DATE OF JUDGMENT: 06/17/96 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION REVERSED AND REMANDED - 2/26/98 MOTION FOR REHEARING FILED: MANDATE ISSUED:
Before Sullivan, P.j., Banks And Mills, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice, For The Court:
¶1. This appeal arises from a conviction rendered in the Circuit Court of Scott County, based upon a jury verdict, filed June 12, 1996, finding Knowles guilty of the charge of willful refusal to provide support and maintenance for his two children while they were under the age of eighteen from May 1993, through December 1995. Mr. and Mrs. Knowles were married twice, the first marriage began in 1978 and ended in 1983. It was during this marriage that two children were born. The second marriage began in 1986 and ended in divorce in May 1993. Both parties were granted a divorce on May 28, 1993, based on irreconcilable differences. This judgment incorporated a separation agreement which gave custody of the two minor children, ages ten and fourteen at the time, to Sandra and ordered Arnold to pay $300 per month in child support.
¶2. The trial was held and testimony was received on June 10, and June 12, 1996, with the sentence determined on June 17, 1996. At the time of trial Melissa was seventeen and Amanda was thirteen. There was evidence presented at trial through the testimony of Sandra Knowles, Melissa Knowles, Amanda Knowles and Mr. Knowles that Mr. Knowles had not made any child support payments to Mrs. Knowles during the relevant time period from May 1993, to December 1995. However, there was testimony that Melissa lived with her father and her paternal grandparents during the relevant time period. Unhappy with the jury verdict finding him guilty of wilfully refusing to provide support and maintenance for his two children, Knowles filed a Motion For A New Trial Or Other Relief citing many of the same issues that are now on appeal. Most of these issues depend on the application of an amended statute as reflected by the indictment and the jury instructions.
I. The Court erred in denying Appellant's Motion to Quash Indictment and Demurrer to Indictment because the indictment did not allege that the children were in destitute or necessitous circumstances.
II. Applying the amendment of Section 97-5-3 to raise the age of children it protected to a period before its effective date made it an ex post facto law.
III. The Court erred in sentencing the Appellant to five years confinement.
IV. The Court erred in overruling the Appellant's objection to Instruction S-1.
V. The Court erred in refusing jury Instruction D-6.
¶3. Each of these issues hinge on this Court's finding that an ex post facto violation has occurred due to the unlawful application of the amended Section 97-5-3 of the Mississippi Code of 1972. This Court finds that although the willful refusal to provide support and maintenance for one's children is a continuing crime, the indictment as applied in this case is an ex post facto violation and therefore requires reversal.
¶4. Prior to trial Knowles presented a Motion To Quash Indictment and a Demurrer To Indictment. Some of the grounds in support of the motions were that (1) the indictment is defective as to substance because it materially alters the essence of the offense, (2) the indictment is an ex post facto construction of the applicable statute because one of the children went out from under the statute as a result of being over the age of sixteen prior to the time the amended statute went into effect and for a short period of time there was no crime as to the older daughter, Melissa, and (3) the amendment is an ex post facto construction because the amendment subjects Knowles to a greater penalty then what was in effect for most of the time that he failed to pay child support. The Demurrer to Indictment specifically alleges that the indictment does not charge the defendant with "leaving such child or children in destitute or necessitous circumstances" as required by the statute as it existed prior to July 1, 1995. Both motions were denied on June 10, 1996.
¶5. Knowles was indicted on February 8, 1996, under Miss. Code Ann. § 97-5-3 for unlawfully and feloniously refusing to provide support and maintenance for his children, Melissa Knowles and Amanda Knowles, both under the age of 18, for the period between May 1993, through December 1995. Section 97-5-3 was amended, effective July 1, 1995, to delete the requirement that the prosecution prove that such children were destitute or left in necessitous circumstances. Miss. Code Ann. § 97-5-3 (Supp. 1997). Knowles was indicted under the amended statute in February of 1996. The dispute in the case at bar is whether or not the State has the authority to indict under the amended statute for the failure to provide for his children that occurred prior to the effective date of the amended statute. The amended statute, effective from July, 1, 1995, states as follows:
Any parent who shall desert or wilfully neglect or refuse to provide for the support and maintenance of his or her child or children, including the natural parent of an illegitimate child or children . . . while said child or children are under the age of eighteen (18) years shall be guilty of a felony and, on conviction thereof, shall be punished for a first offense by a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00), or by commitment to the custody of the Department of Corrections not more than five (5) years, or both; and for a second or subsequent offense, by a fine of not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00), or by commitment to the custody of the Department of Corrections not less than two (2) years nor more than five (5) years, or both, in the discretion of the court.
Miss. Code Ann. § 97-5-3 (Supp. 1997) *fn1 (emphasis added).
¶6. An ex post facto law is one which creates a new offense or changes the punishment, to the detriment of the accused, after the commission of the crime. Collins v. Youngblood, 497 U.S. 37 (1990). In Collins, the Supreme Court stated, "egislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." Collins, 497 U.S. at 43. The constitutional prohibition on ex post facto laws only applies to penal statutes. Collins, 497 U.S. at 41; Dunn v. Grisham, 250 Miss. 74, 157 So. 2d 766 (1963), and the State "is without power to enforce against any person an ex post facto law." Tiller v. State, 440 So. 2d 1001, 1004 (Miss. 1983). The United States Supreme Court has held that the purpose of the Ex Post Facto Clause is to assure that legislative acts "give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed" and to restrict "governmental power by restraining arbitrary and potentially vindictive legislation." Weaver v. Graham, 450 U.S. 24, 28-29 (1981) (footnote and citations omitted). This Court stated in Johnston v. State:
Both the federal and our state constitutions protect persons from ex post facto laws. Jackson v. State, 551 So. 2d 132, 140 (Miss. 1989). One convicted should be sentenced pursuant to the statute existing on the date of his offense to avoid an ex post ...