LAVERN JEFFREY MORAN A/K/A LAVERN J. MORAN APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 01/05/2016
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. ROGER T.
ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, SCOTT
GRIFFIS, P.J., FAIR AND WILSON, JJ.
Lavern Jeffrey Moran appeals from the denial of his petition
for post-conviction relief. He argues that he should not have
been sentenced as a habitual offender under Mississippi Code
Annotated section 99-19-81 (Rev. 2015). Under clear
Mississippi Supreme Court precedent, Moran qualified as a
habitual offender. Accordingly, we affirm.
On May 18, 2015, Moran pled guilty to two counts of burglary
of a dwelling and was sentenced to ten years on each count,
with the sentences to run concurrently. The sentencing order
recited that Moran pled guilty "as a habitual offender,
" and the court found that his prior convictions met the
requirements of section 99-19-81. The court ordered that
Moran's "total" sentence of ten years "as
a habitual offender" would "be served day for day
in accordance with [section] 99-19-81 . . ., said sentence
being without hope of parole or
Eleven days later, Moran filed a petition for post-conviction
relief alleging that the court erred by sentencing him as a
habitual offender. Moran's only argument in his petition
and on appeal is that his prior felony convictions for
robbery and uttering a forgery do not meet the requirements
of section 99-19-81 because both convictions were entered on
the same day, although the offenses were committed on
different days and indicted separately.
Section 99-19-81 provides as follows:
Every person convicted in this state of a felony who shall
have been convicted twice previously of any felony or federal
crime upon charges separately brought and arising out of
separate incidents at different times and who shall have been
sentenced to separate terms of one (1) year or more in any
state and/or federal penal institution, whether in this state
or elsewhere, shall be sentenced to the maximum term of
imprisonment prescribed for such felony, and such sentence
shall not be reduced or suspended nor shall such person be
eligible for parole or probation.
Moran argues that his predicate felonies were not
"separately brought" within the meaning of the
statute even though the offenses were committed on different
days and indicted separately. Moran acknowledges that his
argument is squarely foreclosed by Mississippi Supreme Court
precedent. See, e.g., Kolb v. State, 568
So.2d 288, 289 (Miss. 1990) (holding that two prior
convictions entered on the same day satisfied the statute
because, even though the offenses were charged as separate
counts of a single indictment, they were committed on
different days and at different places); Rushing v.
State, 461 So.2d 710, 713 (Miss. 1984) ("In the
case sub judice, though both of appellant's [prior]
convictions occurred on the same day, they arose out of . . .
separate incident[s] occurring at different times. Therefore,
the trial court correctly sentenced the appellant under
[section] 99-19-81."). But he argues that Kolb
and Rushing "are very old, " "are
wrong, " and should be overruled.
"This Court, sitting as an intermediate appellate court,
is obligated to follow precedent established by the
Mississippi Supreme Court." Kennedy v. State,
766 So.2d 64, 65 (¶3) (Miss. Ct. App. 2000). "[W]e
. . . do not have the authority to overrule a decision of our
[S]upreme [C]ourt." Miles v. State, 864 So.2d
963, 965-66 (¶8) (Miss. Ct. App. 2003). ...