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Trotter v. State

March 10, 1998

TROTTER
v.
STATE



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

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

MAJOR L. TROTTER A/K/A MAJOR LEE, APPELLANT TROTTER v. STATE OF MISSISSIPPI, APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 11/30/95

TRIAL JUDGE: HON. KENNETH LEVENE THOMAS

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: DRIVING UNDER THE INFLUENCE: SENTENCED AS A HABITUAL TO LIFE IMPRISONMENT; SENTENCE TO RUN CONSECUTIVE TO ANY PREVIOUS; SENTENCE SHALL NOT BE REDUCED OR SUSPENDED NOR SHALL THE DEFENDANT BE ELIGIBLE FOR PAROLE OR PROBATION

DISPOSITION AFFIRMED IN PART, REVERSED IN PART AND REMANDED -3/10/98

Major L. Trotter was convicted of driving under the influence of alcohol, third offense. Trotter was sentenced as a habitual offender to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections. Trotter's motion for JNOV or, in the alternative, a new trial was denied. Finding that the trial court erred in sentencing Trotter as an habitual offender under Miss. Code Ann. § 99-19-83 (Rev. 1994), we affirm the conviction and remand for re-sentencing pursuant to Miss. Code Ann. § 99-19-81 (Rev. 1994).

FACTS

On April 12, 1995, Major L. Trotter was involved in a two car accident and was subsequently charged with driving under the influence of alcohol (D.U.I.). Trotter was indicted for a felony third offense D.U.I. as a habitual offender under Mississippi Code Annotated § 99-19-81 (Rev. 1994). The original indictment alleged that Trotter was a habitual offender within the meaning of Section 99-19- 81 inasmuch as he had been previously convicted of aggravated assault which occurred on January 9, 1977, and was sentenced to three years in prison and previously convicted of burglary which occurred on July 13, 1978, which also carried a three year sentence. On the morning of the trial, the district attorney moved to amend the indictment to charge Trotter as a habitual offender under Miss. Code Ann. § 99-19-83 (Rev. 1994). Over objection of defense counsel, the trial court entered an order amending the indictment. The amended indictment alleged that Trotter was a habitual offender within the meaning of Section 99-19-83 inasmuch as he had been convicted on April 11, 1985, of attempted aggravated assault and carrying a deadly weapon; that he had been sentenced to terms of eight and four years, respectively; and that he had actually served one year or more on each sentence.

Following a trial on the merits, Trotter was convicted and sentenced as a habitual offender pursuant to ยง 99-19-83 of the Mississippi Code to serve a term of life imprisonment. Feeling aggrieved, Trotter filed this appeal asserting six issues. Because Issues I and II ...


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