John C. Dawson, Jr.
Office of the Attorney GeneralApril 17, 1996
1996 WL 224038 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 96-0218
*1 April 17, 1996
Re: Juvenile Use of Deadly Weapon
*1 John C. Dawson, Jr.
*1 Prosecutor
*1 Jackson County Youth Court
*1 4903 Telephone Road
*1 Pascagoula, Mississippi 39667
Dear Mr. Dawson:
*1 Attorney General Moore has received your request for an official opinion and has assigned it to me for research and reply. Your query was:
*1 In the past, it has been my position that when a juvenile, thirteen (13) years of age or older, is in possession of a firearm on educational property, the case is directed to the circuit court. This position was the result of the following analysis of statutory law:
*1 §43-21-151(3): that no child who has not reached his thirteenth birthday shall be held criminally prosecuted for a misdemeanor or felony.
*1 §97-37-17(2): that it is a felony for any person to possess or carry, whether openly or concealed, any gun, rifle, pistol or other firearm of any kind, or any dynamite cartridge, bomb, grenade, mine or powerful explosive on educational property.
*1 §43-21-151(1)(b): that any act attempted or committed by a child with the use of a deadly weapon, the carrying of which concealed is prohibited by Section 97-37-1, or a shotgun or a rifle, which would be a felony if committed by an adult, will be in the original jurisdiction of the circuit court.
*1 There is mixed opinion to the interpretation of §43-21-151(1)(b), as it relates to §97-37-17(2). The debate is to whether the mere possession of a weapon by a juvenile on educational property is sufficient to satisfy the statutory language of an act attempted or committed by a child with the use of a deadly weapon, or whether there must be a separate act, which was attempted or committed, and the juvenile used a weapon in the attempt or commission of that separate act.
*1 It is now my opinion, in light of the United States Supreme Court's unanimous decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501 (1995), that there must be an act, separate and apart from the mere possession of a weapon by a juvenile on educational property, and that the weapon must be used in the attempt or commission of that separate act. (A copy of the Bailey opinion is attached for your review.) Further, that original jurisdiction over a juvenile, ages thirteen (13) to sixteen (16), in violation of §97-39-17(2), is in the Youth Court and that original jurisdiction over a seventeen (17) year old offender would remain in the Circuit Court, pursuant to §43-21-151(2).
*1 My request is for an opinion from the Attorney General's Office on whether, in light of Bailey, my interpretation of the above referenced statutes is correct.
*1 Miss. Code Ann. §43-21-151(1)(b) provides, in pertinent part, that any felony crime attempted or committed by a child with the use of a deadly weapon is in circuit court jurisdiction. The Mississippi Supreme Court has interpreted “with the use of” to require more than possession. For instance, for a conviction of armed robbery, the state has to prove that the defendant used or threatened to use a weapon; mere possession of a weapon when the crime is committed is insufficient. See Davis v. State, 530 So.2d 694 (Miss. 1988).
*2 A person who “attempts” to commit a crime, according to the Mississippi Supreme Court “shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same...” Henderson v. State, 660 So.2d 220,222 (Miss. 1995).
*2 It is our opinion that any person who possesses or carries a firearm or explosive device on educational property is committing a felony, but unless that firearm is used in the commission or attempt to commit a separate crime, the mere possession of the firearm or explosive device by a juvenile below the age of 17 is in the jurisdiction of the youth court. Miss. Code Ann. §43-21-151(2) provides that any felony committed by a juvenile who has reached his seventeenth birthday is in the jurisdiction of the circuit court. Possessing or carrying a firearm or explosive device on educational property being a felony, the 17-year-old with a firearm or explosive device on school property would be in the jurisdiction of the circuit court without attempting or committing a separate felony.
*2 If we can be of any further service, please let us know.
1996 WL 224038 (Miss.A.G.)
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