Weaver v. State, 95-KA-01034-SCT

• Decision Date: 13 November 1997
• Docket Number: No. 95-KA-01034-SCT,95-KA-01034-SCT
• Citation: 713 So.2d 860
• Parties: Willie WEAVER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 860

713 So.2d 860

Willie WEAVER v. STATE of Mississippi.

No. 95-KA-01034-SCT.

Supreme Court of Mississippi.

Nov. 13, 1997.

Anthony J. Buckley, Laurel, for Appellant.

Michael C. Moore, Atty. Gen., Scott Stuart, Special Asst. Atty. Gen., Jackson, for Appellee.

Before PRATHER, P.J., and JAMES L. ROBERTS, Jr. and MILLS, JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

¶1 Willie Weaver was indicted by the Grand Jury of Jones County, Mississippi, on July 17, 1995, for DUI-Third offense, a felony, in violation of Miss. Code Ann. § 63-11-30(1). Weaver was arrested on April 1, 1995, after being stopped for a traffic violation in Laurel, Mississippi. The indictment charged Weaver with driving or operating a vehicle while under the influence of an intoxicating liquor which impaired his ability to operate a motor vehicle while having a ten-hundredths percent (.10 per cent) or more by weight volume of alcohol in his blood and having two or more convictions for violating the above statute.

¶2 On September 19, 1995, a jury trial was had before the Honorable Billy Joe Landrum. A guilty verdict of Felony DUI was returned on the same day. The lower court sentenced Weaver to five years with the Mississippi Department of Corrections, with three years suspended and two years to serve. A fine of $2,000 and costs of court were also imposed.

¶3 Weaver promptly filed his Motion for New Trial with the lower court on October 4 1995. The lower court denied this Motion by Order on October 6, 1995. From the proceedings below Weaver brings this matter before this Court on appeal raising the following:

I. WHETHER THE COURT ERRED IN OVERRULING WEAVER'S MOTION TO DISMISS THE FELONY CAUSE ON THE GROUNDS THAT THE INDICTMENT AS READ WAS LEGALLY INSUFFICIENT TO CHARGE A FELONY.

II. WHETHER IT WAS ERROR TO CHARGE AND CONVICT WEAVER WITH A THIRD OFFENSE FELONY DUI WHEN THE TWO UNDERLYING MISDEMEANOR DUIS WERE BOTH ISSUED ON THE OLD UNIFORM STANDARD TICKET.

III. WHETHER THE REPEATED REFERENCES TO THE JURY BY THE PROSECUTION AND BY THE COURT OF WEAVER'S PRIOR UNDERLYING MISDEMEANOR DUI CONVICTIONS WARRANT A NEW TRIAL.

¶4 In light of this Court's recent decision in McIlwain v. State of Mississippi, 700 So.2d 586 (Miss.1997), we find the lower court did not commit error and affirm as to all issues on appeal.

STATEMENT OF THE FACTS

¶5 On March 31, 1995, Weaver and several of his friends fished from noon until six or seven in the evening. Afterwards, the men proceeded to one of the their homes and cooked the fish. Weaver testified that he drank one beer at 6:00 p.m. and a second beer at approximately 11:45 p.m.

¶6 Although Weaver had his license suspended for two previous DUI convictions, he left his friend's house and proceeded to drive southbound on Highway 59 passing through Laurel, Mississippi. He was stopped at Boots Smith Bridge by Laurel Police Officer Robby McLaurin for weaving and traveling 72 miles per hour in a 55 miles per hour zone. McLaurin claimed as he approached the vehicle he could smell alcohol. He also testified that Weaver had slurred speech and blood shot eyes. After Weaver performed several field sobriety tests, McLaurin transported him to the Laurel Police Station. There Weaver took the CMI Intoxilyzer 5000 test and registered a .157. Weaver, who had two previous misdemeanor convictions, was later charged with third offense Felony DUI

¶7 At trial the State called Officer McLaurin to testify as to his participation in the arrest and prosecution of Weaver. The State rested after McLaurin's testimony. The defense made a Motion for Directed Verdict, which was overruled. Weaver was then called to testify in his own behalf, after which the defense rested.

¶8 The case was then received by the jury. After deliberations, the jury returned a guilty verdict of Felony DUI. The lower court sentenced Weaver to five years in the Mississippi Department of Corrections with three years suspended and two years to serve. A $2,000 fine and court costs were also assessed. Aggrieved from this finding of guilt, Weaver appealed to this Court.

DISCUSSION OF THE ISSUES

I. WHETHER THE COURT ERRED IN OVERRULING WEAVER'S MOTION TO DISMISS THE FELONY CAUSE ON THE GROUNDS THAT THE INDICTMENT AS READ WAS LEGALLY INSUFFICIENT TO CHARGE A FELONY.

II. WHETHER IT WAS ERROR TO CHARGE AND CONVICT WEAVER WITH A THIRD OFFENSE FELONY DUI WHEN THE TWO UNDERLYING MISDEMEANOR DUIS WERE BOTH ISSUED ON THE OLD UNIFORM STANDARD TICKET.

¶9 These two issues are interrelated and will be discussed together in order to foster an efficient analysis of this appeal. Weaver asked the lower court to grant his Motion for Directed Verdict at the close of the State's case-in-chief, on the ground that the face of the indictment alleged nothing more than a misdemeanor, citing as authority this Court's decision in Page v. State, 607 So.2d 1163(Miss.1992). The lower court denied Weaver's Motion. To sufficiently preserve this alleged error for appellate purposes, Weaver renewed his Motion for Directed Verdict at the close of his case-in-chief.

¶10 Weaver claims the indictment is in the same form as that held legally insufficient under Page to charge the defendant with anything other than another first offense misdemeanor. Weaver argues the indictment has to show as a condition precedent to the third offense felony charge that the defendant has been charged and convicted specifically of a "first offense," and then a "second offense." He states the indictment fails to allege the requisite elements of the felony offense.

¶11 This Court has recently overruled Page and Ashcraft v. City of Richland, 620 So.2d 1210 (Miss.1993), to the extent that they interpret the statute to require that the indictment must specifically show a previous conviction for DUI-First prior to being convicted for DUI-Second and a conviction of DUI-Second prior to being convicted for DUI-Third. McIlwain, 700 So.2d at 588. The indictment met the requirements of URCCC 7.06 and clearly showed that Weaver had been previously convicted of DUI-First and DUI-Second. At the top of the indictment, Weaver was specifically charged with Felony DUI-Third offense in violation of Miss. Code Ann. § 63-11-30(2)(d). The indictment stated that Weaver had been charged and convicted in violation of Miss. Code Ann. § 63-11-30(1), to wit:

(1) In the Municipal Court of Heidelberg, Mississippi, of the crime of DUI 1st offense, on the 2nd day of June, 1994, wherein he was ordered to pay a fine in the amount of $400.00 plus assessments in the amount of $115.00 plus court costs. (A COPY OF SAID ABSTRACT IS ATTACHED HERETO AS EXHIBIT NO. I AND MADE A PART HEREOF

(2) In the Municipal Court of Heidelberg, Mississippi, of the crime DUI 2nd offense, on the 21st day of July, 1994, he was ordered to pay a fine of $700.00 plus assessments of $115.00. (A COPY OF SAID ABSTRACT IS ATTACHED HERETO AS EXHIBIT NO. 2 AND MADE A PART HEREOF

¶12 Not only were the convictions and the courts in which they were tried enumerated on the face of the indictment, but the State went further. Each Abstract of Court Record showing Weaver's prior convictions for DUI were attached and made a part of the indictment. Like McIlwain, the attachments of the abstracts provide a clear and concise statement of the charges as required by both DUI indictment case law and the URCCC 7.06.

¶13 Weaver claims that he was unaware that his continued violations of Miss. Code Ann. § 63-11-30 would subject him to a felony charge. This Court finds this argument unpersuasive. The plain language of Miss.Code Ann. § 63-11-30 is clear that a DUI-Third offense within a five year period will subject a violator to a felony charge. Mistake of law is not a defense to a crime. This was Weaver's third DUI within a fourteen month time frame. This Court stated in McIlwain, that "the obvious intent of the DUI statute is to remove repeat DUI offenders from our streets." McIlwain, 700 So.2d at 589. There can be no question that the Legislature had persons like Weaver in mind when it enacted the statute.

¶14 Further, Weaver states the Constitution demands that he be made aware that his continued violations would increase the punishment for the offense. Weaver makes a very liberal reading of language in Page. "What ultimately is constitutionally important is that 'sufficient information...[be] afforded the defendant to inform him of the specific prior convictions upon which the State relied for enhanced punishment...' " Page, 607 So.2d at 1169 quoting Benson v. State, 551 So.2d 188, 196 (Miss.1989) (alteration in original). Although McIlwain partially overruled Page and Ashcraft, the Court stated Benson still requires the indictment to "supply enough information to the defendant to identify with certainty the prior convictions relied upon by the State for enhanced punishment." McIlwain, 700 So.2d at 588; quoting Benson, 551 So.2d at 196.

¶15 All this requires is for Weaver to be informed of the specific prior convictions relied upon by the State. That information was explicitly and specifically enumerated in the indictment. Weaver cannot say he was not made aware of the prior convictions the State relied upon to charge him with a felony for DUI-Third offense.

¶16 In response to this Court's decisions in Page and Ashcraft, the Legislature in 1994 enacted a new paragraph to Miss. Code Ann. § 63-11-30. Laws, 1994 ch. 340, § 4, approved March 14, 1994, effective June 6, 1994. In subsection (7) the Legislature added the following language:

For the purpose of determining how to impose the sentence for a second, third or subsequent conviction under this section, the indictment shall not be required to enumerate previous convictions. It shall only be necessary that the indictment state the number of times that the defendant has been convicted and sentenced within the past five (5) years under this section to determine if an enhanced penalty shall be imposed. The...