Taylor v. State

838 So. 2d 339, 2002 Miss. App. LEXIS 512, 2002 WL 31058129
Court of Appeals of Mississippi·Decided September 17, 2002·No. No. 2001-KA-00842-COA·Published·Cited by 1 cases

Opinion

SOUTHWICK, P.J.,

for the court.

¶ 1. Gregory Taylor was found guilty of felony shoplifting by a circuit court jury and sentenced as an habitual offender. Taylor appeals arguing that the indictment was defective and that the jurors’ handwritten form of verdict was insufficient to [340]*340find him guilty of a felony. We find Taylor’s arguments lack merit. Accordingly, we affirm.

STATEMENT OF THE FACTS

¶ 2. On October 29, 2000, Gregory Taylor entered a grocery store in Waynesboro. One of the store’s cashiers immediately notified the manager, Hal Odom, that Taylor had arrived. Odom, who had previously asked Taylor not to return unless he intended to buy something, secreted himself at a vantage point from which he could observe Taylor. The unwitting Taylor proceeded to the meat counter. Taylor took two or more packages of meat and stuffed them into his pants. He then paid for a drink and exited the premises. Odom first notified police and then confronted Taylor outside the store. Odom reached for Taylor’s baggy shirt to reveal the stolen goods. Taylor swatted Odom’s hand away, threatened to sue, and ran away when informed of the police’s imminent arrival.

¶ 3. Taylor was indicted and convicted of felony shoplifting. This is his appeal.

DISCUSSION

1. Flaws in the indictment

¶ 4. The crime of shoplifting is a misdemeanor unless the accused is a sufficient recidivist. The statute is long. We omit the portions defining the offense itself. What is relevant for this appeal are the sentencing sections on taking property of less than $250 in value.

(5) A person convicted of shoplifting merchandise for which the merchant’s stated price is less than or equal to Two Hundred Fifty Dollars ($250.00) shall be punished as follows:
(a) Upon a first shoplifting conviction the defendant shall be guilty of a misdemeanor and fined not more than Seven Hundred Fifty Dollars ($750.00), or punished by imprisonment not to exceed thirty (30) days, or by both such fine and imprisonment.
(b) Upon a second shoplifting conviction the defendant shall be guilty of a misdemeanor and fined not more than One Thousand Dollars ($1,000.00) or punished by imprisonment not to exceed ninety (90) days, or by both such fine and imprisonment.
(6) Upon a third or subsequent shoplifting conviction the defendant shall be guilty of a felony and fined not more than One Thousand Dollars ($1,000.00), or imprisoned for a term not exceeding five (5) years, or by both such fine and imprisonment....
(8) In determining the number of prior shoplifting convictions for purposes of imposing punishment under this section, the court shall disregard all such convictions occurring more than seven (7) years prior to the shoplifting offense in question.

Miss.Code Ann. § 97-23-93 (Rev.2000).

¶ 5. Taylor had earlier been convicted of four separate shoplifting offenses. The first two convictions were in January and March 1994, and were charged as misdemeanors. The next two on May 5, 1998, and on March 14, 2000, resulted in felony shoplifting convictions.

¶ 6. Taylor’s present indictment referenced the prior two felony shoplifting convictions on an exhibit to the indictment. The exhibit did not just list the former convictions, but they appeared in a form for indicating prior convictions for habitual offender status under Mississippi Code section 99-19-81. That statute provides that if a person has been previously convicted of two felonies growing out of separate incidents at different times, and sentenced to separate terms of incarceration [341]*341of at least one year each, then later convictions must result in the maximum term of imprisonment for the offense, to be served without reduction or parole. Miss. Code Ann. § 99-19-81 (Rev.2000). Taylor’s two prior convictions were each said to be for “felony shoplifting,” a crime that itself requires two other prior convictions for shoplifting.

¶ 7. What was stated on the first page of the indictment used phrasing for multiple shoplifting crimes and addressed the general habitual offender statute. After describing the details of the then-latest shoplifting, the indictment’s first page stated this:

This offense having followed the shoplifting 2nd and the shoplifting 2d having followed the shoplifting 1st and all prior shoplifting convictions being a violation of 97-23-93 MCA (see exhibit “A” for prior convictions)
This defendant, eighteen (18) years of age or over or having been certified as an adult, having been previously convicted of at least two (2) felony convictions arising out of separate transactions and separate occurrences, and having been sentenced to serve at least one (1) year with a state or federal penal institution, the State is seeking sentencing pursuant to M.C.A. Section 99-19-81. (See attached exhibit “A” incorporated herein) in violation of Section 97-23-93....

¶ 8. Three issues arise from this. First, since Taylor was being charged with his third felony shoplifting, could the State use the general habitual statute and seek the maximum sentence for felony shoplifting and for it to be served without reduction or parole? For felony shoplifting, the sentence is not to be more than five years’ imprisonment and a $1,000 fine. Miss. Code Ann. § 97-23-93(6) (Rev.2000). We find nothing in the language of the shoplifting statute nor in this habitual offender statute that prevents conviction of a third felony shoplifting from having the normal maximum sentencing rules apply. No error exists in Taylor’s being charged as a habitual offender.

¶ 9. The second issue is whether a description in the indictment was needed of the underlying misdemeanor convictions that predated all three felony charges. Taylor was being accused of his fifth shoplifting offense. Shoplifting cannot be a felony unless there have been at least two prior shoplifting convictions within seven years. The plain language of the statute does not require that misdemeanor shoplifting convictions have occurred within that time.

¶ 10. This is the operative statutory language:

(6) Upon a third or subsequent shoplifting conviction the defendant shall be guilty of a felony and fined not more than One Thousand Dollars ($1,000.00), or imprisoned for a term not exceeding five (5) years, or by both such fine and imprisonment....
(8) In determining the number of prior shoplifting convictions for purposes of imposing punishment under this section, the court shall disregard all such convictions occurring more than seven (7) years prior to the shoplifting offense in question.

Miss.Code Ann. § 97-23-93 (Rev.2000) (emphasis added). Subpart (6) provides that the third “or subsequent shoplifting conviction” will be a felony.

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Taylor v. State, 838 So. 2d 339, 2002 Miss. App. LEXIS 512, 2002 WL 31058129 (Mich. Ct. App. 2002).

838 So. 2d 339 (Taylor v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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