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Sellers v. State4/11/2000
s of the offense itself, i.e., the acts constituting the shoplifting incident at the grocery, were determined by the jury and the additional fact of the necessary prior convictions was determined by the court. This is certainly an unusual procedure and one which this Court does not condone. Nevertheless, we note that the constitutional right to trial by jury is one that may be waived by the defendant. Robinson v. State, 345 So. 2d 1044, 1045 (Miss. 1977). The procedure to divide fact-finding duties was urged by Sellers for the apparent purpose of gaining a tactical advantage at trial, which was to deny the jury knowledge of his prior convictions for similar offenses. Thus, even though we are satisfied that, as a general proposition, it is improper to parcel out the determination of the various elements of a crime, some to the jury and some to the court, we do not think that such an error, if provoked by the defendant himself, rises to the level of an unconstitutional denial of the right to trial by jury.
. There is no allegation by Sellers that he was procedurally denied from having the fact of his prior convictions proven beyond a reasonable doubt, and it is apparent that he was given a hearing in which he was afforded the opportunity to challenge the existence of the previous convictions. His only real complaint in that regard, therefore, is that the trial court, rather than the jury, acted as fact-finder in that inquiry.
. While we caution that this opinion should not be understood as condoning for the future a trial in which some elements of the offense are determined by the jury and some by the trial court - even when the defendant agrees to, or even insists on, the procedure - this Court is nevertheless convinced that the procedure followed in this instance, to the extent that it was flawed, did not deny Sellers any of the fundamental protections afforded him by the United States Constitution nor did it deny him a fundamentally fair trial. For that reason, we decline to afford him any relief on this issue.
. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF FELONY SHOPLIFTING AND SENTENCE AS A HABITUAL OFFENDER OF FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.
KING AND SOUTHWICK, P.JJ., BRIDGES, IRVING, LEE, MOORE, PAYNE, AND THOMAS, JJ., CONCUR.
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