Marshall v. State, 136 So. 3d 443

Marshall was indicted in Bolivar County (1986) for possession of cocaine with intent to sell as an habitual offender, listing twenty prior convictions.
He pled guilty on September 22, 1986 and received the maximum sentence: 30 years’ imprisonment and a $1,000,000 fine.
In 2011, Marshall filed a post-conviction relief (PCR) motion asserting (a) due process denial for failure to allege a quantity element, (b) improper habitual-offender language after 'against the peace and dignity of the State,' and (c) an illegal sentence.
The circuit court declined to apply procedural bars to fundamental-right claims, addressed the merits, and denied PCR on February 6, 2012.
On appeal, the court limited review to the three issues raised in the PCR motion, citing procedural waiver rules and deference to trial court findings on factual questions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Indictment failed to include essential element (quantity).	Marshall argues the indictment omitted the quantity (2–10 grams).	State contends quantity is not an essential element for cocaine sale; penalty is fixed.	No error; quantity not an essential element for sale of cocaine under statute.
Habitual-offender language after 'against the peace and dignity' is defective.	Marshall asserts the phrasing renders him improperly charged as habitual offender.	State argues the issue is waived and not a fundamental right; language may be waived.	Waived; inclusion after 'against the peace and dignity' does not entitle relief.
Sentence and fine exceeded maximum permissible; illegal sentence claim.	Marshall contends sentence/fine exceed statutory maximum.	As habitual offender, the court had no discretion; maximum applies.	No error; habitual-offender sentence to maximum authorized by law.

Hampton v. State, 860 So.2d 827 (Miss.Ct.App.2003) (quantities can be essential elements under older view but not after later decisions)
Fair v. State, 93 So.3d 56 (Miss.Ct.App.2012) (quantity not essential element for cocaine sale; indictment need not state amount)
Smith v. State, 973 So.2d 1003 (Miss.Ct.App.2007) (penalty for sale of cocaine same regardless of quantity)
Williams v. State, 821 So.2d 883 (Miss.Ct.App.2002) (quantity not required to be listed in indictment for sale of cocaine)
McNeal v. State, 658 So.2d 1345 (Miss.1995) (hab. offender formwaived when not objected to; issue not preserved)
Brandau v. State, 662 So.2d 1051 (Miss.1995) (waiver of defect in indictment form if not objected to)
Voyles v. State, 822 So.2d 353 (Miss.Ct.App.2002) (failure to object to language may be waived)
Ross v. State, 954 So.2d 968 (Miss.2007) (habitual-offender language after 'peace and dignity' may be waived; not fundamental right)
Crawford v. State, 716 So.2d 1028 (Miss.1998) (superseded in other respects; relates to waiver context)
Desemar v. State, 99 So.3d 279 (Miss.Ct.App.2012) (illegality of sentence not subject to three-year PCR deadline)
Fluker v. State, 17 So.3d 181 (Miss.Ct.App.2009) (preservation of issues in PCR requires proper raising)
Gardner v. State, 531 So.2d 805 (Miss.1988) (preservation and waiver principles on appeal)