Mississippi State Court

In a felony case you have the right to be tried by a jury of 12 people.  This number is implicit in Mississippi’s Constitution, which states in Section 31 that “The right of trial by jury shall remain inviolate . . . .”   The Mississippi Supreme Court stated way back in 1884 that “The right to be tried by a jury of twelve men is a constitutional privilege.”  Hunt v. State, 61 Miss. 577 (Miss. 1884).  More up-to-date is Mississippi Uniform Rule of Circuit and County Court Practice 10.1, which states “In felony cases not involving the possible sentence of death or life imprisonment, the defendant and the prosecution shall have six (6) peremptory challenges for the selection of the twelve regular jurors.”  No doubt about it, if you are charged with a felony in Mississippi, you are entitled to have 12 jurors listen to your case, who must ALL agree BEYOND A REASONABLE DOUBT as to your guilt, before you can be convicted.

Misdemeanor cases require a little more examination.  The United States Constitution “guarantees a jury trial to all persons charged with a ‘serious offense.’ ” Frazier v. State, 817 So.2d 663, 664(3) (Miss.Ct.App.2002). “A serious offense is one for which the defendant could be sentenced to more than six months in jail for committing.” Id. (citing Blanton v. North Las Vegas, 489 U.S. 538, 542-43, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989)).  Mississippi defines a misdemeanor 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.  Misdemeanor cases are usually handled in municipal or justice courts, with an appeal to county court, and, going back to  Uniform Rule of Circuit and County Court Practice 10.1, it states “In all criminal misdemeanor actions tried in county court a six (6) person jury shall be used, whether the case originated in county court or was appealed from lower court.”  There are a number of little scenarios that can play out, depending on which court you are charged in, and what you are charged with, so it really pays to consult with an attorney when you are faced with a potential misdemeanor jury trial.

Juries in DUI Cases

Before I move on to federal juries, let me briefly address DUI juries, because the question comes up all the time.  The maximum confinement for DUI(1st) is 48 hours – there is no right to a jury for first offense DUI.  The maximum confinement for DUI(2nd) is not less than five days, or up to one year, so you do have a right to a jury when charged with DUI(2nd).  Any subsequent DUI (third offense or more) is a felony, and you are entitled to a jury trial as stated above for any felony.

Federal Court

Federal Rule of Criminal Procedure 23 states that if you are entitled to a jury trial in a criminal case, you will get one unless:

1. You waive your right to a jury in writing;
2. the government consents; and
3. the court approves.

The rule goes on to state that “A jury consists of 12 persons unless this rule provides otherwise.”  BUT, unlike Mississippi courts, the parties (the defendant and the prosecutor) may agree to less than 12, or may agree that a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins.  Further, the judge may permit a jury of 11 persons to return a verdict, even without an agreement by the parties, if one juror is dismissed for good cause.

Mississippi was once home to at least eight major Native American tribes.  Sparing you from an extended history lesson, most of these cultures were forced out of Mississippi in the late nineteenth century, and although the tribes are not extinct, most of them survive only in reservations in Louisiana, Oklahoma, and Texas.  There is only one federally-recognized Indian tribe left in Mississippi today, and of course that tribe is the Mississippi Band of Choctaw Indians.  The Choctaw reservation in Mississippi consists of approximately 35,000 acres scattered throughout central and eastern Mississippi, and the Mississippi Choctaw population approaches 10,000 people.

Stealing from a recognized Indian tribe can get you into a “special” kind of trouble with the feds.  It is, of course, illegal to embezzle or steal from anyone, but it has been recognized by the Supreme Court that Congress has “plenary power” (LOTS of power) to deal with the special problems of Indians.  Morton v. Mancari, 417 U.S. 535, 551 (1974).  Congress used this power in 1956 to make theft from an Indian organization illegal.  At the time the law was passed, the stated purpose was to protect the tribes from dishonest or corrupt tribal officials.  In other words, to protect the tribes from themselves.  But the statute begins with the words “Whoever embezzles, steals, knowlingly converts to his use . . . ,” so it is obvious that the statute applies to everyone.

What are the elements of stealing from an Indian tribe?

Whoever:

1. embezzles, steals, knowingly converts to his use or the use of another, willfully misapplies, or willfully permits to be misapplied
2. any money, funds, credits, goods, assets, or other property belonging to any Indian tribal organization or intrusted to the custody or care of any officer, employee, or agent of an Indian tribal organization;

Or whoever:

1. knowing any such moneys, funds, credits, goods, assets, or other property to have been so embezzled, stolen, converted, misapplied or permitted to be misapplied
2. receives, conceals, or retains the same with intent to convert it to his use or the use of another

Faces the following punishments if convicted:

1. If the amount stolen is under $1000.00, possible imprisonment for no more than one year, and a fine – this is a federal misdemeanor
2. If the amount stolen is $1000.00 or more, possible imprisonment for up to five years, and a fine – this is a federal felony.

If you are accused of this crime, the normal defenses associated with theft crimes are available to you, and sometimes crimes related to Indian reservations have some interesting jurisdictional issues that may be raised as well.  Also, this is a “specific intent” crime, which means that the prosecution may be able to prove that you embezzled funds, but if they cannot prove that you knew who the funds actually belonged to, then you may not be guilty of this specific crime.  This crime happens more frequently than you might think.  My office is only 45 minutes away from the reservation, so if you need my assistance I’ll be glad to consult with you.

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.

If you are convicted of even the most minor misdemeanor domestic violence charge you could lose your right to possess a firearm.

In 1996 Congress enacted the Domestic Violence Offender Gun Ban (“Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence”, Pub.L. 104-2208, 18 U.S.C. § 922(g)(9).   This law prohibits shipment, ownership and use of guns or ammunition by individuals convicted of a misdemeanor crime of domestic violence, or who are under a restraining order for domestic abuse.  It is also unlawful to sell or give a firearm or ammunition to such a person.

What qualifies as a “misdemeanor crime of domestic violence”?

Safety Valve Sentencing in Federal Court

If you are convicted of a crime in federal court, many times there is a mandatory minimum sentence involved.  The court must give you at least this mandatory minimum sentence, absent some exception.  The federal “safety valve,” as it is called, is one of only a few ways out of a mandatory sentence.  It is a law that lets the court give you less time in jail, if you meet the law’s requirements.  Since 1995 over 60,000 federal drug offenders facing mandatory minimum sentences have gotten relief under the federal safety valve law.  This is a good thing, not only for you, but for taxpayers, because $25,000.00 is saved for every year someone does not stay in a federal prison. 

What is the safety valve law? 

In response to widespread criticism that mandatory minimums are unduly harsh in many circumstances – crack v. powder cocaine, for instance - and they cannot meaningfully distinguish among defendants of different culpability, in 1994 Congress created the ”safety valve” at 18 U.S.C. § 3553(f).  This law suspends the operation of the otherwise applicable mandatory minimum in drug cases if the defendant was a low-level participant, did not use a weapon, was involved in a violence-free crime, had little or no criminal history and told the government the truth about his or her involvement in the offense and offenses in the same course of conduct or common scheme or plan.

What are the requirements for relief under the safety valve provisions?

You are eligible for relief under the law only if all of the below criteria are met:

1. No one was harmed during the offense;
2. little or no criminal history;
3. did not use violence or a gun;
4. not a leader or organizer of the offense; and 
5. full cooperation with the prosecutor.

If you meet these requirements it is up to you and your lawyer to negotiate the best deal with the prosecutor and the court, and you will not be hindered by the mandatory minimum.

Can my lawyer mess up my case by pushing for relief under the safety valve provisions?

Yes, in more ways than one.  Your lawyer must know as much as possible about your case before even thinking about relief under the safety valve.  Requirement number 5 – that you fully cooperate with the prosecutor – is full of pitfalls and traps, and it is important that your lawyer be experienced in federal criminal defense and prepared to advise you before you commit to a decision.    

If you need help with your federal case in Mississippi, or you would like me to consult with your existing lawyer, contact me at clarence@guthriefirm.com or call 601-991-1099.  I am here to help, and your initial consultation won’t cost anything.

Mississippi made home repair fraud a distinct crime in 2003, and refined the law in 2006 in the wake of Hurricane Katrina.

In order to convict you of home repair fraud, the state must prove that you contracted with someone (written or oral) to repair their home, and you knowingly:

1. Misrepresented a material fact relating to the terms of the contract or agreement or the preexisting or existing condition of any portion of the property involved, or created or confirmed another’s impression which is false and which he does not believe to be true, or promised performance which he does not intend to perform or knows will not be performed;
2. Used or employed any deception, false pretense or false promise in order to induce, encourage or solicit a person to enter into any contract or agreement;
3. Misrepresented or concealed your real name, or the name of your business or your business address; or
4. Used deception, coercion or force to obtain the victim’s consent to modification of the terms of the original contract or agreement;

or you

Damaged the property of a person with the intent to enter into an agreement or contract for home repair;

or you

Misrepresented yourself or someone else to be an employee or agent of any unit of the federal, state or municipal government or any other governmental unit, or an employee or agent of any public utility, with the intent to cause a person to enter into, with himself or another, any contract or agreement for home repair.

Miss. Code Ann. § 97-23-103. 

What does ”home repair” include?

Home repair includes the “construction, installation, replacement or improvement of driveways, swimming pools, porches, kitchens, chimneys, chimney liners, garages, fences, fallout shelters, central air conditioning, central heating, boilers, furnaces, hot water heaters, electrical wiring, sewers, plumbing fixtures, storm doors, storm windows, awnings, carpets and other improvements to structures within the residence or upon the land adjacent thereto.”  In other words, just about everything having to do with fixing a home.

What is exempt from the definition of home repair?

1. Sale of goods or materials by a merchant;
2. the repair, installation, replacement or connection of any home appliance, including, but not limited to, disposals, refrigerators, ranges, garage door openers, television antennas, washing machines, telephones or other home appliances when the person replacing, installing, repairing or connecting such home appliance is an employee or agent of the merchant that sold the home appliance; and
3. landscaping.

What are the punishments for home repair fraud?

If the fraud amounts to less than $5000.00:

1. A first offense is a misdemeanor, and shall be punished by a fine not to exceed $1,000.00, or imprisonment not to exceed six months, or both.
2. A second or subsequent conviction is punished as follows:
   1. If the amount of the fraud is between $1000.00 – $5000.00, it becomes a felony, and is punishable by imprisonment not to exceed two years.
   2. If the amount of the fraud is less than $1000.00, it remains a misdemeanor punishable by imprisonment for not more than six months.

If the fraud amounts to over $5000.00, it is a felony, and is punished as follows:

1. If the amount is between $5000.00 – $10,000.00, by imprisonment not to exceed five years or a fine not to exceed $10,000.00, or both.
2. If the amount is over $10,000.00, by  imprisonment not to exceed ten years or a fine not to exceed Ten Thousand Dollars.

In addition to all of these punishments, you will be ordered to make restitution to the victim (to pay them back).  This amount will not be due while you are incarcerated unless the judge determines you have the money to pay it immediately.  Once you get out, however, you must make the payments or it may be cause for your probation or suspended sentence to be revoked.

The Mississippi Attorney General’s Office is very interested in home repair fraud – it calls its fight against home repair fraud “Operation Hammerstrike,” and keeps a list of arrests on the state website.  The overwhelming majority of these arrests and prosecutions have occurred along the coast.  I maintain a statewide criminal defense practice, and I am networked with a group of very effective and experienced criminal defense lawyers across the state.  If you get dealt a blow by “Operation Hammerstrike,” give me a call at 601-991-1099.  I will either help you myself, or we’ll find you an aggressive attorney close to you that will help you with your case.

The Clarion Ledger has an article in today’s paper reporting on the growth of the Mississippi Alcohol Safety Education Program since Hurricane Katrina in 2005.  The article reports that DUI arrests in Mississippi have grown from 22,511 in 2005 to 32,099 in 2009 – a big increase.  Previously, DUI arrests had fallen off, and this was attributed to the focus of Mississippi’s law enforcement being shifted to disaster recovery from Katrina.  But the heat is back on DUI enforcement now.  Arrests are increasing, with a corresponding increase in convictions.

If you are convicted of DUI(1st) in Mississippi, you face the following penalties:

• imprisonment of not more than 48 hours;
• a fine of $250-$1000, plus court costs;
• suspension of your driver’s license for not less than 90 days;
• possible attendance at “victim impact panel” training; and
• mandatory participation in the Mississippi Alcohol Safety Education Program.

I have previously discussed that every criminal conviction carries collateral consequences, and DUI is no exception.  Your insurance rates will certainly be affected, as well as your employment, your education, ability to join the military, etc. 

What is the Mississippi Alcohol Safety Education Program?

According to the program’s website, the mission of the Mississippi Alcohol Safety Education Program is to:

1. To provide education, rehabilitation, and referral information for the first-time DUI offender.
2. To create a DUI control system by integrating the enforcement, judicial, and rehabilitation / education functions.
3. To design and evaluate the effectiveness of various education / rehabilitation modalities.
4. To conduct research in order to design, implement, and test the effectiveness of intervention / prevention strategies.

Upon your conviction for DUI(1st), one of the forms the court will give you is a form directing you to the nearest location of MASEP, and the time to report for your classes.  Classes meet once a week for four weeks, and typically run from two to three hours each.  At the end of the fourth class you will receive a certificate that you can use to get your license back.  You’ll have to pay the fee when you report to your first class – if you haven’t learned already, you will quickly get tired of all the fees involved with a DUI.  My very valuable advice on that is here.

The timing of these classes is important if you want to pursue a hardship license to reduce the period of mandatory suspension.  These classes usually start at the beginning of each month, and we will need the certificate of completion to attach to your hardship petition, so it is important that you begin the classes as soon as possible.  These steps are not rocket science, and I will help you through them if you need me to.

As I have said before, the best way to avoid MASEP classes, fines, hardship licenses, etc. is to not get a DUI.  But the Clarion Ledger article states that the Mississippi Highway Patrol has secured federal funding for more overtime to keep officers on the roads, and they have three new “state-of-the-art” DUI trucks to test and book people accused of DUI.  Increased arrests are inevitable.  The second easiest way to avoid all of it is to beat your DUI.  If you need help with that contact me at clarence@guthriefirm.com or call 601-991-1099.

Today, in the landmark decision of McDonald v. Chicago, the United States Supreme Court held that the Second Amendment right to keep and bear arms now applies against state and local governments, in addition to the federal government.  If you want to see the opinion, here it is.  Don’t accidentally hit print; the thing is 214 pages long.  It was a ”5-4″ decision, meaning five justices voted in favor, and four against.

This decision is another big victory for gun owners.  The first came in 2008, and I previously posted on that decision here.  The first decision basically resolved the arguments that had been going on forever about whether the Second Amendment really gave an individual the right to keep and bear arms.  The Supreme Court ruled in 2008 that  ”the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home,”  and that the federal government could not make laws that infringe upon that right.

The decision today was a natural follow-up to the first decision.  Today’s ruling extended the Court’s 2008 ruling to state and local governments as well.  Here is a key quote from today’s opinion, penned by Justice Samuel A. Alito Jr., that lays out the reasoning:

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States.  .  .  . We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

I support this decision, and the reasoning behind it, if for no other reason than it is consistent.  Most of the other rights have already been incorporated against the states.  So once this right was finally found to be an individual right, it made sense to apply it to the states as well as the federal government.

On an unrelated note, Justice John Paul Stevens, 90, retired today, having served on the Supreme Court for an astonishing 35 years.  He was one of the most liberal Justices on the Court, and I personally didn’t see it his way on a number of things, but he wrote in a letter to his colleagues that “if I have overstayed my welcome, it is because this is such a unique and wonderful job.”  A class act, and I wish him well.

So practically, what does this mean?  Does this mean that if you are a convicted felon you can head out to Bass Pro, Surplus City, or Vann’s and stock up?  No it does not. 

States and cities have a variety of laws restricting gun ownership, such as requiring mental health background checks or waiting periods before gun purchases.  These restrictions, which some will argue are “reasonable,” may now have to be challenged to to define the now-different boundaries of gun ownership and government regulation.  But the Supreme Court made it clear in the 2008 Heller decision that long-standing reasonable restrictions on gun ownership, such as possession by felons, mentally ill persons, and persons convicted of domestic violence, as well as geographic restrictions, such as prohibitions against guns in schools, courthouses, etc., are still intact.

You can still get into trouble in the following ways, which are (currently) valid restrictions on the possession and use of firearms:

• Carrying a concealed weapon
• Assault with a deadly weapon
• Possession of an unregistered gun
• Brandishing a firearm
• Unlicensed firearms
• Felon in possession
• Possession by a minor
• Unlawful discharge of a weapon
• Unlawful sale of firearms
• Carrying a concealed and loaded firearm in a vehicle
• Federal firearms violations, including possession of a machine gun or silencer
• Possession of assault weapons

If you get into trouble with a weapon give me a call at 601-991-1099.  I’ve done a good many of these cases, and I’ll be glad to talk to you about it.

Nobody likes to get served with papers.  Having served my share of legal documents over the years, I can state that nobody has ever invited me in to eat or to watch the game with them after I properly identified them and put the papers in their hand.  It is one of those things in life that is just not pleasant. 

No matter how disagreeable it might be, if you:

1. knowingly and willfully obstruct, resist, or oppose
2. any officer of the United States, or other person duly authorized
3.  in serving, or attempting to serve or execute, any legal or judicial writ or process of any court of the United States, or United States magistrate judge;

or you:

1. assault, beat, or wound any officer or other person duly authorized, knowing him to be such officer, or other person so duly authorized,
2. in serving or executing any such writ, rule, order, process, warrant, or other legal or judicial writ or process

You shall be fined or imprisoned for not more than one year, or both.  18 U.S.C. § 1501.  This crime is a federal misdemeanor, and the good news is that a federal judge has the power to grant probation for most misdemeanors.  18 U.S.C. § 3401(d).  Notice that this is the federal crime of assaulting a process server.  Mississippi state court is going to treat you differently for the same conduct if the process server is serving state court documents.

Leave the process server alone.  They didn’t sue you; they are just doing their job.

Times are tough.  People are doing things they wouldn’t normally do to get by.  Some of these things can get you into trouble.

No company, city, or other entity is going to sell you electricity, gas, water, or any other utility without some kind of meter to measure how much you use so they can charge you for it, and if you attempt to tamper with the meter with the intent to get more than you paid for you can be charged with a misdemeanor.  Section 97-25-3 of the Mississippi Code Annotated makes it illegal to:

intentionally, by any means or device, [prevent] electric current, water or gas from passing through any meter or meters belonging to any person, firm or corporation engaged in the manufacture, sale or distribution of electricity, water or gas for lighting, power or other purposes, furnished such persons to register current or electricity, water or gas, passing through meters, or intentionally [prevent] the meter from duly registering the quantity of electricity, water or gas supplied, or in any manner [interfere] with its proper action or just registration, or, without the consent of such person, firm or corporation, intentionally [divert] any electrical current from any wire or cable, or water or gas from any pipe or main of such person, firm or corporation, or otherwise intentionally [use], or [cause] to be used, without the consent of such person, firm or corporation, any electricity or gas manufactured, or water produced or distributed, by such person, firm or corporation, or any person, firm or corporation who retains possession of, or refuses to deliver any meter or meters, lamp or lamps, or other appliances which may be, or may have been, loaned them by any person, firm or corporation for the purpose of furnishing electricity, water or gas, through the same, with the intent to defraud such person, firm or corporation . . .

This statute was obviously drafted by the lawyer for the water or the power company.

What it says is you can’t tamper with, attempt to change the reading on, or swap any kind of meter.  You also can’t “tap” into it and divert what it is supplying to somewhere else.  The statute goes on to say that the mere presence of any kind of diversion pipe, or device found on the meter is evidence of your “intent to defraud” the utility company.  It is the opinion of the Attorney General that this statute also applies when you cut the lock on the meter and turn your water back on after it has been cut off for not paying your bill. 

What is the punishment for tampering with utility meters?

This crime is a misdemeanor, and if found guilty you can be punished by a fine of $100.00 - $500.00, or by imprisonment in the county jail not more than three months, or by both fine and imprisonment in the discretion of the court.

What if the utility company tries to steal from me, can they get into trouble?

Yes!  The statute goes on to say that if the utility company intentionally installs a meter that is “rigged” to charge you more than what you receive, the utility company can be found guilty of the same misdemeanor.

You will notice that “intent” is mentioned throughout the law.  It is an element that the prosecutor will have to prove against you, and it could be your freedom ticket.  Meters get “messed with” all the time, but not necessarily with the intent to steal utilities.