Supreme Court Hand Down for 11/04/10

Justice Kitchens strikes again.  I don’t know if any Justice in the history of MS has had as much of an impact on jurisprudence as Justice Kitchens has.


In an opinion written by Justice Graves, Tucker V. State, the Supreme Court reversed and rendered Anthony Tucker’s conviction for possession of stolen property.  Tucker was arrested in Clay County for having numerous items of clothing in his possession that allegedly came from a burglary of Foot Gear in West Point, Mississippi.  The indictment stated,

“On or about the 18th day of October, 2005, in the County aforesaid, [AnthonyTucker] did unlawfully, willfully and feloniously, receive or possess thepersonal property of Haresh Khiantani d.b.a. Foot Gear, to-wit: athleticapparel, said property having a total value in excess of $500.00, and havingbeen feloniously taken away from the said Haresh Khiantani d.b.a. Foot Gear,and further that the said ANTHONY TUCKER knew or should have know atthe time of the receiving or possessing of said property that said property hadbeen so feloniously taken, in violation of MCA §91-17-70; contrary to theform of the statutes in such cases made and provided, and against the peaceand dignity of the State of Mississippi.”


The majority held that  the phrase “athletic apparel” did no describe the stolen property with sufficient particularity as required by law.  They found that the phrase was unconstitutionally vague and that Tucker was not put on sufficiently legal notice as to the charges against him.


Justice Pierce dissented, arguing that bags of clothes were recovered from Tucker, and the fact that some blue jeans were recovered, i.e. not athletic apparel, does not make it uncertain.


In Winters v. State, Jeremy Winters, age 20!, was convicted of DUI 3rd.  The indictment contained the language included in the Zero Tolerance for Minors section of the DUI law, but it also contained his previous convictions, and the felony section of the code as well.  Winters was sentenced as a felony.  Justice Kitchens in his dissent stated that since the indictment was ambiguous, the rule has always been to sentence according to the lesser of the two possibilities.



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