uniform Collateral Post-Conviction Relief Act if he wishes to attack his prior convictions. Phillips, 421 So. 2d at 481.

 Here Jefferson challenges the jurisdiction of the Circuit Court in 1981 and argues that each prior conviction is irregular

 on its face. He presents a pure question of law. No evidentiary hearing is necessary, as the record of the 1981 sentencing is before us. Moreover, the Circuit Court considered and decided the question. Pursuit of the Phillips course would be a waste of time. V. A.

 Jefferson argues that in 1981 the Circuit Court had no authority to convict him upon his guilty pleas because he was before the Court on indictments charging him with burglary, not grand larceny. It is certainly true that burglary and grand larceny are separate and distinct crimes, Fournier v. State, 96 Miss. 417, 50 So. 602 (1909); see also Criddle v. State, 250 Miss. 328, 332, 165 So. 2d 339, 341 (1964), although they are often prosecuted together. And it is similarly true that the Mississippi Constitution in Article 3, Section 27, confers upon one criminally accused the right to indictment. In relevant part, that section reads:

 No person shall, for any indictable offense, be proceeded against criminally by information, except . . . where a defendant represented by counsel by sworn statement waives indictment; . . . .

 The quick answer is that Jefferson effectively waived his right to indictment for grand larceny. We have any number of cases which enforce defendants' uncounseled waivers of infinitely more vital constitutional rights, i.e., the right to be free of self-incrimination, even to the point of placing the penitent in the gas chamber. See Johnson v. State, 508 So. 2d 1126, 1127 (Miss. 1987); Neal v. State, 451 So. 2d 743, 750-57 (Miss. 1984); Edwards v. Thigpen, 433 So. 2d 906, 907 (Miss. 1983); Evans v. State, 422 So. 2d 737, 739 (Miss. 1982); Gray v. State, 375 So. 2d 994, 1001 (Miss. 1979). We discern no principle that would compel these results and at once not allow a counseled waiver of a right of much lesser importance where at the time that waiver served to reduce the accused's maximum potential punishment.

 We are concerned here with the legal effect of Jefferson's two 1981 guilty pleas. The institution of the guilty plea is well established in our criminal justice process. A guilty plea operates to waive the defendant's privilege against self-incrimination, *fn2 the right to confront and cross-examine the prosecution's witnesses, *fn3 the right to a jury trial *fn4 and the right that the prosecution prove each element of the offense beyond a reasonable doubt. *fn5

 Outside the constitutional realm, the law is settled that

 with only two exceptions, the entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment. Williams v. State, 512 So. 2d 666, 672 (Miss. 1987); Jones v. State, 244 So. 2d 1, 2 (Miss. 1971); Wilcher v. State, 152 Miss. 13, 118 So. 356 (1928); see also Perkins v. State, 487 So. 2d 791, 792 (Miss. 1986). A defendant's right to claim that he is not the person named in the indictment may be waived if not timely asserted. Anselmo v. State, 312 So. 2d 712 (Miss. 1975). The principal exception to the general rule is that the failure of the indictment to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense, is not waived. See Durr v. State, 446 So. 2d 1016, 1017 (Miss. 1984); Maxie v. State, 330 So. 2d 277, 278 (Miss. 1976). And, of course, a guilty plea does not waive subject matter jurisdiction.

 Jefferson's two grand larceny convictions rest upon guilty pleas entered on May 26, 1981. The record shows Jefferson was originally indicted for the burglary of a 1976 Chevrolet Impala and for the burglary of 1980 Lincoln Continental. On May 26, 1981, represented by counsel, Jefferson appeared before the Circuit Court *fn6 and testified under oath that he understood that he was charged with burglary of an automobile in each case; that he wished to withdraw his pleas of not guilty and enter pleas of guilty to related charges of grand larceny; that he understood the nature of the offense of grand larceny; and that he in fact committed those crimes. Unless there be some jurisdictional defect in the Circuit Court's authority in May of 1981, Jefferson has effectively waived any right to be indicted for grand larceny.


 There is a separate but related rationale requiring that Jefferson's sentence be affirmed. This Court enforces an accused's waiver of the right to be proceeded against only by an indictment in another context: where the accused requests a lesser offense instruction. One on trial under a criminal indictment may of right request an instruction regarding any offense carrying a lesser punishment if the lesser offense arises out of a nucleus of operative fact common with the factual scenario giving rise to the charge laid in the indictment. See McGowan v. State, 541 So. 2d 1027, 1029 (Miss. 1989); Whitehurst v. State, 540 So. 2d 1319, 1327 (Miss. 1989); Gangl v. State, 539 So. 2d 132, 135-36 (Miss. 1989); Griffin v. State, 533 So. 2d 444, 447-48 (Miss. 1988).

 There is a clear connection between the rationale implicit in the lesser of fense instruction cases, particularly Gangl, and the issue of the waivability of the right to be proceeded against only by an indictment. This rationale implicit in Gangl and our

 other recent cases involving lesser offense instructions is that in requesting the instruction the defendant waives his right to be proceeded against only by an indictment for that lesser offense. In fact, this very idea was stated explicitly in Griffin:

 Any possible concern that assault, because technically not a lesser offense, is not within the indictment for rape dissipates in the face of Griffin's request for the simple assault instruction. Griffin thus waived any inadequacy in the indictment.

 Griffin, 533 So. 2d at 488 n. 2 (emphasis added).

 When Jefferson's case is considered in this context, one sees that the offense of grand larceny of personal property found in Walter Boswell's two automobiles is substantially related to the offense of burglary of each of these automobiles with intent to steal an automobile. Each larceny arises out of a common nucleus of operative fact with the burglaries charged in each indictment. Each larceny is such that, had Jefferson gone to trial on the charge of burglary, he could of right have demanded that the jury be allowed to consider the lesser offense of grand larceny. Gangl v. State, 539 So. 2d at 135-36. This is because the maximum penalty to which Jefferson may have been subjected under the burglary statute was seven years, Miss. Code Ann. 97-17-33 (1972), while the crime of grand larceny carries a maximum five year sentence, Miss. Code Ann. 97-17-41 (1972). If in 1981 Jefferson could have been tried and convicted of larceny, it would certainly follow that he could enter a valid and enforceable guilty plea to larceny. If the Circuit Court in 1981 had jurisdiction to adjudge Jefferson guilty of grand larceny, it certainly had jurisdiction to accept his guilty plea, adjudge him guilty, and impose sentence.


 In the face of all of this Jefferson challenges the Circuit Court's jurisdiction in 1981 and relies on the case of Fournier v. State, 96 Miss. 417, 50 So. 502 (1909). Fournier affords him no help. For one thing Fournier makes no mention of any jurisdictional basis for reversal. More to the point, in Fournier the defendant did nothing which constituted a waiver of his right that he be proceeded against only after grand jury indictment for larceny. It may well be that a court has no authority to submit a lesser offense at the request of the prosecution unless it be a pure lesser included offense. See Miss. Code Ann. 99-19-5 (1972). One of the main rights that an indictment protects is the ...

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