Mississippi Advisory Opinions August 18, 2000: AGO 2000-0454 (August 18, 2000)

Advisory Opinion Text

Leslie Scott, Esquire

Assistant Secretary of State

for Elections

Post Office Box 136

Jackson, Mississippi 39205-0136

Re: Disqualifying Crimes

Dear Ms. Scott:

Attorney General Mike Moore has received your letter of request and assigned it to me for research and reply.

Your letter states:

“This is a request for an official Attorney General's opinion regarding disenfranchising crimes.

I recently became aware of the Fifth Circuit U.S. Court of Appeals case Cotton v. Fordice 157 F.3d 388 (1998), in which the court held that the crime of armed robbery was a disenfranchising crime under Section 241 of the Mississippi Constitution of 1890.

I am aware that previous Attorney General opinions have held that the crime of armed robbery was not a disenfranchising crime. In light of this new Fifth Circuit case, I am requesting your official opinion as to whether the Secretary of State should begin advising circuit clerks and election commissioners to purge from the voter rolls those persons convicted in Mississippi courts of the crime of armed robbery.

In addition, there is language in the Cotton v. Fordice decision which suggests that other crimes that involve unlawful taking would now be disenfranchising that previously had been regarded as not disenfranchising. Accordingly, I am also requesting an official opinion as to whether the convictions in Mississippi courts for the crimes of robbery, burglary, shoplifting, receiving stolen property and any other related crimes should be considered disenfranchising in Mississippi.”

In Cotton v. Fordice the Fifth Circuit Court of Appeals cited and quoted Section 241, Mississippi Constitution of 1890 which denies the ballot to any person convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy and then said:

“Neither the Mississippi caselaw or statutes resolve whether ‘theft, ’ as used in Section 241, includes the crime of ‘armed robbery.’ The federal courts' task is to determine as best we can ‘how [the Mississippi Supreme Court] would rule if the issue were before it.’ Federal Deposit Ins. Corp. V. Abraham , 137 F.3d 264, 268 (5th Cir. 1998) (citation omitted). In law, ‘theft’ is a general label for statutorily created crimes involving an unlawful taking. At common law, theft was defined as ‘the felonious taking and carrying away of the personal property of another with intent to convert it to the use of the taker without the consent of the owner.’ McLaughlin v. City of Canton , 947 F.Supp. 954, 970 n. 18 (S.D.Miss. 1995) (quoting 52A C.J.S. Larceny Section 1(2), at 398 (1968)). Similarly, Mississippi defines ‘larceny’ as ‘taking and carrying away, feloniously, the personal property of another.’ MISS. CODE ANN. Section 97-17-41 (Supp. 1998) . The Mississippi Code labels various theft crimes as larceny, (Miss. Code Ann. Section 97-17-41) receiving stolen property, (Section 97-17-70) robbery, (Section 97-3-73) extortion (Section 97-3-82) and so forth. At least one other court has broadly interpreted Section 241 to conclude that ‘theft’ is an ‘umbrella term’ to describe those crimes that involve a ‘wrongful taking.’ McLaughlin , 947 F.Supp. 954, 970 n.18 (S.D.Miss. 1995) (citation omitted). As there is no crime labeled ‘theft’ in Mississippi, the term in Section 241 is only meaningful if it includes the larceny crimes, and thus includes armed robbery.

We also find it persuasive that in Mississippi, larceny (common law theft) is a lesser included offense of robbery. See Holly v. State , 671 So.2d 32, 45 (Miss.) cert. denied 518 U.S. 1025, 116 S.Ct. 2565, 135 L.Ed.2d 1082 (1996) ('[O]nce the State proved the elements of robbery, it was not required to offer any additional proof to establish the charge of grand larceny.') Thus, for double jeopardy purposes, the relatedness of the crimes is clear. See id. At 44. Because the term ‘theft’ in Section 241 must generically include a conviction for ‘armed robbery, ’ Brown is disenfranchised under Mississippi law.”

Based on the above, it is our opinion that one convicted of the crime of armed robbery is disenfranchised.

One of the elements of the crimes of receiving stolen property, robbery, extortion and shoplifting is the wrongful taking of property. Therefore, in our opinion, a felony conviction of any of these crimes is also disenfranchising

With respect to the crime of burglary, Black's Law Dictionary (Revised Fourth Edition) definition is “the breaking and entering the house of another in the nighttime, with intent to commit a felony therein, whether the felony be actually committed or not.” Since the wrongful taking of property is not an element of the crime of burglary, we are constrained to say that burglary is not a disenfranchising crime.

In our opinion to Honorable Sandra N. Willis, dated March 21, 1997 we said that the following crimes are disqualifying: arson, bribery, bigamy, embezzlement, obtaining money or goods under false pretense (including felony bad check), forgery, murder, perjury, rape, and theft which includes larceny and taking unlawful possession of a motor vehicle under Section 97-17-42. We now modify that opinion by adding the crimes of armed robbery, robbery, receiving stolen property, extortion, and felony shoplifting. We also note that in our opinion to Ms. Willis dated April 30, 1999 we specifically said that the crime of timber larceny is disqualifying.

Sincerely,