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Thomas v. State

Supreme Court of Mississippi, En Banc

October 3, 2013

Anthony Tyrone THOMAS a/k/a Anthony J. Thomas a/k/a Anthony B. Thomas a/k/a Big Hab a/k/a Anthony Thomas
v.
STATE of Mississippi.

Rehearing Denied Dec. 12, 2013.

Page 878

Office of State Public Defender by George T. Holmes, attorneys for appellant.

Office of the Attorney General by Billy L. Gore, Scott Stuart, attorney for appellee.

ON WRIT OF CERTIORARI

KITCHENS, Justice.

¶ 1. Anthony Tyrone Thomas was convicted of aggravated assault (Count I) and of being a felon in possession of a weapon (Count II), then was sentenced to two consecutive terms of life without parole as an habitual offender. The Court of Appeals affirmed both convictions, and we granted Thomas's petition for writ of certiorari. Because we find that Count II of Thomas's indictment did not charge him with a crime, we reverse his conviction for being a felon in possession of a weapon in violation of Mississippi Code Section 97-37-5 (Rev.2006), and dismiss the indictment in Count II. As we have limited our review to Count II, the conviction for Count I is affirmed by means of the judgment of the Court of Appeals.

I.

¶ 2. Thomas was indicted for one count of aggravated assault and one count of being a felon in possession of a weapon. The State alleged that Thomas had stabbed his girlfriend with a knife, and that Thomas's status as a prior convicted felon prohibited his possessing that knife. Thomas claimed that his girlfriend had attacked him first and that she accidentally had stabbed herself twice in the ensuing struggle. A jury convicted Thomas on both counts, but the case was reversed by the Court of Appeals in 2009. Thomas v. State (" Thomas I " ), Thomas v. State, 19 So.3d 130, 135 (Miss.Ct.App.2009) (reversing for erroneous admission of evidence related to Thomas's prior felony conviction).

¶ 3. Thomas was tried a second time and again was convicted on both counts. Having been convicted and sentenced in the past for two other violent felonies, he was sentenced to two life sentences without parole, in accordance with Mississippi Code Section 99-19-83, to run consecutively. Thomas's appeal was assigned to the Court of Appeals, which rejected his claims of error and affirmed the convictions. See Thomas v. State, __ So.3d __ (Miss.Ct.App.2012).

¶ 4. In his petition for writ of certiorari, Thomas argued that the evidence was insufficient to convict him of being a felon in possession of a prohibited weapon, and that, should this conviction be reversed, he would be entitled to a new trial on the aggravated assault charge based on the doctrine of " retroactive misjoinder." [1] We granted Thomas's petition, and we limit our review to the weapons conviction. M.R.A.P. 17(h).

II.

¶ 5. Mississippi Code Section 97-37-5 (Rev.2006) makes it unlawful for any

Page 879

person who has been convicted of a felony to possess a list of certain weapons, including " any bowie knife, dirk knife, butcher knife, or switchblade knife." In Count II of the indictment, the State charged that Thomas " did willfully, unlawfully, knowingly and feloniously have in his possession a certain weapon, to-wit: a knife, he, the said Anthony J. Thomas, having been previously convicted of a felony...." (Emphasis added.) However, the mere possession of " a knife" is ...


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