IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-KA-00422-COA JAIRUS COLLINS A/K/A JAIRUS J. COLLINS A/K/A JAIRUS JIDON COLLINS A/K/A JARIUS COLLINS A/K/A JARIUS J. COLLINS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/25/2016 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MICHAEL ADELMAN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF A W E APON BY A CONVICTED FELON AND SENTENCED AS A HABITUAL OFFENDER TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITHOUT ELIGIBILITY FOR PAROLE OR ANY FORM OF EARLY RELEASE DISPOSITION: AFFIRMED - 05/23/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE, WILSON AND GREENLEE, JJ. WILSON, J., FOR THE COURT: ¶1. A jury i n the Forrest C ounty Circuit Court convicted Jairus C ollins of possession of

a weapon by a convicted f elon, and the court sentenced him , as a habitual of f e n der , t o lif

e in the custody of t he Mississippi Departm e n t o f Corrections ( MDOC) without t he possibilityof

parole. Jairus 1 subsequently f i led a m otion f

or a judgem ent notwithstanding the verdict (JNOV) o r a new trial, which the trial court denied, a nd a tim e ly notice of appeal. On appeal, Jairus argues that (1) the charge should have been dism issed with prejudice b e c a u se his statutory and constitutional rights to a speedy trial were v iolated, (2) the v erdict was against the overwhelm ing weight of the evidence, and (3) his sentence as a habitual of f e nder violates the Mississippi Constitution. W e f ind no error a nd af

f irm Jairus’s c onviction and sentence. FACTS AND PROCEDURAL HISTORY ¶2. On Novem

ber 14, 20 1 2 , t h e g r a n d jury indicted Jairus f or m urder ( Count I) and possession of a weapon by a convicted f elon ( Count II). The indictm e nt a lleged that between
Decem ber 7 and 9, 2011, J airus (I) m urdered Ebony Jenkins w ith deliberate design and (II) possessed a .40 caliber h andgun. Jairus was indicted as a habitual of f ender under Mississippi Code Annotated section 99-19-83 (Rev. 2015). ¶3. On Novem

b e r 19, 2012, Jairus pled not guilty and f i led a m otion r equesting that Count
I a n d C o u n t II b e severed a nd tried separately

. The State did not object to severing the charges f or trial, and on D ecem

ber 17, 2012, the c ircuit court e ntered an order granting Jairus’s m otion to sever. ¶4. Collins was convicted of m urder f ollowing a jury trial in March 2013, and his m otion f or JNOV or a new trial was denied on April 1 5, 2 013. However, the Mississippi Suprem e Court reversed Jairus’s m urder conviction on the grounds that the trial c ourt erred by f ailing

to suppress J airus’s statem ent to police af ter he invoked his right to counsel, and by allowing

1 T h e d ef en d an t’s f

ath er an d b ro th er testif

ied at trial, so w e ref

e r to h im as Jairu s to av o id co n f

u sio n . 2a p o lice of

f icer to t estif

y a s a lay witness regarding the locations of Jairus’s and Jenkins’s cell phones. C

ollins v. State , 17 2 S o . 3d 724, 744 (¶30) (Miss. 2015). T he Suprem e Court reversed and rem anded the case f o r f urther proceedings consistent with its opinion. Id

. The Suprem e Court’s m andate issued on Septem ber 10, 2015. ¶5. On Septem

ber 16, 2015, the State f

iled a m otion i n the circuit court t o set the case f or trial a s to Count II of t he indictm ent only

. The circuit c ourt set C ount II f or trial on February 23, 2016. ¶6. On October 15, 2015, Jairus m oved to d ism iss Count II on the ground that t ry ing him

m ore than three y e ars af

ter he was indi c t e d and pled not guilty would violate his right to a speedy trial u nder Mississippi C ode Annotat e d s e ction 99-17-1 ( Rev. 2 015) and the Constitution. The court held a hea r i n g o n Jairus’s m o tion on Novem ber 9, 2015. At the hearing, def

ense counsel acknowledged that Jairus r equested that the charges against him be severed and tried separately , which resulted in som e delay , and t hat Jairus never a sserted his right t o a speedy trial at any point prior to his m otion to dism iss. Counsel f urther conceded that the State was not responsible f or any delay through t he sentencing and post-conviction

m otions i n Jairus’s m

urder trial. At the conclusion of the hearing, the circuit court noted that
J a i r u s was not entitled to dism issal based on the length of the delay alone, and the cour t denied the m otion to d ism iss Count II. The case then proceeded to t rial on February 23-24,
2016. ¶7. Jessie Miles testif

ied at trial that he purchas e d a . 40 caliber Hi-Point handgun f rom

a pawn s hop in Colum

bia, M i s s i ssippi. Records f rom the p awn shop were i ntroduced

3showing that i n February 2010 Miles purchased a Hi-Point handgun with t he serial num ber
X77860. Miles later had “a problem with [ the] gun jam m ing.” S om e tim e s it would f ire, but

som etim es it would jam

. M iles told Jairus’s brother, Joshia C ollins, a bout h is problem with the gun. Joshia told Miles that Jairus could f ix it, so Miles spoke to Jairus. Jairus c onf irm ed that he could f

ix the gun, so in Novem

ber 2011, Miles “gave [ J airus] the g un so he could f ix it.” Jairus never returned the gun. ¶8. Miles identif

ied a gun i ntroduced into evidence at trial as the gun he gave to Jairus in
Novem ber 2011. However, he testif ied that it had been a ltered in two respects: black tape had b een wrapped a round the handle, and the s e r ial num ber had been s cratched of f

. J ef f By rd, a c rim e scene investigator wi t h t h e Hattiesburg Police Departm ent, testif i ed that he was able to reveal the gun’s serial num ber by apply ing a solvent and sandpaper to it. The serial

num ber m atched the num

ber on the gun sold to Miles (X77860). ¶9. Jairus’s and Joshia’s f a ther, Melven Collins, testif ied that between Decem

ber 7 and 9, 201l, J airus and Joshia arrived at his hom e in Hattiesburg. Melven testif ied that he noticed a “bag” in his sons’ vehicle that “alarm ed” him

. Melven picked up the bag and put it back down, and “it had weight to it.” Melven did not open t he bag, but an “alarm went of f ” in his mi n d , a n d he told his s ons that “whatever i t i s, y ou need to get it away f r om this house. ” Melven previously testif

i ed that he thought that the o bject in the bag was a gun, but when conf ronted with his prior testim ony , he denied that he ever f o rm ed such an opinion. ¶10. Joshia adm itted that he knew Miles, but he insisted that h e never talked t o Miles about Jairus repairing a gun and that he had never seen Miles’s gun. Joshia adm itted that Melven

4told him and Jairus to “get o u t of his y ard” because M elven was “uncom f ortable” about

som ething, b ut Joshia claim ed that he did not know why Melven asked them to leave. Joshia f u rther testif

ied that he and Jairus lef

t his f ather’s house, that he drove Jairus u p I n t e r s t a t e 59 (I-59), that he stopped on the s ide of the highway , and that Jairus g ot out of the vehicle. However, Joshia t estif

ied at trial that he never s aw a g u n o r a b a g and that he had no idea why Jairus got out of the vehicle. J oshia previously g ave a sworn s tatem ent that he knew that Jairus had a gun in the bag, that he drove Jairus to m ile m arker 118 o n I-59 to dispose of the
g un, and that Jairus then exited the vehicle and disposed of the gun. H o w e v e r , w h e n conf ronted with his prior statem e nt, Joshia denied that h e c ould recall a specif ic m ile m arker

or t hat he ever saw the gun or bag. Joshia did adm it that h e l ed law enf orcem ent t o the area along I-59 where they

f ound the gun. ¶11. Lieutenant Brandon McLem ore of the Hattiesburg Police Departm e n t testif ied that in
Decem ber 2011, h e and one o r mo r e o t h e r of f icers drove with Joshia north o n I-59 to the Vossburg exit, where Jairus told them that they could f i nd t he gun in the w ood line nearby

. M c L e mo r e testif

ied t hat they told Joshia that they were looking f or a gun and tha t J o s h i a directed them to the locatio n of the gun. In the wood line, the of f icers f o und a plastic bag with a gun inside. The gun had black electrical t ape around the handle, a nd no f ingerprints

were r ecovered. McLem ore testif ied that the tape was likely placed on the gun to prevent the collection of

f i ngerprints. ¶12. Lori Beall, a f

orensic scientist with the Mississippi Crim e Laboratory , testif ied as a f irearm s expert. Beall testif i ed that she test-f

ired the gun f

our tim es, that i t did not jam , and

5that it was operational.

¶13. The jury f

ound Jairus guilty of possess i o n o f a w e a p o n by a convicted f elon. At sentencing, the State presented proof that Jairus had b e e n c o n v i c t ed previously of arm ed robbery t wice, burglary o f a d w e lling, and l ewd and lascivious b attery (in Florida). The circuit court f

ound t hat Jairus’s prior convictions satisf ied the requirem ents of section 99-19-
83 and im

posed a m andatory sentence o f l i f e without e l igibility f

or parole. Jairus f

iled a

m otion f or JNOV or a new trial, which was denied, and a tim ely notice of appeal. ¶14. Though n ot r elevant to the issues raised in this appeal, we n o t e t h a t i n May 2016, Jairus was retried, convicted, and s e n t e n c e d to lif e without parole o n Count I of the indictm ent. His appeal f

rom that conviction and sentence has been assigned to this C ourt and docketed as Collins v. State , 2016-KA-01002-COA.
DISCUSSION ¶15. On appeal, Jairus argues that (1) his statutory a n d constitutional rights to a speedy trial

were violated; (2) the jury ’s verdict is against t he overwhelm ing weight of the evidence; and (3) his sentence of

lif e without parole is unconstitutional.
I. Speedy Trial A. Statutory Right ¶16. Jairus f

irst alleges a violation of his statutory right to a speedy t rial. Section 99-17-1 provides that “[ u]nless good cause be shown, and a continuance duly g ranted by the court, all of f enses f or which indictm e nts are presented to the court shall be t ried no later than two hundred seventy ( 270) day s af ter the accused has been arraigned.” However, this Court has

6repeatedly “held that if a def endant f ails t o r aise the statutory right to a speedy trial within
270 day s o f his arraignm e nt, he acquiesces to the delay .” W hitaker v. State , 114 S o. 3d 725,
730 ( ¶18) (Miss. Ct. App. 2012) (quoting Roach v. State , 938 So. 2d 863, 867 (¶9) (Miss. Ct. App. 2006)); accord, e.g. , Mims v. State , 856 So. 2d 518, 522 (¶11) (Miss. Ct. App. 2003); Malone v. State , 829 So. 2d 1 2 53, 1257 (¶11) (Miss. C t. App. 2002) (citing W alton v. State , 678 S o. 2d 645, 649-50 (Miss. 1996)). The Suprem e Court has also held that “a def endant

m ay ef f ectively waive his right t o com plain of not b eing tried within the 2 70-day p eriod set
out in [ section] 9 9-17-1, when the def endant does not request or assert his right to a speedy trial or object to a delay , especially w h e n t h e d ef endant f ails to s how a ny prejudice in the f ailure to be tried w ithin t he statutory 270-day period.” Guice v. State , 952 So. 2d 129, 142 (¶28) (Miss. 2007) (citing W alton , 678 So. 2d at 650). ¶17. Jairus was arraigned in Novem ber 2012 and w as not tried until February 2016, which obviously was m

uch m ore than 270 day s later. However, Jairus f ailed to assert h is statutory right to a s peedy trial until O c t o b e r 2015, approxim ately three y ears af ter his arraignm ent, and his t rial com m enced only f o ur m onths af

ter he raised the issue. Under the precedent of this C ourt an d t h e Suprem e Court, Jairus’s delay in raising the issue waived h is statutory right to be tried within 270 day s of arraignm ent. 2
B. Constitutional Right ¶18. “In all crim inal p rosecutions, the accused shall enjoy the right to a speedy and public

2 J a i r u s ’s r ep ly b rief o n t h is issu e co n clu d es: “A s A p p ellan t arg u ed in h is o p en in g [ b ] rief , J u stice D ick in so n g o t i t rig h t w ith h is d issen t i n M c B r i d e v. S ta te , 6 1 S o . 3 d 1 3 8 (M iss. 2 0 1 1 ).” T h is is an arg u m en t b etter d irected to th e S u p rem e C o u rt. 7trial

. . . .” U.S. C onst. am end. VI; accord Miss. Const. art. 3, § 26. “In determ ining whether

a def endant’s [ constitutional] right to a speedy trial has been violated, courts m ust analy ze f our f actors: 1) the length of

delay , 2) the reason f

o r the delay , 3) the def

endant’s assertion of his right to speedy trial, and 4) prejudice to the def endant.” H

urst v. S tate , 1 95 So. 3d 736,
741 (¶11) (Miss. 2 016) ( citing Barker v
. Wi ngo , 407 U.S. 514, 515 (1972)). “[ E]ach case should be considered on an ‘ad hoc basis’ and

. . . no one f actor is outcom e determ inative.” Rowsey v. State , 188 So. 3d 486, 493 ( ¶17) (Miss. 2015) ( quoting Barker , 407 U.S. at 530). The United States “Suprem e Court h a s h e l d t h a t courts m ust ‘engage in a dif

f icult and sensitive balancing process’ o f t he f o ur f a ctors because n o n e o f t h e f actors i s ‘either a
necessary or suf f icient condition to the f

inding of a deprivation of the right of speedy trial. Rather, they are related f actors and m

ust be considered t ogether with such other circum stances as m a y be relevant.’” Reed v. State , 191 So. 3d 134, 139 (¶8) ( Miss. Ct. App. 2016) (quoting Barker , 407 U.S. at 533).

1. Length of Delay ¶19. “The constitutional right to a speedy trial attaches ‘at the tim e of a f orm al indictm ent

or inf o rm ation or else the actual res t r a i n t s im posed by arrest a nd holding t o a crim inal charge.”’ Rowsey , 188 So. 3d at 495 (¶24). The Mississippi Suprem e Court has previously held that a delay of eight m onths or m ore is presum ptively prejudicial. Id. Because the delay in this case was m ore than eight m onths, this f actor weights against the State.
2. Reasons for the Delay ¶20. “Once the delay

is deem ed presum

ptively prejudicial, the burden s hif ts to the State

8to produce evidence j ustif y ing the delay and to persuade the trier of f act of the legitim acy of these r easons.” R eed , 191 So. 3d at 139 (¶11). This C ourt m u st then determ ine whether the delay is attributable to the State or the def endant. M

cCormick v. State , 183 So. 3d 898, 903 (¶18) (Miss. Ct. App. 2015). “Deliberate attem pts t o delay the trial in order t o ham per the def ense are weighed heavily against the S tate. On the other hand, ‘a m o re neutral reason such a s n egligence or overcrowded courts should be weighted l ess heavily b ut nevertheless should be considered since the ultim ate responsibility f or such circum s tances m

ust rest with the governm ent rather than with t he def endant’” Hardy v. State , 137 So. 3d 289, 299 (¶30) (Miss. 2014) (quoting Ben v. State , 95 So. 3d 1236, 1242-43 (¶11) (Miss. 2012)). ¶21. Jairus c oncedes that the delay between his arrest and h is f irst trial and s entencing on Count I of the indictm e nt ( m urder) are not attributable to the State. However, Jairus insists that t he nearly three-y e a r d e lay between his initial sentencing o n Count I and his trial on Count II is attributable to the State. Jarius alleges that the State “sim ply assum ed” that his

m urder c onviction would b e af f irm ed—and that a ll d elay based on this assum ption should be weighed against the State. ¶22. The State a rgues that the delay was caused by Jairus’s m oti o n t o s e v e r t h e charges against him f

or a s eparate trial. Citing Baine v. State , 604 S o. 2d 258, 264 (Miss. 1992), the
State argues that delay s due to a def endant’s m otion to s ever are not chargeable to the State.
I n the trial court, the State also argued that considerations of “judicial econom y ” wei g h e d against burdening the court sy stem w i t h a t r i a l f or a def endant who had already been sentenced to lif

e without parole on a separate charge. However, Jairus’s m otion to sever did

9not preclude the State f r om try ing him o n Count II throughout the pendency o f his a ppeal on Count I

. And, i n general, the constitutional speedy t rial clock i s not tolled sim ply because the def endant i s already serving a sentence o n a separate charge. See Smith v. Hooey , 393 U.S. 3 74, 378-79 (1969). Ultim ately , “[ i]t i s the burden of the State t o see t hat a def endant receives a speedy trial” and “to show good cause f or [ a ny ] delay .” V

ickery v. State , 535 So. 2d 1371, 1377 (Miss. 1988). ¶23. As we e xplain below, under applicable precedent, Jairus ’ s s p e e d y t r i a l c laim f

ails even if we charge the State with responsibility f or the delay between Jairus’s initial sentencing on Count I and his trial on Count I I. Theref ore, f or purposes of this appeal, we will assum e that this period of delay

should be weighed against the State.
3. Assertion of the Right to a Speedy Trial ¶24. “[ T]he f

a ilure to assert the right to a speedy trial ‘ will m ake i t dif f icult f or a def endant

to prove he was denied a speedy trial.”’ F isher v. State , 532 So. 2d 992, 996 (Miss. 1988) (quoting Barker , 407 U.S. at 531-32). Furtherm ore, “a m otion t o dism iss does n ot equate
t o a n a s s e r t i o n o f the right to a speedy t rial.” Moffett v. State , 49 So. 3d 1073, 1087 (¶ 3 9 ) (Miss. 2010). ¶25. As discussed above, Jairus f irst m entioned his right t o a speedy trial a lm ost t hree y e a rs af ter his arraignm ent, at which point his trial was a l ready scheduled to be h eld in only f our

m onths. Even th e n , he sought only dism i ssal of t he indictm ent, not a speedy trial. Accordingly , this f

actor weighs against Jairus.
4. Prejudice

1 0¶26. “To determ ine whether the delay resulted i n actual prejudice the Court considers three

interests th a t t he right t o a speedy trial was m e ant to p rotect: ‘(i) to prevent o ppressive pretrial i ncarceration; (ii) to m inim ize anxiety and c oncern of the accused; and (iii) to lim it the possibility that the d ef ense will be im

paired.’” Taylor v. State , 162 So. 3 d 780, 787 (¶16) (Miss. 2 015) (quoting Jenkins v. State , 947 So. 2d 270, 277 (¶21) (Miss. 2006)). “Of these three interests, the l ast i s the m ost im portant; and when violated, t he m ost prejudicial to the def endant.” Hersick v. State , 9 04 So. 2d 116, 123 (¶18) ( Miss. 2 004). “Generally , proof of prejudice entails the l oss of evidence, death of

witnesses, or staleness of an investigation.” McCormick , 1 83 So. 3d at 9 03 (¶21) ( q u o t i ng Sharp v. State , 7 86 So. 2d 372, 381 (¶19) (Miss. 2 001)). Jairus bears the b u rden o f showing actual prejudice, “since the def endant is clearly in the best position to show prejudice under [ this] p rong.” See Johnson v. State , 68 So. 3d 1239, 1245 (¶16) (Miss. 2011). ¶27. On appeal, Jairus f ails to articulate any prejudice. He sim ply states that the lengthy del a y w a s “ obviously p rejudicial.” He f ails to identif

y any way in which his def ense was prejudiced or a n y oppression or hardship caused by the delay in trial on C ount II. The Suprem e Court has held that a d ef endant f ails to establish actual pre j u d i c e by “sim

ply repeating the f

actors to b e considered” with “ nary a scinti l l a o f e vidence to support his claim s.” Taylor , 162 So. 3 d a t 787 (¶16). Jairus likewise has f ailed to establish any prejudice whatsoever. ¶28. T o sum m a rize, the length of the delay weighs against the State. W e w ill also assum e that the reason f

or t he delay w eighs against the Stat e , as the State was not precluded f rom

1 1bringing Jairus to trial d uring the pendency of h is appeal on Count I. H owever, Jairus never dem anded a speedy trial. Ind e e d , he did not m ention the right f or alm ost three y ears, and when h e f

inally d i d r a i s e the issue, his trial was only f our m onths away . Most im portant, Jairus f ails to articulate any prejudice whatso e v er. Balancing t hese f actors, w e agree with the trial judge t hat there was no violation of Jairus’s constitutional right to a speedy trial. See Taylor , 1 62 So. 3 d at 787 (¶17) ( holding t hat, notwithstanding a lengthy and presum ptively prejudicial delay , there is no speedy trial v iola t i o n w here there is no e vidence of actual prejudice and “the o t her f a ctors are neutral or only slight l y i n [ t he def endant’s] f

avor, at best”); accord Reed , 191 So. 3d at 141 (¶21).
II. Weight of the Evidence ¶29. Jairus a rgues that the trial judge erred by deny ing his m o tion f or a n ew trial because the v erdict was against the overwhelm ing w eight of the evidence. He em phasizes that there

were no f ingerprints on t he gun and that Miles was the o nly witness w ho “place[ d] a weapon in [ h is] possession.” Jairus argues that Miles was not credible because he testif ied that his
gun jam m ed, while Beall testif ied that “[ t]o [ her] knowledge [ the gun] had not been altered or repaired at all.” ¶30. “W hen reviewing a denial of a m otion f or a new tria l b a s e d o n a n objection to the weight of the evidence, w e w i l l only disturb a verdict when it is s o c ontrary to the overwhelm ing w eight of the evidence that to allow it to stand w o u l d sanction an unconscionable injustice.” Bush v. State , 89 5 So. 2d 836, 8 44 (¶18) (Miss. 2005). “[ T]he evidence s hould b e w eighed in the light m ost f a vorable to the verdict, ” a n d w e will not

1 2reverse u nless “[ t]he t rial court

. . . abuse[ d] its discretion in deny ing a n ew trial.” Id. at 844-

45 (¶¶18-19). ¶31. The trial j udge did not abuse his discretion b y deny ing Jairus’s m o tion. M iles testif ied that h e gave Jairus the gun at issue, a nd there was am ple evidence that it was the sam e gun later retrieved by l aw enf orcem ent. Jairus suggests that Beall’s t estim ony underm ines Miles’s credibility , but Miles testif ied that even bef

ore he gave the gun to J airus, it was not totally i noperable and w ould f ire s om etim es. Moreover, Jairus was supposed to f ix the gun and claim ed that he could, and B eall testif ied only that, “to [ her] knowledge,” the gun had

not been repaired. In addition, even af ter all of M elven’s a n d J oshia’s crawf ishing f rom their prior testim ony and statem ents, their testim ony at the present t rial, w hen considered with the

t e s tim ony of other witnesses, still supported a reasonable inf erence that Jairus disposed o f the gun alongside I-59, where it was retrieved by law enf orcem e nt. ¶32. “W hen a crim inal case is t ried to a jury , the m e m bers of the jury act as the f inders of f act.” B rown v. State , 7 6 4 So. 2d 463, 467 (¶9) (Miss. Ct. App. 2000). “They are charged

to listen t o the evidence, observe the dem eanor of the witnesses, and decide the issue of the credibility of the witnesses and w hat weight t o give to any particular p iece of evidence.” Id. The jury in this case obviously f ound the S tate’s w itnesses suf f iciently credible as to m aterial issues to prove Jairus’ s g u i l t bey ond a reasonable d oubt. H aving reviewed the record on

a p p e a l , we cannot say that the jury ’s v erdict i s against the o verwhelm ing w e i ght o f t h e evidence or that the trial judge abused his discretion by deny ing Jair u s ’ s m otion f or a new trial.

1 3III. Habitual Offender Sentence

¶33. Jairus argues that h is enhanced sentence as a habitual of f e nder under section 99-19-83 is contrary to the United States Suprem e Court’s deci s i o ns i n Blakely v. W a shington , 542 U.S. 2 9 6 (2004), and Apprendi v. New Jersey , 530 U.S. 466 (2000). However, “the rule” expressed and applied in those cases is as f ollows: “ Other than the fact of a prior conviction , any f act that increases the penalty f or a crim e bey ond the prescribed statutory m axim um m ust be subm i tted to a jury , and proved bey ond a r easonable doubt.” Blakely , 5 42 U.S. at 301 (quoting Apprendi , 530 U.S. at 490) (em phasis added). T hus, Apprendi and Blakely do not require the State to prove prior convictions to a jury

. It is constitutionally perm issible f o r a judge to im

pose an enhanced sentence based o n the judge’s own f inding that the def

endant’s prior convictions satisf

y the requirem ents of

section 99-19-83. See Smith v. State , 963 So. 2d 1168, 1169-70 (¶5) (Miss. Ct. App. 2007). ¶34. Jairus also asserts that the use of his prior convictions to im pose an enhanced sentence violated M ississippi Rule of Evidence 404(b). This argum e nts f ails f or at least three reasons. First, the Rules of E vidence do not apply in sentencing hearings. M.R.E. 1101(b)(4); Randall

v. State , 806 So. 2d 185, 2 31-32 (¶131) (Miss. 2001). Second, Rule 404(b) provides only that “[ e]vidence of

a crim e . . . is not adm issible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with t he character .” M.R.E. 404(b)(1) (em

p h asis a dded). “The evidence m ay be used f or another p urpose . . . . ” M.R.E. 404(b)(2). Jairus’s prior convictions were not adm i tted t o show that he a cted in conf orm ity with his character on a particular occasion. Indeed, they were not adm itted u ntil af ter his jury

1 4trial on t he instant charge had concluded. His prior c onvictions were adm itted o nly as a basis

f or enhancing his sentence, which is “another purpose” not p rohibited b y R ule 404(b). Third,

a rule of evidence cannot override a sentence m andated by the Legislature. As our Suprem e Court put it, “ I t i s the [ L]egislature’s prerogative, and not t his Court’s, t o s et the length of
sentences.” Stromas v. State , 618 So. 2d 116, 123 (Miss. 1 993). Accordingly , Jairus’s f inal
argum ent is without m erit.
CONCLUSION ¶35. Jairus waived his statutory speedy t rial right b y f ailing to tim ely a s s e r t i t ; u n d e r applicable preceden t , t here was no violation of his c onstitutional speedy trial right; his conviction is not a gainst the overwhelm ing weight of the e vidence; and his sentence is valid and constitutional. Theref ore, we af f irm his conviction and sentence. ¶36. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST C OUNTY OF CONVICTION OF P OSSESSION OF A WEAPON BY A CONVICTED F ELON AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE M I S S I S S I P P I D E P A R T M E N T O F C O RRECTIONS, W I T H O U T E L I G I B I L I T Y F O R PAROLE OR ANY F O R M O F E ARLY RELEASE, I S AFFIRMED. ALL C O STS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
L E E , C . J . , I R

VING AND GRIFFIS, P.JJ., B A R N E S , I S H E E , C A R L T O N , F A I R , GREENLEE AND WESTBROOKS, JJ., CONCUR.

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