Brown v. State


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Docket Number: 2010-KA-00352-COA
Linked Case(s): 2010-KA-00352-COA ; 2010-CT-00352-SCT ; 2010-CT-00352-SCT

Court of Appeals: Opinion Link
Opinion Date: 06-21-2011
Opinion Author: Myers, J.
Holding: Affirmed.

Additional Case Information: Topic: Felony escape - Habitual offender status - Section 99-19-81 - Section 99-19-83 - Crime of violence - Section 99-15-107
Judge(s) Concurring: Lee, C.J., Irving, P.J., Barnes, Ishee and Maxwell, JJ.
Judge(s) Concurring Separately: Carlton, J., specially concurs with separate written opinion joined by Lee, C.J., Barnes and Ishee, JJ.
Non Participating Judge(s): Russell, J.
Dissenting Author : Roberts, J.
Dissent Joined By : Griffis, P.J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 02-02-2010
Appealed from: Harrison County Circuit Court
Judge: Roger T. Clark
Disposition: CONVICTION OF FELONY ESCAPE AND SENTENCED AS A HABITUAL OFFENDER TO LIFE WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
District Attorney: Cono A. Caranna, II
Case Number: B-2401-08-586

  Party Name: Attorney Name:  
Appellant: Mark Kee Brown




LISA D. COLLUMS LESLIE S. LEE HUNTER NOLAN AIKENS



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL  

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Topic: Felony escape - Habitual offender status - Section 99-19-81 - Section 99-19-83 - Crime of violence - Section 99-15-107

Summary of the Facts: Mark Brown was convicted of felony escape. The circuit court sentenced Brown as a habitual offender to life without eligibility for probation or parole. Brown appeals.

Summary of Opinion Analysis: Brown was arrested and indicted for felony escape as a habitual offender under section 99-19-81. The State thereafter filed a motion in the circuit court seeking to amend the habitual offender portion of Brown’s indictment so as to charge Brown as a habitual offender under section 99-19-83 based on the claim that “burglary of a dwelling” constitutes a “crime of violence” for purposes of section 99-19-83. The circuit court entered an order amending the indictment to reflect Brown’s habitual offender status under section 99-19-83. The issue on appeal is whether a prior conviction for “burglary of a dwelling” constitutes a “crime of violence” within the meaning of section 99-19-83. Section 99-19-83 imposes a life sentence upon a habitual offender when one or more of at least two prior felony convictions is for a crime of violence. Section 99-19-83 does not define the meaning of the term “crime of violence.” Nor does it identify such crimes. Brown acknowledges that section 99-15-107 and the federal sentencing guidelines consider burglary of a dwelling a crime of violence, but he reiterates that our courts have not held this to be the case for purposes of section 99-19-83. The matter before the Court is one of first impression. Section 99-15-107 identifies burglary of a dwelling as a crime of violence, and it is appropriate to rely on this section in the application of section 99-19-83. Because a dwelling is a place of human abode, there is a significant prospect of violence presented by every burglary of a dwelling which makes this offense a per se crime of violence under section 99-19-83. Accordingly, burglary of a dwelling constitutes a crime of violence under section 99-19-83.


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