IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CA-00188-COA

LAVERN JEFFREY MORAN A/K/A LAVERN J.

MORAN

APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/05/2016

TRIAL JUDGE: HON. ROGER T. CLARK

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,

FIRST JUDICIAL DISTRICT

ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: SCOTT STUART

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

TRIAL COURT DISPOSITION: DENIED PETITION FOR POSTCONVICTION RELIEF

DISPOSITION: AFFIRMED - 03/14/2017

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.

WILSON, J., FOR THE COURT:

¶1. Lavern JeffreyMoran appeals fromthe denial of his petition for post-conviction relief. 

He argues that he should not have been sentenced as a habitual offender under Mississippi

Code Annotated section 99-19-81 (Rev. 2015). Under clear Mississippi Supreme Court

precedent, Moran qualified as a habitual offender. Accordingly, we affirm.

FACTS

¶2. On May 18, 2015, Moran pled guilty to two counts of burglary of a dwelling and was

sentenced to ten years on each count, with the sentences to run concurrently. The sentencing
order recited that Moran pled guilty “as a habitual offender,” and the court found that his

prior convictions met the requirements of section 99-19-81. The court ordered that Moran’s

“total” sentence of ten years “as a habitual offender” would “be served day for day in

accordance with [section] 99-19-81 . . . , said sentence being without hope of parole or

probation.”1

¶3. Eleven days later, Moran filed a petition for post-conviction relief alleging that the

court erred by sentencing him as a habitual offender. Moran’s only argument in his petition

and on appeal is that his prior felony convictions for robbery and uttering a forgery do not

meet the requirements of section 99-19-81 because both convictions were entered on the

same day, although the offenses were committed on different days and indicted separately. 

¶4. Section 99-19-81 provides as follows:

Every person convicted in this state of a felony who shall have been convicted

1 Although Moran’s sentence provides that he shall not be eligible for parole or

probation as a habitual offender, section 99-19-81 further required the circuit court to

impose the maximum term of imprisonment for burglary of a dwelling, which is twenty-five

years, not ten. Miss. Code Ann. § 97-17-23 (Rev. 2014); Garner v. State, 864 So. 2d 1005,

1008 (¶8) (Miss. Ct. App. 2004). The circuit court judge accepted the State’s sentencing

recommendation of concurrent terms of ten years, even while acknowledging that the

recommended sentence did not comply with the law. See Harris v. State, 527 So. 2d 647,

651 (Miss. 1988) (“Sentencing under [section 99-19-81] is not discretionary. If a defendant

is a repeat offender falling within the provisions of [section 99-19-81,] the trial judge has

no alternative but to sentence him under said statute.”); Lamar v. State, 983 So. 2d 364, 371

(¶27) (Miss. Ct. App. 2008) (Roberts, J., specially concurring) (Section 99-19-81 provides

that a habitual offender “shall be sentenced to the maximum term of imprisonment

prescribed” for his present offense, so “the circuit court [is] required to sentence [the

defendant] to the maximum sentence for each of his convictions.”). Thus, Moran’s petition

for post-conviction relief and appeal attack a sentence that is less than half the mandatory

sentence that he should have received under the law.

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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 separate terms of one (1) year or more in any state

and/or federal penal institution, whether in this state or elsewhere, shall be

sentenced to the maximum term of imprisonment prescribed for such felony,

and such sentence shall not be reduced or suspended nor shall such person be

eligible for parole or probation.

¶5. Moran argues that his predicate felonies were not “separately brought” within the

meaning of the statute even though the offenses were committed on different days and

indicted separately. Moran acknowledges that his argument is squarely foreclosed by

Mississippi Supreme Court precedent. See, e.g., Kolb v. State, 568 So. 2d 288, 289 (Miss.

1990) (holding that two prior convictions entered on the same day satisfied the statute

because, even though the offenses were charged as separate counts of a single indictment,

they were committed on different days and at different places); Rushing v. State, 461 So. 2d

710, 713 (Miss. 1984) (“In the case sub judice, though both of appellant’s [prior] convictions

occurred on the same day, they arose out of . . . separate incident[s] occurring at different

times. Therefore, the trial court correctly sentenced the appellant under [section]

99-19-81.”). But he argues that Kolb and Rushing “are very old,” “are wrong,” and should

be overruled. 

¶6. “This Court, sitting as an intermediate appellate court, is obligated to follow precedent

established by the Mississippi Supreme Court.” Kennedy v. State, 766 So. 2d 64, 65 (¶3)

(Miss. Ct. App. 2000). “[W]e . . . do not have the authority to overrule a decision of our

[S]upreme [C]ourt.” Miles v. State, 864 So. 2d 963, 965-66 (¶8) (Miss. Ct. App. 2003). 

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Accordingly, we affirm the denial of Moran’s petition for post-conviction relief.

¶7. THE JUDGMENT OF THE HARRISON COUNTY CIRCUITCOURT, FIRST

JUDICIAL DISTRICT, DENYING THE PETITION FOR POST-CONVICTION

RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE

APPELLANT.

LEE,C.J.,IRVINGANDGRIFFIS,P.JJ., BARNES, ISHEE, CARLTON,FAIR,

GREENLEE AND WESTBROOKS, JJ., CONCUR.

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