Middleton v. State
| Docket Number: | 2009-CP-00977-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-07-2010 Opinion Author: Lee, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Post-conviction relief - Habitual offender status - Section 99-19-81 Judge(s) Concurring: Myers, P.J., Irving, Griffis, Ishee, Roberts and Maxwell, JJ. Judge(s) Concurring Separately: King, C.J., specially concurs with separate written opinion. Concurs in Result Only: Barnes and Carlton, JJ., concur in the result only without separate written opinion. Procedural History: PCR; Dismissal Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 06-05-2009 Appealed from: DeSoto County Circuit Court Judge: ROBERT P. CHAMBERLIN Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED Case Number: CV2009-0070 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Kurt D. Middleton |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY JR. | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Habitual offender status - Section 99-19-81 |
| Summary of the Facts: | Kurt Middleton pled guilty to uttering a forged instrument. He was sentenced as a habitual offender to three years, followed by seven years’ post-release supervision. Middleton filed a motion for post-conviction relief which was dismissed. He appeals. |
| Summary of Opinion Analysis: | Middleton argues that he was improperly sentenced as a habitual offender because he was not given a separate hearing on his sentence enhancement. Middleton raises this issue for the first time on appeal. When a petitioner fails to request a separate hearing at the time of sentencing, he is precluded from raising that point on appeal, even if there is substantive merit to the petitioner’s argument. Even if Middleton had preserved this issue, his argument would still be without merit. When a defendant pleads guilty to the principal charge, a separate hearing as to whether he is a habitual offender is not mandatory. Middleton admitted that he qualified as a habitual offender under section 99-19-81. Middleton argues that he was incorrectly sentenced as a habitual offender because the charges for his two prior convictions were not brought separately as required by section 99-19-81 and he was not sentenced to serve a term of at least one year on both convictions. Middleton was not sentenced to the maximum term as required by section 99-19-81. He should have received a ten-year sentence without eligibility for parole or probation. Instead, Middleton had made a plea-bargain agreement with the State, and the trial court honored the agreement in sentencing him. The trial court did not have discretion to give this reduced sentenced. However, this issue was not raised by the parties and the case will not be reversed for this error. Even though Middleton’s two convictions occurred on the same day, they were for separate crimes on separate dates almost a year apart. It is unclear whether the second sentencing report was sufficient to convict Middleton as a habitual offender. However, there was a third conviction mentioned by the State in which Middleton was sentenced to one year in prison for operating a vehicle without the owner’s consent. Thus, the statute’s requirement that a defendant have two prior convictions was met. |
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