DATE OF JUDGMENT: 02/06/96 TRIAL JUDGE: HON. RICHARD WAYNE McKENZIE COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
Before: Prather, P.j., Roberts And Mills, JJ.
The opinion of the court was delivered by: Mills, Justice
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
DISPOSITION REVERSED AND REMANDED - 3/12/98
MOTION FOR REHEARING FILED:
¶1. Charles Sylvester Bell appealed pro se to this Court following the February 1996 denial of his motion for post conviction relief by the Circuit Court of Forrest County, Mississippi.
¶2. The appeal presently before us is the latest in a long line of Court proceedings and cases dealing with Charles Sylvester Bell. Mr. Bell is presently serving two consecutive life sentences for separate capital murder convictions and one sentence of twenty-five (25) years as an habitual offender. The known facts of Mr. Bell's life of crime are well documented. See Bell v. State, 353 So.2d 1141 (Miss.1977); Bell v. State, 360 So.2d 1206 (Miss.1978); and Bell v. Watkins, 692 F.2d 999 (5th Cir.1982), cert. denied, 464 U.S. 843, 104 S.Ct. 142, 78 L.Ed.2d 134 (1983).
¶3. In March of 1984, Bell was indicted as an habitual offender for unlawfully, willfully and feloniously, with malice aforethought, killing and murdering one D. C. Haden while engaged in the commission of the crimes of armed robbery and kidnapping in violation of Section 97-3-19 (2)(e) of the Mississippi Code of 1972, as amended. The crime occurred on June 26th, 1976. Section 99-19-81 of the Mississippi Code of 1972, providing for the sentencing of habitual criminals to maximum terms of imprisonment, was enacted by the 1976 Legislature, effective from and after January 1, 1977.
¶4. Bell's original death sentence was overturned by the Fifth Circuit Court of Appeals in 1982. See Bell v. Watkins, 692 F.2d 999 (5th Cir. 1982). Following the overturning of his death sentence, Bell was re- indicted for armed robbery as an habitual offender in July of 1984. He entered a plea of guilty to armed robbery as an habitual offender. The State recommended life imprisonment, rather than the death penalty, for his capital murder conviction. The trial court accepted this recommendation and sentenced Bell to life imprisonment for the capital murder and twenty-five (25) years for the armed robbery. Bell has continuously, over the years, attempted to bring before this Court his contention that the trial court committed reversible error in sentencing him for armed robbery, arguing that this sentence constituted a double jeopardy violation since armed robbery was the underlying felony used to elevate the killing to capital murder. This issue is not germane to the present proceedings. However, our own review of the record indicates that Bell may have a valid claim that the ex post facto provisions of the United States and Mississippi Constitutions bar his sentence for armed robbery as an habitual offender.
Whether the ex-post facto provisions of Article 1, Section 10 of the United States Constitution and Article 3, Section 16 of the Mississippi Constitution bar the sentencing of Bell as an habitual offender?
¶5. The crimes for which Bell was indicted in the present appeal occurred on June 26, 1976. The Mississippi Legislature enacted the "habitual criminal statute," Section 99-19-81 of the Mississippi Code of 1972 in the 1976 session of the legislature, but effective from and after January 1, 1977. Bell was indicted and pled guilty to armed robbery as an ...