
    John L. DAVIS and Prentiss Brooks v. STATE of Mississippi.
    Misc. No. 1156A.
    Supreme Court of Mississippi.
    June 5, 1985.
    Rehearing Denied Oct. 2, 1985.
    
      John L. Davis, Prentiss Brooks, Parch-man, for appellants.
    Edwin Lloyd Pittman, Atty. Gen. by John H. Emfinger, Sp. Asst. Atty. Gen., Jackson, for appellee.
   DAN M. LEE, Justice, for the Court:

ON APPLICATION FOR LEAVE TO FILE PETITION FOR POST-CONVICTION RELIEF

The Petitioners have jointly filed this Application For Leave to File Petition For Post-Conviction Relief. The two of them were convicted of armed robbery and sentenced as habitual offenders in the Circuit Court of Warren County. Their convictions and sentences were affirmed by this Court in an opinion recorded at 377 So.2d 1076 (Miss.1979).

Having reviewed their petition and the record under which they were found guilty and sentenced, we conclude that Petitioner Davis is not entitled to any relief and his Application For Leave to File Petition For Post-Conviction Relief is hereby denied.

As to Petitioner Brooks, we reach a different conclusion. From the record it appears that Brooks had been previously convicted of three separate felonies; however, none of them were of a violent nature. Only the crime for which he is currently under sentence was violent. Under our holdings in McLamb v. State, 456 So.2d 743 (Miss.1984) and Friday v. State, 462 So.2d 336 (Miss.1985), Brooks was not properly the subject of a life sentence as an habitual offender. Brooks should therefore have been sentenced to a term reasonably calculated to be less than life. Stewart v. State, 372 So.2d 257 (Miss.1979). Under our recent decision in Smith v. State, 477 So.2d 191 (Miss.1985), the failure to raise this issue on direct appeal does not procedurally bar Brooks from raising it here.

Therefore, the application of John L. Davis for leave to file petition for post-conviction relief is hereby denied. The application of Prentiss Brooks for leave to file a petition for post-conviction relief in the Circuit Court of Warren County is hereby granted.

APPLICATION DENIED AS TO PETITIONER DAVIS; GRANTED AS TO PETITIONER BROOKS.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.  