Author Archives: Bill Kellum

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§ 97-37-35. Stolen firearms; possession, receipt, acquisition or disposal; offense; punishment.

 (1)  It is unlawful for any person knowingly or intentionally to possess, receive, retain, acquire or obtain possession or dispose of a stolen firearm or attempt to possess, receive, retain, acquire or obtain possession or dispose of a stolen firearm.

(2)  It is unlawful for any person knowingly or intentionally to sell, deliver or transfer a stolen firearm or attempt to sell, deliver or transfer a stolen firearm.

(3)  Any person convicted of violating this section shall be guilty of a felony and shall be punished as follows:

(a) For the first conviction, punishment by commitment to the Department of Corrections for five (5) years;

(b) For the second and subsequent convictions, the offense shall be considered trafficking in stolen firearms punishable by commitment to the Department of Corrections for not less than fifteen (15) years.

(c) For a conviction where the offender possesses two (2) or more stolen firearms, the offense shall be considered trafficking in stolen firearms punishable by commitment to the Department of Corrections for not less than fifteen (15) years.

(4)  Any person who commits or attempts to commit any other crime while in possession of a stolen firearm shall be guilty of a separate felony of possession of a stolen firearm under this section and, upon conviction thereof, shall be punished by commitment to the Department of Corrections for five (5) years, such term to run consecutively and not concurrently with any other sentence of incarceration.

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Under Mississippi’s Uniform Controlled Substances Law, all aircraft, vehicles and vessels that are used, or intended to be used, to transport illegally possessed or illegally manufactured controlled substances that are in violation of Article 5 of Chapter 29 (drugs and controlled substances).  Miss. Code Ann. §§ 41-29-153, 41-29-176 thru 179.

Prior to seizure, the owner is entitled to notice that his property will be seized.  The notice should specifically describe what property is to be seized.  Any property with a value less than ten thousand dollars ($10,000) requires that the seizing agency:

  1. Provide notice of the intent to forfeit the seized property. This notice must be served on the owner in accordance with the Mississippi Rules of Civil Procedure..
  2. If notice cannot be served because of refusal, failure to claim, insufficient address or for any other reason, the agency must publish the notice in a newspaper of general circulation in the county that the property was seized. Notice must last for three consecutive weeks, at least once per week.
  3. The notice must contain the following details:
    1. A description of the seized property;
    2. The approximate value of the property;
    3. The date of the seizure and the place of the seizure;
    4. The connection between the property and the violation;
    5. Instructions providing how one should file for judicial review (protesting the seizure); and,
    6. A statement that the property will be forfeited if judicial review is not timely filed.
  4. The agency conducting the seizure has thirty days from the date of seizure to commence this proceeding or the property is to be returned to the following:
    1. The owner of the property, if address is known;
    2. Any secured party with a registered lien or filed financing statement;
    3. Any bona fide lienholder or secured party;
    4. Any holder of a mortgage, deed of trust, lien or encumbrance if the property is real estate; and,
    5. Any person in possession of the seized property that is subject to the petition at the time that it was seized.

Once the court of jurisdiction (usually circuit court) has determined that the agency’s notice requirements have been complied with, a copy of the petition is to be served upon all interested parties.

If a determination is made that an individual other than the person in possession at time of seizure is the owner or holds any lien or interest, the seizing agency must identify that individual in the petition of forfeiture and serve that person in accordance with the Mississippi Rues of Civil Procedure. If the owner of the property cannot be located and served with the forfeiture petition or if no person was in possession of the forfeited property, the seizing agency must file an affidavit stating such circumstances with the court.

If any individual asserting a right or interest in the property shows that their interest is greater than or equal to the present value of the property, the court must order the property released to that party. If the interest is less than the present value of the property and if the proof shows that the property is subject to forfeiture, the court shall forfeit the property to the seizing agency.

The owner of seized property has thirty days after service of process in which to file an answer. If the property owner fails to file an answer, the court will hear evidence that the property is subject to forfeiture and forfeit the property to the seizing agency.

If an answer is filed, a forfeiture hearing will be set within thirty (30) days of filing the answer.  The court may postpone the hearing to a date beyond the time any criminal action is pending against the property owner. The burden is on the seizing agency to prove that the property is subject to forfeiture. The standard of proof is by a preponderance of the evidence.  If the property owner does not file an answer, the petition for forfeiture will be allowed into evidence and will be prima facie evidence that the property is subject to forfeiture.

Any person or entity claiming an interest in the property may prove such right or interest to be bona fide and created without knowledge or consent that the property was to be used in a manner to cause the property to be subject to the forfeiture.  If an owner of property can prove by a preponderance of the evidence that she had no knowledge of, or did not consent to, the use of such property in a manner that made it subject to forfeiture, forfeiture will be denied.   However, Mississippi law places the burden of proof on the seizing agency to show that the owner had knowledge that the property was being used for illegal purpose.

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A possession charge can be based on actual or “constructive” possession of a controlled substance. A defendant may be in “constructive possession” even if the defendant doesn’t possess the drugs on their person.  If the defendant had access and control over the place where the substance was found then the defendant may be arrested for possession. The government does not have to actually prove that someone is using a controlled substance in order to charge them with possession. The theory of constructive possession is often used when illegal drugs are discovered in a car during a traffic stop or the home of a defendant.

If the substance amount exceeds a certain amount, the defendant can face distribution, trafficking, or manufacturing charges.

To prove an intent to sell, federal prosecutors consider a variety of factors including the following:

1. The quantity of Meth found;

2. How the Meth is packaged

3. How much money is found near the Meth or in the possession of the defendant;

4. The absence of paraphernalia suggesting that the Meth was for personal use.

5. Financial records showing Meth-related transactions

To be found guilty of possession of methamphetamine with intent to distribute, the government must prove the following elements beyond a reasonable doubt:

First: That defendant possessed a mixture or substance containing a controlled substance;

Second: That the defendant possessed the controlled substance knowingly or intentionally;

Third: That defendant intended to manufacture or distribute the controlled substance; and

Fourth: That the controlled substance was methamphetamine.

6.21.841A Controlled Substances – Possession with Intent to Distribute (21 U.S.C. § 841(a) 

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Conspiracy is generally described as a criminal partnership wherein two or more persons agree to commit one or more crimes. While conspiracy is a crime to do something unlawful; the crime agreed upon does not have to be committed.

A formal agreement among the conspirators is not necessary to prove that a conspiracy took place.  Nor must the conspirators have agreed on each detail of the conspiracy. Merely meeting, discussing every day matters, acting in similar ways, or even assisting one another is insufficient to prove conspiracy. It must be shown that a plan to commit at least one of the crimes alleged in the indictment as an object of the conspiracy with all of the defendants agreeing as to the crime which they agreed to commit.

An individual becomes a conspirator by willfully participating in the illegal scheme with the intent to advance or further some object or purpose of the conspiracy.  This is true even if the individual does not possess full knowledge of all the details of the conspiracy. Additionally, one who willfully participates in an existing conspiracy is as guilty as the original conspirators. However, one who posses no knowledge of a conspiracy, but happens to behave in a way which furthers some object or purpose of the conspiracy, does not become a conspirator. Also, a person does not become a conspirator simply by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.

An overt act in and of it itself does not have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts.  The government must prove beyond reasonable doubt that (1) there was an agreement among two or more people to violate a federal drug law, (2) knowledge of the the scheme and an intent to join it, and (3) voluntary participation in the alleged conspiracy (United States v. Turner, 319 F.3d 716 (5th Cir. 2003)).  The statute is very broad and allows proof based on circumstantial evidence of an illicit association. (Id.)

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If found guilty of a third or subsequent driving under the influence charge, the following sentences and penalties are applied:

  • fine of not less than $2000.00, nor more than $5000.00 (plus court costs)
  • imprisonment for not less than one year nor more than five years
  • suspension of driver’s license and driving privileges for five years (no possibility of hardship license)
  • vehicle seizure and possible forfeiture
  • ignition interlock following license reinstatement

If you are charged with a 3rd offense DUI, you will be able to drive only under a restricted interlock ignition driver’s license for 3 years following your release from incarceration. You will then be ineligible for an unrestricted license for 3 years.
Also, a person convicted of a 2nd or subsequent violation shall receive an in-depth
diagnostic assessment.  If it is determined that the defendant has a drug/alcohol problem, he will be required to complete an approved treatment program.

Mississippi Statute Annotated § 63-11-49 holds that when a vehicle is seized for a third or subsequent DUI, the arresting officer shall impound the vehicle and the vehicle shall be held as evidence until a court of competent jurisdiction makes a final disposition of the case and the vehicle may be forfeited by the administrative forfeiture procedures provided for in this section upon final disposition as provided in Section 63-11-30(2)(c) .

Within thirty days of such an arrest, the person charged may petition the court for the return of the vehicle.

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A criminal case in federal court is initiated with an indictment.  An indictment is a formal accusation by the federal government that an individual committed a crime.  Indictments are obtained when a prosecutor from the U.S. Attorney’s office presents evidence to a federal grand jury that indicates a person committed a crime. The U.S. attorney attempts to convince the grand jury that the evidence is strong enough to show that the person committed the crime and should be formally charged. If the grand jury agrees with the prosecutor, it will issue an indictment.  Once the indictment is issued, the accused must go before the court after either being summoned to court or arrested. 

A grand jury is charged only with determining whether the person may be tried for a crime, not whether they are actually guilty.  Grand jury indictments primarily involve felonies such as cross state drug sales and other violations of federal laws. 

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A sublease is a lease agreement wherein the Lessee transfers less than all of his rights to a sub-lessee to use and enjoy the premises while retaining the right to re-enter or re-take the premises. For example, when a lessee “sub-lets” a portion of the premises to a “sub-lessee”, the “master tenant” retains the right to retake the property under certain conditions.  However, the master tenant remains obligated to pay rent to the landlord as provided for in the lease agreement.  The master tenant is also responsible for the sub-lessee’s acts as tenant that may breach the lease agreement.

An assignment is the transfer of all remaining interests in the lease to a third party, called the “assignee”.  For a landlord, an assignment usually entails giving your right to receive rent from your tenant to the assignee, typically a creditor.

Many leases bar tenants from assigning or subleasing the lease.  This is due primarily to landlords wanting to maintain control over who occupies and makes rent payments. Some leases allow assignments and subleases only when the landlord consents.

In most instances, the landlord can’t enforce the lease provisions against the assignee or subtenant unless the subtenant or assignee agrees through an assignment or sublease agreement or some other separate agreement, to assume the assigning tenant’s obligations under the original lease.

It is important to remember, that an assumption agreement does not release the assigning tenant from his or her obligations under the master lease unless the original landlord expressly agrees to such a release.  Preferably in writing.

Under any residential lease, the tenant has the obligation to pay lease payments. After a sublease or assignment is made, the tenant remains obligated, even if there was an assumption agreement. If the landlord releases the tenant, the landlord cannot then look to the tenant for rent payments if the subtenant or assignee fails to pay the lease payments.

 A landlord should obtain an assumption by the assignee/subtenant.  Generally, an assignment of a lease results in the assignee assuming the responsibilities of the original tenant. The original tenant surrenders the right to occupy the premises.  The assignee and the landlord are bound by the lease covenants or promises that run with land, i.e., covenants that benefit the land, such as the covenants to pay lease payments and to make repairs.

Typically, the assignee may not avoid its responsibilities under the lease by assigning the lease to another party. Further, the assigning tenant is liable on the lease, including payment of lease payments, unless he or she was released from those obligations by the landlord

In a sublease, unless the subtenant assumes the obligations of the master lease, there’s no legal relationship between the subtenant and the landlord, and so the subtenant doesn’t have to pay the landlord lease payments and the landlord doesn’t have to respond to the subtenant’s request or demand for repairs.

The landlord-tenant relationship is actually between the original tenant and the subtenant. The original tenant remains liable for rent: the subtenant pays the original tenant, who then pays the landlord. The original lessee must perform all other covenants under the lease.

The sublease should detail how issues reported by the subtenant are handled.   If the subtenant discovers a problem on the premises, the landlord is not obligated to repair it unless the subtenant assumed the lease. In that scenario, the subtenant would notify the original tenant, who would then have to fix the problem or enforce the landlord’s obligation to do so.

Of course, all of the above described agreements should be in writing.  Many problems are avoided when all parties understand what their respective obligations are.

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Mississippi law is well settled that “when a contract is made between two parties that as between themselves creates an independent contractor relationship and involves employment generally performed under a simple master/servant or employer/employee relationship, it will be upheld as between the parties”.  Richardson v. APAC-Mississippi, Inc.,631 So.2d 143 (Miss. 1994).

The court in Richardson went on to acknowledge that the right of parties to contract as they please is a constitutionally-protected right. U.S. Const. art. I, Sec.10; Miss. Const. art. 3, Sec. 16. Id. 143.

The Richardson court further held that affidavits from the contractor and employer are  determinative in deciding whether an independent contractor relationship existed.   Id.143.  After reviewing the contract and the affidavits, the Court found that there existed an independent contractor relationship and not that of master-servant.  Richardson v. APAC-Mississippi, Inc., 631 So.2d 151. McCary v. Wade, 861 So.2d 358 (Miss.App. 2003)

Some of the factors considered to determine independent contractor status include: 1.Does the principal master have the power to terminate the contract at will;

2. Does he have the power to fix the price in payment for the work, or vitally control the manner and time of payment;

3. Does he furnishes the means and appliances for the work;

4. The level of control of the premises;

5.  Does the principal master furnishes the materials upon which the work is done;

6. Does the principal he have the right to prescribe and furnish the details of the kind and character of work to be done;

7.  Does the principal have the right to supervise and inspect the work during the course of the employment;

8.  Does the principal have the right to direct the details of the manner in which the work is to be done;

9.  Does the principal have the right to employ and discharge the sub employees and to fix their compensation;

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Motel and hotel owners in Mississippi can be held liable for the violent actions of third parties against guests in their establishment.  Whether a motel owner is liable depends on a premises liability analysis.

The first step in a premises-liability action is to determine the status of the injured party.  A person who enters the premises of another to the express or implied invitation of the occupant for their mutual advantage is an “invitee”.  In Mississippi, business owners possess a duty to invitees to exercise reasonable care to keep the business premises in a ” reasonably safe condition.” Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 184 (¶ 7) (Miss.Ct.App.2005) (citing Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988)). In addition, a premises owner must employ reasonable care to protect an invitee from ” reasonably foreseeable injuries at the hands of another.” Stribling v. Rushing’s, Inc., 115 So.3d 103 (Miss.App. 2013) citing Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (Miss.2002).

Mississippi law holds that an assault on the premises is reasonably foreseeable if the defendant had either: (1) ” actual or constructive knowledge of the assailant’s violent nature,” or (2) ” actual or constructive knowledge an atmosphere of violence existed on the premises.” Corley v. Evans, 835 So.2d 30, 38-39 (Miss.2003) (quoting Gatewood v. Sampson, 812 So.2d 212, 220 (Miss.2002)).

In assessing whether an ” atmosphere of violence” existed, the supreme court has stated that relevant factors include ” the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises,” and ” the frequency of criminal activity on the premises.” Id. 835 So.2d 30, 38-39.

If a motel or hotel owner has notice of crimes being committed on the premises, they must employ reasonable measures to ensure the safety of their guests.  Such measures should include the employment of security guards and security cameras.  Failure to do so increases the likelihood of injury to guest and liability.

In the case of InTown Lessee Associates, LLC v. Howard, a jury found that the InTown Motel had notice that an “atmosphere of violence” existed on the premises.  InTown, 67 So.3d 711 (Miss. 2011).  The Plaintiffs in that case were victims of armed robbery and aggravated assault while staying at the motel.  In their joint complaint, the Plaintiffs claimed, among other things, “that InTown had failed to remedy or repair the unsafe conditions and inadequacies of the property; and that InTown had a duty to the plaintiffs to make sure that the facilities, including all common areas, as well as guest rooms, were secure, safe, and fit for their particular purposes, that reasonable security measures were provided and maintained, that the property, including the fences surrounding part of the property and the locks on all guest room doors, were properly maintained, and that general upkeep of the property was performed”. Id. 67 So.3d 711 (Miss. 2011).  The jury agreed, awarding substantial damages to the Plaintiffs.

A premises liability analysis should be carefully applied to the facts and case law. Additionally, a thorough investigation of the facts must be conducted prior to pursuing  any premises liability action.

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Mississippi law provides landlords with the right to terminate any tenancy by following the applicable statutes. The most common reasons for termination are failure to pay rent and other breaches of the lease provisions. It is important to remember that landlords may not remove their tenants without following the evictions process.

To evict tenants in Mississippi, landlords must initiate the process by providing the tenant with a “notice of termination”.  While not required by statute, manner of delivery should be by U.S. Mail certified and attaching notice to the door of the property.  This will protect the landlord from lack of notice defenses.

 For month-to-month tenancies, one week notice by the landlord is required informing the tenant that the tenancy is being terminated. For longer-term tenancies, such as one year or two year, the landlord must provide notice in accordance with the provisions of the lease agreement.  The notice should identify which lease provision(s) were breached and under what provision the tenant is being evicted.

Miss. Code Ann § 89-8-13(1)-(3)).allows for the following types of written termination notices:

Notice to quit: 30-day notice provided by the landlord for breach of any lease provision other than the failure to pay rent. If the tenant is able to remedy the breach within 30 days, the tenancy will not be terminated

(Miss. Code Ann § 89-7-27).

Notice to pay rent or quit: 3-day notice that requires the tenant to pay rent within 3 days or leave the property.  Upon tenants failure to pay amounts owed, the landlord may then initiate eviction proceedings in the appropriate court.  What court in which to file your petition depends on the amounts owed.  If the tenant owes $4,000.00 or less the landlord will file an action in Justice Court..  If more than $4,000.00, the landlord will need to file a petition in county court or circuit court.  If filing in Circuit court and county court, the landlord should retain counsel.  The process is much more complicated and time consuming than most landlords care to manage themselves.

This blog was prepared and modified using http://real-estate-law.freeadvice.com/real-estate-law/landlord_tenant/mississippi-evictions.htm#ixzz3Bt9LNrby

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