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By JACK ELLIOTT JR.
JACKSON â The Mississippi Supreme Court has sent the Legislature a message: If you want burglary considered a violent crime to catch more career criminals, youâd better write it into the law.
A majority of the high court, in a Harrison County case, rejected home burglary as a crime of violence for the purpose of state sentence enhancement.
A minority of the court said the decision weakens criminal statutes and flies in the face of all citizensâ right to be safe and secure from intrusion and invasion.
Mark Kee Brown was convicted of escape, which carried a maximum five years in prison. By applying the burglary conviction to upgrade Brownâs status to that of habitual offender, the maximum sentence became life in prison.
In seeking a new trial, Brownâs attorneys argued that rulings in other Mississippi cases suggest burglary is not a violent crime. They said the Legislature designated burglary of a dwelling as a crime against property, as opposed to a crime against a person.
Prosecutors argued appeals courts never had addressed the question specifically because most offenders had other prior convictions that made addressing the burglary of a dwelling issue unnecessary.
Mississippiâs habitual offender law kicks in when a defendant has two previous felony convictions and served more than a year for each crime and when one of those crimes was a violent one.
The Supreme Court upheld Brownâs escape conviction but threw out the life sentence and ordered the case back to Harrison County for re-sentencing.
Brown had previous convictions for drugs, jail escape, burglary and others. Prosecutors used the burglary conviction to support a habitual offender status for him.
The trial judge and the state Court of Appeals found burglary to be a crime of violence.
Supreme Court Presiding Justice Jess Dickinson, writing for the 5-3 majority, said the lower courts were wrong.
âWe will not place a âviolent crimeâ label on a crime where there was no proof of a violent act, unless the statute itself â or some other provision of law (such as the definitions within the chapter that include the statute) â clearly and unambiguously requires us to do so,â Dickinson said.
Dickinson said if the Legislature wants burglary to be a violent crime under the habitual offender statute, the Legislature must specify it because the court will not.
âThe Legislature certainly is free to enact a statute that makes burglary of a dwelling a per se crime of violence. But it has not chosen to do so, and we decline to assume that it intended to do so,â Dickinson said.
But Justice Michael Randolph said that âburglary of a dwelling possesses characteristics of both a crime against property and a crime against the person. It involves a criminal act affecting oneâs property.â
âApplying the ordinary meaning of the words reveals that burglary of a dwelling is a crime of violence,â Randolph said.
Whether burglary is a crime of violence is only one of three issues with which lawmakers might deal in 2013.
Pending before the Supreme Court are cases addressing whether prosecutors must prove âintentâ to pursue death penalties and whether statutory rape is a violent crime under the habitual offender law.
The Supreme Court has been inconsistent in its rulings on statutory rape. Generally, it has held that âa separate standard of determining violence applies when the victim is a child.â
The intent issue came in a death penalty case in which prosecutors used robbery as the underlying felony â or crime â to support a capital murder charge. The defendant claimed he never intended to rob any one and prosecutors didnât prove he did.