Hairston v. State
| Docket Number: | 2010-KA-00422-COA Linked Case(s): 2010-KA-00422-COA ; 2010-KA-00422-COA ; 2010-CT-00422-SCT ; 2010-CT-00422-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-17-2012 Opinion Author: Ishee, J. Holding: Affirmed in part, reversed and remanded in part. |
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| Additional Case Information: |
Topic: Grand larceny - Ineffective assistance of counsel - Illegal sentence - Habitual offender status - Amendment of indictment Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Roberts, Carlton, Maxwell and Russell, JJ. Non Participating Judge(s): Fair, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 03-02-2010 Appealed from: Lowndes County Circuit Court Judge: James Kitchens, Jr. Disposition: CONVICTED OF GRAND LARCENY AND SENTENCED AS A HABITUAL OFFENDER TO TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE District Attorney: Forrest Allgood Case Number: 2008-0001-CR1 |
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| Note: | The motion for rehearing is granted, and our original opinion is withdrawn, with this opinion substituted in lieu thereof. The judgment of the Lowndes County Circuit Court of conviction of grand larceny is affirmed, the sentence is reversed, and this case is remanded for re-sentencing. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Tyrone Hairston |
W. DANIEL HINCHCLIFF |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: DEIRDRE MCCRORY | ||
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| Topic: | Grand larceny - Ineffective assistance of counsel - Illegal sentence - Habitual offender status - Amendment of indictment |
| Summary of the Facts: | The motion for rehearing is granted, and this opinion is substituted for the original opinion. Tyrone Hairston was convicted of grand larceny, and sentenced as a habitual offender to ten years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Hairston argues that he received ineffective assistance of counsel because his attorney made improper statements regarding his guilt during the defense’s closing argument. While the comments made by Hairston’s attorney may not be considered to be a vigorous defense on Hairston’s behalf, the comments rise to the level of ineffective assistance of counsel. Issue 2: Illegal sentence During the briefing of this case, the Supreme Court issued Gowdy v. State, 56 So. 3d 540 (Miss. 2010). In Gowdy, the Court held that an indictment cannot be amended to reflect habitual-offender status after a jury returns a guilty verdict. In the present case, the jury returned a guilty verdict on February 10, 2010. The record shows that over a year prior to trial, on May 12, 2008, Hairston disclosed on a pre-sentencing report that he had three prior felony convictions: one count of burglary and two counts of sale of marijuana. All three convictions were in Lowndes County, but the record is silent as to why he was not originally indicted as a habitual offender, or why the indictment was not amended prior to trial and after Hairston had declined to accept at least two plea offers by the State. On the day after the trial, February 11, 2010, the State moved to amend the indictment to reflect habitual-offender status. The circuit court granted the motion to amend on the following day, February 12, 2010. On March 2, 2010, the circuit court sentenced Hairston to ten years as a habitual offender. At the time the circuit judge sentenced Hairston, the Supreme Court had not decided Gowdy; therefore, at that time, there was no prohibition against amending an indictment after a jury verdict to reflect habitual-offender status. However, based on Gowdy, the case is reversed and remanded to the circuit court for re-sentencing. |
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