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Rosebur v. State

Court of Appeals of Mississippi

April 4, 2017

RICHARD ROSEBUR AND JAMIE ROSEBUR APPELLANTS
v.
STATE OF MISSISSIPPI APPELLEE

          Date of Judgment: 02/03/2016

         COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT HON. CHARLES E. WEBSTER TRIAL JUDGE.

          ATTORNEY FOR APPELLANTS: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE M. MCMILLIN.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN MCCLINTON.

          BEFORE GRIFFIS, P.J., ISHEE, WILSON, AND GREENLEE, JJ.

          WILSON, J.

         ¶1. Brothers Richard and Jamie Rosebur were convicted of shooting into a dwelling, for which they were each sentenced to ten years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended and five years of post-release supervision. They were also each sentenced to five years in MDOC custody pursuant to Mississippi Code Annotated section 97-37-37 (Rev. 2014) for using a firearm during the commission of the crime. The circuit court's sentencing orders provided that this additional five-year sentence would not be reduced or suspended but would run concurrently to the Roseburs' sentences for shooting into a dwelling. The Roseburs raise only one issue in their consolidated appeals: whether imposition of an additional punishment pursuant to the "firearm enhancement" violates the Double Jeopardy Clause of the State or Federal Constitution. This Court previously rejected the same argument, and the Mississippi Supreme Court subsequently adopted our analysis and reached the same conclusion. Therefore, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On December 5, 2012, Richard, Jamie, and James Jiles were indicted in a single indictment in Coahoma County for shooting into a dwelling, Miss. Code Ann. § 97-37-29 (Rev. 2014), with a sentencing enhancement for using a firearm during the commission of the crime, Miss. Code Ann. § 97-37-37. The defendants waived arraignment on December 11, 2012, and trial was set for February 25, 2013.

         ¶3. On January 17, 2013, Richard's court-appointed attorney requested a continuance because he already had another trial scheduled for the same day. Richard also filed a motion to suppress evidence and a motion to "sever his case from the remaining Defendants in this indictment, and grant him a separate . . . trial." On February 20, 2013, the court entered an order to continue "the trial of Defendant Richard Rosebur to a new date."

         ¶4. There was no action in the case for the next eleven months. On January 22, 2014, Jamie's attorney filed a motion to dismiss the indictment against him based on alleged violations of his constitutional and statutory rights to a speedy trial. Nothing in the record indicates that Jamie ever noticed this motion for a hearing or that the court ever ruled on it.

         ¶5. On July 31, 2014, Richard's attorney filed a "Joint Motion for Continuance." The motion stated that trial was set for August 4, 2014, but "the State and all Defendants" had agreed that a continuance was "necessary due to . . . pending pre-trial motions." The motion was signed only by Richard's attorney. The court granted the motion the same day. The court's order referenced only "[t]he trial of Richard Rosebur." The order stated that trial in the case was continued "to a new date after the resolution of all pre-trial motions." Richard's attorney signed the order as "Approved." The order states that counsel for the State, Jamie, and Jiles "Approved as to Form, " with their approval shown by typed "/s/" signatures. The same day, the court also entered an order setting all pretrial motions for a hearing on August 27, 2014. There is nothing in the record to indicate whether that hearing was held.

         ¶6. The docket sheet indicates that, at some point, the charges against Jiles were severed from the charges against the Roseburs. Jiles's jury trial was held on January 20-21, 2015, and he was convicted and sentenced.

         ¶7. On April 16, 2015, Richard's attorney filed a motion for a continuance. The motion stated that trial was set to begin on May 11, 2015, but that Richard's attorney had a case set for oral argument in the United States Court of Appeals for the Fifth Circuit on May 12, 2015. Based on this conflict, Richard asked the court to continue the trial. The caption and text of the motion reference only Richard's case, but the motion was served on Jamie's attorney. On April 23, 2015, the court entered an order continuing ...


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