Can a Mississippi prosecutor combine three shoplifting visits to the same store into one felony shoplifting charge under Section 97-23-93(9)?

Subject

Aggregation of Shoplifting Offenses Under Section 97-23-93(9)

Recipient

Raymond L. Edwards, Esq., City Prosecutor, Pass Christian

Plain-English summary

Pass Christian's prosecutor asked the AG whether the shoplifting aggregation provision in Section 97-23-93(9) could be read so that "three or more separate mercantile establishments" might mean one establishment on three different visits. Under the statutory text in force at the time, the AG said no. The plain meaning of "separate mercantile establishments" requires more than one establishment. Mississippi follows the plain-meaning canon (Watson v. Oppenheim, 2020; Section 1-3-65), and where the statute is unambiguous, courts apply it as written. So under the pre-amendment statute, three thefts from the same store could not be combined to push the loss over the $1,000 felony threshold.

The AG also pointed out that the legislature had already addressed the issue. House Bill 795, passed in the 2023 session, amended Section 97-23-93(9) to let prosecutors "aggregate the total price of merchandise shoplifted from the same or separate mercantile establishments within the same legal jurisdiction over a period of thirty (30) or fewer days." That change took effect July 1, 2023, two days after the opinion's June 29, 2023 issuance. The AG interpreted the statute as it read on the opinion date and noted the upcoming amendment; it did not address which version applies to conduct on a particular date.

What this means for you

Prosecutors

The opinion holds that, under Section 97-23-93(9) as it read before July 1, 2023, aggregation reached only thefts from three or more separate establishments in the same legal jurisdiction within 30 days, not repeat thefts from a single store. After HB 795's July 1, 2023 effective date, the amended subsection allows aggregation from "the same or separate" establishments. Aggregation operates to determine the gravity of the offense under subsection (7), which makes shoplifting a felony, punishable as grand larceny under Section 97-17-41, when the value exceeds $1,000.

Retail loss prevention

The opinion says the amendment effective July 1, 2023 permits aggregation from the same or separate establishments. It does not decide how the amendment applies to conduct on a particular date.

Criminal defense attorneys

The AG read the version of Section 97-23-93(9) then in force to require three or more separate establishments and noted that HB 795 would permit same-store aggregation starting July 1, 2023. The opinion does not decide which version governs a charge involving conduct on a particular date.

Municipal court judges

The AG interprets Section 97-23-93(9) as it read on June 29, 2023 and quotes the amendment effective July 1. It does not address how to select the governing version for a case based on the conduct date.

Citizens

The opinion sits at a transition in Mississippi shoplifting law: it reads the prior aggregation provision (separate establishments only) and flags the 2023 amendment that broadened aggregation to include same-store repeat thefts.

Common questions

What is "aggregation" in shoplifting law?
A statutory rule that lets a prosecutor add up the value of multiple shoplifting incidents to determine whether the total crosses the felony threshold (here, $1,000 under Section 97-23-93(7)).

What did Section 97-23-93(9) say before HB 795?
It allowed aggregation only from "three (3) or more separate mercantile establishments within the same legal jurisdiction over a period of thirty (30) or fewer days."

What does Section 97-23-93(9) say after HB 795?
The phrase "three (3) or more separate mercantile establishments" was replaced with "the same or separate mercantile establishments," so aggregation can include single-store repeat thefts.

When did HB 795 take effect?
The amendment "shall take effect and be in force from and after July 1, 2023." The AG's "no" answer addressed the statutory text as it read when the opinion was issued.

What is the felony threshold?
Section 97-23-93(7) makes shoplifting a felony when the stated price exceeds $1,000, with punishment as for grand larceny under Section 97-17-41.

Does "same legal jurisdiction" mean same county?
The opinion does not parse the term. It requires the aggregation to occur within "the same legal jurisdiction" without defining it further.

Background and statutory framework

Section 97-23-93 is Mississippi's shoplifting statute. Subsection (7) establishes the felony grade at $1,000 in stated price. Subsection (9), as in force before July 1, 2023, allowed aggregation only from three or more separate establishments within the same jurisdiction over 30 days or fewer.

The plain-meaning canon in Section 1-3-65 controls statutory interpretation. The Mississippi Supreme Court has held that when text is clear, courts apply it without resort to construction principles, and the text is the best evidence of legislative intent. Watson v. Oppenheim, 301 So. 3d 37, 41-42 (Miss. 2020); Div. of Medicaid v. Miss. Indep. Pharmacies Ass'n, 20 So. 3d 1236, 1240 (Miss. 2009).

House Bill 795, passed by the 2023 Mississippi Legislature, amended subsections (7) and (9). Subsection (7) was revised to refer to "the total price of all items shoplifted in violation of this act," and subsection (9) was rewritten to allow aggregation from "the same or separate mercantile establishments within the same legal jurisdiction over a period of thirty (30) or fewer days." The effective date was July 1, 2023.

Citations

• Miss. Code Ann. § 1-3-65 (plain-meaning rule)
• Miss. Code Ann. § 97-17-41 (grand larceny punishment)
• Miss. Code Ann. § 97-23-93(7) (shoplifting felony threshold)
• Miss. Code Ann. § 97-23-93(9) (shoplifting aggregation provision, pre- and post-HB 795)
• 2023 House Bill 795 (effective July 1, 2023, amending subsections (7) and (9) to allow same-store aggregation)
• Watson v. Oppenheim, 301 So. 3d 37, 41-42 (Miss. 2020) (plain-meaning rule)
• Div. of Medicaid v. Miss. Indep. Pharmacies Ass'n, 20 So. 3d 1236, 1240 (Miss. 2009) (text is best evidence of legislative intent)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/06/R.Edwards-June-29-2023-Mississippi-Code-Annotated-Section-97-23-939.pdf

Original opinion text

June 29, 2023
Raymond L. Edwards, Esq.
City Prosecutor, Pass Christian
Post Office Box 277
Pass Christian, Mississippi 39571
Re:

Mississippi Code Annotated Section 97-23-93(9)

Dear Mr. Edwards:
The Office of the Attorney General has received your request for an official opinion. Question Presented As provided in Mississippi Code Annotated Section 97-23-93(9), may "three (3) or more separate mercantile establishments" be interpreted as one mercantile establishment on three different visits? Brief Response Applying the plain meaning of Section 97-23-93(9), "three (3) or more separate mercantile establishments" may not be interpreted as one mercantile establishment on three different visits. However, House Bill 795 from the 2023 legislative session amends Section 97-23-93(9) to allow prosecutors to "aggregate the total price of merchandise shoplifted from the same or separate mercantile establishments within the same legal jurisdiction over a period of thirty (30) or fewer days." This amendment takes effect July 1, 2023. Applicable Law and Discussion Currently, Section 97-23-93(7) provides that "[a] person convicted of shoplifting merchandise for which the merchant's stated price exceeds One Thousand Dollars ($1,000.00) shall be guilty of a felony and, upon conviction, punished as provided in Section 97-17-41 for the offense of grand larceny." Section 97-23-93(9) currently states, "[f]or the purpose of determining the gravity of the offense under subsection (7) of this section, the prosecutor may aggregate the value of merchandise shoplifted from three (3) or more separate mercantile establishments within the same legal jurisdiction over a period of thirty (30) or fewer days."

You ask if "three (3) or more separate mercantile establishments" may be interpreted as one mercantile establishment on three different visits. Pursuant to Section 1-3-65, "[a]ll words and phrases contained in the statutes are used according to their common and ordinary acceptation and meaning; but technical words and phrases according to their technical meaning." See also Watson v. Oppenheim, 301 So. 3d 37, 41-42 (Miss. 2020) ("If the statute's language is clear and unambiguous, we apply its plain meaning and refrain from using principles of statutory construction.") As stated by the Mississippi Supreme Court, "the text of the statute [is] the best evidence of legislative intent." Div. of Medicaid v. Miss. Indep. Pharmacies Ass'n, 20 So. 3d 1236, 1240 (Miss. 2009). The text of Section 97-23-93(9) does not indicate that "three (3) or more separate mercantile establishments" could also mean one mercantile establishment on three different visits. It is thus the opinion of this office that as Section 97-23-93(9) currently reads, "three (3) or more separate mercantile establishments" may not be interpreted as one mercantile establishment on three different visits. This said, House Bill 795 from the 2023 legislative session amends subsections (7) and (9) of Section 97-23-93 as follows: (7) A person convicted of shoplifting merchandise for which the total price of all items shoplifted in violation of this act exceeds One Thousand Dollars ($1,000.00) shall be guilty of a felony and, upon conviction, punished as provided in Section 97-17-41 for the offense of grand larceny.
...
(9) For the purpose of determining the gravity of the offense under subsection (7) of this section, the prosecutor may aggregate the total price of merchandise shoplifted from the same or separate mercantile establishments within the same legal jurisdiction over a period of thirty (30) or fewer days. (Emphasis added). This amendment "shall take effect and be in force from and after July 1, 2023." Laws 2023, H.B. 795, eff. July 1, 2023. If this office may be of any further assistance to you, please do not hesitate to contact us. Sincerely, LYNN FITCH, ATTORNEY GENERAL By:

/s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General