Vance Drummer v. State of Mississippi, 167 So. 3d 1180

Drummer was convicted in 2012 in Lowndes County for two counts of grand larceny and one count of attempted grand larceny.
He previously pled guilty to felony fleeing in Webster County after fleeing police in Mathiston, Mississippi.
The State used the Webster County felony flight as one predicate to enhance Drummer’s sentence as an habitual offender under Miss. Code Ann. § 99-19-81.
The trial court sentenced Drummer to ten years on each count as an habitual offender; the sentence was challenged on grounds it rested on overlapping predicate offenses.
The Mississippi Supreme Court held the flight and larceny were arising from the same incident and thus not separate predicates, vacating habitual-offender status and remanding for resentencing as a nonhabitual offender.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether predicate felonies must arise from separate incidents	Drummer: predicates must be separate from primary and from each other	State: predicates must be separate from each other and from the primary; timing allowed	Predicates must arise from separate incidents; primary need not be separate from predicates; flight and larceny are not sufficiently separate so remand for nonhabitual sentencing
Whether the flight instruction was proper given the case facts	Drummer: flight instruction improper due to independent reasons for flight	State: flight instruction properly permitted as unexplained flight probative of guilt	Flight instruction upheld; evidence showed flight probative and unexplained beyond other evidence
Whether remand for resentencing as nonhabitual violates double jeopardy	Drummer: using flight as predicate violated double jeopardy on remand	State: no violation because predicates must remain separate as statutory matter	Remand to resentence as nonhabitual offender; double jeopardy concerns preserved by proper construction

Buckley v. State, 511 So.2d 1354 (Miss. 1987) (two priors may be separate even if on the same day if arising from separate incidents)
Pittman v. State, 570 So.2d 1205 (Miss. 1990) (adjacent burglaries on same trip can qualify as separate incidents)
Crawley v. State, 423 So.2d 128 (Miss. 1982) (no requirement that present offense occur after priors; priors must be separate incidents)
Riddle v. State, 413 So.2d 737 (Miss. 1982) (prior offenses must arise from separate incidents, not a single incident)
Nicolaou v. State, 534 So.2d 168 (Miss. 1988) (prior felonies arising from different incidents or victims may support habitual-offender status)
Bergeron v. State, 60 So.3d 212 (Miss.Ct.App. 2011) (prior felonies considered separately when separate incidents with distinct elements)
Garrison v. State, 950 So.2d 990 (Miss. 2006) (dual priors in state and federal courts may satisfy Section 99-19-81)
Jackson v. State, 518 So.2d 1219 (Miss. 1988) (concurrent sentences can still count as separate incidents for habit)
Harbin v. State, 402 So.2d 360 (Miss. 1981) (asportation may be shown by slight movement; larceny is a continuing offense)
Ransom v. State, 115 So. 208 (Miss. 1928) (flight evidence may be considered with other evidence)