Stewart v. State
| Docket Number: | 2010-KP-00192-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-19-2011 Opinion Author: Ishee, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Sale of cocaine - Double jeopardy - Section 41-29-139(a)(1) - Section 41-29-147 - Sufficiency of evidence Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Roberts, Carlton and Maxwell, JJ. Non Participating Judge(s): Russell, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-18-2007 Appealed from: Leake County Circuit Court Judge: Vernon Cotten Disposition: CONVICTED OF COUNTS I, II, AND III, SALE OF COCAINE, AND SENTENCED TO SIXTY YEARS ON EACH COUNT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, ALL AS A HABITUAL OFFENDER, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, WITH THE SENTENCES FOR COUNTS II AND III TO RUN CONCURRENTLY WITH THE SENTENCE FOR COUNT I District Attorney: Mark Sheldon Duncan Case Number: 06-CR-007-LE-C |
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| Party Name: | Attorney Name: | |||
| Appellant: | Billy Glen Stewart |
PRO SE
EDMUND J. PHILLIPS JR.
JAMES EDWIN SMITH III |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER, SCOTT STUART |
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| Topic: | Sale of cocaine - Double jeopardy - Section 41-29-139(a)(1) - Section 41-29-147 - Sufficiency of evidence |
| Summary of the Facts: | Billy Stewart was convicted of three counts of the sale of cocaine and was sentenced to three separate sentences of sixty years each as a habitual offender. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Double jeopardy Stewart argues that the circuit court improperly used the same prior convictions for two separate enhancements of the same sentence, thereby twice enhancing the punishment for the offense, in violation of the double-jeopardy prohibition of the Fifth Amendment to the United States Constitution. Stewart was convicted of three separate violations under section 41-29-139(a)(1) for the sale of cocaine. The statutory maximum penalty for this crime is thirty years. He received an enhanced sentence, which doubled the thirty-year sentence to sixty years, due to the fact that Stewart also had two prior convictions for the sale of marijuana. Section 41-29-147 allows for enhancement of a convicted criminal’s sentence up to twice the statutory maximum. A conviction of the sale of cocaine qualifies as a second or subsequent offense when a defendant had a previous conviction for the sale of marijuana. Sentencing a criminal under the habitual-offender statute is mandatory if the criminal meets the statutory requirements. Double jeopardy only applies to successive prosecutions for the same criminal offense. Each of Stewart’s convictions satisfies the statutory requirements for habitual-offender status and enhanced sentencing. Issue 2: Sufficiency of evidence Stewart argues that the evidence was insufficient to prove that he sold cocaine to the confidential informant listed in the indictment. Stewart admits that the evidence at trial proved that he sold cocaine three times to Gardner, but no evidence was presented to prove that Gardner and confidential informant #95-110 were the same person or that Stewart made any drug sales to the “confidential informant.” While the indictment did not specifically name Gardner as confidential informant #95-110, the witness testimony clearly proved that confidential informant #95-110 was Gardner. In addition, Stewart failed to raise this issue at trial. Therefore, Stewart has waived his right to contest the proof of the confidential informant’s identity on appeal. |
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