White v. State

702 So. 2d 107, 1997 WL 688354
CourtMississippi Supreme Court
DecidedNovember 6, 1997
Docket95-CT-00703-SCT
StatusPublished
Cited by40 cases

This text of 702 So. 2d 107 (White v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. State, 702 So. 2d 107, 1997 WL 688354 (Mich. 1997).

Opinion

702 So.2d 107 (1997)

Tommy WHITE a/k/a Larry Burnside
v.
STATE of Mississippi.

No. 95-CT-00703-SCT.

Supreme Court of Mississippi.

November 6, 1997.

Charles E. Webster, Twiford Webster & Gresham, Clarksdale, for appellant.

Michael C. Moore, Attorney General, Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.

En Banc.

*108 SULLIVAN, Presiding Justice, for the Court:

¶ 1. Tommy White, a/k/a Larry Burnside, was convicted in the Circuit Court of Quitman County on one count of conspiracy to operate a chop shop (count I), one count of joint operation of a chop shop (count II), and one count of individually operating a chop shop (count III). White was sentenced separately on each count.

¶ 2. White appealed claiming that the verdicts were against the overwhelming weight of the evidence and that his convictions constituted double jeopardy. The Court of Appeals affirmed the convictions and denied White's motion for rehearing. White filed a timely petition for writ of certiorari which this Court granted.

¶ 3. Because this Court finds that the Court of Appeals erred in its application of the facts and law with regard to the issue of double jeopardy, White's conviction under count III is hereby reversed and rendered. The decision of the Court of Appeals is affirmed as to count I and count II.

Statement of Facts

¶ 4. In March of 1993, law enforcement officials received information that White might be involved in running a chop shop. After investigating these allegations, the officials were led to Darren Hill, White's accomplice. It was discovered that White was buying the stolen vehicles from Hill and selling the parts. Stolen items were discovered in White's salvage yard and inventoried during several searches of the property in March of 1993. White was indicted for conspiring to operate a chop shop (count I), joint operation of a chop shop (count II), and individually operating a chop shop (count III). White was convicted and sentenced separately on all three counts.

Issue Raised for Certiorari Review

¶ 5. In his petition for writ of certiorari, White raises one issue. White contends that his convictions on count II and count III violate the double jeopardy clause because count II is one and the same as the offense charged in count III. White claims that he was charged twice for a single continuing transaction.

Was this issue preserved for review?

¶ 6. White failed to raise this issue at trial. He first raises the issue in his appeal brief, but he failed to cite any authority in support of his position. In Wright v. State, 540 So.2d 1 (Miss. 1989), a multi-count indictment was returned against the defendant charging him with two separate burglaries of the same house. The defendant claimed that his two entrances into the house constituted "one continuous crime." Id. at 4. This Court addressed whether the defendant had preserved the issue of double jeopardy for review:

The appellant did not at any time in trial court mount an attack on the indictment on any ground, nor did he at any time prior to, during or after the trial, raise a double jeopardy question. The appellant had not cited any authority for this assignment and procedurally should be barred by this Court. Smith v. State, 445 So.2d 227, 229 (Miss. 1984).

Wright, 540 So.2d at 4. Although this Court found that the issue should be procedurally barred, this Court addressed the double jeopardy issue and found that it was without merit. Id. at 5.

¶ 7. In determining that the issue of double jeopardy should be procedurally barred, this Court cited Smith v. State, 445 So.2d 227 (Miss. 1984). In Smith, this Court held that the "[a]ppellant does not show how or why double jeopardy will apply in a situation such as presents itself here. Under these circumstances the principle stated in Ramseur v. State, 368 So.2d 842 (Miss. 1979) applies." Smith, 445 So.2d at 229. In Ramseur, the appellant failed to cite any authority in support of his assignments of error. "Where assignments of error are unsupported by argument and authority, the court does not, as a general rule, consider them." Ramseur, 368 So.2d at 844 (emphasis added).

¶ 8. The principle stated in Ramseur is not an absolute bar. It merely points out that this Court may, in its discretion, choose not to review an assignment of error that is not supported by authority. When this Court is confronted with a situation in which the appellant claims that he has been charged and *109 convicted more than once for the same offense, however, this Court finds that the issue warrants review as plain error.

Double Jeopardy

¶ 9. Double jeopardy consists of three separate constitutional protections. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted).

¶ 10. This Court recently addressed the issue of double jeopardy in Cook v. State, 671 So.2d 1327 (Miss. 1996):

The Double Jeopardy Clause of the Fifth Amendment reads as follows, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This proscription "has been applied to the states through the Due Process Clause of the Fourteenth Amendment." McNeal v. Hollowell, 481 F.2d 1145, 1149 (5th Cir. 1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1476, 39 L.Ed.2d 567 (1974) (citations omitted).
Double jeopardy protection applies to successive prosecutions for the same criminal offense. United States v. Dixon, 509 U.S. 688, 694, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993). The Supreme Court has also held that:
In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the "same-elements" test, the double jeopardy bar applies... . The same-elements test, sometimes referred to as the "Blockburger" test, inquires whether each offense contains an element not contained in the other; if not, they are the "same offence" and double jeopardy bars additional punishment and successive prosecution.
Dixon, 509 U.S. at 696, 113 S.Ct. at 2856 (citations omitted). In Dixon, the Court recognized that in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), it adopted an additional test that "a subsequent prosecution must satisfy a `same-conduct' test to avoid the double jeopardy bar." Id. at 697, 113 S.Ct. at 2853. However, the Court concluded that "Grady must be overruled... . Grady lacks constitutional roots. The `same conduct' rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy." Dixon,

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Cite This Page — Counsel Stack

Bluebook (online)
702 So. 2d 107, 1997 WL 688354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-state-miss-1997.