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Lyons v. State

February 11, 1998

DAVID E. LYONS A/K/A DAVID EARL LYONS, APPELLANT A/K/A "FOX"
v.
STATE OF MISSISSIPPI, APPELLEE



DATE OF JUDGMENT: 5/10/95 TRIAL JUDGE: HON. THOMAS J. GARDNER, III COURT FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT

TRIAL COURT DISPOSITION: CONVICTED OF BURGLARY AND SENTENCED TO 7 YEARS AS HABITUAL OFFENDER. DISPOSITION AFFIRMED - 2/10/98

Before Thomas, P.j., King, And Payne, JJ.

The opinion of the court was delivered by: Payne, J., For The Court

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

NATURE OF THE CASE: CRIMINAL - FELONY

David E. Lyons was convicted of the burglary of Allmond Printing Company in Aberdeen, Mississippi. Lyons was sentenced as a habitual offender to serve a term of seven years in the custody of the Mississippi Department of Corrections with said sentence being served consecutively to any and all other pending sentences. Lyons's motion for JNOV or, in the alternative, a new trial was denied. Finding no error on the part of the circuit court, we affirm.

FACTS

On November 12, 1994, Sergeant James Harris, while on patrol, observed that the glass door to Allmond Printing Company had been broken. Sergeant Harris testified that upon further investigation, he found the lights on inside the building and found Lyons lying on the floor beneath some boxes. Following a struggle, Lyons was arrested. Officer Larence Swindle testified to finding two rolls of quarters, some change, two watches, and some screwdrivers in Lyons's pockets. Mr. John Allmond, the owner of Allmond Printing, identified the items found on Lyons's person as being his possessions. Allmond testified that the items had previously been in his office.

The jury returned a verdict of guilty, and Lyons was sentenced as a habitual offender. Lyons was qualified at the sentencing hearing as a habitual offender upon a showing by the State that he had two prior convictions for burglary for which he had been given two seven year suspended sentences. Prior to trial on the current charge, the suspended sentences were revoked, and Lyons was ordered to serve two consecutive seven year terms.

Feeling aggrieved, Lyons filed this appeal asserting ten issues. In the interest of clarity, we will consolidate some of the issues and address them as follows: (1) Whether the circuit court erred in not granting dismissal of charges in cases CR93-067, CR93-068, and CR93-069 used for habitual offender status, (2) Whether the indictments for cases CR93-067, CR93-068, and CR93-069 were defective, (3) Whether the trial court erred in failing to grant Lyons's motion for a psychiatric examination.

ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING DISMISSAL OF CHARGES IN CASES CR93-067, CR93-068, AND CR93-069 USED FOR HABITUAL OFFENDER STATUS.

Following a finding of guilty of business burglary by the jury, a sentencing hearing was held in which the State introduced into evidence the indictment and sentencing order for Cause Number CR93-067 and Cause Number CR93-068. On its own motion, the court further received into evidence an order dated January 19, 1995, revoking the suspended sentences in Cause Numbers CR93-067 and CR93-068. Thereafter, Lyons made the following objection:

We'd object to the defendant being sentenced under the Habitual Offender Act. The sentences were suspended sentences. They were not -- he did not do or serve a year on each one of those sentences. Further, the order revoking the suspended sentence, he was not given a hearing that he knows of on the ...


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