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Johnny Berry v. State of Mississippi
| Docket Number : |
2003-KA-01181-COA |
| Date: |
11/17/2003 |
| Appellant Name: |
Johnny Berry |
| Appellee Name: |
State of Mississippi |
| Appellant Attorney(s): |
Phillip Broadhead; Gary Goodwin |
| Appellee Attorney(s): |
John R. Henry, Jr.; Charles W. Maris, Jr.; Jim Hood |
| Opinion: |
Click here for Opinion |
Synopsis provided by:
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TOPIC(S): Uttering forgery - Amendment of indictment - URCCC 7.09 - Disproportionate sentence - Sufficiency of evidence
FACTS:
Johnny Berry was convicted of uttering forgery and was sentenced to life imprisonment as an habitual offender. He appeals.
ANALYSIS:
Issue 1: Amendment of indictment
Berry argues that his sentence as an habitual offender was improper because the State’s motion to amend was filed beyond the date required by the scheduling order, and the motion to amend was not argued or ruled on until after his conviction. Under URCCC 7.09, an indictment may be amended for the purpose of enhanced punishment, provided the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised. Here, the amendment was only relevant to the sentencing phase and not the substance of the indictment. The amendment did not interfere with any substantive defenses which were available to Berry.
Issue 2: Disproportionate sentence
Berry argues that because he was convicted of changing a $65 check to a $650 check, his sentence of life is cruel and inhuman in that the punishment far outweighs the offense. The purpose of habitual offender acts is to punish not only for the immediate offense, but to also punish for a pattern of criminal conduct. Berry acknowledges four prior felony convictions, and that by age forty-five, he had spent more than 25 years incarcerated in various prisons. These admissions show him to be the type of offender to whom habitual acts were intended to apply.
Issue 3: Sufficiency of evidence
Berry challenges the sufficiency of the evidence. A witness testified that Berry and his wife came to clean her house and that she left a check for $65 to pay for the cleaning service. This check did not have a payee listed, nor was the amount of the check entered in script. The bank teller testified that a check payable to Johnny Berry in the amount of $650 was presented to her for payment. Therefore, there existed substantial evidence to support the verdict.
HOLDING: Affirmed. |
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