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Walls v. State3/14/2000
DATE OF JUDGMENT: 01/08/1997
TRIAL JUDGE: HON. R. KENNETH COLEMAN
COURT FROM WHICH APPEALED:LAFAYETTE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: 01/08/1997: AGGRAVATED ASSAULT: SENTENCED TO SERVE A TERM OF 20 YRS IN THE MDOC 0 YRS SUSPENDED & 20 YRS TO SERVE; DEFENDANT NOT ELIGIBLE FOR EARLY RELEASE OR PAROLE
DISPOSITION: AFFIRMED-05/04/99
MOTION FOR REHEARING 05/18/99 - GRANTED -REVERSED AND REMANDED - FILED: 03/14/2000
ON MOTION FOR REHEARING
EN BANC
McMILLIN, C.J., FOR THE COURT AS TO PART I, IRVING, J., FOR THE COURT AS TO PART II:
. On motion of the appellant, Ronald J. Walls, rehearing is granted. The original opinion issued by the Court is withdrawn and the following opinion is substituted therefore.
. This is an appeal from a criminal conviction of aggravated assault. The defendant, Ronald Walls, was tried on two criminal counts. One count involved a charge of kidnaping, for which he was acquitted. The other count was the aggravated assault charge arising out of the same incident, for which Walls now stands convicted. Walls raises two issues on appeal. First, he claims that the trial court erred in denying him a lesser-included offense instruction on simple assault. Secondly, he alleges that he was improperly sentenced as a habitual offender because his two prior felony convictions did not arise out of separate incidents occurring at different times. This Court finds the first issue to have merit and we, therefore, reverse and remand for a new trial. Because proper sentencing may again be an issue on retrial, this Court has considered the second issue as well, and has determined that, for reasons to be set forth hereafter, it would be error to sentence Walls as a habitual offender.
FACTS
. According to the State's proof, Walls forced his way into the home of another person where his former girlfriend, Judy Kesler, was temporarily residing. At the time, Kesler was alone at the residence. According to Kesler's testimony, Walls physically assaulted her with his fists, drug her around the residence by her hair, and then beat her about the head with a knife, using the handle of the knife as a blunt instrument. He then forced her to leave the residence and took her to an abandoned trailer where he had apparently been staying. Walls forced her to remain there against her will as he pleaded with her for forgiveness and for a reconciliation in their relationship. Kesler's new companion returned home and, finding Kesler gone and seeing signs of a struggle, alerted the police. The police were able to locate Walls and Kesler at the trailer where Kesler was liberated and Walls was placed under arrest.
. He was subsequently indicted, tried, and convicted of aggravated assault. The indictment further charged that Walls should, if convicted, be sentenced as a habitual offender because he was already the subject of two previous felony convictions, alleged by the State to have arisen out of separate incidents at different times for which he was sentenced to separate terms of one year or more. Walls unsuccessfully resisted efforts to sentence him as a habitual offender by conceding the two previous felony convictions but contending that they both arose out of the same incident.
. We will now proceed to consider the two issues raised by Walls in this appeal.
McMILLIN, C.J., FOR THE COURT AS TO ISSUE I:
I. The First Issue: Failure to Grant a Simple Assault Instruction
. At the close of the evidence, Walls's counsel orally re
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