                       IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2002-CT-00394-SCT

SHANNON JENKINS a/k/a SLINK

v.

STATE OF MISSISSIPPI


                             ON WRIT OF CERTIORARI


DATE OF JUDGMENT:                           2/8/2002
TRIAL JUDGE:                                HON. JOHN M. MONTGOMERY
COURT FROM WHICH APPEALED:                  OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    JOSEPH JOSHUA STEVENS, JR.
                                            HARVEY LEE MORRISON, JR.
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                          FORREST ALLGOOD
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED IN PART; REVERSED AND
                                            REMANDED IN PART - 10/14/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       GRAVES, JUSTICE, FOR THE COURT:

¶1.    Following the   revocation of his probation for a prior conviction, Shannon Jenkins was

housed in a county jail and enjoyed trustee status while he awaited transfer to the state

penitentiary. Jenkins escaped by walking away from jail and was charged with escape. Jenkins

was tried and convicted of escape and sentenced to serve five years in the custody of the
Mississippi Department of Corrections, to run consecutively to any other sentences. The

Court of Appeals        affirmed the trial court finding that Jenkins was sufficiently put on notice

that he was charged with felony escape. Jenkins v. State, 2003 WL 22846050 (Miss. Ct. App.

2003).

¶2.      This Court granted certiorari.     Our precedent case law holds that where the indictment

fails to specify which of two applicable statutes is being charged, then the defendant must be

sentenced under the statute which provides the lesser punishment.

¶3.      We find that Jenkins’s indictment failed to specify which of the two escape statutes

applied. Thus Jenkins is entitled to be sentenced under the then applicable statute which is no

more than six months.

                                                  FACTS

¶4.      The Court of Appeals’s opinion included the following factual background:

                  On February 4, 1994, Jenkins pled guilty to vehicular manslaughter and was
         sentenced to a term of ten years in the custody of the Mississippi Department of
         Corrections. Jenkins' sentence was suspended and he was placed on probation.
                  In April 1999, the State sought to revoke Jenkins' suspended sentence because
         he had been convicted of DUI and distribution of marijuana while on probation. On April
         20, 1999, the trial judge entered an order revoking the suspended sentence.
                  Following the revocation of his probation, Jenkins was being held in the county jail
         awaiting transportation to the penitentiary to serve his sentence on the vehicular
         manslaughter conviction. On May 16, 1999, at 5:00 a.m. roll call, it was discovered that
         Jenkins was missing from the jail. In April of 2000, Jenkins was located in Texas, where
         he was taken into custody. In November 2000, he was returned to Oktibbeha County to
         stand trial on the charge of escape.
                  On September 17, 2001, Jenkins acting pro se, filed a motion for a speedy trial.
         However, this motion was not presented to the trial court until the day of trial, February
         1, 2002. The trial court ruled that Jenkins' Sixth Amendment right to a speedy trial had not
         been violated.
                  On February 1, 2002, immediately prior to trial, Jenkins' attorney presented a
         motion to quash the indictment saying that it failed to allege that Jenkins had been
         sentenced to the Mississippi Department of Corrections, and that he had used force or


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       violence to escape. The trial court determined that the indictment was sufficient as a matter
       of law and denied the motion. Upon the denial of that motion, Jenkins' attorney presented
       a motion which asked the trial court to determine which specific statute was relied upon
       as a basis for the indictment. This motion was also denied. Thereafter, the trial of this
       matter proceeded.
                 Chief Deputy George Carrithers testified that Jenkins was held in the new
       Oktibbeha County Jail pending the revocation hearing. He was made a trustee, but only
       allowed to move within the jail itself. Carrithers testified that in March 1999, Jenkins, at the
       request of his stepfather, was moved from the new jail and housed in the old jail across the
       street. Carrithers indicated that trustees housed in the old jail were allowed greater
       freedom of movement than those trustees housed in the new jail. However, they were not
       allowed to leave the premises except for special purposes and then only when
       accompanied by a deputy for a "special detail." According to Carrithers, he explained
       these restrictions to Jenkins.
                 Jenkins testified that he was not supervised, was free to come and go as he
       pleased, and was only required to tell someone if he was going after dark. Jenkins
       indicated that on May 16, 1999, he informed the dispatcher that he was going to the store
       to get himself a Coke. Jenkins testified that after getting the Coke, he did not return to the
       jail, but kept going.
                 After a trial on February 1st and 4th, 2002, Jenkins was convicted of escape and
       sentenced to five years in the custody of the Mississippi Department of Corrections
       pursuant to Mississippi Code Annotated Section 97-9-45.

Jenkins, 2003 WL 22846050, at * 1-2 ( ¶¶ 3-10).

¶5.    The Court of Appeals          affirmed the decision of the trial court after finding that the

indictment sufficiently put Jenkins on notice of the felony charge of escape and that he was

properly sentenced to five years in prison for violation of Miss. Code Ann. § 97-9-45.

                                               ANALYSIS

¶6.    We affirm Jenkins’s conviction for escape for the reasons stated by the Court of

Appeals. Our focus here is on the appropriate sentence.

¶7.    There are two applicable statutes which deal with the offense of escape.                           One

contemplates escape from a state penitentiary while the other contemplates escape from a jail.

Miss. Code Ann. § 97-9-45 (Supp. 2004) provides:



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                If any person sentenced to the Mississippi Department of Corrections
       for any term shall escape or attempt to escape from his particular unit or camp
       of confinement or the boundaries of the penitentiary as a whole, or shall escape
       or attempt to escape from custody before confinement therein, he shall, upon
       conviction, be punished by imprisonment in such prison for a term not
       exceeding five (5) years, to commence from and after the expiration of the
       original term of his imprisonment as extended in consequence of such escape
       or attempted escape.
                Any convict who is entrusted to leave the boundaries of confinement by
       authorities of the Mississippi Department of Corrections or by the Governor,
       and who willfully fails to return within the stipulated time, or after the
       accomplishment of the purpose for which he was entrusted to leave, shall be an
       escapee and, upon conviction, shall be subject to the penalties provided under
       this section.

The other statute, Miss. Code Ann. § 97-9-49 (Supp. 2004) currently provides:

               (1) Whoever escapes or attempts by force or violence to escape from
       any jail in which he is confined, or from any custody under or by virtue of any
       process issued under the laws of the State of Mississippi by any court or judge,
       or from the custody of a sheriff or other peace officer pursuant to lawful arrest,
       shall, upon conviction, if the confinement or custody is by virtue of an arrest on
       a charge of felony, or conviction of a felony, be punished by imprisonment in
       the penitentiary not exceeding five (5) years to commence at the expiration of
       his former sentence, or, if the confinement or custody is by virtue of an arrest
       of or charge for or conviction of a misdemeanor, be punished by imprisonment
       in the county jail not exceeding one (1) year to commence at the expiration of
       the sentence which the court has imposed or which may be imposed for the
       crime for which he is charged.
               (2) Anyone confined in any jail who is entrusted by any authorized person
       to leave the jail for any purpose and who willfully fails to return to the jail
       within the stipulated time, or after the accomplishment of the purpose for which
       he was entrusted to leave, shall be an escapee and shall be subject to the
       penalties provided in subsection (1).

However, prior to its amendment in 2002, subsection (2) provided:

       Anyone confined in any jail who is entrusted by any authorized person to leave
       the jail for any purpose and who willfully fails to return to the jail within the
       stipulated time, or after the accomplishment of the purpose for which he was
       entrusted to leave, shall be an escapee and may be punished by the addition of
       not exceeding six (6) months to his original sentence.



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Miss. Code Ann. § 97-9-49 (2) (Supp. 2001).

¶8.    Jenkins contends that his indictment referenced no particular code section and that he

should have been sentenced under the statute with the lesser sentence. Generally, when facts

constituting an offense may violate two or more statutes or, where there is substantial doubt

as to which statute applies, then a sentencing court must apply the statute which imposes the

lesser punishment. Beckham v. State, 556 So. 2d 342, 343 (Miss. 1990). The State is not

obligated to prosecute under the statute with the lesser penalty but may choose to proceed

under either statute so long as the choice is clear and unequivocal. Cumbest v. State, 456 So.

2d 209, 222 (Miss. 1984).       However, if   the indictment is ambiguous as to which statute

applies, the defendant may only be punished under the statute with the lesser penalty.     Weaver

v. State, 497 So. 2d 1089, 1092 (Miss. 1984). In the present case, the indictment charged that

Shannon Jenkins alias Slink:

       late of the County aforesaid, on or about the 16th day of May 1999, in the
       County aforesaid, did unlawfully, willfully and feloniously, escape from the
       custody of the Oktibbeha County jail wherein he had been confined by virtue of
       a conviction for the crime of Vehicular Manslaughter; a felony, contrary to the
       form of the statutes made and provided, and against the peace and dignity of the
       State of Mississippi.

¶9.    It is clear that no particular statute is referenced in the text of the indictment. In fact,

the indictment plainly recites that the offense was committed "contrary to the form of the

statutes made and provided." In Cunningham v. State, 478 So. 2d 308 (Miss. 1985), the

defendant had been convicted of rape and sentenced to life in prison but was being held in the

county jail pending appeal.    Cunningham and two others escaped from the jail but Cunningham

was caught.     The indictment against him charged the offense of escape but enumerated no


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specific statute.    The trial judge sentenced him to an additional five years in prison pursuant

to Miss. Code Ann. § 97-9-45.         On appeal, this Court reasoned that one statute might apply

because Cunningham had been sentenced to the penitentiary while the other statute might be

equally applicable because he had escaped from a county jail. This Court reversed the five year

sentence upon finding that Cunningham should have been sentenced under the statute with the

lesser punishment. 478 So. 2d at 309.

¶10.    Likewise, in State v. Bradford, 522 So. 2d 227 (Miss. 1988), this Court found that a

trustee who simply walked away from assignment should have been sentenced to the penalty

of not in excess of six months as prescribed by subsection (2) of Miss. Code Ann. § 97-9-49

rather than five years as allowed by subsection (1).

¶11.    Like Cunningham, Jenkins was a state prisoner temporarily housed in a county jail and,

like Bradford, Jenkins held trustee status and simply walked away from his assignment. Also

like Cunningham, Jenkins's indictment specified no particular statute to have been violated.

Consequently,       Jenkins should have been sentenced to no more than six months for escape.

The Court of Appeals' decision to affirm the sentence was in error.

                                            CONCLUSION

¶12.    We affirm the Court of Appeals’ judgment to the extent that it affirmed Jenkins’s

conviction for escape. However, we reverse the Court of Appeals’ judgment to the extent that

it affirmed the sentence of five years in the custody of the Mississippi Department of

Corrections. We affirm Jenkins’s conviction for escape. We reverse Jenkins’s sentence of five

years in the custody of the Mississippi Department of Corrections, and remand this case to the




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Oktibbeha County Circuit Court for re-sentencing under Miss. Code Ann. § 97-9-49 (Supp.

2001) for up to six (6) months in addition to his original sentence.

¶13. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND
REVERSED IN PART. CONVICTION OF ESCAPE IS AFFIRMED. SENTENCE OF
FIVE YEARS IS REVERSED AND THIS CASE IS REMANDED TO THE CIRCUIT
COURT OF OKTIBBEHA COUNTY FOR RE-SENTENCING UNDER MISS. CODE
ANN. § 97-7-49 (SUPP. 2001).

     SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ.,
CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT
PARTICIPATING.




        RANDOLPH, JUSTICE, DISSENTING:

¶14.    Because the majority reverses the Court of Appeals’ finding that Jenkins was

sufficiently put on notice that he was charged with felony escape, I respectfully dissent. I find

that Jenkins had sufficient notice that he was charged with Miss. Code Ann. §97-9-45, which

reads as follows:

        If any person sentenced to the Mississippi Department of Corrections for any
        term shall escape or attempt to escape from his particular unit or camp of
        confinement or the boundaries of the penitentiary as a whole, or shall escape or
        attempt to escape from custody before confinement therein, he shall, upon
        conviction, be punished by imprisonment in such prison for a term not
        exceeding five (5) years, to commence from and after the expiration of the
        original term of his imprisonment as extended in consequence of such escape
        or attempted escape.
        Any convict who is entrusted to leave the boundaries of confinement by
        authorities of the Mississippi Department of Corrections or by the Governor,
        and who willfully fails to return within the stipulated time, or after the
        accomplishment of the purpose for which he was entrusted to leave, shall be an
        escapee and, upon conviction, shall be subject to the penalties provided under
        this section.

(emphasis added).


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¶15.    According to Uniform Circuit and County Court Rule 7.06, the requirement for an

effective indictment is as follows:

        The indictment upon which the defendant is to be tried shall be a plain, concise
        and definite written statement of the essential facts constituting the offense
        charged and shall fully notify the defendant of the nature and cause of the
        accusation. Formal and technical words are not necessary in an indictment, if
        the offense can be substantially described without them.

After reviewing indictment, it is apparent that Jenkins was fully notified of the nature and cause

of the accusation against him, felony escape. The indictment stated in part: “Shannon Jenkins

. . .did unlawfully, wilfully, and feloniously, escape from the custody of the Oktibbeha County

Jail (emphasis added).       Felony is defined as, any violation of law punished with death or

confinement in the penitentiary.      Miss. Code Ann. § 1-3-11 (1972).    The word feloniously is

used in the indictment which necessarily notified the defendant that if found guilty, his

sentence was to be over a year in length.       Therefore, he had sufficient notice that Miss. Code

Ann. § 97-9-45 applied which would sentence him for a maximum term of five years.

¶16.    The Court of Appeals was correct in stating that,

        ¶ 15. Under Mississippi Code Annotated Section 97-9-45, the State was
        required to prove: (1) that Jenkins was sentenced to the Mississippi Department
        of Corrections for any term; (2) that Jenkins escaped or attempted to escape
        from his particular unit or camp of confinement or the boundaries of the
        penitentiary; or (3) that Jenkins escaped or attempted to escape before
        confinement.
        ¶ 16. The State offered proof that (1) Jenkins had been convicted of vehicular
        homicide and sentenced to the custody of the Mississippi Department of
        Corrections, (2) pending transportation to Parchman, he was housed at the
        Oktibbeha County Jail, and (3) that he escaped from the jail.
        ¶ 17. Jenkins was adequately informed by the indictment of the nature of the
        charge against him and the supporting facts.



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Jenkins v. State, 881 So.2d 870, 874 -875 (Miss. Ct. App. 2003).

¶17.   For these reasons, I respectfully dissent. I agree and would affirm the judgments of the

Circuit Court and the Court of Appeals.




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