IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-KP-00162-SCT

ARTHUR R. REEDER a/k/a ARTHUR RICHARD

REEDER

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: 02/02/96

TRIAL JUDGE: HON. JERRY OWEN TERRY, SR.

COURT FROM WHICH APPEALED: STONE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: CHARLES W. MARIS, JR.

DISTRICT ATTORNEY: CONO CARANNA

NATURE OF THE CASE: CRIMINAL - POST CONVICTION RELIEF

DISPOSITION: AFFIRMED - 10/02/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 10/23/97

BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.

SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

Article 6, Section 169 of the Mississippi Constitution states:

The style of all process shall be "The State of Mississippi," and all prosecutions shall be carried

on in the name and by authority of the "State of Mississippi," and all indictments shall

conclude "against the peace and dignity of the state."

Miss. Const. of 1890, art. 6, § 169 (emphasis added). While this seems simple enough, we are

repeatedly deluged with cases alleging violation of this section of the Constitution. This is another

such case.

As the result of a plea bargain, in the Circuit Court of Stone County, Arthur Reeder pled guilty to
two counts of burglary and one count of arson in cause number 1710 and one count of burglary in

cause number 1712. Reeder was indicted as a habitual offender based on two previous crimes

committed in Louisiana. In conformity with the plea bargain the trial judge sentenced Reeder to eight

years on each count, to run concurrently without eligibility of parole.

On November 30, 1995, Reeder filed a post conviction collateral relief motion to vacate and set aside

the habitual offender sentence and requested a hearing. Essentially all of Reeder's claims are based on

the premise that his status as a habitual offender is void since the habitual offender portion of the

indictment came after the words "against the peace and dignity of the state" pursuant to Article 6,

§ 169 of the Mississippi Constitution. Reeder does not contend that he lacked notice that he was

being charged as a habitual offender.

Reeder asserts that under McNeal v. State, 658 So.2d 1345 (Miss. 1995), his habitual offender status

and sentence must be voided. The state counters that under Brandau v. State, 662 So. 2d 1051

(Miss. 1995), decided the same day as McNeal, that the habitual offender status need not be voided,

because Reeder like Brandau was barred from raising the issue since he failed to object at trial or on a

direct appeal. Brandau, 662 So. 2d at 1054. Brandau and McNeal are of little moment to this

appeal. Reeder and the State fail to note that the counts in the indictments state that Reeder is

charged as a habitual offender. For example, Count I reads, "The Grand Jurors . . . upon their oaths

present: Count I, Burglary of a dwelling, Section 97-17-19, Miss. Code of 1972, as habitual

offender, Section 99-19-81, Miss. Code of 1972 as amended. . . . and against the peace and dignity

of the State of Mississippi." (Emphasis added). Counts II and III follow the same format. The

indictment in cause number 1712 similarly charges Reeder for his crime as a habitual offender before

stating, "against the peace and dignity of the State of Mississippi."

Under these facts Earl v. State, 672 So. 2d 1240 (Miss. 1996), controls our decision. In Earl, the

indictment charged the defendant "with the habitual offender allegations as set forth in the attachment

hereto . . . contrary to the form of the statute in such cases made and provided, and against the peace

and dignity of the State of Mississippi." Earl, 672 So.2d at 1244. The attachment was entitled

"Continuation of Indictment Against the Defendant Charles Dale Earl" and provided the sentence to

be imposed upon the defendant as a habitual offender as well as the date and location of the

defendant's earlier convictions. Id. We denied the defendant's assignment, finding that the indictment

properly charged him as a habitual offender before concluding with the phrase, "against the peace and

dignity of the State of Mississippi." Id.

The indictments here charge Reeder as a habitual offender before concluding with the phrase,

"against peace and dignity of the State of Mississippi." After the conclusion, the indictments list the

specific acts and convictions propelling Reeder to habitual offender status. The lists of prior

convictions were on the same pages of the indictments. Following the dictates of Earl v. State this

Court must and does conclude that Reeder was properly charged as a habitual offender. The action of

the trial court in denying him post conviction relief is affirmed.

In the second portion of Reeder's complaint to this Court he charges his counsel with ineffectiveness

for his failure to object to the inadequacies of the indictment in regard to the habitual offender

charge.

There being no inadequacy to object to, this claim is without merit.
LOWER COURT'S DENIAL OF POST CONVICTION COLLATERAL RELIEF

AFFIRMED.

LEE, C.J., PRATHER, P.J., PITTMAN, BANKS, McRAE, ROBERTS, SMITH AND MILLS,

JJ., CONCUR.