Category Archives: Criminal Defense Cases

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In Mississippi, the elements of malicious prosecution are: (1) the institution of a criminal proceeding; (2) by, or at the insistence of the defendant; (3) the termination of such proceedings in the plaintiff’s favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceedings; and (6) the suffering of injury or damage as a result of the prosecution. McClinton v. Delta Pride Catfish, Inc., 792 So. 2d 968, 973 (Miss. 2001). The plaintiff bears the burden of proving each ofthese elements by a preponderance of the evidence.

The fourth element, “Malice” refers to a prosecution initiated primarily for a purpose other than bringing the accused to justice.  It refers to a criminal complainant’s objective in instituting the criminal proceedings, not his or her mindset.  This element may be be proven by circumstantial evidence rather than direct evidence.  The jury may infer malice from the facts of the case.  Malice may also be inferred from the fact that a criminal complainant/defendant in the civil lawsuit may have acted with reckless disregard for the Plaintiff’s rights.

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To sentence a defendant as a habitual offender, “[a]ll that is required is that the accused be properly indicted as an habitual offender, that the prosecution prove the prior offenses by competent evidence, and that the defendant be given a reasonable opportunity to challenge the prosecutor’s proof.”  Keys v. State, 549 So.2d 949, 951 (Miss.1989)

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Time limitations for Post-Conviction relief are found in MS Code Ann 99-39-5(2):

A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those cases in which the petitioner can demonstrate either:
(a)
(i) That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or
(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.

§ 99-39-5. Grounds for relief; time limitations; “biological evidence” defined.

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Mississippi Circuit Court Rule 7.09:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss. Code Ann. § 63-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

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Courts generally find that the automatic stay does not halt criminal contempt proceedings to punish the debtor for contumacious conduct; orders to pay criminal restitution to the victim of a crime; or issuance of summonses, determination of guilt and imposition of fines in connection with traffic citations.

If, however, they are merely disguised debt collection actions, a few courts find either that they are stayed by §362 and/or that they may be enjoined under §105. Most courts disagree, holding that, even if the effect of the prosecution is to collect the debt, the action is still criminal and not subject to the stay. Such courts generally conclude that the prosecutor’s independent judgment as to whether or not to pursue the matter precludes the action from being treated as that of the private creditor.

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The automatic stay provides a period of time in which all judgments, collection activities, foreclosures, and repossessions of property are suspended and may not be pursued by the creditors on any debt or claim that arose before the filing of the bankruptcy petition. The stay automatically goes into effect when the bankruptcy petition is filed and provides a breathing spell for the debtor, during which negotiations can take place to try to resolve the difficulties in the debtor’s finances. 11 U.S.C. § 362(a).

The filing of a petition, however, does not operate as a stay for certain types of actions listed under 11 U.S.C. § 362(b). For example, the stay does not apply to the commencement or continuation of a criminal action or proceeding against the debtor or the commencement or continuation of a civil action or proceeding

  • for the establishment of paternity;
  • for the establishment or modification of an order for domestic support obligations;
  • concerning child custody or visitation; or
  • for the dissolution of a marriage, except to the extent that such proceeding seeks to determine the division of property that is property of the estate.

Under specific circumstances, the secured creditor can obtain relief from the automatic stay. For example, when the debtor has no equity in the property and the property is not necessary for an effective reorganization, the secured creditor can seek an order of the court lifting the stay to permit the creditor to foreclose on the property, sell it, and apply the proceeds to the debt. 11 U.S.C. § 362(d). Unsecured creditors can also seek relief from the automatic stay, for example, to continue state court litigation that was pending before the Chapter 11 case was filed.

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Mississippi Code Annotated MS Code § 97-3-79 (2013)

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

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 A person can be charged with trespassing in Mississippi when he “willfully or maliciously” trespasses upon the property of another person.  Trespassing is a misdemeanor, and carries a potential sentence of up to six (6) months in jail and a $500.00 fine.

Mississippi law further makes trespassing upon “enclosed land” a crime.  To be charged with trespassing in Mississippi under the enclosed land statute, the accused must have entered the land without the owner’s consent, and after being warned not to enter the property.  This warning can be either by personal notice from the landowner, or by “POSTED” signs.  Under a separate statute, Mississippi criminal law makes it illegal to deface, remove, alter or destroy “POSTED” signs, even if the accused did not actually trespass on the land.

Even where a person has the owner’s consent to enter property, he can be charged with trespassing if he does not leave when the owner of the property requests that he do so.

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A person is guilty of possession of stolen property or receiving stolen property under Mississippi law if he intentionally possesses, receives, retains or disposes of stolen property.  Mississippi law requires that a person charged with receiving or possession of stolen property either (1) know that the property is stolen, or (2) have reasonable grounds to believe that the property is stolen.

Under Mississippi law, the standard for deciding whether a person should have known the property was stolen is whether the accused received the stolen property under circumstances that reasonable men would believe the property was stolen.  The State sometimes tries to prove this by showing that the accused person paid a lot less for the property than the property was worth.  For example, if a person buys a Glock pistol for $50.00, when the fair market value is $500.00, then he obviously should know that it is stolen.  In such a case, the person would likely be found guilty of possession or receiving stolen property in Mississippi.

Whether possession of stolen property is a felony or a misdemeanor in Mississippi depends on the value of the property.  If the property has a value of $500.00 or less, then it is a misdemeanor which carries a sentence of six (6) months in the county jail.  If the stolen property has a value of more than $500.00, then it is a felony, with a potential sentence of ten (10) years in prison and a fine of $10,000.00.

There are defenses to the charge of possession or receiving stolen property in Mississippi.  These cases are easiest to defend where the State tries to prove that the defendant paid so much less for the property than it was worth, that he should have known it was stolen.

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Felony Child Neglect under Miss. Code Ann. § 97-5-39

Child neglect is when a parent or other person responsible for a child’s care and support neglects or refuses to care for the child’s health, morals or well-being, when able to do so, such as failing to provide food, proper education, and medical or surgical care (unless religious beliefs prevent certain forms of medical care).

Common defenses are available in child abuse cases, like innocence or lack of evidence.