MS 2023-06-R-Edwards-June-29-2023-Mississippi-Code-Annotated-Section-97-23-939 June 29, 2023

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

Short answer: Under the version of Section 97-23-93(9) in effect before July 1, 2023, a prosecutor could not combine three visits to the same Mississippi store into one felony shoplifting charge; the aggregation provision required three or more 'separate mercantile establishments.' House Bill 795 (effective July 1, 2023) amended the law to allow aggregation from 'the same or separate' establishments within the same legal jurisdiction within 30 days.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

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 mercantile 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, the courts apply it as written. So a thief who hit the same Walmart three times in 30 days could not have those three thefts combined to push the loss over the $1,000 felony threshold under the pre-amendment statute.

The AG also flagged 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. So the AG's "no" answer applied to the narrow window of conduct charged before July 1, 2023, while everything after benefits from the broader aggregation authority.

What this means for you

Prosecutors

For shoplifting conduct that occurred before July 1, 2023, your aggregation authority is limited to thefts from three or more separate establishments in the same legal jurisdiction within 30 days. For conduct on or after July 1, 2023, you can aggregate within a single establishment too. The aggregation rule is a charging tool, not a sentencing one; it lets you push misdemeanor-level individual thefts into a felony grand-larceny range under Section 97-17-41 when total value exceeds $1,000.

Retail loss prevention

The post-July 2023 rule is more friendly to retailers facing repeat thieves. Maintain detailed video, receipt, and date documentation for repeat offenders. The AG opinion confirms aggregation now covers a single store across multiple visits, which is most retailers' fact pattern.

Criminal defense attorneys

For pre-July 2023 conduct, the same-store theory cannot be used to aggregate. If your client is charged with felony shoplifting based on aggregated thefts from a single store and the conduct occurred before July 1, 2023, the indictment may be defective for invoking aggregation authority that did not yet exist for that fact pattern.

Municipal court judges

When evaluating felony-level shoplifting charges, check whether the charged conduct occurred before or after July 1, 2023, and apply the version of Section 97-23-93(9) in effect at the time of the conduct. Ex post facto considerations apply.

Citizens

This opinion captures a transition moment in Mississippi shoplifting law. The legislature responded to the aggregation gap by broadening the rule. The AG opinion reads the old law correctly and flags the new law clearly.

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 a 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." Aggregation now covers single-store repeat thefts.

Is HB 795 retroactive?
The amendment "take[s] effect and be in force from and after July 1, 2023." Mississippi generally applies criminal statutory amendments prospectively, and ex post facto principles bar retroactive application of provisions that increase punishment. Charges based on conduct before July 1, 2023, must be evaluated under the prior version of the statute.

What is the felony threshold?
Section 97-23-93(7) makes shoplifting a felony when the merchant's 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. Generally, jurisdiction can mean a county for circuit court, a municipality for municipal court, or another bounded territory. The aggregation must be within whatever jurisdiction is bringing the charge.

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 reinforced 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 clarified 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

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