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IN THE SUPREME COURT OF MISSISSIPPI NO. 96-KP-00687-SCT NAPOLEAN BRYANT v. STATE OF MISSISSIPPI THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: 02/13/96 HON. LEE J. HOWARD LOWNDES COUNTY CIRCUIT COURT PRO SE OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS, JR. FORREST ALLGOOD CRIMINAL - POST CONVICTION RELIEF AFFIRMED - 10/02/97 10/23/97

DISTRICT ATTORNEY: NATURE OF THE CASE: DISPOSITION: MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ. SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

This appeal arises from the denial of a motion for post-conviction relief. The motion is procedurally barred and we affirm the trial court's denial of the motion. Bryant was indicted on February 5, 1993, as a habitual offender for burglary of a dwelling and larceny involving the acquisition of a video cassette recorder valued at $250. The indictment further reflected that Bryant had previously been convicted for felony theft on December 3, 1979, for which he was sentenced to four (4) years in the Illinois Department of Corrections; for felony armed robbery and armed violence on June 25, 1982, for which he was sentenced to thirteen and one half (13 and 1/2) years on each count, running concurrently, in the Illinois Department of Corrections; for violating the Georgia Controlled Substances Act, a felony, on August 14, 1989, for which he was sentenced to three (3) years intensive probation and fined eight hundred dollars ($800); and again in

Georgia for habitual violation, a felony, for which he was sentenced to five (5) years probation, ninety (90) days of which were to be spent in work camp, and fined eight hundred seventy five dollars ($875). Bryant entered into a plea agreement and was sentenced to ten (10) years mandatory imprisonment pursuant to section 99-19-81 of the Mississippi Code, the sentencing statute for habitual criminals. The charging portion of the indictment concluded with the words "against the peace and dignity of the State of Mississippi" as required by article 6, section 169 of the Mississippi Constitution. The portion of the indictment establishing that Bryant was a habitual criminal came after the charging portion and did not conclude with the constitutionally required words "against the peace and dignity of the State of Mississippi." On January 18, 1996, Bryant filed a Motion To Reform Judgment and Sentence, pursuant to the Post-Conviction Relief Act, section 99-39-1, et seq. Mississippi Code, arguing that the habitual portion of the indictment was fatally flawed in that it did not conclude with the constitutionally mandated clause. Without a hearing, the trial court denied Mr. Bryant's motion in a court order dated February 13, 1996, based on the Mississippi Supreme Court's holding in Brandau v. State, 662 So. 2d 1051 (Miss. 1995) (holding that an issue concerning a formal defect in an indictment, which is curable by amendment, is waived if not objected to at the trial level). On May 8, 1996, Bryant filed a Motion For Post-Conviction Collateral Relief, again pursuant to the Post-Conviction Relief Act, section 99-39-1, et seq. Mississippi Code, arguing that his mandatory sentence of ten (10) years based on the habitual criminal portion of the indictment, was invalid because said portion did not conform to article 6, section 169 of the Mississippi Constitution. The trial court again denied Bryant's motion based on the Brandau holding, and in the order dated May 16, 1996, the court further noted that this subsequent filing alleged matters set forth in petitioners initial filing, and as such, further filings on the matter would merit a charge of contempt of court. It is from the order of May 16, 1996, that Bryant appeals. Bryant challenges the subject matter jurisdiction of the trial court in sentencing him to a ten (10) year mandatory sentence and the trial court's rendering of a mandatory sentence based on its finding that Bryant was a habitual criminal. I. WHETHER THE TRIAL COURT HAD SUBJECT MATTER JURISDICTION? Bryant argues that the trial court did not have subject matter jurisdiction to sentence him to a mandatory ten (10) years. Subject matter jurisdiction concerns the power belonging to a court allowing it to hear and determine a certain class of cases. Subject matter jurisdiction, unlike territorial jurisdiction, may not be waived by parties to a suit, and thus a challenge thereto may be raised at any time, directly or collaterally. Duvall v. Duvall, 224 Miss. 546, 552, 80 So. 2d 752, 754 (1955). This case has been appealed from the Circuit Court of Lowndes County. Article 6, section 156 of the Mississippi Constitution provides that "[t]he circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court, and such appellate jurisdiction as shall be prescribed by law." The Circuit Court of Lowndes County clearly has jurisdiction in matters of a criminal nature. Therefore, in this criminal suit, Bryant's challenge to the trial court's subject matter jurisdiction is without merit. II. WHETHER THE TRIAL COURT ERRED IN RENDERING A MANDATORY SENTENCE

BASED ON THE HABITUAL CRIMINAL STATUTE? The remaining issues raised in Appellant's Brief are couched in Bryant's challenge to the trial court's finding that he was a habitual offender which required a sentence rendered pursuant to section 99-1981 of the Mississippi Code. Section 99-19-81 provides that: Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum of term imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. Miss. Code Ann.

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