State v. Woodall, 1998-KA-01133-SCT.
| Decision Date | 17 June 1999 |
| Docket Number | No. 1998-KA-01133-SCT.,1998-KA-01133-SCT. |
| Parties | STATE of Mississippi v. Roger Wayne WOODALL. |
| Court | Mississippi Supreme Court |
Office of the Attorney General by Cono A. Caranna, Lisa P. Dodson, Attorneys for Appellant.
Joe Sam Owen, Gulfport, Attorney for Appellee.
BEFORE PRATHER, C.J., MILLS AND COBB, JJ.
MILLS, Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. Appellee Roger Wayne Woodall was arrested pursuant to an arrest warrant issued on February 24, 1997, based on fourteen affidavits accusing him of obtaining controlled substances by forging prescriptions. On February 25, 1998, an indictment was returned by the Grand Jury of the First Judicial District of Harrison County. Woodall was indicted on five counts of knowingly and intentionally acquiring or obtaining possession of a controlled substance by passing a forged prescription to a practitioner. The incidents which formed the basis of the indictment occurred on the following dates: August 18, 1995; August 25, 1995; September 1, 1995; September 8, 1995; and September 16, 1995.
¶ 2. Woodall then filed a motion to dismiss based on the statute of limitations. Woodall argued that since the indictment was filed over two years after the crimes were allegedly committed, the action was barred. The trial court granted Woodall's motion finding, "the prosecution against the defendant ... was commenced by the filing of the indictment which occurred more than two (2) years from the date of the alleged offenses" The trial court also held the crimes charged did not fall within the exceptions to the statute of limitations. From the judgment of the Circuit Court of the First Judicial District of Harrison County, the State appeals assigning the following as error:
I. WHETHER PROSECUTION IS COMMENCED WITHIN THE MEANING OF MISS. CODE ANN. § 99-1-5 BY THE ISSUANCE OF A WARRANT UNDER MISS. CODE ANN. § 99-1-7.
II. WHETHER THE CHARGES IN THIS CASE UNDER MISS CODE ANN. § 41-29-144 ARE EXCEPTTED FROM THE STATUTE OF LIMITATIONS PRESCRIBED BY MISS. CODE ANN. § 99-1-5.
III. WHETHER THE OTHER ITEMS CONTAINED IN THE TRIAL COURT'S ORDER ARE RELATED TO THE STATUTE OF LIMITATIONS RATHER THAN THE ISSUES OF SPEEDY TRIAL OR DUE PROCESS.
DISCUSSION
¶ 3. Woodall alleges the state did not commence prosecution against him within the two-year time period required by then applicable Miss.Code Ann. § 99-1-5 (1994):
Miss.Code Ann. § 99-1-5 (1994)(emphasis added). ¶ 4. Commencement of prosecution is defined by the statute immediately following the statute of limitations:
A prosecution may be commenced, within the meaning of section 99-1-5 by the issuance of a warrant, or by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit.
Miss.Code Ann. § 99-1-7 (1994). However, the trial court found issuance of a warrant only applies to commence prosecution in misdemeanor cases. In a felony case, as the instant case, the trial court found an indictment was required to commence prosecution. On this basis, the court found prosecution of Woodall was barred by the statute of limitations.
¶ 5. Woodall cites authority to bolster the trial court's finding. He notes that the Mississippi Constitution mandates: "No person shall, for any indictable offense, be proceeded against criminally by information...." Miss. Const. Art. 3 § 27.
¶ 6. He also notes that "prior to prosecution" of a felony, an indictment must be returned. Williams v. State, 708 So.2d 1358, 1364 (Miss.1998). See also Quick v. State, 569 So.2d 1197, 1999 (Miss.1990)
; Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989).
¶ 7. The State, to the contrary, notes two cases specifically addressing when the prosecution of felonies commences. This Court held that in a case of kidnapping and murder, prosecution had already commenced when the accused had been arrested but not indicted. Cannaday v. State, 455 So.2d 713, 722 (Miss.1984). When a couple was accused of arson, this Court found prosecution had commenced when they had been arrested, charged, and informed about release on bond but not indicted. Page v. State, 495 So.2d 436, 439 (Miss.1986). We held, "Miss.Code Ann. § 99-1-7 (1972) provides for commencement of prosecution as occurring when a warrant is issued as well as `by binding over or recognizing the offender to compel his appearance to answer the offense.'" Id.Accord, Livingston v. State, 519 So.2d 1218, 1220-21 (Miss.1988)
.
¶ 8. While it is true that an indictment is required to prosecute one charged with a felony, our case law suggests and our statute mandates that the process of prosecution commences prior to indictment. This is true whether the prosecution involves a felony or a misdemeanor although this Court's attempt to stress the importance of an indictment may have left some of the terminology ambiguous or seemingly contradictory.
¶ 9. Woodall was arrested pursuant to arrest warrant issued on February 24, 1997, less than two years after the alleged incidents of obtaining a controlled substance by forgery. Therefore, the trial court incorrectly found the State was barred from prosecuting Woodall. Because of this error, this Court must reverse the judgment below, reinstate the indictment, and remand this case for further proceedings consistent with this opinion.
¶ 10. As the action is not barred according to the statute of limitations, this assignment of error is moot.
¶ 11. Woodall contends his constitutional right to a speedy trial was violated. However, he raises this issue for the first time on appeal. We have held that even when it appears that the speedy trial statute was violated, if it was not raised in the trial court, we may remand for the lower court to consider the reasons for the delay. Barnes v. State, 577 So.2d 840, 844 (Miss. 1991). When the issue was not raised below and there was no plain error, we have refused to address allegations regarding speedy trial. Sanders v. State, 678 So.2d 663, 671 (Miss.1996). Therefore, the issue is remanded to the trial court for consideration of this issue.
CONCLUSION
¶ 12. The issuance of an arrest warrant signals the commencement of prosecution. Miss.Code Ann. § 99-1-7 (1994). See Cannaday, 455 So.2d at 722
; Page, 495 So.2d at 439. Prosecution must be commenced within two years from the date of the commission of any crime. Miss.Code Ann. § 99-1-5(1994 & Supp.1998). Woodall was arrested pursuant to an arrest warrant issued February 24, 1997, within two years after the incidents in question. Therefore, the State is not barred from prosecuting Woodall, and consideration of any exceptions to the statute of limitation are moot. While it appears that there may have been a violation of Woodall's constitutional right to a speedy trial, this issue was not raised or ruled on below. We are unable to determine the reasons for the delay. Therefore, the trial court should evaluate Woodall's speedy trial claims on remand.
¶ 13. For these reasons, we reverse the judgment of the Harrison County Circuit Court, we reinstate the indictment, and we remand this case for further proceedings consistent with this opinion.
¶ 14. REVERSED AND REMANDED; INDICTMENT REINSTATED.
WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J.
¶ 15. The trial court was right as it dismissed the charges because the State failed to indict the defendant within 2 years of the charged offense. The statute of limitations bars prosecution. I dissent. This is a felony case. Our Mississippi Constitution plainly provides that:
No person shall, for any indictable offense, be proceeded against criminally by...
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