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Curry v. State

Court of Appeals of Mississippi

October 15, 2013

Willie CURRY a/k/a Willie E. Curry a/k/a Willie Earl Curry a/k/a Willie L. Curry, Appellant
v.
STATE of Mississippi, Appellee.

Rehearing Denied Feb. 11, 2014.

Page 1233

John Keith Perry Jr., Walls, attorney for appellant.

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

Before IRVING, P.J., CARLTON and JAMES, JJ.

IRVING, P.J.

¶ 1. A Madison County grand jury indicted Willie Curry for attempt to exploit a vulnerable adult, conspiracy to exploit a vulnerable adult, and possession of hydrocodone. After the indictment, the Madison County Circuit Court granted the State's motion to amend the indictment to charge Curry as a violent habitual offender. Following a trial, the jury convicted Curry of attempt to exploit a vulnerable adult, conspiracy to exploit a vulnerable adult, and possession of hydrocodone with acetaminophen.[1] The circuit court sentenced him as a nonviolent habitual offender to a total of fifteen years in the custody of the Mississippi Department of Corrections and to one year in the custody of the Madison County Sheriff. From the denial of Curry's post-trial motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, he instituted this appeal and argues that the circuit court erred in sentencing him under an indictment that was different from the original indictment.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The State's initial motion to amend the indictment listed three convictions to support indicting Curry as a violent habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.2007): two aggravated-assault convictions, each carrying three-year sentences that ran concurrently with each other, and a forgery conviction carrying an eighteen-month sentence. The circuit court granted the State's motion to amend the indictment. After Curry's conviction but before his sentencing, the State filed a second motion to amend the indictment, seeking to replace the forgery conviction in the amended indictment with a grand-theft-auto conviction. The State had discovered that Curry had served only eight months for the forgery conviction, thereby making it ineligible to serve as a predicate conviction for sentencing Curry as a violent habitual offender

Page 1234

under section 99-19-83. [2] The circuit court denied the motion and sentenced Curry as a nonviolent habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007), reasoning that the indictment, as it read after the initial amendment with the two aggravated-assault convictions and the forgery conviction, could properly stand under section 99-19-81.

¶ 4. Additional facts, as necessary, will be related during our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 5. A circuit court's decision to permit the State to amend an indictment to reflect a defendant's habitual-offender status " is an issue of law and enjoys a relatively broad standard of review." Jackson v. State,943 So.2d 746, 749 (¶ 11) (Miss.Ct.App.2006) (citation and internal quotation marks omitted). Despite the court's denial of the State's second motion to amend the indictment and the court's refusal to sentence Curry as a violent habitual offender under section 99-19-83, Curry, nevertheless, argues that the circuit court granted the State's motion and erred in doing so.[3] Curry contends that the court erred because the indictment under which he was sentenced was different from the indictment presented against him at trial, and as a result, he suffered prejudice because he " had to defend ...


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