DATE OF JUDGMENT: 08/17/95 TRIAL JUDGE: HON. BETTY W. SANDERS COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
TRIAL COURT DISPOSITION: POSSESSION OF FIREARM BY CONVICTED FELON: SENTENCED TO A TERM OF 5 YEARS AS HABITUAL OFFENDER AND ORDERED TO PAY $1000.00 & COURT COSTS, $192.50. DEFENDANT RECOMMENDED FOR DRUG/ALCOHOL PROGRAM DISPOSITION AFFIRMED - 2/10/98
Before Bridges, C.j., Coleman, And Southwick, JJ.
The opinion of the court was delivered by: Coleman, 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
In the Circuit Court of Washington County, a jury found the appellant, Danny Dewayne Malone, guilty of possession of a firearm as a convicted felon in violation of Section 97-37-5 of the Mississippi Code. *fn1 The trial Judge sentenced Malone as a habitual offender to pay a fine of $1000 and to serve a term of five years in the custody of the Mississippi Department of Corrections. The order by which the trial judge sentenced Malone did not specify whether his five year sentence for the possession of a firearm as a convicted felon was to run consecutively or concurrently with his earlier sentences to serve five years for receiving stolen property and three years for possession of marijuana. Malone argues that the trial Judge's revocation of his probationary status because he had been charged with the possession of a firearm as a convicted felon and his subsequent conviction of that same charge placed him twice in jeopardy and thus violated both the Fifth Amendment to the Constitution of the United States and Art. 3, § 22 of the Constitution of the State of Mississippi. As we will explain, Lightsey v. State, 493 So. 2d 375 (Miss. 1986), requires that we affirm the trial court's judgment and sentence of Malone.
A. Malone's previous indictments and probationary status
The State of Mississippi filed a bill of information dated August 12, 1992, against Malone in which it charged him with the possession of marijuana on February 26, 1992. Pursuant to this bill of information, the Washington County Circuit Court placed Malone in its diversion program. During the April 1993 term of the Washington County Circuit Court, the grand jury indicted Malone for the felony of receiving stolen property. Pursuant to the indictment for receiving stolen property, the State revived the previously diverted charge of possession of marijuana, and on June 23, 1993, Malone pleaded guilty to both felony charges. The trial Judge sentenced Malone to serve three years in the custody of the Mississippi Department of Corrections for possession of marijuana and five years in the custody of the Mississippi Department of Corrections for receiving stolen property. The trial Judge placed Malone on probation which he conditioned on Malone's successful completion of a stint in the Restitution Center in Leflore County.
On September 20, 1993, the trial Judge conducted a hearing on whether to revoke Malone's probationary status because of five violations of the rules for the conduct of residents of the Restitution Center. He revoked Malone's probation, but instead of placing him in the general population of the state penitentiary, the trial Judge modified Malone's original sentence by ordering that Malone be "required to complete the R.I.D. [Regimented Inmate Discipline] program and then return to the Restitution Center, Leflore County, for completion of program as previously ordered." Malone completed both the R.I.D. and the Restitution Center programs and was again released from custody and returned to probationary status on April 28, 1994.
On March 3, 1995, Christine Kimble heard the sound of gunfire while she, her daughter, and her daughter's children were in Ms. Kimble's home in Greenville. She grabbed her daughter and her grandchildren and pushed them into the hallway of her home for their protection. Ms. Kimble looked out the window and saw Malone running down the street with a rifle or a shotgun in his hands. Her daughter, Sharisa Kimble, looked out the back window of her mother's house and saw Malone firing a "long gun" while he ran down the street.
On March 14, 1995, the circuit court revoked Malone's probation to which he had returned on his completion of the R.I.D. and restitution center programs. The court's order of revocation of probation recited that Malone's probation had been revoked because he had been "arrested on March 3, 1995 . . . and charged with possession of a firearm by a convicted felon and malicious mischief." The grand jury indicted Malone for the possession of "a deadly and dangerous weapon, to-wit: a shotgun" as a convict of the felonies of possession of marijuana and possession of stolen property. As we recited, the jury found Malone "Guilty as charged.," and the trial Judge sentenced him as a habitual offender to serve the maximum sentence of five years and to pay a fine of $1,000.During the sentencing hearing, Malone's counsel argued that Malone's conviction of the possession of a firearm as a convicted felon place him twice in jeopardy because his probation had been revoked for that same ...