IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2018-KA-00980-COA CARDARIUS FOSTER HUGHES A/K/A CARDARIUS HUGHES APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 06/20/2018 TRIAL JUDGE: HON. CHRISTOPHER A. COLLINS COURT FROM W HICH APPEALED: SCOTT COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: STEVEN SIMEON KILGORE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED IN PART, VACATED IN PART AND REMANDED FOR RE-SENTENCING ON COUNT I; REVERSED AND RENDERED ON COUNT II - 02/11/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. WESTBROOKS, J., FOR THE COURT: ¶1. Cardarius F o s t e r H u ghes appeals f rom his conviction and sentence in the Scott County Circuit Court f

o r one count of burglary of a dwelling pursuant to Mississippi Code Annotated

s e c t i o n 9 7

- 1 7-23 (Rev. 2014) and one count of b urglary of a shed pursuant to Mississippi Code Annotated section 97-17-33(1) (Rev. 2014). 1 Hughes a sserts that the trial court erred

1 Hughes does not dispute his conviction on Count I.in deny ing his m otion f or judgm ent notwithstanding the verdict o r, alternatively , a new trial. The record d oes not c ontain a ruling f rom the trial c o urt; however, the m otion was deem ed denied under Rule 25.3 of the Mississippi Rules of Crimi n a l P r o c e d u re. Hughes f iled his notice of appeal, and a f

ter a r eview of the record, we af f irm H ughes’s conviction under
Count I, the burglary of a dwelling. W e r everse and render his c onviction and sentence under
Count II, the burglary of a shed. W e also vacate the sentence f or Count I and rem and f

or resentencing f

or Count I in accordance with the f indings of

this opinion.
FACTS AND PROCEDURAL HISTORY ¶2. W i nnie Lovell Sm ith and Bobby Gene Sm i th were born and raised in Scott County , Mississippi. They g ot m arried a nd lived in a house on M easels Road in the county

. Fam ily ,

on both sides, lived near their property

. Their son, S teven Sm ith, lived in LaPlace, Louisiana, and a f ter B obby passed on, W i nnie went to live in LaPlace near Steven. They kept the f am ily hom e on Measels Road and would stay there periodically

. Steven d escribed the house as a two-bedroom trailer; an addition added to the back m a de it a three-bedroom dwelling. Personal property belonging to the Sm iths rem ained in the h om e. Steven testif ied that a roof

was placed over the e ntire house and a carport

. The property had s e veral structures on it, including a s hed in the back of the house where they kept a couple of tractors, f our-wheelers, lawnm owers, a nd a sm o kehouse that h oused antiques. T he larger shed had a padlock on the f ront door f

or security

. T he three other doors on the shed could not be opened f r o m the outside. S teven’s cousin Bridget Nicholson had access to the hom e and would g o b y there at tim es to check on som e personal property she had at the house.

2¶3. On Septem ber 25, 2016, the Sm iths were away , and n o one was a t the house. Hughes and his g irlf

riend, S tacee Raely

nn Holm es, were riding down Measels Road and saw what they believed to be a v a cant house. They pulled into the driveway , and Stacee got out of the

car. She tried to f

orce h er way into the hom e but could not get i n. Hughes got out and went
to the f r ont door of the house and then to the back door. He kicked the door in, and they both

went inside the house. According to Stacee, they did n ot see a ny thing that they w anted except

a little t elevision. Stacee got the television, took it outside, and put it in the backseat of the

car. Stacee the n h e a r d a big f ight down the road a n d decided to get in the car and leave because s he knew the people a nd did not want them to see her at the house. She lef t Hughes on the property , rum m aging through the house. ¶4. S t a c e e t e s tif

ied that she knew about the shed behind the house; a nd bef ore she lef

t , she saw Hughes try ing to g e t i n s i de the shed, but it h ad a padlock on it. She stated that Hughes was using bolt cut t e r s that were in their car. Stacee was gone f or about f

if teen

m inutes and did not see the shed broken into or Hughes g o inside it. Stacee c am e back to pick
up Hughes, who had a duf f el b ag with deer cam eras in it. Hughes a nd Stacee did not know the owners of

the house and picked it to burglarize because it looked em pty

. ¶5. L a t er that s am e day , Bridget w ent to the house to w ater the plants an d t o c h e c k o n things. According to S t e v e n , h e l earned that the house h ad been burglarized when Bridget called him right away . S teven went to the house the next day to assess the situation. He f ound that a big-screen television, three g am e-trail cam eras, tools, an antique BB gun, a p istol, and several o ther antique item s , including knickknacks f rom around the house , were m issing.

3Steven testif ied that the burglar had entered the house through the house-additio n ’ s b ack door by kicking in the door and f ram e. The padlock on the large shed had been cut and placed back intact to m ake it look like it was still c l o s e d

. S t e v e n t estif ied that they d id not f

ind
any thing noticeable m issing f rom the shed. ¶6. Stacee a dm itted that the television and the d eer c am eras stolen f rom the house were sold by Hughes and Stacee. S teven testif ied that he d id not know Hughes or Stacee. Stacee conf irm ed the sam e during her testim ony . Steven a lso testif i ed that neither he nor any other f am ily m em

ber g ave Hughes or Stacee perm ission to enter the h ouse or the shed. N one of the stolen item s were recovered. ¶7. The S cott C ounty S h e r i f f ’ s D e p a r tm ent a rrested Hughes a n d Stacee on January 5, 2017. Captain W illie Anderson assisted Investigator Billy Patrick with the investigation into the burglary of the Sm ith hom e . A nderson a nd Patrick interviewed Stacee on two occasions. During the f

irst intervie w on J anuary 6, 2017, Stacee denied Hughes had a ny involvem ent because she d i d n o t w a nt to im plicate h im

. However, Stacee recanted her statem ent on January 11, 201 7 , and adm itted to Hughes’s involvem e nt in the b urglary

. Two d ay s later,
A n d e rson brought H ughes into the interview room to question h im

. He gave Hughes h i s Miranda 2 warning orally as Hughes read the f o r m t h a t acknowledged his right to rem ain silent. Anderson stated that he also advised Hughes to state his r esponse v e r bally to each question asked on the f

orm . At the end of the f

orm , Hughes w as asked, “Do y ou wish to talk

to us now? ” to w hich Hughes wrote his initials on the “y es” line. Hughes s igned the f orm .

2 Miranda v. Arizona , 384 U.S. 436 (1966). 4According to Anderson, Hughes would not write his statem ent but would orally tell him what

happened. During the interview, H ughes told Anderson that he and S tacee were together and

went to a particular h o m e on Measels Road. Hughes s tated that he k icked down the door and took a television o ut. He a l s o s t a t e d that he took som e bolt cutters and cut the lock of f the shed. He m e ntioned that som e trail cam eras w ere also taken. Hughe s t o l d A n d e r son that a vehicle cam e down the road and that Stacee got scared. He to l d h e r t o l e a ve and that he would m eet her do w n t h e r o a d. Anderson acknowledged that he brought Stacee into the interview room with Hughes to c onf ront him

. However, Stacee testif i ed that Hughes did not adm it to any

involvem ent while she was in the room . Anderson t estif ied that the interview was short, lasting thirty

m i nutes at the m ost. ¶8. On August 1, 2 0 1 7 , a S c o t t C o unty grand jury i ndicted Hughes f or one count of burglary of a dwelling pursuant t o Mississippi Code Annotated section 97-17-2 3 a n d o ne
count of burglary of a shed pursuant to Mississippi Code Annotated section 97-17-33(1). On
June 1 3, 2018, af

ter a jury trial, Hughes w as convicted o f both counts. He was sentenced as

a habitual of

f ender to serve twenty -f

ive y ears f

or Count I and t o serve seven y ears f or Count
II. The sentences were set to run consecutively f or a total of thirty -two y ears in the custody of the Mississippi Departm ent of Corrections without eligibility f or parole. Hughes f

iled a

m otion f o r judgm ent notwithstanding the ver d i ct or, alternatively , a new trial. Af ter thirty day s with no ru l i n g f

rom the trial court, the m otion was deem ed denied. A ggrieved by his conviction and sentence, Hughes f iled the instant appeal.
STANDARD OF REVIEW

5¶9. Our sta t e ’ s S u p r em e Court has determ ined our distinct standards f o r reviewing the denial of a m otion f

or judgm ent notwithstanding the verdict or, alternatively , a new trial: [ w]hen reviewing a challenge f or suf f iciency of the evidence, this Court m ust determ ine whether, af

ter viewing the ev i d e n c e in the light m ost f avorable to the prosecution, any r ational trier o f f act could have f

ound the essential elem e nts of the crim e bey ond a reasonable doubt. [ T]he prosecution m ust be given the benef

i t of all f avorable in f

e r e n c e s that m ay be reasonably d rawn f rom the evidence. Naylor v. State , 2 48 So. 3d 793, 796 (¶8) (Miss. 2018) ( citations and quotat i o n m arks

om itted).
A m o tion f

o r n e w trial carries a l ower standard of review than that f or a challenge to the suf

f i ciency of the evidence. A m otion f or a new trial sim

ply challenges the weight of the e vidence. This Court reviews the lower court’s denial of a m otion f

o r new trial onl y i f t h e trial court abused its discretion. Thus, this Court will not order a new trial unless convinced that the v erdict is so contrary t o the overwhelm ing weight o f t h e evidence that, t o allow it to s t a n d , would be to sanction an unconscionable injustice. Moreover, f actua l disputes are the province of the jury

. Cowart v. State , 178 So. 3d 6 51, 668 (¶48) (Miss. 2 015) (citations a nd quot a t i o n ma rks

om itted).
DISCUSSION
I. The S ufficiency of the Evidence to Suppo r t t he Verdict on Count II ¶10. Count II of

the indictm ent charged Hughes with burglary of the Sm iths’ shed under Mississippi Code Annotated section 97-17-33(1), which states: Every p erson w ho shall be c o nvicted of breaking and entering, in the day or nig h t , a n y s h o p, store, booth, tent, warehouse, or other building or private room or of

f ice therein, w ater vessel, c om m ercial or pleasure craf t , ship, steam boat, f latboat, railroad car, autom obile, truck or trailer in which any goods, m e r c h a ndise, equipm ent or valuable thing shall be kept f or use, s ale,

6deposit, o r transportation, with intent to steal therein, or to com m it any f elony , or w ho shall be convicted of breaking and e ntering in the day or night tim e, any building within the curtilage of a dwelling house, not joined t o , im m e diately connected with or f orm ing a par t t h e reof

, shall be guilty of burglary , and im

prisoned in the penitentiary not m ore than seven (7) y ears. “The crim e of burglary has two essential elem ents, the unlawf u l breaking and entering and the intent to com m it s om e crim e once entry h as been g ained.” Murphy v. State , 566 So. 2d. 1201, 1204 (Miss. 1990) (citing Ashley v. State , 538 So. 2d 1181, 1183 (Miss. 1989)). ¶11. The essential elem ent of b reaking and entering is m issing f rom the r ecord in this case.
W h ile the evidence dem o nstrated the padlock on the f ront door of the shed had been broken, there is no evidence that Hughes e ver opened the d oor and entered the shed. Stacee testif ied that she saw Hughes with bolt cutters attem pting t o get inside the shed, but she d rove away bef ore she could w itness h im go inside. Steven also testif ied that there were no item s m issing f rom i nside the s hed. M oreover, both Steven and Stacee testif ied that the property s tolen was taken f rom the house. Lastly , Captain Anderson’s testim ony b a s e d upon Hughes’s oral

statem ent did not suggest that Hughes went inside the shed. There is no evidence that Hughes entered the shed. ¶12. C o nsidering the evidence in the light m ost f avorable to the State, we are unable t o identif y evidence of Hughes entering the shed. “Courts cannot p erm it a c onviction to stand based m erely upon suspicion

. ” Shepherd v. State , 403 So. 2d 1287, 1288 (Miss. 1981). Theref ore, we f i n d that no rational juror could have f ound Hughes guilty of the crim e of burglary of the shed. It was e rror f or the trial c ourt to deny Hughes’s m otion f or a j udgm ent notwithstanding the verdict on this charge. Accordingly , we reverse a nd render the burglary

7of

-a-shed conviction a nd sentence. See Hill v. State , 9 29 So. 2d 338, 341 (¶9) (Miss. Ct. App. 2005).
II. Hughes’s Sentencing as a Habitual Offender ¶13. Af ter voir dire but b e f

o r e o p e n i n g statem ents, the State brought f orth a m otion to

am end the indictm ent to e nhance Hughes’s status t o that o f a h a b i tual of f ender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), which stated: Every person convicted in this state of a f elony who s hall h ave b een c onvicted t w i c e p reviously of any f elony or f

ederal crim e upon charges separatel y brought and arising out of separate incidents at dif f erent tim es a nd who shall have been sentenced to separate t erm s of on e ( 1 ) y e a r or m ore in any state and/or f ederal penal institution, whether in this s tate or el s e w h e r e , shall be sentenced to the m axim

um term of

im prisonm ent prescribed f

or such f elony , and such sentence shall not be reduced o r suspended nor shall s u ch person be eligible f or parole or probation.
“In order to sentence a def endant a s a habitual of

f ender, the accused m ust be properly indicted as a habitual offender , the prosecution m ust ‘ prove the prior of

f enses by com

petent

e v idence,’ and the def

endant m ust ‘be given a reasonable opportunity to challenge t h e prosecutor’s proof

.’” H ull v. State , 174 S o. 3d 887, 900-01 ( ¶ 43) (Miss. Ct. App. 2015) (em phasis added) (quoting Grayer v. State , 120 So. 3d 964, 969 (¶18) (Miss. 2013)). ¶14. Prior to July 1 , 2017, Unif orm Rule of Circuit and County Court P ractice 7 .09 did “not speak to the tim ing of the am endm ent” and only required that the def e n dant be “af

f orded a f air opportunity

to present a def

ense” and “not [ be] unf

airly surprised.” Newberry v. State , 85 So. 3d 884, 889 (¶10) (Miss. Ct. App. 2011). In Newberry , the trial c ou r t r u l e d on the
State’s m o tion to am end the indictm ent af ter Newberry ’s trial and conviction. Id

. at 886-88 (¶¶4-5). T his Court held t h a t t h e am endm e nt did not result in unf air surprise w here the

8m otion was f iled s ix day s prior to trial. Id

. a t 889 (¶11). The f acts in Newberry dem onstrated that the def

endant received a dequate notice w here his trial c ounsel and the c o urt inf orm ed Newberry of the State’s intention to am end the indictm ent to sentence him a s a h a bitual of f ender, and, if convicted, the trial court’s only option was to sentence Newberry to lif e in prison without eligibility f o r parole. See id

. Contrast Newberry with Gowdy v. State , 56 So. 3d 540, 544-45 ( ¶¶15, 16) (Miss. 2010). In Gowdy , the Mississippi Suprem e Court vacated Gowdy ’s sentence u nder Mississippi Code Annotated section 99-19-83 (Rev. 2007). Id . at 546 (¶22). In that case the State inf orm ed the court of its intention to am end the indictm ent af ter Gowdy ’s trial and conviction. Id

. at 544-45 (¶15). The State was not aware of Gowdy ’s
p r ior convictions i n Iowa. Id

. at 544 (¶15). The State waited until Gowdy ’s sente n c i n g h e a r i n g two m onths later t o f ile the m o tion to am end. Id. Our Suprem e Court hel d t h a t t o

am end the indictm ent under these circums t ances subjected Gowdy to unf air surprise and deprived h im o f due p rocess of law and f air notice. Id

. at 5 45-46 (¶¶16, 19-21). The court
went on to opine that “[ t]here is no ince n t i v e f o r the State t o be diligent in obtaining a prospective indictee’s crim inal record in a dvance of presenting a new charge to a grand jury and tim ely com

ply ing

. . . if it m ay sim ply am e nd the indictm ent at any tim e bef o r e sentencing.” Id . at 546 (¶20). ¶15. However, on July 1, 2017, the Mississippi Rule s o f C r im inal Procedure went into ef f ect a n d c h a n ged the procedure under which the State m ay am end the indictm ent to enhance the def

endant’s status to that of a habitual o f f ender. Mississippi Rule of Crim inal Procedure 14.1(b) states:

9W h en a n indictee m ay be eligible f or enhanced punishm ent because of one (1) or m ore prior convictions, the State shall either : (1) specif y such prior conviction(s) in the indictm e n t, identif y ing each such prior conviction by [ t]he nam e of the c r im e, the nam e of the court in which each s uch conviction occurred and the cause num ber(s), the d ate(s) of conviction, and, if relevant, the length o f tim e the accused was i ncarcerated f or each such conviction; or (2) after indictm ent, and at least thirty (30) days before t rial or e ntry of a plea of guilty , file w i t h t he court form al notice o f such prior c o n v i ction(s)

. The notice shall be served upon the defendant o r t h e defendant’s attorney a nd shall contain the sam e inf orm ation s pecif

ied in subsection (1) of this rule. An untim e ly-filed form al notice is perm i tted only when the thirty (30) day requirem ent is expressly waived, in writing, by the defendant

. C leri c a l m i stakes in such f orm al notice m ay , with leave o f the court, be am ended prior to the pronouncem e nt of sentence. (Em phasis added). ¶16. The State sought to f i le the am ended indictm e nt o n J une 13, 2018, the day o f trial. The
State inf orm ed the trial court that on January 3 1, 2 018, the def ense was told, as part of plea negotiations, that it i n t e nded to am end Hughes’s indictm ent to charge him as a habitual

o f f ender. Def

ense c ounsel did not dispute the State’s assertion that it intended t o am end Hughes’s indictm ent. The parties agree that def ense counsel went back and spoke to Hughes again, but no p lea deal w as reached. On January 31, 2018, the State h ad presented the judge with a m otion to am end, and the judge signed a nd dated the order am ending the indictm ent. Neither the m otion nor the o rder w as f il e d with the c ourt. In f

act, the p rosecutor adm itted that he still had the unf

iled m oti o n and the order i n his possession on the day of trial. Although def

ense counsel did not dispute the above f acts, he objected to the untim ely f iling of the State’s m otion to a m e nd t h e i n d i c t ment. The trial court overruled the objection and

1 0allowed the am e ndm ent to be f i led. ¶17. “W hether the trial court erred by allowing the indictm ent to be am e nded o n the day of trial is an issue of law that i s reviewed de novo.” Ferguson v. State , 136 So. 3 d 421, 423 (¶8) (Miss. 2014). ¶18. Under the old rule and precedent, the ruling al l o w i n g t h e a m e n d me n t w o u l d be af f irm ed. However, the new procedural rule g uarantees f airness a nd alleviates the arbitrary exercise of the State’s power. The Mississippi Constitution requires procedural saf eguards

w h e n o n e ’ s liberty interest is subject to be lost. 3 The substantive right protected by Rule 14.1(a)-(b) is the notice t o a def endant of the liberty he stands to lose. “Notice of the charge includes notice of the a

pplicable m in i mu m a n d m a xim u m penalties.” Gowdy , 5 6 So. 3 d at 546 (¶21). Rule 14.1(b)(2) is clear and leaves no discretion with the State or am biguity f or the def endant. The rule e xpressly states that when the def endant is e l igible and the State intends t o h a v e the indictee s entenced as a habitual of f ender, the State “ s hall

. . . af ter indictm ent, and at least thirty days before trial

. . . file with the court formal notice of such prior convictio n ( s )

. ” 4 MRCrP 14.1(b)(2) (em phasis added). The rule goes on to say that

3 The Order adopting the Mississippi Rules of Crim inal Procedure begins w ith “The Mississippi Constitution m andates ce r t a i n procedural requirem ents i n the crim inal law of this State. And the Mississippi L egislature and t h i s Court, acting on the respective authority vested in them by the Mississippi Constitution

. . . [ i]n order to prom ote j ustice, u nif orm ity , and ef f iciency in our courts . . .” MRCrP Adopting Order.

4 Hughes a lso points to Mississippi Rule of Crim inal P r o c edure 1.7(c)(1), which provides that “the f

iling of pleadings and other papers with the court as r e q u i r e d b y t hese Rules shall be m ade by filing them with the clerk of t he court , except t h a t the judge m ay perm it the papers to be f

iled with the judge, in which event the judge shall note thereon the f iling date and f

orthwith transm it them

to the of f i ce of the clerk.” (Em

phasis added). 1 1“[ a]n untim ely -f iled f orm al notice is p ermitted only when . . . expressly waived, in writing, by the defendant .” Id. (em phasis added). The r

ule leaves little f

or interpretation, and it is not ref lected in the record that its directives were f ollowed. ¶19. The State d id n ot initially indict Hughes as a habitual of f ender, and the State did not f i l e i t s mo t ion or f

o rm al notice of enhanced s entencing with the circuit court clerk at least thirty day s bef

ore trial post-indictm ent. Moreover, the prosecutor had no explanation f or the

reason he did not f

ile the m o tion or the order by the end of the c o urt’s term o r f or another f i ve m o nths. P lus, the d ef endant did not expressly waive the thirty -day requirem ent i n writing. Verbal notice by the prosecutor a nd a verbal acknowledgm ent by def ense counsel does n ot m eet the requirem ent of R ule 14.1(b). T he S tate inf

orm ed Hughes’s attorney of its intention to am end the indictm ent, which m ay have created a n expectation on H u ghes’s part that he w ould be indicted as a habitual of f ender. Likewise, once the th i r t y - d a y deadline passed, t h e m andates of the rule created the e x pectation that he would not be indicted as a habitual o f

f ender. The f

acts of this case are not unique but present an old quandary that the rule is design to r esolve. Hughes was not sentenced according to new ru l e s o f c r i m inal procedure, and theref

ore his sentence m

ust be vacated and rem anded f or a new s entence in accordance with Mississippi Code Annotated section 97-17-23(1).
CONCLUSION ¶20. Every prosecution and sentence m ust be in com

pliance w ith s tatutory authority , case precedent, and the procedural rules of court. T he evidence is insuf f icient t o s u p port a conviction f

or b urglary of a shed, a nd we m ust reverse and render on Count II of the

1 2indictm ent. Because the State f ailed to tim ely am end the indictm ent t o r e f l e c t Hughes’s habitual status, we a re com pe l l e d t o v acate the sentence and rem and this c ase f or resentencing on Count I. ¶21. AFFIRMED IN PART, VAC A T E D I N P A R T AND REMANDED FOR RESENTENCING ON COUNT I; REVERSED AND RENDERED ON COUNT II. BARNES, C.J., GREENLEE AND McDONALD, JJ., CONCUR. C. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINIO N . J . W I L S O N , P . J . , C O N C U R S I N R E SULT ONLY WITHOUT SEPARATE WRITTEN OPINION. McCARTY, J., CONCURS IN PART AN D D ISSENTS IN PART WITHOUT SEPARATE WRITTEN O PINION. L A W RENCE, J., CONCURS IN PART AND DISSENTS IN P A R T W ITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, P.J., TINDELL, AND McCARTY, JJ. LAWRENCE, J., CONCURRING IN PART AND DISSENTING IN PART: ¶22. I agree w ith the m a jority that the evidence used t o convict Hughes under Count II was insuf f icient. I disagree that Hughes’s classif i cation as a habitual of

f ender should be vacated. Hughes a n d his attorney were both aware of the m otion to a m end on January 31,
2018—m o nths bef

ore trial began on June 13, 2 018. The order allowing the i ndictm ent to be

am ended w as actually s igned b y Judge Collins on January 31, 2018. The m otion and order

were n ot f

iled as a res u l t o f p l e a n egotiations and a t the r equest of def ense counsel. Theref ore, I would hold that the trial court di d n o t err by granting the State’s m otion to

am end the indictm ent and a llowing the signed o rder to be f iled the day bef

ore trial. For this reason, I respectf

ully dissent f rom part II of the m ajority ’s opinion. ¶23. On J anuary 31, 2018, the State intended t o f i l e a mo t i o n t o a me n d Hughes’s indictm ent to include a sentencing enhancem ent a s a habitual of f ender. On that sam e day , the State had J udge Collins sign an order granting the m otion to a m end. The def ense knew

1 3of the m otion and the signed order on that date. During that tim e, the State was in plea

negotiations with the def

ense. D ef

ense counsel requested that the State not f ile the m otion

to am end or the s igned order on that day so that he c ould speak with his client, Hughes, about accepting a plea d eal. The State agreed to the request of def ense co u n s e l

. Theref

ore, the

m otion to am end and the signed order were not f i led on January

31. The m otion to am end and the signed order to am end the indictm ent, which was signed by J u dge Collins on January 31, 2018, were both stam

ped “ f i led” on June 12, 2018. Both the m o tion and the o rder were entered onto the d ocket on June 13, 2 0 1 8

. The case was s et f or trial to begin on June 13, 2018. Af ter the jury w a s selected on June 1 3, 2 018, but bef ore witnesses were called, the
S t a t e addressed the m otion to am end the indictm ent o n the record. The d istrict attorne y explained to the trial judge why the m otion and order, although the m o tion was d elivered to the def ense on January 31, 2018 and the proposed order was signed on January 31, 2018, had not been f

iled earlier. The f

ollowing exchange occurred:
MR. KILGORE: [ Du r i n g p l e a n e g o t i a t i o n s ] w e h ad not reached a plea

agreem ent, and s o I got t h e Court, m ore s pecif ically , Judge Collins, to s i gn [ the order sustaining the m otion to am end the indictm ent] o n Ja nuary 31, 2018. As I was about to f ile it , [ d ef

ense counsel] said, “ Hang on just a secon d. Let m e talk to [ Hughes] o ne m ore tim e.” A nd I said no problem

. And he w e n t b ack a nd spoke to his client, who still didn’t want to take a plea bargain. . . .
MR. SUMRALL: Your Honor, w hich w e w ould say that t h e f a c t s that he stated are b a s i c a lly true. That’s ex actly w hat happened. W e were in negotiations and I asked him to hold on so I could talk to [ H u g h e s ] one tim e . And he, once again, ref

used the of

f e r . I’m not going to d ispute the f acts at all. . . .

1 4THE COURT: J a n u a r y 3 1 s t y o u w e r e aw are of t he p r o s e c u t o r ’ s intention – MR. SUMRALL: Yeah , and so was –
THE COURT: — and c e r t a i n l y a w a r e t hat y o ur client had these prior

convictions?
MR. SUMRALL: Yes, sir. (Em phasis added). A f

ter the def

ense adm itted i t k n e w o f t he p roposed am e ndm ent on January 31 and that i t h a d not been f iled at their request, the trial judge “allow[ ed]” the

am endm ent, and the parties im m e diately proceeded to trial. ¶24. Rule 14.1(b)(2) of the Mississippi Rules of Crim inal P rocedure states that sentencing enhancem ents m ay

be appropriate when [ the State,] af

ter indictm ent, and at least t hirty (30) day s before trial or e ntry of a plea o f guil t y , f

ile w ith the c ourt form al n otice of such prior conviction( s )

. T h e n otice shall be served upon the def endant or the def endant’s attorney and shall contain the sam e inf orm ation a s s p e cif

ied in subsection (1) of this rule. An untim ely -f iled f orm al notice is perm itted only when the thirty ( 30) d ay re quirem ent i s e xpressly w a i ved, in writing, by the def endant. C lerical m istakes in such f orm a l notice m a y , wi t h l e a v e of the court, be am ended prior to the pronouncem e nt of sentence. (Em phasis added). As discussed above, the State’s m otion to am end a n d t h e s i g n e d order granting the sam e were o riginally dated January 3 1, 2018. Because p lea negotiations were ongoing, the def

ense r equested that the State not f ile the m otion to am end or the signed order granting t h e mo tion. The def ense adm itted to the trial judge that they were a ware of the
State’s m o tion to am end and the order on January 31, 2018. The def e nse n ow claim s unf

air surprise and a t echnical violation of Rule 14.1. The m ajority is c orrect that R ule 14.1 is clear in requiring a thirty -day , bef o r e-trial f iling of a f

orm al notice o f the def

e ndant’ s prior

1 5convictions. To hold otherwise w ould put f o rm over substance, by contradicting the notions of f undam ental f

airness that the laws of this S tate and the Mississippi Rules of Crim inal Procedure are b uilt upon. The Rule protects a d ef endan t ’ s rights t o present an adequate def ense and not be unf

airly surprised by an unt i me l y am endm e nt to his indictm ent. Here, however, it was clear that the def endant w as not u nf

airly surprised. The def

e n s e adm itted it k new a bout the m otion to am end. The def ense adm itted it knew that the order allowing the

am endm ent had been signed. T he def ense adm itted that the order was not f iled by the State because the def

e nse asked the S tate n o t t o f ile it until plea negotiations were exhausted. Under the unique f

acts of this case, a strict interpretation of this rule would reward Hughes.
Y e t i t w a s Hughes w ho specif ically a sked f

or the delay in the f

iling of the req u i r e d docum ents. It is hard to im agine how a def endant c an be surprised by his own crim inal record, o r how his sentence a s a h a b i t u a l o f f ender should be set aside, when h e was the

reason the S tate d id not f i le the necessary d ocum ents under Rule 14.1. T he underly ing
purpose of R

ule 1 4.1 i s to provide notice t o the def endant. I t is without doubt that the def endant in this case had notice of the sentencing enhancem ent six m onths bef ore trial. ¶25. The m ajority opinion cites Gowdy v. State , 56 So. 3d 5 40 (Miss. 2010), and Newberry

v. State , 85 So. 3d 884 (Miss. Ct. App. 2011), to support its f inding that Hughes’s habitualof f ender sentence s hould be v a cated. The f ac ts of Gowdy and Newberry are drastically dif f erent f rom the f a cts surrounding the instant c ase. The suprem e court in Gowdy held that the S tate was unable t o am end the indictm ent af ter the def endant was convicted. Gowdy , 56 So. 3d at 545 (¶19). A s the Mississippi Suprem e Court noted, “ i t logically f ollows that if the

1 6State m ay not a m e nd the indictm ent to charge the ‘big’ enhancem ent af ter conviction when the original indictm ent charged only the ‘ little’ enhancem ent, then the State m a y n ot am end the indictm ent to add an enhanced penalty after c onviction.” Id

. (second e m phasis added). In his separate opinion, Justice Pierce noted that “it is well-established that ‘prior of f enses used to charge the def

endant as a habitual of

f e nder are n ot substanti v e e l e me nts of the of f enses c h a r g e d .’” Id

. at 548 (¶32) (Pierce, J., concurring in part and dissenting in part) (quoting Adams v. State , 772 So. 2d 1010, 1 021 (¶52) (Miss. 2000); Swington v. State , 742 So. 2d 1106, 1118 (¶44) (Miss. 1999)). T he f a ct that Hughes m et the standards f or a habitual

o f f ender did n ot change the e lem ents set f orth in the indictm e n t he had to def e n d a t t r i a l

. Again, this does not am ount to unf air surprise, and am ending the indictm e n t to include the sentencing enhancem ent did not restrict Hughes’s ability to present his def ense to the jury

. ¶26. In Newberry , this Court f ound that the def

endant “had suf

f i cient pretrial notice of

the habitual-of

f ender charge” that “allow[ ed] him tim e to prepare a d ef ense against the habitualof f ender charge

. . . .” Newberry , 85 So. 3d at 891 (¶17). There the State f iled a m otion to

am end the indictm ent six day s bef ore trial. Id

. at 886 ( ¶4). This Court held that “there [ was] no unf air surprise” to the def

endant. Id . at 889 (¶11). ¶27. More in line with the f acts of this case is this Court’s decision in Jackson v. State , 943 So. 2d 746, 749-50 (¶¶13-16) ( Miss. Ct. App. 2006). Jackson was originally indicted in February 2004. Id

. at 748 (¶5). The day bef ore his tri a l i n O c t o ber 2004, the S tate f iled a

mo t i on t o am end the indictm e nt. Id

. Even though Jackson’s a ttorney claim ed the mo t i o n

was untim ely , the trial court f o und that because the State had m ade the def ense aware of the

1 7m otion i n June 2004, the am endm ent was proper. Id

. at 748-49 (¶¶6-7). On appeal, we held

that it was not error f

or the trial court to p e r m it the am endm ent to Jackson’s indictm ent because “Jackson’s counsel adm itted that he was awa r e that the district attorney was considering am ending the indictm ent to nam e Jackson as a habitual of f ender in June 2004.” Id . at 750 (¶16). 5 ¶28. In this ca s e , w e f

ace the sam e scenario as i n J ackson

. In a n ef

f o rt to accom m odate Hughes’s request and to continue ongoing plea negations, the State held o f f o n f i l i n g t he order a m ending the indictm ent that Judge Collins signed on January 3 1, 2018. T he def ense

was a ware of the m otion a nd the signed o rder granting the m otion, as well as the i ntent of the
State o n January 31, 2018—alm ost six m onths bef ore trial. Hughes c annot now claim surprise on a

ppeal when h e was well aware of the S tate’s intentions m onths bef ore trial. As the record clearly shows, the m otion or order was not f i led on J anuary 31, 2018, at the behest of the def endant. I would hold that the trial judge did not abuse his discretion u nder these unique f acts and af

f irm Hughes’s sentence as a habitual of f e nder. Theref

o re, I respectf

ully dissent f rom part II of the m ajority ’s opinion. CARLTON, P.J., TINDELL AND McCARTY, JJ., JOIN THIS OPINION.

5 Notably , a t the tim e Jackson was indicted, the c ourt was s till bound by the Unif orm Rules of C ircuit and County C ourt Practice in s tead of the Mississippi Rules o f Crim inal Procedure. The f

orm er rules de c l a r e d t hat an am endm e nt w as allowable “only if the def endant is af

f orded a f air opportunity

to present a def

ense and is not unf

airly surprised.” URCCC 7.09. The sam e f undam ental principles of f airness and n otice apply u nder Rule 14.1 of the Mississippi Rules of

Crim inal Procedure.

1 8