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Bailey v. State

November 26, 1997

LEONARD BAILEY A/K/A LEONARD BAILEY, JR.
v.
STATE OF MISSISSIPPI



Prather, P.J., Roberts And Mills, JJ. Prather, Presiding Justice, For The Court.

DATE OF JUDGMENT: 05/24/95

TRIAL JUDGE: HON. JOHN H. WHITFIELD

COURT FROM WHICH APPEALED: STONE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRM DENIAL OF MOTION TO DISMISS AND REMAND FOR FURTHER PROCEEDINGS - 11/26/97

I. INTRODUCTION

¶1. This interlocutory appeal arises from the indictment, under our State's implied consent statute, of Leonard Bailey for driving under the influence (DUI) as a felony third-time offender. See Miss. Code Ann. § 63-11-30 (Supp. 1996). The issue presented is the use of prior DUI convictions based on nolo contendere pleas for purposes of sentence enhancement on subsequent DUI charges. Specifically, the question is whether Bailey (who has previously entered pleas of nolo contendere to DUI-first offense and DUI-second offense) can be charged as a felony recidivist on his third charge of DUI.

¶2. This Court holds that the prior DUI convictions based on the nolo contendere pleas were valid and can be used for purposes of enhancing the sentence under Mississippi's implied consent law. Therefore, the trial court's denial of Bailey's motion to dismiss the felony charge is affirmed, and this case is remanded for further proceedings.

II. STATEMENT OF THE CASE

¶3. On November 4, 1991, Bailey entered a plea of nolo contendere to the charge of DUI- first offense. The Stone County Justice Court found Bailey guilty and fined him $350, plus court costs. On January 27, 1992, Bailey entered a plea of nolo contendere to the charge of DUI-second offense. The same court found Bailey guilty and fined him $950, plus court costs.

¶4. On August 24, 1994, Bailey was indicted in the Stone County Circuit Court for felony DUI as a third-time offender. He moved to dismiss the felony charge, and argued that his first two DUI convictions could not be used against him, because he had pled nolo contendere to the charges in both of the prior cases. The trial judge denied the motion to dismiss, but granted Bailey leave to file an interlocutory appeal. This Court granted Bailey's petition for interlocutory appeal on the following issues.

A. WHETHER PRIOR MISDEMEANOR CONVICTIONS BASED UPON PLEAS OF NOLO CONTENDERE OF APPELLANT MAY BE USED AGAINST THE APPELLANT IN SUBSEQUENT CRIMINAL PROCEEDINGS PURSUANT TO WELL ESTABLISHED AND LONG STANDING CASELAW IN MISSISSIPPI?

B. WHETHER PRIOR MISDEMEANOR CONVICTIONS BASED UPON PLEAS OF NOLO CONTENDERE OF APPELLANT MAY BE USED AGAINST THE APPELLANT IN THE PRESENT CRIMINAL PROCEEDINGS PURSUANT TO EX POST FACTO PROHIBITIONS AND OTHER CONSTITUTIONAL GUARANTEES?

III. LEGAL ANALYSIS

A. WHETHER PRIOR MISDEMEANOR CONVICTIONS BASED UPON PLEAS OF NOLO CONTENDERE OF APPELLANT MAY BE USED AGAINST THE APPELLANT IN SUBSEQUENT CRIMINAL PROCEEDINGS PURSUANT TO WELL ESTABLISHED AND LONG STANDING CASELAW IN MISSISSIPPI?

¶5. The abstracts from Bailey's DUI-first offense and DUI-second offense cases indicate that the "DEFENDANT ENTERED A PLEA OF: NOLO CONTENDERE" and that the "JUDGEMENT OF THE COURT" was "GUILTY". The question is, whether the judgments of the trial court in these previous cases were "convictions" for purposes of Mississippi's implied consent statute - which provides that a third DUI "conviction" in a five-year period is a felony:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor

(c) For any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be guilty of a felony and fined not less than Two Thousand Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00) and shall be imprisoned not less than one (1) year nor more than five ...


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