DATE OF JUDGMENT: 09/23/96 TRIAL JUDGE: HON. HOWARD Q. DAVIS, JR. COURT FROM WHICH APPEALED: TIPPAH COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - OTHER DISPOSITION AFFIRMED - 02/26/98 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. Gary Mauney was elected Sheriff of Tippah County on November 7, 1995. In his Qualifying Statement of Intent for Candidate for Party Nomination, Mauney indicated that he had never been convicted of a "crime punishable by confinement in the Penitentiary." On June 21, 1996, the State filed an action in quo warrantor in the Circuit Court of Tippah County to have Sheriff Mauney removed from office. The State alleged that Mauney was ineligible to hold office under Section 44 of the Mississippi Constitution, which provides that a person convicted of an "infamous crime" is ineligible to hold "any office of profit or trust." Miss. Const. art. 4, § 44. Paul Gowdy, the incumbent sheriff defeated by Mauney in the 1995 election, filed a similar cause of action which was consolidated with this case for purposes of trial. This Court appointed Judge Howard Q. Davis as Special Judge to preside over the proceedings in the action brought by the State upon recusal of the circuit Judges in Tippah County.
¶2. All parties agreed to have the case heard by Judge Davis without a jury on September 18, 1996. At trial, the parties stipulated that Mauney was convicted of a felony in Cause No. 4082 in 1974 for sale of a controlled substance (amphetamines). Circuit Court Judge W.W. Brown sentenced Mauney on July 18, 1974, to one year in the State Penitentiary. The sentence was suspended, and Mauney was placed on probation for a period of three years. Mauney alleged that Judge Brown intended to expunge his record and the records of his co-defendants if they satisfied their probationary terms. He introduced a copy of a newspaper article from 1974 which stated, "If they were exemplary citizens, he [Judge Brown] said, they could hope to have their offenses expunged from the record." Mauney also presented a copy of the order expunging the record in the cases of his co-defendant(s) signed by Judge Brown on May 6, 1985, as support for his argument. However, no order of expungement was entered in Mauney's case until November 24, 1995, when judge Brown entered a nunc pro tunc order of expungement going back to December 6, 1976, the date of the termination of Mauney's probation. At trial the parties stipulated that Judge Brown was not a sitting Judge at the time when he signed this order.
¶3. Based upon these facts, Judge Davis found that the November 24, 1995, expungement order was null and void, because Judge Brown lacked authority to expunge Mauney's record. The court also determined that Mauney's 1974 conviction of sale of amphetamines was an infamous crime for purposes of Section 44 of the Mississippi Constitution, thereby disqualifying him from serving as Sheriff of Tippah County. Judge Davis ordered that Mauney be removed from office, and Mauney appeals to this Court.
¶4. "Our standard for review is de novo in passing on questions of law." Snapp v. Harrison, 699 So.2d 567, 569 (Miss. 1997) (citing Mississippi Farm Bureau Cas. Ins. Co. v. Curtis, 678 So.2d 983, 987 (Miss.1996); Seymour v. Brunswick Corp., 655 So.2d 892, 895 (Miss.1995)).
WHETHER MAUNEY'S 1974 CONVICTION FOR SALE OF AMPHETAMINES DISQUALIFIES HIM FROM HOLDING THE OFFICE OF SHERIFF OF TIPPAH COUNTY.
¶5. Section 44 of the Mississippi Constitution, relied upon by the State and the trial Judge, provides in pertinent part:
(1) No person shall be eligible to a seat in either house of the Legislature, or to any office of profit or trust, who shall have been convicted of bribery, perjury, or other infamous crime; and any person who shall have been convicted of giving or offering, directly, or indirectly, any bribe to procure his election or appointment, and any person who shall give or offer any bribe to procure the election or appointment of any person to office, shall, on conviction thereof, be disqualified from holding any office of profit or trust under the laws of this state.
Miss. Const. art. 4, § 44(1) (emphasis added). Mississippi's statute setting out the specific requirements for eligibility to hold the office of sheriff is Section 19-25-3, which disqualifies those who are defaulters to the state, any county or municipality, or the United States, and "ny person who is not a qualified elector, or who denies the existence of a Supreme Being. . ." Miss. Code Ann. § 19-25-3 (1995). Section 241 of the Mississippi Constitution defines the term "qualified elector" as excluding persons "convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy. . ." Miss. Const. art. 12, § 241. Those convicted of "bribery, burglary, ...