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IN THE COURT OF APPEALS 04/23/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-01317 COA

STANLEY BRADLEY APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. RICHARD W. MCKENZIE COURT FROM WHICH APPEALED: PERRY COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: SARA GALLASPY ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DEWITT ALLRED III DISTRICT ATTORNEY: GLENN L. WHITE NATURE OF THE CASE: CRIMINAL- ESCAPE AND SIMPLE ASSAULT ON POLICE OFFICER TRIAL COURT DISPOSITION: SENTENCED TO SERVE A TERM OF LIFE IN THE MDOC AS AN HABITUAL OFFENDER ON EACH COUNT, PURSUANT TO SECTION 99-19-83 OF THE MISSISSIPPI CODE, TERMS TO RUN CONSECUTIVE WITH EACH OTHER

BEFORE THOMAS, P.J., BARBER, AND SOUTHWICK, JJ. BARBER, J., FOR THE COURT: Stanley Bradley was indicted and convicted for escape from jail and assault on a police officer. Having two prior felony convictions, Bradley was sentenced as an habitual offender pursuant to section 99-19-83 of the Mississippi Code and ordered to serve two consecutive terms of life imprisonment. Feeling aggrieved, Bradley appeals both the convictions for escape and simple assault on a police officer as well as his sentences to two consecutive life terms in prison. Bradley asserts the following in support of his appeal: I. WHETHER THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT BRADLEY HAD A PRIOR CRIMINAL RECORD OF TWO FELONIES BASED UPON CHARGES SEPARATELY BROUGHT AND ARISING OUT OF SEPARATE INCIDENTS AT DIFFERENT TIMES WITH ONE OF WHICH BEING A CRIME OF VIOLENCE AND HAVING BEEN SENTENCED TO AND HAVING SERVED SEPARATE TERMS OF ONE (1) YEAR OR MORE THAT WOULD SUSTAIN HIS SENTENCE TO TWO CONSECUTIVE LIFE TERMS WITHOUT THE BENEFIT OF PROBATION OR EARLY RELEASE UNDER SECTION 99-19-83 OF THE MISSISSIPPI CODE.

II. WHETHER BRADLEY'S TWO CONSECUTIVE LIFE SENTENCES WITHOUT BENEFIT OF PAROLE OR EARLY RELEASE WERE UNDULY HARSH AND DISPROPORTIONATE SO AS TO CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT WHICH WAS PROHIBITED BY THE EIGHTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA.

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO QUESTION THE APPELLANT ON AN UNRELATED, UNINDICTED, AND UNCONVICTED CHARGE OF BURGLARY WITHOUT CONDUCTING A HEARING ON ADMISSIBILITY AWAY FROM THE JURY AND IN FAILING TO GIVE THE JURY A LIMITING INSTRUCTION TO DISREGARD SUCH CHARGE IN DETERMINING BRADLEY'S GUILT OR INNOCENCE.

IV. WHETHER THE TRIAL COURT ERRED IN REFUSING INSTRUCTIONS D-1 AND D-3 OR IN FAILING TO REFORM OR CORRECT THOSE INSTRUCTIONS OR IN FAILING TO POINT OUT THE DEFICIENCIES THEREIN TO BRADLEY'S COUNSEL.

We find no merit in Bradley's argument that he was wrongfully convicted. Bradley's claim that he

was erroneously sentenced as an habitual offender, however, is compelling, and we remand for sentencing in accordance with the findings herein. FACTS Stanley Bradley was arrested on a capias for burglary and, on December 30, 1992, was being held in the Perry County Jail. On that date, Bradley and two other inmates, Ralph Dan Walker and Michael Bradley, effected an escape by sawing the bars of their prison cell and overpowering the jailer, Verdean Neal. During the escape, Bradley grabbed Neal, the police officer on duty, and wrestled her to the floor. She fell on her back, and Bradley sat on top of her chest. Next, Bradley directed another inmate to sit on the officer in order to restrain her. Then Bradley asked Neal where the keys to the jail cells were. Bradley retrieved the keys, unlocked the cell, and released a fellow inmate, Dan Walker. As a result of the assault on her, Neal suffered a serious disc injury to her lower back. The three escapees proceeded to the Town of Richton, which is approximately eleven miles from the location of the jail at New Augusta, Mississippi. Richton authorities, having been alerted to the escape and aware that the escapees had ties to Richton, were on the alert for the arrival of the three men. Later on the same day as the escape, Richton authorities located the escapees at an apartment building. At this time, Bradley decided to surrender and was taken into custody by the city and county law enforcement officers. ANALYSIS I. BRADLEY'S SENTENCE TO TWO LIFE TERMS TO RUN CONSECUTIVELY AS AN HABITUAL OFFENDER EXCEEDED THE MAXIMUM SENTENCE ALLOWED BY LAW BECAUSE THE LEGAL PREDICATE FOR SECTION 99-19-83 OF THE MISSISSIPPI CODE WAS NOT PROVEN BEYOND A REASONABLE DOUBT.

Section 99-19-83 of the Mississippi Code provides as follows: 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 and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, 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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