                         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
        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



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        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:

                 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


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        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.

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



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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 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.



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¶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 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 TO FOLLOW.
DIAZ, J., NOT PARTICIPATING.



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