Nelson v. State

• Decision Date: 10 November 2011
• Docket Number: No. 2010–KM–00698–SCT.,2010–KM–00698–SCT.
• Citation: 72 So.3d 1038
• Court: Mississippi Supreme Court
• Parties: Rachel D. NELSONv.STATE of Mississippi.

72 So.3d 1038

Rachel D. NELSON

v.STATE of Mississippi.

No. 2010–KM–00698–SCT.

Supreme Court of Mississippi.

Aug. 25, 2011.Rehearing Denied Nov. 10, 2011.

Lance O'Neal Mixon, Victor W. Carmody, Jr., Jackson, attorneys for appellant.Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.CHANDLER, Justice, for the Court:

¶ 1. On October 27, 2006, Rachel Nelson was involved in an automobile collision. The City of Richland charged her with driving under the influence (DUI), first offense. On November 15, 2006, Nelson pleaded nolo contendere in the Municipal Court of Richland. The court found Nelson guilty and imposed a sentence of forty-eight hours in jail, suspended, along with a $1,000 fine and $244 in assessments.

¶ 2. On November 29, 2006, Nelson filed a notice of appeal in the Rankin County Circuit Clerk's office pursuant to Uniform Rule of Circuit and County Court Procedure 12.02, stating that a sufficient cash appeal and cash bond had been posted, and requesting a jury trial in county court de novo. The trial date was set for April 2, 2007. On March 27, 2007, Nelson filed a motion to dismiss the appeal on writ of procedendo and return the cause of action to the Municipal Court of Richland for imposition of sentence. On the same day, the Rankin County Court granted Nelson's Motion to Dismiss and ordered the matter back to the Municipal Court of Richland on writ of procedendo.¹

¶ 3. On March 30, 2007, a Richland city prosecutor filed a motion to set aside the order of dismissal, to reinstate Nelson's appeal, and to stay the proceedings. In this motion, the prosecutor argued that Nelson's accident had caused serious injuries to Debra Easterling, but that the matter inadvertently had been presented in municipal court as a DUI first offense without court personnel or the prosecutor having had knowledge of the injuries. The prosecutor also argued that the county court had dismissed Nelson's appeal with no notice to the State,² and that the county court had lacked the power to dismiss Nelson's appeal without an agreement by the State. The prosecutor also asserted that no jeopardy had attached because Nelson had entered a “no contest” plea in the Municipal Court of Richland.

¶ 4. A hearing on the prosecutor's motion took place on April 12, 2007, in the county court. The county court found that the city's motion to set aside the order of dismissal had been timely filed. Although the case had been dismissed, the county court asserted jurisdiction over it for the limited purpose of adjudicating the city's motion to set aside the order of dismissal. Both the prosecutor and Nelson's attorney informed the court that, at the time of Nelson's plea in municipal court, neither party had known that the accident victims had been seriously injured. Nelson's attorney stated that he first had discovered the injuries when informed by counsel for one of the victims on December 28, 2006. He stated that he then had discussed the matter with the prosecutor, and they had decided neither party would take any action in the case until they conferred on March 21, 2007. However, Nelson's attorney stated that the prosecutor did not respond to his attempts to contact him in March 2007. Nelson's attorney stated that, due to the approaching trial date and his inability to communicate with the prosecutor, he had filed the motion to voluntarily dismiss the case.

¶ 5. The court heard testimony from Detective John King, an investigator with the Richland Police Department. King testified that his first meeting with the district attorney's office was on March 29, 2007. He testified that the case was not ready for presentation to the grand jury due to the absence of medical records under subpoena. Nelson's attorney argued that the case should be dismissed due to the city's delay in presenting the case to the district attorney's office.

¶ 6. The county court stated that it had granted the motion to dismiss the appeal because the investigating officer was no longer available, the city had secured a conviction for Nelson's offense, and the city had taken no steps to submit the matter to the district attorney's office. The county court found that, under the Uniform Rules of Circuit and County Court Practice, and the prerules cases of Bang v. State, 106 Miss. 824, 64 So. 734 (Miss.1914), and Thigpen v. State, 206 Miss. 87, 39 So.2d 768 (Miss.1949), the county court may dismiss an appeal from municipal court at the appellant's request at any time until the presentation of evidence begins, and may dismiss it after the presentation of evidence begins, with the agreement of the parties. However, the county court also found that it is the better practice to give the State an opportunity to respond to a motion to dismiss to assure the defendant has gained no advantage over the State by nondisclosure of information that was solely in the defendant's possession.

¶ 7. The county court found that Nelson had neither withheld information nor gained an unfair advantage over the State. However, the county court found that it should have given the city an opportunity to respond to Nelson's motion to dismiss. The county court reinstated the appeal to hear the city's response. The city moved to nolle prosequi the DUI-first charge, to enable its indictment of Nelson for the felony crime of DUI mayhem. The county court granted the motion and nolle prossed the DUI-first charge. The order entered after the hearing stated:

IT IS ORDERED AND ADJUDGED that the previous order to Dismiss and Order to Remand Back on Writ of Procedendo entered March 27, 2007 is hereby set aside and the Appeal is hereby reinstated.

IT IS FURTHER ORDERED AND ADJUDGED that the request to Stay the Proceeding is denied.

IT IS FURTHER ORDERED AND ADJUDGED that the counsel for the State of Mississippi made a motion ore tenus that the above styled case be Nolle Prosequi and that an Order of Nolle Prosequi in the above styled cause be and hereby is entered.

Nelson filed a motion for reconsideration. This motion was denied.

¶ 8. Nelson appealed to the Circuit Court of Rankin County. On April 1, 2010, the circuit court issued an order affirming the county court's ruling. Nelson filed a motion to permit appeal to this Court pursuant to Mississippi Code Section 11–51–81, and on May 27, 2010, this Court permitted Nelson's appeal. ³ Nelson argues that: (1) the county court had no jurisdiction to set aside the order of dismissal and remand on writ of procedendo; and (2) double jeopardy was invoked because the county court nolle prossed the charge after the appeal was taken.

DISCUSSION

I. WHETHER THE COUNTY COURT HAD JURISDICTION TO SET ASIDE THE ORDER OF DISMISSAL AND REMAND.

¶ 9. Nelson argues that she had a right to dismiss her appeal voluntarily. She argues that the dismissal and remand on writ of procedendo deprived the county court of jurisdiction. According to Nelson, once her appeal was dismissed and the case remanded on writ of procedendo, the county court was unable to retake jurisdiction even for the limited purpose of considering whether to set aside the order of dismissal and remand on writ of procedendo. The jurisdictional question presented is governed by Mississippi's procedural law.

¶ 10. The county court found that it has authority to dismiss an appeal on the appellant's motion to voluntarily dismiss the appeal, and that it was within its authority to dismiss Nelson's appeal at her request. However, on reconsideration, the county court determined that it had erred by dismissing Nelson's appeal without timely notice to the city, and without the benefit of the city's arguments in opposition to dismissal. We must determine whether the county court erred by reconsidering the dismissal of Nelson's appeal under these circumstances.

¶ 11. The Uniform Rules of Circuit and County Court allow appeals to county court from justice court or municipal court. URCCC 12.02. Rule 12.02 states that an individual who has been “adjudged guilty of a criminal offense by a justice or municipal court may appeal to county court or, if there is no county court having jurisdiction, then to circuit court ....” for a trial de novo. URCCC 12.02(A)(1), (C). Perfecting the appeal requires the simultaneous filing of a notice of appeal, a cost bond, and an appearance bond or cash deposit within thirty days of the judgment. URCCC 12.02(A)(1). When the appeal is perfected, the prior judgment of conviction is stayed. URCCC 12.02(C). Rule 12.02 expressly sets out three situations in which the trial court may dismiss the appeal with prejudice: (1) if the defendant fails to post the required appearance bond or cash deposit; (2) if the notice of appeal does not contain the information required by Rule 12.02(A)(2), and the court does not allow amendment; or (3) if the defendant fails to appear at the time and place set by the court. URCCC 12.02(A)(1), (A)(2), (B)(1).

¶ 12. On several occasions, this Court has discussed a defendant's ability to obtain a dismissal of an appeal from justice court or municipal court for a trial de novo. In Bang v. State, 106 Miss. 824, 64 So. 734, 735 (1914), Pier Bang was convicted in justice court of the unlawful sale of intoxicating liquors and fined $150. Bang appealed to the circuit court, and a trial took place. Id. After the State had rested its case, Bang moved to dismiss the appeal. Id. The circuit court overruled the motion, and Bang appealed the ruling to the Supreme Court. Id. In holding that Bang had no right to have the appeal dismissed, the Court stated:

It will be seen that the case is brought into the circuit court by appeal from the judgment of the justice of the peace court. When it reaches the circuit court, it is there for trial anew, and disposition just as other cases therein pending. The circuit court is a trial court. The case, although brought to that court by appeal, is there for trial. In...