of Judgment: 02/03/2016
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:
GRIFFIS, P.J., ISHEE, WILSON, AND GREENLEE, JJ.
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.
AND PROCEDURAL HISTORY
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.
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."
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.
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.
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.
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