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DAVID L. BENNETT v. STATE OF MISSISSIPPI

JULY 06, 1988

DAVID L. BENNETT
v.
STATE OF MISSISSIPPI



EN BANC

PRATHER, JUSTICE, FOR THE COURT:

This is a criminal appeal taken from the Circuit Court of Lauderdale County, Mississippi, wherein David L. Bennett was tried and convicted of negligent injury to another while driving under the influence of alcohol in violation of Miss. Code Ann. 63-11-30(4) (Supp. 1985). The appellant was sentenced to serve a term of four (4) years in the custody of the Mississippi Department of Corrections, and it is from this conviction and judgment that Bennett appeals and assigns the following three assignments of error:

(1) The court erred in failing to dismiss the charge against the defendant, David L. Bennett, on the ground of double jeopardy.

 (2) The court erred in admitting into evidence the results of a blood test of the defendant taken pursuant to 63-11-1, et seq., of the Miss. Code of 1972, as amended.

 (3) The court erred in failing to grant the defendant's motion for recusal of the presiding judge.

 STATEMENT OF FACTS

 On March 27, 1985, the defendant, David L. Bennett, and

 Jackie Gault were involved in a two-car automobile accident. As a direct result of the accident, Mrs. Gault had her nose cut off, suffered numerous lacerations of the face, had one of her legs broken in 25 or more places, and received 8 broken ribs and a punctured lung. Following the accident, Mr. Bennett, pursuant to 63-11-7 was subjected to a blood test while he was unconscious to determine the alcoholic content of his blood. The blood sample of the defendant/appellant was found to contain a zero point one four percent (0.14) ethyl alcohol content. On the date of the accident Mr. Bennett was charged with misdemeanor driving under the influence of alcohol and driving with a suspended driver's license in Justice Court.

 On May 15, 1985, Mr. Bennett was found guilty, in absentia, in Justice Court of the misdemeanor charge of driving while intoxicated pursuant to Miss. Code Ann. 63-11-30(1-2) (Supp. 1985) (Cause No. 126) and driving with a suspended driver's license (Cause No. 40) and sentenced to serve two days in jail on each charge and to pay a $200 fine on each charge.

 On June 11, 1985 a felony warrant was issued for Bennett charging him with "permanently disfiguring or maiming the body of Jackie A. Gault in an automobile accident while driving under the influence of alcohol. (Docket No. 584). He was arrested on June 13, 1985 and appointed counsel was named on an indigency affidavit.

 The Justice Court Clerk testified regarding the entry on docket Case No. 40 that she believed that Bennett posted a cash bond at the jail which was forwarded to the Justice Court Clerk. Of a $600.00 cash bond posted, $258.50 was credited to the no driver's license charge, $250.00 was forwarded to the Circuit Court, and the remaining $91.50 was not reflected by the docket entry. These payments were made September 23, 1985 after the defendant Bennett had spent three and one-half months in jail.

 On the same date of September 23, 1985 an unknown person made an entry of Justice Court Docket Cause No. 126, the D.U.I. charge," Marked in error 9/23/85 "and also" stand trial for felonious charge of maiming and permanently disfiguring as a result of D.U.I. "Additionally, the former entry of the Court's having found the defendant" guilty "was marked through. The Justice Judge Howell testified that he had no independent recollection of the case and further that he" did not write, `marked in error and stand trial for felonious maiming and permanent disfigurement.' Probably Marilyn Jones wrote that. "Later in his testimony he added

 that the entry" could have been done at my direction. "

 At the November, 1985 Term of Circuit Court, there was a felony indictment under Miss. Code Ann. 63-11-30(4) (Supp. 1985) returned against David Bennett for operating a motor vehicle while under the influence of ethyl alcohol having 0.14% by weight volume in his blood, and in said condition, causing the permanent injuries of Jackie Gault on March 27, 1985.

 Prior to trial, a motion to dismiss based upon a double jeopardy charge and a motion asking for the judge to recuse himself were heard and denied.

 Having been tried on the felony charge, Mr. Bennett was convicted of violation of Miss. Code Ann. 63-11-30(4) (Supp. 1985). He was sentenced to serve a term of four years in the custody of the Mississippi Department of Corrections.

 PROPOSITION NO. 1

 DID THE TRIAL COURT ERR IN OVERRULING THE APPELLANT'S MOTION FOR DISMISSAL ON THE GROUNDS OF FORMER JEOPARDY?

 Counsel for Mr. Bennett contends that the trial court erred in overruling his motion to dismiss based on the grounds of double jeopardy, alleging that Mr. Bennett was duly convicted of driving under the influence pursuant to Miss. Code Ann. 63-11-30(1-2) (Supp. 1985) on May 15, 1985, and that because of said misdemeanor conviction Mr. Bennett could not be tried subsequently for felony driving under the influence (D.U.I.) pursuant to Miss. Code Ann. 63-11-30(4) (Supp. 1985). The law of former jeopardy is well grounded in both the federal and state constitutions.

 No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . .

 U.S. Const. Amend. V.

 No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.

 Miss. Const. Art. 3, 22.

 In Harden v. State, 460 So.2d 1194 (Miss. 1984), this this Court writes:

 The first is the inviolate right of any person not to be prosecuted twice for the same offense. This treasured right is deeply embedded in our national conscience and in our system of laws that any violation is absolutely odious.

 Id. at 1200 (citing U.S. Const. Amend V and Miss. Const. Art 3, 22). With this precedent in mind, counsel for Mr. Bennett argues that the felony conviction of David L. Bennett in Lauderdale County Circuit Court for violation of 63-11-30(4) after his prior conviction of ...


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