If you are looking for information about Mississippi criminal issues, take a look at the posts below – and the categories to the right.  You can also visit my Jackson, Mississippi Criminal and DUI Defense website for more information.

If you need a lawyer right now, send an email to clarence@guthriefirm.com, or call me at 601-991-1099.  If you live outside of Jackson, Mississippi, call my Toll-Free Line at 866-991-1555.  If I am not in court or with another client you will talk to me personally, and we will talk through your issues.  Your initial consultation won’t cost anything.

Because bankruptcy law is federal law in the United States, most crimes related to bankruptcy are prosecuted in federal court.  Bankruptcy is a legal process whereby a business or individual is allowed to discharge most or all of their debts due to an inability to pay.  Your property is liquidated and divided among your creditors to pay your debts, and you are allowed to “start over,” (although with bad credit).  But if you falsely claim bankruptcy, attempt to conceal your assets from creditors, file mulitple claims, or get involved in a “petition mill” scheme, you are committing bankruptcy fraud – a federal offense.

Title 18, Section 152 of the United States Code is the main bankruptcy fraud statute, and the nine paragraphs of this statute prohibit the following activities:

1. concealment of property belonging to the estate of a debtor;
2. making false oaths or accounts in relation to any case under Title 11;
3. making of a false declaration, certificate, verification or statement under penalty of perjury as permitted under Section 1746 of Title 28 or in relation to any case under Title 11;
4. making false claims against the estate of a debtor;
5.  fraudulent receipt of property from a debtor;
6.  Bribery and extortion in connection with a case under Title 11;
7.  transfer or concealment of property in contemplation of a case under Title 11;
8.  concealment or destruction of documents relating to the property or affairs of a debtor; and
9.  withholding of documents from the administrators of a case under Title 11.

The most common types of bankruptcy fraud involve concealment of assets, multiple filings, or petition mills.

Concealing assets accounts for nearly 70 percent of all bankruptcy fraud committed in the United States.  If you purposely fail to list every one of your assets on your bankruptcy claim, knowing that creditors cannot come get assets that they do not know about, then you have fraudulently concealed these assets.  Similarly, businesses frequently conceal assets when filing for Chapter 11 bankruptcy by transferring money or properties to their relatives or other outside interests so that the assets cannot be confiscated.

Multiple filing fraud takes place when you file for bankruptcy in more than one state, using different combinations of real and false information (name, address, social security number) to file the claims.  You may list the same assets on each claim, but deliberately fail to include every asset.  This, like concealment of assets, fraudulently protects your valuables from total liquidation.

Finally, ”petition mill” schemes are unfortunately on the rise in these economic times.   These schemes claim to help financially strapped tenants keep their house and not get foreclosed and evicted.  Typically, ads are run in the paper and online offering counseling on how to avoid eviction.  Once the person is signed up, this “service” then files bankruptcy in the tenant’s name.  It then charges outlandish fees and drags the case out for months, draining savings accounts, ruining credit, and merely postponing the inevitable eviction.

If you are indicted for bankruptcy fraud, each count carries a maximum statutory penalty of five years in prison and a $250,000 fine.  Any sentence following conviction, however, would be imposed by the court after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.

The Clarion Ledger is reporting that a former Jackson Police Department burglary detective, who was out on bail for bank robbery, was arrested today for robbing five local Jackson businesses in the past 24 hours.  The detective was ten years removed from the department, as he was fired in 1999 for testing positive for cocaine use.  And he has been very busy since then.

Last year, when this person was arrested for robbing a local credit union, Assistant Police Chief Lee Vance attributed the problems to drug use and abuse.  “It’s actually a testament to the scourge of of crack cocaine in our society, and it is very sad,” said Jackson police spokesman Lee Vance. “Police officers are held to a higher standard with higher expectations, and he betrayed that. But even more than that he betrayed himself, and he betrayed his family.”

All good police officers, like Marines, hold themselves to higher standards than the general public.  They are aware that their special role in society puts higher expectations on them for honesty, ethics, morals, competency in their profession, and even courtesy.  In order to enforce the law, police officers must necessarily be more conversant and observant of it than average citizens.  This is a source of pride to all good police officers, and it is difficult to witness this source of pride break down.  It reminds me of an argument I used to make all the time when I defended Marines at courts-martial: “Marines have very high standards.  Lance Corporal [insert name of accused here] simply can’t live up to these high standards.  But that doesn’t necessarily make him a bad person.”  Sometimes that argument worked, sometimes it didn’t.    

Finally, another sad thing about this story, other than the fact that this person appears to be rapidly ruining his life, is that every time he gets into trouble the headlines read “Former Police Officer . . . ,” “Ex-officer arrested . . . .”  The police are saddled with this man’s sinking reputation, and are forced with having to accept it as their own.  I work with law enforcement officers virtually every day, mostly going head-to-head with them, but they deserve respect for the very difficult job they have to do.  This “former detective,” just like anyone else, is presumed innocent until proven guilty beyond a reasonable doubt, so all we can do is hope that justice will be served.

If you are convicted of two or more crimes, either by pleading guilty or being found guilty after a trial, the court has the option of requiring you to serve the terms of imprisonment on each charge concurrently (at the same time), or consecutively (one after the other).  Miss. Code Ann. § 99-19-21.

For example:  You decide one day to go down the street breaking into houses and stealing whatever you can find.  You get caught, and are charged with three different counts of burglary of a dwelling, under § 91-17-23 of the Mississippi Code Annotated.  Each of those different counts carries a punishment of between 3 and 25 years in the penitentiary.  For this example, let’s pretend that you didn’t hire a good lawyer, and you are convicted of all three counts, and the judge sentences you to the maximum 25 years for each count.  At this point, the judge can order that the sentences run consecutively, in which case you will be sentenced to a total of 75 years, or the judge can order the sentences to run concurrently, in which case they will all run at the same time, and you will serve 25 years. 

Concurrently is better, yes?  Your lawyer must make sure that the judge puts this in the sentencing order specifically, because Mississippi courts have held that the absence of language in a sentencing order affirmatively indicating that sentences will run concurrently means that sentences will run consecutively.

The laws of sentencing in Mississippi require that if you are sentenced for a felony committed while on parole, probation, earned-release supervision, post-release supervision, or a suspended sentence, then there is no discretion by the Court, and any imprisonment you receive for the new felony will commence after you serve any revocation time for the preceding felony.

The sentencing laws are different in federal court, and all of this becomes incredibly complex if you have both federal and state charges at the same time.  It pays to have an experienced criminal lawyer work through these scenarios with you and keep you aware of all the possibilities.  If you need help with a sentencing issue give me a call at 601-991-1099 or email me at clarence@guthriefirm.com.

Perjury occurs when you deliberately lie in a legal proceeding after having taken an oath to tell the truth.  Perjury requires that you lie about a “material matter,” which means it must be relevant to the case at hand.  In other words, if you are on the witness stand testifying about the crime of larceny, and the lawyer asks you how much you weigh, and you fudge it a bit, then you haven’t committed perjury, unless your weight is relevant to the case.

Perjury  can be committed in criminal cases, civil cases, or “in any case where an oath or affirmation is required by law . . . .”  This would cover lying on an affidavit or sworn statement given to law enforcement.  In order to be convicted of perjury, two witnesses must testify to the truth of matter about which you swore falsely, or at least one witness must testify, along with corroborating circumstances.

The penalties for perjury can be severe.  If you are convicted of perjury for lying on the trial of any capital or felony offense, you can be imprisoned for not less than ten years.  In any other case, you can be imprisoned for a term of no more than ten years.

It is also a crime to “suborn” perjury, which means to get someone else to lie for you in a case, matter, or proceeding.  Subornation of perjury can get you imprisoned for a term of up to ten years as well.

This post begins a new series on this blog.  Each week I am going to feature two new crimes – a Mississippi state crime on Monday and a federal crime on Friday.  I will define each crime, discuss the possible punishments, and hopefully provide some useful information.  Don’t hold your breath each Monday and Friday, though; I’ve got several big trials coming up and I may have to skip a post or two.  If you’ve got something specific you’d like me to cover please send me an email to clarence@guthriefirm.com.

This week we are going to discuss the offense of shoplifting.  You don’t have to be a legal scholar to understand what shoplifting is – shoplifting is taking (stealing, pilfering, ganking, deboing, jacking, thieving, pinching, plundering, swiping, confiscating) something from a store without paying for it.  The prosecutor must show that you meant to steal the merchandise, and this “intent to steal” is presumed if you:

1. conceal the merchandise;
2. take the merchandise from the premises of the store;
3. alter, swap, or remove the pricetags on the merchandise;
4. transfer the merchandise from one container to another (a number of people get caught because they accidentally put something in their purse instead of their shopping basket); or
5. cause the cash register or scan device to ring up a price that is less than the stated price of the merchandise.

Shoplifting is a misdemeanor if the price of the merchandise is less than $500.00, and it is a felony if more than $500.00.  First offense misdemeanor shoplifting carries a punishment of a fine of not more than $1000.00 and up to six months in jail.  Second offense misdemeanor shoplifting carries the same penalties.  For a third offense, the offense then becomes a felony, and the punishments increase to a fine of not more than $5000.00, and imprisonment of up to five years.

If the price of the merchandise is over $500.00, the first offense is a felony, and is punished according to the laws regarding grand larceny, which carries a punishment of a fine of up to $10,000.00 and imprisonment for a term not to exceed ten years for a first offense.

Other statutes in Mississippi make it a criminal act to remove a “theft detection device” from merchandise, or to possess or use a “theft detection device remover” without proper permission.  It is also specifically against the law to aid and abet shoplifting by a minor, and the penalities for this are harsh.

Finally, in addition to the criminal penalties for shoplifting, there are civil penalties as well, if the “victim” decides to pursue them.  For instance, if you are caught and convicted of shoplifting at Dillard’s Department Store in the mall, Dillard’s can sue you for $200.00, or three times the actual value of the stolen merchandise, whichever is greater.  It does not matter if the merchandise was returned or not.  They must give you 30 days written notice and an opportunity to settle up with them before they pursue this civil remedy, which is in addition to the criminal trouble you may be in.

First, Mississippi law defines a “juvenile,” “child,” or “youth” as a person who has not reached his or her eighteenth birthday, however a person who is married or is on active duty in the armed services before reaching eighteen is considered an adult.  Miss. Code Ann § 43-21-105(d).  A “delinquent act” is an act which would be defined as a crime if committed by an adult, including escape from detention, violations of the Uniform Controlled Sustances Law, and violent behavior.

Mississippi law confers “exclusive, original jurisdiction” in the youth court system over children who commit delinquent acts, except in the following circumstances:

1. any act that could be punished by death or life in prison under state or federal law;
2. any act attempted or committed with a deadly concealed weapon, or a shotgun or rifle, if the act would be a felony if committed by an adult;
3. any act committed by a child on or after their seventeenth birthday that would be a felony if committed by an adult.

So any child under the age of eighteen that gets into trouble will probably start out in Mississippi’s youth court system, which is a separate court system with the goal of ensuring that each child “become[s] a responsible, accountable and productive citizen, and that each such child shall receive such care, guidance and control, preferably in [the] child’s own home as is conducive toward that end and is in the state’s and the child’s best interest.”  Miss. Code Ann. § 43-21-103.

In youth court, no child who has not reached their thirteenth birthday will be held criminally responsible for any act, however the parents may be held liable in civil court.  And no child under age eighteen will be held criminally responsible for any act designated as a delinquent act, unless it is decided that the case should be transferred to an adult court. 

In order to transfer a juvenile’s case away from the youth court for the juvenile to be tried as an adult, the youth court prosecutor, or the youth court itself, can make a motion to transfer, and a hearing must be held.  If you find yourself in this situation with one of your children, you absolutely need a lawyer.  In fact, the statute requires it.  The court will then decide: (1) if there is probable cause to believe that the child committed the alleged offense, and (2) if, by clear and convincing evidence, that there are no reasonable prospects of rehabilitation within the juvenile justice system.  There are a number of factors the court will consider in determining whether there are “reasonable prospects of rehabiliation (in other words, whether the case should stay in the juvenile system, or be transferred to another court for the child to be tried as an adult).  These factors include:

• Whether or not the alleged offense constituted a substantial danger to the public;
• The seriousness of the alleged offense;
• Whether or not the transfer is required to protect the community;
• Whether or not the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
• Whether the alleged offense was against persons or against property, greater weight being given to the offense against persons, especially if personal injury resulted;
• The sophistication, maturity and educational background of the child;
• The child’s home situation, emotional condition and life-style;
• The history of the child, including experience with the juvenile justice system, other courts, probation, commitments to juvenile institutions or other placements;
• Whether or not the child can be retained in the juvenile justice system long enough for effective treatment or rehabilitation;
• The dispositional resources available to the juvenile justice system;
• Dispositional resources available to the adult correctional system for the child if treated as an adult;
• Whether the alleged offense was committed on school property, public or private, or at any school-sponsored event, and constituted a substantial danger to other students;
• Any other factors deemed relevant by the youth court.

Miss. Code Ann. § 43-21-157(5).

In the vast majority of cases, if your child gets into trouble, youth court is the best solution, and you will need an attorney to present these factors in the light most favorable to your son or daughter.  An attorney will be appointed for you if you meet the financial criteria for assistance, otherwise you will need to hire one.  This firm aggressive defends the rights of juveniles at all stages of the process.  Give Clarence a call for a free review of your case.

It is not possible for an adult over the age of 21 to have their record cleared of a DUI conviction in Mississippi.  The general misdemeanor expungement statute, Miss. Code Ann. § 99-19-71, states that any person convicted of a misdemeanor, and who is a first offender, can ask the court to expunge all public records of the conviction.  But the statute excludes convictions for traffic violations, and the Mississippi Attorney General has interpreted a DUI conviction to be a traffic violation within the meaning of that statute.  1986 WL 81985, (Miss.A.G.), October 16, 1986.

If you are under the age of 21, however, the law is different.  Section 63-11-30(3)(g) of the Mississippi Code Annotated (the DUI statute) gives courts the discretion to nonadjudicate a first offense DUI for a person under the age of 21.  This can happen only once.  After the charge is nonadjudicated the court may then expunge the records of that first conviction on its own motion or upon the defendant’s request.  2001 WL 1627694, (Miss.A.G.), November 30, 2001, Opinion No. 2001-0719.  So if you are under the age of 21 you may have a chance.

I should have seen it coming.  Yesterday I discussed aiding and abetting, and accessory before the fact.  Naturally I was asked the completely logical question of “Is there such a thing as accessory after the fact?”  Absolutely, there is.

Section 97-1-5 of the Mississippi Code Annotated defines accessory after the fact, stating as follows:

Every person who shall be convicted of having concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that such person had committed a felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment, after the commission of such felony, on conviction thereof shall be imprisoned in the penitentiary not exceeding five years, or in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both; and in prosecution for such offenses it shall not be necessary to aver in the indictment or to prove on the trial that the principal has been convicted or tried.

1. that a felony has been committed
2. that you ”concealed, received, relieved, aided or assisted a felon, knowing that such person had committed a felony,” and
3. that this assistance or aid was rendered “with the intent to enable such felon to escape or avoid arrest, trial, conviction or punishment after the commission of such felony.”

Mangum v. State, 762 So.2d 337 (Miss. 2000).  Notice this distinction:  You can’t be guilty of accessory after the fact to a misdemeanor offense in Mississippi.  Federal law, however, makes no distinction between felonies and misdemeanors.  18 U.S.C. § 3.

In Mississippi, “aiding and abetting” and “accessory before the fact” are how you can be charged with a crime when you didn’t even do it.  

If you “help” someone to commit a crime, that is, you know of someone’s plan to commit a crime, and you do something to help them commit it, you have “aided and abetted” them.  Even if you were not present when the crime was committed, if the government can show that you had knowledge of the crime before or after the fact, and you assisted in it through advice, actions, or financial support, then you can be charged with aiding and abetting.    ”Accessory Before the Fact” is closely-related.  The government must show that you planned, arranged for, or counseled or commanded another person to commit a felony, but were not present when the felony was committed by the other person.  These two crimes are also known as “accomplice liability.”

Examples of aiding and abetting:

• driving the getaway car
• watching and doing nothing to stop your friends from assaulting someone
• filling illegal prescriptions for a relative

Examples of accessory before the fact:

• buying and/or supplying the weapon used in the robbery
• telling the burglar which doors are unlocked 

In 2005, the Mississippi Supreme Court explained the distinction in these two crimes, holding that ”Aiding and abetting and acting as an accessory-before-the-fact are two wholly distinct crimes. The primary difference is that if a person is actually or constructively present at the offense, due to his participation, he is an aider and abettor; if not present, he is an accessory-before-the-fact.” Dilworth v. State, 909 So.2d 731, 734 (Miss. 2005). 

If you aided and abetted in the commission of the offense, it is the law that you are “just as guilty under the law as if [you] had committed the whole crime with [your] own hand.” Id.  And you can be punished the same as well.

This law firm will aggressively defends all criminal matters, no matter how the government says you are involved.  Call Clarence immediately for the best possible results.

Back to the basics with this one.

A misdemeanor is defined under Mississippi law as  “a criminal offense punishable by a maximum possible sentence of confinement for one year or less, a fine, or both.”  Uniform Circuit and County Court Rule 6.01.  The Mississippi Legislature has defined a felony as ”any violation of law punished with death or confinement in the penitentiary.”  Miss. Code Ann. § 1-3-11.

These definitions, one provided by the courts and one provided by the legislature, don’t exactly compliment each other.  But, in general, a felony is any crime for which a person can be imprisoned for one or more years in a state or federal prison, and a misdemeanor is any other lesser crime.  Any incarceration resulting from a misdemeanor conviction will probably be served in a local county jail or detention center, and longer incarceration resulting from a felony conviction will probably be served at one of the state facilities maintained by the Mississippi Department of Corrections. 

The distinctions between a felony and a misdemeanor come up in many different areas of the law, including sentencing hearings, expungements, use of prior convictions to enhance subsequent punishments, etc.  And, of course, federal criminal law is different than Mississippi state law in many of these areas. 

If you’ve been accused of a crime, felony or misdemeanor, state or federal, you need to know your options before making any life-changing decisions.  Contact us for a free review of your case.