      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2016-KA-00204-COA

JAVON BROWN A/K/A JAVON M. BROWN                     APPELLANT

v.

STATE OF MISSISSIPPI                                   APPELLEE

DATE OF JUDGMENT:              01/13/2016
TRIAL JUDGE:                   HON. LEE SORRELS COLEMAN
COURT FROM WHICH APPEALED:     CLAY COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:       OFFICE OF STATE PUBLIC DEFENDER
                               BY: MOLLIE MARIE MCMILLIN
                                     GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE:        OFFICE OF THE ATTORNEY GENERAL
                               BY: ABBIE EASON KOONCE
                                     JASON L. DAVIS
DISTRICT ATTORNEY:             SCOTT COLOM
NATURE OF THE CASE:            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:       CONVICTED OF THREE COUNTS OF
                               ARMED ROBBERY, AND SENTENCED ON
                               EACH COUNT AS A HABITUAL
                               OFFENDER TO LIFE IN THE CUSTODY OF
                               THE MISSISSIPPI DEPARTMENT OF
                               CORRECTIONS, WITHOUT ELIGIBILITY
                               FOR PAROLE, SUSPENSION, OR EARLY
                               RELEASE, WITH THE SENTENCES TO
                               RUN CONSECUTIVELY TO EACH OTHER
                               AND CONSECUTIVELY TO ANY
                               SENTENCE CURRENTLY BEING SERVED
DISPOSITION:                   AFFIRMED IN PART; REVERSED AND
                               REMANDED IN PART - 02/28/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.

     GREENLEE, J., FOR THE COURT:
¶1.    This is an appeal from Clay County Circuit Court where Javon Brown was convicted

of three counts of armed robbery and sentenced as a habitual offender under Mississippi

Code Annotated section 99-19-83 (Rev. 2015) to serve three consecutive life sentences

without the possibility of parole, suspension, or early release. On appeal, Brown asserts the

circuit court erred by allowing him to be sentenced as a habitual offender under section 99-

19-83 when the proof submitted did not reflect that he had actually served at least one year’s

imprisonment for two prior felony convictions. Because section 99-19-83 requires the

defendant to have actually served at least one year’s imprisonment for at least two prior

felony convictions, with at least one of the convictions being for a crime of violence; the

proof submitted below did not show these requirements were met; and the State concedes the

same on appeal, we reverse and remand the decision of the circuit court on the issue of

sentencing for further proceedings consistent with this opinion. We affirm in part as to

Brown’s convictions for armed robbery.

                          FACTS AND PROCEEDINGS BELOW

¶2.    On April 8, 2011, Brown was indicted on three counts of armed robbery—among

other things—in violation of Mississippi Code Annotated section 97-3-79 (Rev. 2014).1 On

January 17, 2014, the State moved to amend Brown’s indictment to include habitual-offender

language under Mississippi Code Annotated section 99-19-83, and the court did amend the

indictment to reflect the same by its order on January 21, 2014. On January 13, 2016, Brown

was found guilty on all three counts of armed robbery. Immediately after the reading of the



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           The remaining charges were retired to the files.

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verdict and the jury was finally excused, the court sentenced Brown to three consecutive life

sentences to be served without the possibility of parole, early release, or earned time, in

accordance with section 99-19-83.

¶3.    Brown moved for a judgment notwithstanding the verdict or, in the alternative, a new

trial, which was denied. Brown appeals to this Court.

                                       DISCUSSION

¶4.    On appeal, the critical issue is whether the State presented sufficient evidence to show

that Brown was a habitual offender under section 99-19-83. The State concedes that there

was not sufficient evidence and that the circuit court’s sentence should be reversed, and the

case remanded for resentencing.

¶5.    The critical inquiry in addressing a challenge to the sufficiency of evidence “is

whether the evidence shows beyond a reasonable doubt that the accused committed the act

charged, and that he did so under such circumstances that every element of the offense

existed; and where the evidence fails to meet this test it is insufficient to support a

conviction.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (quoting Carr v. State,

208 So. 2d 886, 889 (Miss. 1968)). “The relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Id. (citing Jackson v.

Virginia, 443 U.S. 307, 315 (1979)).

       I.     Brown’s Habitual-Offender Status

¶6.    Mississippi has two habitual-offender sentencing statutes, Mississippi Code Annotated



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section 99-19-81 (Rev. 2015) (requiring a sentence to the maximum term) and section 99-19-

83 (requiring a sentence of life imprisonment). Section 99-19-83 requires two previous

felony or federal convictions—at least one of which being a crime of violence as defined by

Mississippi Code Annotated section 97-3-2 (Rev. 2014)—and that the defendant was

sentenced to and served at least one year or more for each conviction. Section 99-19-81

requires proof that the defendant was twice previously convicted of a felony or federal crime

and sentenced to separate terms of at least one year.

¶7.    Here, the State submitted with its motion to amend the indictment, over a general

objection by Brown’s trial counsel, an exhibit that included sentencing orders for three prior

Mississippi felony convictions, all sentencing Brown to at least one year’s imprisonment.

There was no proof submitted as to whether Brown served one year or more on the

Mississippi convictions. Also included in the exhibit was Brown’s Missouri Department of

Corrections (MoDOC) record reflecting that he had been received by the MoDOC to serve

sentences for multiple felony convictions—one of which was robbery in the first degree.2 The

MoDOC records do not state or reflect that Brown had served one year or more on a violent-

felony conviction. There was no other proof submitted by the State to go toward Brown’s

section 99-19-83 habitual-offender sentencing. Because there was no proof submitted that

gave any indication that Brown had actually served sentences of one year or more for any of

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         Under Missouri’s robbery statute at the time of Brown’s conviction, robbery in the
first degree was defined as a forcible stealing of property in which the violator, or another
participant in the crime, (1) causes serious physical injury to another, (2) is armed with a
deadly weapon, (3) uses or threatens the immediate use of a dangerous instrument against
another, or (4) displays or threatens the use of what appears to be a deadly weapon or
dangerous instrument. Mo. Rev. Stat. § 569.020 (transferred to Mo. Rev. Stat. § 570.023).

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his previous felony convictions, we find there is insufficient proof to find that Brown is a

habitual offender under section 99-19-83. Thus, we find that we must reverse and remand

to the circuit court so that it may resentence Brown in a manner consistent with this opinion.

         II.   Resentencing

¶8.      The Mississippi Supreme Court has held that double jeopardy attaches for purposes

of the habitual-offender sentence enhancement. Grayer v. State, 120 So. 3d 964, 970-71

(¶¶20-21) (Miss. 2013). Because the State failed to prove that Brown qualified for the

habitual-offender enhancement under section 99-19-83 previously, it is not now able to retry

the issue. However, because the proof submitted by the State at the sentencing hearing

demonstrated that Brown was twice previously convicted of felonies and sentenced to serve

at least one year for each conviction, we find there was sufficient proof to sentence Brown

under the habitual-offender enhancement provided by section 99-19-81, and Brown may still

be sentenced according to section 99-19-81. See Ellis v. State, 520 So. 2d 495, 496 (Miss.

1988).

                                      CONCLUSION

¶9.      Because the State concedes that there was insufficient evidence to demonstrate that

Brown was a habitual offender under section 99-19-83, we reverse and remand Brown’s

sentence to the circuit court for resentencing consistent with this opinion. We affirm all other

aspects of the circuit court’s judgment.

¶10. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT OF
CONVICTION OF THREE COUNTS OF ARMED ROBBERY IS AFFIRMED. THE
SENTENCE ON EACH COUNT AS A HABITUAL OFFENDER OF LIFE IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE


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SENTENCES TO RUN CONSECUTIVELY TO EACH OTHER AND TO ANY
SENTENCE CURRENTLY BEING SERVED, IS REVERSED, AND THIS CASE IS
REMANDED FOR RESENTENCING CONSISTENT WITH THIS OPINION. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR
AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.




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