Category Archives: Criminal Defense Cases

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§ 97-3-79. Robbery; use of deadly weapon

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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In criminal trials in Mississippi the prosecution may attempt to enter the alleged  confession of a Defendant into evidence.  However, the State has the burden of proving voluntariness of confession.  The burden is met by testimony of officer or other person 
having knowledge of facts that confession was voluntarily made without any threats, coercion, or offer of reward.

When objection is made to the introduction of a confession, the defendant is entitled to a preliminary hearing on the question of admissibility of confession; this hearing must be conducted in absence of the jury.

If the prosecution then makes out a prima facie case as to the voluntariness of confession, the Defendant must present testimony that violence, threats of violence, or offers of reward induced his confession.  The prosecution must then take testimony from all the officers who were present when the Defendant was questioned and when confession was signed, or give adequate reason for absence of any such witness.

If the Judge determines that the confession was voluntary, the confession is admitted into evidence and presented to the jury.

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An arraignment is a procedural process wherein the court reads the criminal charge to the defendant and determines if bail will be set and the amount of bail.  The defendant may waive a reading of the charges and enter a plea of not guilty.  During the arraignment, the judge may review your charge to determine whether probable cause exist to sustain a criminal conviction.

The defendant may also plead guilty or no contest. A no contest plea is similar to a guilty plea in that you are accepting the validity of the charge – but with No Contest you are not admitting guilt.  Upon a plea of  No Contest or Guilty, you may be sentenced at that time, depending on the severity of the charge, and will not go to trial. If you plead Not Guilty, a pre-trial date or a trial date will be set.

During the arraignment or preliminary hearing, the judge will set the bail or bond amount, which varies depending on the crime and the defendant’s criminal history. If the crime is of a less serious nature and the court does not believe you are a flight risk or a danger to society, there may be bail amount set.  In the case of more serious crimes such as rape or murder, the court may decide to set a high bail or no bail.

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§ 99-19-81. Sentencing of habitual criminals to maximum term of imprisonment

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

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Mississippi law defines burglary as breaking and entering into any structure with the intent to commit a crime therein.

To be convicted of burglary, two elements of the crime must be proved beyond a doubt (or pled guilty to by the defendant). In other words, the State must prove that the defendant actually entered a structure, and entered with the intent to commit a crime in that structure.

The first element of the crime of burglary—entering—requires that you actually enter into a structure without permission to do so. Illegal entry also includes being lawfully present in a structure, but breaking or entering through an inner door and into a room that you have no permission to enter. This would include, for example, lawfully being in a shop but sneaking into the storeroom when the clerk is not watching.

The second element of burglary relates to the defendant’s state of mind at the time of entry into the building. To be convicted of burglary, the defendant must have first decided to commit a crime, and then entered the building for that purpose.

Using the example above regarding entry of a storeroom without permission, if the intent upon entry was to commit a crime, such as stealing stock from the room, you have satisfied the intent element, and have burglarized the shop owner’s private portion of the store.

The intended crime does not have to be successful or completed; entering with a criminal intent satisfies the two elements of burglary, and may lead to a conviction.

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Miss. Code Ann. § 97-3-117 defines carjacking as “knowingly or recklessly, by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempting to do so, or by any other means taking a motor vehicle from another person’s immediate actual possession.” .  

To obtain a conviction for the charge of carjacking, the prosecution must show that, 1) a vehicle was forcibly or sneakily taken; 2) from another person; and; 3) that the other person was in immediate possession of the vehicle when it was taken

However, the first requirement does not necessarily require that the car be taken through a violent act or even through fear and intimidation.   If the defendant took control of the vehicle while the owner was pumping gas, the first requirement is applicable.

The victim does not necessarily have to be in the car to be convicted of car jacking.  In the Mississippi case of Young v. State, a husband and wife were washing their cars at a local car wash.  As the couple was washing the husband’s car, the defendant took the keys from the wife and took her car parked in the next bay.  The defendant was charged with carjacking.  His defense to the charge was that the wife was not actually inside of the vehicle and not in “immediate possession” of the vehicle. So, therefore, the actual crime of carjacking did not occur.  The court held that “we cannot agree that the legislature intended the statute be construed so literally as to mean that a person commits a carjacking only when an individual is physically inside the vehicle.”  Young v. State, 962 So.2d 110 (Miss.Ct.App.2007).

A conviction of carjacking carries a fine of up to $5,000 and up to 15 years incarceration.  Miss. Code Ann. § 97-3-117 (1) (a).

Mississippi  statute further holds that anyone convicted for attempted carjacking will receive the same punishment as an actual carjacking .   Miss. Code Ann. § 97-3-117 (1) (b).

If someone is convicted twice of armed robbery in connection with a carjacking or even for simple carjacking the punishment doubles.  A second offense of armed carjacking could result in 60 years incarceration  Miss. Code Ann. § 97-3-117 (3).

The use of a dangerous or deadly weapon, including imitations of deadly weapons, will enhance the crime of carjacking into Armed Carjacking. Miss. Code Ann. § 97-3-117 (2), A conviction for armed carjacking can result in increased penalties.  The fine for armed carjacking can be as high as $10,000 in fines and up to 30 years in prison.  Miss. Code Ann. § 97-3-117 (2) (a).

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Miss. Code Ann. § 97-3-79., defines armed robbery as “feloniously [taking] the personal property of another, “by the exhibition of a deadly weapon” in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person . . . .” .

To obtain a conviction for the charge of robbery, the prosecution must show that, 1) That you had a “felonious intent;”; 2) that you used force or putting in fear as a means of effectuating a theft; 3) that a deadly weapon was used and: 4) that you took and carried away someone else’s property from the victim’s person or in the victim’s presence.

  The punishment for armed robbery may include a life sentence.

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Mississippi Code Section 41-29-139 makes it a felony crime to “sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell barter, transfer, distribute or dispense” marijuana.

 If the amount of marijuana involved is less than 30 grams, the potential sentence is three (3) years in prison, and a $3,000.00 fine.  In the case of a first offender who is charged with possession with intent to sell or distribute more than 30 grams, but less than 1 kilogram or marijuana, the potential sentence is twenty (20) years in prison, and a fine of $30,000.00.  In all other cases, the potential sentence is thirty (30) years in prison, and a fine of $5,000.00 (minimum) to $1,000,000.00 (maximum).

In Mississippi, the State must prove beyond a reasonable doubt that the accused possessed the marijuana with the intent to sell or distribute.  The government is allowed to prove intent through the use of circumstantial evidence.

Under Mississippi law, the State may try to prove that a person had the intent to sell or distribute by showing that the amount of the marijuana in the person’s possession is proof of intent to sell.  To charge and convict a person based upon the amount of marijuana, the government must prove that the marijuana in his possession exceeded the amount that would be reasonable for personal use.  If the amount of marijuana could be for personal use, as well as to sell or distribute, then the person cannot be convicted of possession with intent.

Additionally, the packaging of marijuana as well as other evidence of drug trafficking may be used to prove possession with intent to sell or distribute.

Proving possession with intent based upon the weight and packaging of marijuana is difficult.  The Mississippi Supreme Court has held that where a defendant was caught with 323.4 grams of marijuana, two (2) scales, a device used to hold marijuana, rolling papers, and $356.00 in cash, there was insufficient evidence of intent to sell or distribute.  The Court held that the amount of marijuana was within the amount that a person could reasonably use, and that the holding device and rolling papers were consistent with using marijuana, not selling it.  Jowers v. State, 593 So.2d 46 (Miss. 1992).

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§ 97-19-21. Credit cards; use to obtain things of value or to operate automatic cash dispensing machines with intent to defraud; penalties.

Mississippi Statutes
Title 97. CRIMES
Chapter 19. FALSE PRETENSES AND CHEATS
Current through 2014 Second Extraordinary Session
§ 97-19-21. Credit cards; use to obtain things of value or to operate automatic cash dispensing machines with intent to defraud; penalties

(1) It is unlawful for any person, with intent to defraud the cardholder, the issuer, a person or organization providing money, goods, property, services or anything else of value, or any other person, (a) to use a credit card or credit card number obtained or retained in violation of Sections 97-19-5 through 97-19-29 , or a credit card which he knows is forged, for the purpose of obtaining money, goods, property, services or anything else of value, or (b) to obtain money, goods, property, services or anything else of value (i) by representing without the consent of the cardholder that he is the holder of a specified card, or (ii) by representing that he is the holder of a card when he has reason to know that such card has not in fact been issued, or (iii) by representing that he has been authorized to use the credit card or credit card number.
(2) It is unlawful for any person, with intent to defraud the cardholder or issuer of a credit card used in the operation of an automatic unmanned cash dispensing machine, to use such card for the purpose of obtaining money from such machine.
(3) Any person convicted for a violation of subsection (1) or (2) of this section shall be punished as follows:
(a) For a first offense of violating subsection (1) or (2) of this section, whenever the value of the money, goods, property, services or other thing of value obtained or attempted to be obtained is less than One Hundred Dollars ($ 100.00), the person committing the offense shall be punished by a fine not to exceed One Thousand Dollars ($ 1,000.00), or by imprisonment in the county jail for a term not to exceed one (1) year, or by both such fine and imprisonment.
(b) For a second or subsequent offense of violating subsection (1) or (2) of this section, whenever the value of the money, goods, property, services or other thing of value obtained or attempted to be obtained is less than One Hundred Dollars ($ 100.00), the person committing the offense shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than One Hundred Dollars ($ 100.00) nor more than One Thousand Dollars ($ 1,000.00), or by imprisonment in the State Penitentiary for a term not to exceed three (3) years, or by both such fine and imprisonment.
(c) Whenever the value of the money, goods, property, services or other thing of value obtained or attempted to be obtained is One Hundred Dollars ($ 100.00) or more, the person committing the offense, whether the offense is a first, second or subsequent offense, shall be guilty of a felony and such person, upon conviction, shall be punished as provided in paragraph (3)(b) of this section.
(4) For the purpose of determining the punishment to be imposed under subsection (3) of this section, the value of all money, goods, property, services and other things of value obtained or attempted to be obtained by two (2) or more uses of the same credit card shall be aggregated.

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§ 97-19-31. Credit cards; use of credit numbers or other credit device to obtain credit, goods, property or services.

Mississippi Statutes
Title 97. CRIMES
Chapter 19. FALSE PRETENSES AND CHEATS
Current through 2014 Second Extraordinary Session
§ 97-19-31. Credit cards; use of credit numbers or other credit device to obtain credit, goods, property or services

(1) It shall be unlawful for any person knowingly to obtain or attempt to obtain credit, or to purchase or attempt to purchase any goods, property or service, by the use of any false, fictitious, counterfeit or expired telephone number, credit number or other credit device, or by the use of any telephone number, credit number or other credit device of another without the authority of the person to whom such number or device was issued, or by the use of any telephone number, credit number or other credit device in any case where such number or device has been revoked and notice of revocation has been given to the person to whom issued.

(2) It shall be unlawful for any person to use or to assist another to use a credit number or other credit device in connection with any fraudulent scheme, means or method with intent to defraud the issuer of such credit number or other credit device.

(3) It shall be unlawful for any person to obtain or attempt to obtain by the use of any false or fraudulent scheme, device, means or method, telephone or telegraph service or the transmission of a message, signal or other communication by telephone or telegraph, or over telephone or telegraph facilities.

(4) The word “notice” as used in subsection (1) of this section shall be construed to include either notice given in person or notice given in writing to the person to whom the number or device was issued. The sending of a notice in writing personally signed by the issuer or his duly authorized agent or employee by registered or certified mail in the United States mail, duly stamped and addressed to such person at his last address known to the issuer, shall be prima facie evidence that such notice was duly received.
(5) Any person who violates any provision of subsections (1), (2) or (3) of this section is guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than Fifty Dollars ($ 50.00) nor more than Five Hundred Dollars ($ 500.00) or imprisonment for not more than one (1) year, or by both such fine and imprisonment.