Ostrander v. State
Decision Date | 10 January 2002 |
Docket Number | No. 2000-KM-01151-SCT.,2000-KM-01151-SCT. |
Parties | Ronald OSTRANDER v. STATE of Mississippi. |
Court | Mississippi Supreme Court |
V.W. Carmody, Jackson, Pamela Luckie Castle, Hattiesburg, Attorneys for Appellant.
Office of the Attorney General, by Dewitt T. Allred, III, Jackson, Attorneys for Appellee.
EN BANC.
SMITH, P.J., for the Court.
¶ 1. On March 1, 2000, Ronald Ostrander was convicted of a first offense D.U.I. in the Circuit Court of Greene County. Aggrieved by the judgment entered on the jury's decision, he timely perfected this appeal.
FACTS
¶ 2. On February 24, 1996, Ronald Ostrander was arrested by Mississippi Highway Patrol Sergeant Tommy Henderson at a road block in Greene County for driving under the influence of alcohol. The arrest was based on Henderson's observations of indicia of intoxication, Ostrander's admission that he had been drinking, and the presence of beer in Ostrander's car. Ostrander refused to submit to the intoxilyzer test. He was charged with a D.U.I. second offense.
¶ 3. Ostrander was tried and convicted in the Justice Court of Greene County with his sentencing delayed "pending a DUI appealed from the Municipal Court of Leakesville." Ostrander filed a notice of appeal pursuant to Miss.Code Ann. § 99-35-1 to the Circuit Court of Greene County. His motion for a jury trial was granted. The State offered one witness at the trial, the Mississippi Highway Patrolman who issued the DUI, Trooper Tommy Henderson. The State attempted to introduce a court abstract to support the charge of a second offense DUI. Defense counsel objected and argued, inter alia, that the first conviction had been dismissed, and thus, could not be used to support the charge of a second offense DUI. The trial judge sustained the objection to the introduction of the abstract.
¶ 4. The trial then proceeded with the cross-examination of Trooper Henderson. After brief redirect examination, the State rested. Ostrander moved for a directed verdict asserting that the State failed to prove the element of a prior conviction, and as a result, failed to prove a required element of its case. The trial judge overruled the motion for a directed verdict as to the case as a whole, but ruled that a first offense DUI is a lesser-included offense of a DUI second offense. He allowed the case to go the jury as a DUI first offense. The jury found that Ostrander was guilty of a DUI first offense. The trial judge sentenced Ostrander to 48 hours in the Greene County jail, a $1,000 fine, and costs of court. Ostrander promptly moved for a new trial, or in the alternative, for a JNOV. This motion was denied. Aggrieved, Ostrander perfected his appeal to this Court. He raises the following issue:
WHETHER THE TRIAL COURT ERRED WHEN, AFTER DIRECTING A VERDICT IN FAVOR OF THE DEFENDANT ON THE CHARGE OF DUI SECOND OFFENSE, THE TRIAL COURT ALLOWED THE STATE TO AMEND THE CHARGE TO DUI FIRST OFFENSE
STANDARD OF REVIEW
¶ 5. Questions of law are reviewed de novo. Department of Human Servs. v. Gaddis, 730 So.2d 1116, 1117 (Miss.1998).
DISCUSSION
¶ 6. At the close of the State's case, Ostrander moved for a directed verdict. The trial judge denied Ostrander's motion as to the entire case. He held that a first offense D.U.I. is a lesser-included offense of a second offense DUI and allowed the issue to go before the jury on the question of the DUI first offense. To put our discussion in context, a review of the arguments and ruling is necessary:
However, this did not end the discussion about Ostrander's motion for a directed verdict. Shortly following the above discussion, yet more discussions were had:
¶ 7. Ostrander first argues that proof of a prior DUI conviction is a necessary element for his conviction of a second offense DUI. The State agrees. Ostrander was on trial for the following violations of Miss. Code Ann. § 63-11-30(2)(b):
¶ 8. Weaver v. State, 713 So.2d 860, 865 (Miss.1997) ( ), Williams v. State, 708 So.2d 1358, 1362-63 (Miss.1998) (reaffirming that the ) , and Smith v. State, 736 So.2d 381, 383 (Miss.Ct.App.1999) ( ), demonstrate that a prior conviction is a necessary element of the underlying charge.
¶ 9. These cases occurred within the context of felony DUI prosecutions, i.e. a prosecution for a third or subsequent DUI pursuant to Miss.Code Ann. § 63-11-30(2)(c). The appellants in each of the three cases alleged assignments of error due to the denial of their respective requests for bifurcated trials. Among the arguments presented for bifurcating the trials was that the prior sentences were for enhancement purposes only, i.e. they were not substantive elements of a felony DUI charge. We expressly rejected this argument in this context. Specifically, in Williams, 708 So.2d at 1363, we stated:
Miss.Code Ann. § 63-11-30(1) (1996) enumerates what actions will subject a person to prosecution for a DUI. As stated earlier, "defining crimes and prescribing punishments are exclusively legislative functions as a matter of constitutional law." (citations omitted.) What constitutes (i.e. the elements) a felony DUI is defined by the legislature in Miss.Code Ann. § 63-11-30(2)(c) (1996).
Following this analysis in the case presently before us, it necessarily follows that a prior DUI conviction is a necessary element of a DUI second offense. Our inquiry, therefore, proceeds to Ostrander's next argument.
¶ 10. Ostrander argues that Miss.Code Ann. § 63-11-39 (1996), along with this Court's opinion in Harris v. State, 723 So.2d 546 (Miss.1997), preclude the jury from convicting Ostrander of first-offense DUI. Section 63-11-39 provides: "The court having jurisdiction or the prosecutor shall not reduce any charge under this chapter to a lesser charge." The State argues that no such reduction occurred in this case, but, rather, the trial judge entered only a partial directed verdict as to the greater offense and submitted the lesser-included offense of first-offense DUI to the jury.
¶ 11. The language of § 63-11-39, even strictly construed, does not support Ostrander's argument. The sole function of § 63-11-39 is to prohibit reduction of DUI charges to non-DUI charges. The modifying phrase "under this chapter," signifying DUI offenses, is not repeated after the phrase "to a lesser charge." Furthermore, prior to 1996, the prohibition against reducing charges applied only to individuals whose blood was shown to contain ten one-hundredths percent (.10%) or more by weight volume of alcohol by chemical analysis of the person's breath or blood. These statutes are penal in nature. The purpose of § 63-11-39, both prior to 1996 and as amended, was...
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