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Gray v. State

Supreme Court of Mississippi, En Banc

December 5, 2018

DAVID R. GRAY Petitioner
v.
STATE OF MISSISSIPPI Respondent

          ORDER

          JAMES D. MAXWELL II, JUSTICE

         Before the Court is David Gray's Application for Leave to Proceed in the Trial Court. Gray was convicted of capital murder and sentenced to life as an habitual offender. Gray v. State, 472 So.2d 409 (Miss. 1985). This is his first application for post-conviction relief. Because his conviction and sentence were affirmed more than thirty years prior to his filing, Gray's claim is time-barred.

         To the extent Gray argues he is serving an illegal sentence-a claim that is excepted from the time bar-his claim lacks merit. Gray asserts his indictment did not properly notify him of the prior convictions that formed the basis of his habitual-offender status. But the list of prior convictions attached to his indictment included all the information required under Uniform Rule of Circuit and County Court 12.03 and clearly "suppl[ied] enough information to [Gray] to identify with certainty the prior convictions relief upon by the State for enhanced punishment." Mcllwain v. State, 700 So.2d 586, 589 (Miss. 1997). Further, a life sentence was the only sentencing option for his non-death-penalty capital-murder conviction, regardless of whether Gray was a habitual offender under Mississippi Code Section 99-19-81 or Mississippi Code Section 99-19-83. Thus, it is immaterial that the indictment did not mention Gray had served a year or more on his separate prior convictions.

         Gray's life sentence is clearly legal. Therefore, the application for post-conviction relief should be denied.

         IT IS THEREFORE ORDERED that David Gray's Application for Leave to Proceed in the Trial Court is hereby denied.

         SO ORDERED

          AGREE: WALLER, C.J., MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ.

          JOIN: RANDOLPH, P.J.

          COLEMAN, J., AGREES IN RESULT ONLY WITHOUT SEPARATE WRITTEN STATEMENT.

          KITCHENS, J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY KING, P.J.

          KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

         ¶1. Today's order mischaracterizes David Gray's claim by stating, "Gray asserts his indictment did not properly notify him of the prior convictions that formed the basis of his habitual-offender status." I agree that there is no apparent deficiency in that aspect of the indictment. But that is not what Gray claims. What Gray actually does claim is that he "never [was] indicted as a[n] habitual offender . . . ." Because it is true that the State never indicted Gray as an habitual offender, I would grant his application for leave to proceed in the trial court for post-conviction relief.

         ¶2. Gray argues he is serving an illegal sentence, a claim exempt from the time bar. Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss. 2010). His argument is based on the State's failure to indict him as an habitual offender. Gray was convicted of capital murder, then was sentenced under Mississippi Code Section 99-19-83 (Supp. 1981).[1] Incorporated by reference, a list of ...


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