Middleton v. State, No. 2009-CP-00977-COA.

CourtCourt of Appeals of Mississippi
Writing for the CourtLEE
Citation49 So.3d 161
PartiesKurt D. MIDDLETON, Appellant v. STATE of Mississippi, Appellee.
Docket NumberNo. 2009-CP-00977-COA.
Decision Date07 December 2010
49 So.3d 161

Kurt D. MIDDLETON, Appellant
v.
STATE of Mississippi, Appellee.


No. 2009-CP-00977-COA.

Court of Appeals of Mississippi.

Dec. 7, 2010.

49 So.3d 162

Kurt D. Middleton, appellant, pro se.

49 So.3d 163

Office of the Attorney General by John R. Henry, Jr., attorney for appellee.

Before LEE, P.J., ISHEE and MAXWELL, JJ.

LEE, P.J., for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Kurt Middleton pleaded guilty in the Circuit Court of DeSoto County to uttering a forged instrument. He was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) to three years in the custody of the Mississippi Department of Corrections followed by seven years' post-release supervision. Five years of the seven years' post-release supervision were reporting post-release supervision, and the remaining two years were non-reporting post-release supervision. Middleton filed a motion for post-conviction relief, which was summarily dismissed by the trial court.

¶ 2. Middleton now appeals the dismissal of his motion for post-conviction relief, asserting the following issues: (1) the trial court erred in sentencing him as a habitual offender when his habitual-offender status was not proven at a separate hearing, and (2) the State failed to prove each element of the habitual-offender statute. Finding no error, we affirm the trial court's dismissal of the motion for post-conviction relief.

STANDARD OF REVIEW

¶ 3. "A circuit court's dismissal of a motion for post-conviction collateral relief will not be reversed on appeal absent a finding that the trial court's decision was clearly erroneous." Phillips v. State, 25 So.3d 404, 406 (¶ 4) (Miss.Ct.App.2010). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

I. BIFURCATED HEARING

¶ 4. Middleton argues that he was improperly sentenced as a habitual offender because he was not given a separate hearing on his sentence enhancement. Middleton raises this issue for the first time on appeal. "When a petitioner fails to request a separate hearing at the time of sentencing, he is precluded from raising that point on appeal, even if there is substantive merit to the petitioner's argument." Rucker v. State, 955 So.2d 958, 960 (¶ 6) (Miss.Ct.App.2007) (citing Crouch v. State, 826 So.2d 772, 775 (¶ 4) (Miss.Ct.App.2002)). We find this issue is procedurally barred as it was not preserved for review.

¶ 5. Even if Middleton had preserved this issue, his argument would still be without merit. "When a defendant pleads guilty to the principal charge, a separate hearing as to whether he is a habitual offender is not mandatory." Id. at 960 (¶ 7). "All that is required is that the accused be properly indicted as [a] habitual offender, ... that the prosecution prove the prior offenses by competent evidence, ... and that the defendant be given a reasonable opportunity to challenge the prosecution's proof." Crouch, 826 So.2d at 772 (¶ 4) (quoting Keyes v. State, 549 So.2d 949, 951 (Miss.1989)). Middleton admitted during the plea colloquy that he had been convicted of two prior felonies in Wisconsin in 1987. Middleton was asked if he had any objection to the indictment being amended to reflect he was a habitual offender. He responded that he had no objection, and he admitted that he qualified as a habitual offender under section 99-19-81. Proof of Middleton's prior convictions was entered into the record as exhibits.

49 So.3d 164

¶ 6. As a separate hearing on Middleton's habitual-offender status was not necessary, we find this issue lacks merit.

II. HABITUAL-OFFENDER STATUS

¶ 7. Middleton argues that he was incorrectly sentenced as a habitual offender because the charges for his two prior convictions were not brought separately as required by section 99-19-81. He also argues that he was not sentenced to serve a term of at least one year on both convictions.

¶ 8. Section 99-19-81 states:

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.

¶ 9. Before addressing Middleton's arguments, we must note that Middleton was not sentenced to the maximum term as required by section 99-19-81. Section 99-19-81 states that a defendant who falls under its provisions "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." Middleton was indicted under Mississippi Code Annotated section 97-21-59 (Rev.2006),...

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6 practice notes
  • Aranyos v. State, No. 2011–CP–00351–COA.
    • United States
    • Mississippi Court of Appeals
    • June 11, 2013
    ...Davis v. State, 5 So.3d 435, 441 (¶ 14) (Miss.Ct.App.2008))). ¶ 9. More recently, we addressed this issue again in Middleton v. State, 49 So.3d 161 (Miss.Ct.App.2010). Kurt Middleton claimed that classifying him as a habitual offender was error since “he was only sentenced to prison for one......
  • Wansley v. Miss. Dep't of Corr., CAUSE NO. 4:10-CV-149-CWR-FKB
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • April 30, 2013
    ...beyond any doubt that he not only knew the applicable law he meticulously applied it.") (Broom, J., dissenting); Middleton v. State, 49 So. 3d 161, 166 (Miss. Ct. App. 2010) ("Because sentencing is a matter within the discretion of the trial court, judges are presumed to know the applicable......
  • Robinson v. State, No. 2012–KA–00965–COA.
    • United States
    • Court of Appeals of Mississippi
    • April 8, 2014
    ...he is precluded from raising that point on appeal, even if there is substantive merit to the petitioner's argument.” Middleton v. State, 49 So.3d 161, 163 (¶ 4) (Miss.Ct.App.2010) (quoting Rucker v. State, 955 So.2d 958, 960 (¶ 6) (Miss.Ct.App.2007) ). ¶ 26. Regardless, Robinson's argument ......
  • Aranyos v. State, NO. 2011-CP-00351-COA
    • United States
    • Mississippi Court of Appeals
    • January 29, 2013
    ...v. State, 5 So. 3d 435, 441 (¶14)Page 6(Miss. Ct. App. 2008))).¶9. More recently, we addressed this issue again in Middleton v. State, 49 So. 3d 161 (Miss. Ct. App. 2010). Kurt Middleton claimed that classifying him as a habitual offender was error since "he was only sentenced to prison for......
  • Request a trial to view additional results
6 cases
  • Aranyos v. State, No. 2011–CP–00351–COA.
    • United States
    • Mississippi Court of Appeals
    • June 11, 2013
    ...Davis v. State, 5 So.3d 435, 441 (¶ 14) (Miss.Ct.App.2008))). ¶ 9. More recently, we addressed this issue again in Middleton v. State, 49 So.3d 161 (Miss.Ct.App.2010). Kurt Middleton claimed that classifying him as a habitual offender was error since “he was only sentenced to prison for one......
  • Wansley v. Miss. Dep't of Corr., CAUSE NO. 4:10-CV-149-CWR-FKB
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • April 30, 2013
    ...beyond any doubt that he not only knew the applicable law he meticulously applied it.") (Broom, J., dissenting); Middleton v. State, 49 So. 3d 161, 166 (Miss. Ct. App. 2010) ("Because sentencing is a matter within the discretion of the trial court, judges are presumed to know the applicable......
  • Robinson v. State, No. 2012–KA–00965–COA.
    • United States
    • Court of Appeals of Mississippi
    • April 8, 2014
    ...he is precluded from raising that point on appeal, even if there is substantive merit to the petitioner's argument.” Middleton v. State, 49 So.3d 161, 163 (¶ 4) (Miss.Ct.App.2010) (quoting Rucker v. State, 955 So.2d 958, 960 (¶ 6) (Miss.Ct.App.2007) ). ¶ 26. Regardless, Robinson's argument ......
  • Aranyos v. State, NO. 2011-CP-00351-COA
    • United States
    • Mississippi Court of Appeals
    • January 29, 2013
    ...v. State, 5 So. 3d 435, 441 (¶14)Page 6(Miss. Ct. App. 2008))).¶9. More recently, we addressed this issue again in Middleton v. State, 49 So. 3d 161 (Miss. Ct. App. 2010). Kurt Middleton claimed that classifying him as a habitual offender was error since "he was only sentenced to prison for......
  • Request a trial to view additional results

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