Jones v. State

86 So. 3d 931, 2011 WL 3804742, 2011 Miss. App. LEXIS 530
Court of Appeals of Mississippi·Decided August 30, 2011·No. No. 2009-KA-02017-COA·Published·Cited by 1 cases

Opinion

LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Anthony Prenell Jones was convicted in the Forrest County Circuit Court of armed robbery. He was sentenced as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. Jones filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the trial court denied.

¶ 2. Jones now appeals, arguing the following issues: (1) the State was improperly allowed to amend the habitual-offender portion of the indictment to change the date of a prior conviction, and (2) the trial court failed to include an order in the record amending the indictment. Finding no reversible error, we affirm.

FACTS

¶ 3. A masked man entered the Circle K Convenience Store in Hattiesburg, Mississippi, and demanded money from the store clerk. The man pointed a .22-caliber handgun at the store clerk, Samuel Chap-pell, and demanded money. Before exiting the store, the robber grabbed several packages of cigarettes. He dropped some of the packages on the floor as he left.

¶ 4. Chappell called the Hattiesburg Police Department. Chappell was unable to identify the robber. Jon Byrd, a latent fingerprint examiner, collected prints from the cigarette packages dropped by the robber. He found three prints that matched Jones’s fingerprints. A warrant was issued, and Jones was arrested at his mother’s home. Police found a .22-caliber revolver, a box of bullets, a .22 cartridge, a stocking hat, and cash.

DISCUSSION

I. ERROR IN INDICTMENT

¶ 5. Jones argues that the indictment against him was fatally defective because it contained erroneous information regarding his status as a habitual offender.

¶ 6. Jones was sentenced under Mississippi Code Annotated section 99-19-81 (Rev.2007), which states:

[933]*933Every 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.

¶ 7. The pen pack submitted to the trial court reflects three prior felonies committed in Michigan, two of which were cited by the State of Mississippi in the indictment. On February 4, 2002, Jones was convicted of two charges: attempted unlawful driving away of an automobile and fleeing from a police officer. The cause number for these two convictions is 02-009352-FH-U. Jones was sentenced on February 25, 2002, but he was not incarcerated for these offenses until October 7, 2002, when he was detained for an unrelated fleeing offense that occurred on September 15, 2002. The cause number for the third offense is 02-010651-FH-R. Jones was convicted of this offense on October 21, 2002, and sentenced on November 15, 2002.

¶ 8. Jones argues that the indictment contains substantive errors regarding his prior felonies. The enhancement portion of the indictment states:

(1) On October 07, 2002, he, the said ANTHONY PRENELL JONES, was convicted in the Circuit Court of Gene-see County, Michigan, in Cause No. 02-009352-FH-U, of the felony of Attempt Unlawful Driving Away an Automobile, and, on October 07, 2002, in said Court was sentenced to a term of twenty to thirty (20-30) months in the custody of the Michigan Department of Corrections; and
(2) On October 07, 2002, he, the said ANTHONY PRENELL JONES, was convicted in the Circuit Court of Gene-see County, Michigan, in Cause No. 02-010651-FH-R, of the felony of Attempt Police Officer-Feeling [sic]-Third Degree, and, on October 07, 2002, in said Court was sentenced to a term of twenty to thirty (20-30) months in the custody of the Michigan Department of Corrections ....

¶ 9. The indictment erroneously states that Jones was convicted and sentenced on October 7, 2002, for both cause numbers 02-009352-FH-U and 02-010651-FH-R. Jones objected at the sentencing hearing, arguing that he was only prepared to defend against the sentences that occurred on October 7, 2002. His defense was that the two crimes for which he was sentenced on October 7, 2002, arose from the same incident and, thus, did not meet the requirements of section 99-19-81. The trial court continued Jones’s sentencing, giving both parties a week to consider the applicability of the Michigan convictions.

¶ 10. At the rescheduled sentencing hearing, the State continued to assert that both offenses were distinct. However, the prosecutor informed the trial court that the date of cause number 02-010651-FH-R was incorrect. The State argued the correct date was November 15, 2002, and it sought to amend the indictment to modify what it deemed a scrivener’s error. Jones’s counsel objected to any post-trial amendment. The trial court did not rule on the State’s motion to amend the date of the second predicate offense. Instead, based on what it deemed adequate proof that Jones had committed prior “separate and distinct crimes,” the trial court found Jones qualified as a habitual offender.

[934]*934¶ 11. “The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by an appellate court.” Davis v. State, 866 So.2d 1107, 1110 (¶ 11) (Miss.Ct.App.2003). The purpose of an indictment “is to inform the defendant with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense.... ” Moses v. State, 795 So.2d 569, 571 (¶ 13) (Miss.Ct.App.2001). While Uniform Rule of Circuit and County Court 7.06(5) requires dates to be listed in the indictment, it goes on to state that the failure to cite the correct date in an indictment shall not render the indictment insufficient.

¶ 12. Despite the absence of the amendment to the indictment correcting the date, we find that the indictment contained sufficient information for Jones to prepare a defense. The incorrect date amounted to a scrivener’s error. It affected the form of the indictment, not its substance. Jones was put on notice by the two cause numbers cited in the indictment of the charges the State intended to use to prove Jones’s habitual-offender status. We also find that the two charges arose from separate incidents. Cause number 02-009352-FH-U stemmed from a car jacking that took place on December 23, 2001. On that date, Jones punched a Michigan man in the face, breaking his glasses, then stole the man’s car. On December 26, 2001, police spotted Jones in the stolen car and pursued him. He fled, but he was arrested a few weeks later on January 12, 2002. Jones was charged with three counts related to the theft and flight. He ultimately pleaded guilty to two felony offenses, only one of which — attempted unlawful driving away of a motor vehicle— was listed as a predicate offense.

¶ 13.

Free access — add to your briefcase to read the full text and ask questions with AI

Jones v. State, 86 So. 3d 931, 2011 WL 3804742, 2011 Miss. App. LEXIS 530 (Mich. Ct. App. 2011).

86 So. 3d 931 (Jones v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Nathan v. State
142 So. 3d 1094 (Court of Appeals of Mississippi, 2013)