The opinion of the court was delivered by: Banks, Justice
DATE OF JUDGMENT: 08/25/93 TRIAL JUDGE: HON. BILLY JOE LANDRUM COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION REVERSED AND REMANDED - 6/11/98
MOTION FOR REHEARING FILED:
¶1. Here we consider the question of whether a standard practice of extracting a set fine from persons accused of writing bad checks on the pain of suffering a full criminal prosecution for failure to do so comports with the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. We answer that it does not. Accordingly we reverse and remand the judgment of the trial court.
¶2. On February 24, 1993, Mary Ann Moody was indicted by a Jones County Grand Jury, for the crime of False Pretense. On August 25, 1993, a jury found Moody guilty. Moody was sentenced to three years in the Mississippi Department of Corrections and fined $1,000, which was ordered one year suspended and $500 suspended. On August 26, 1993, the trial court denied Moody's motion for judgment notwithstanding the verdict, or in the alternative a new trial.
¶3. On or about October 12, 1991, Mary Ann Moody wrote a check to the order of City Salvage for $123.89. The check was written in exchange for two doors for Moody's mother's house. The check was returned to City Salvage for "non-sufficient funds." On February 24, 1993, she was indicted by a Jones County Grand Jury, for the crime of False Pretense. Moody was appointed counsel as an indigent defendant. After indictment the District Attorney's office assessed a levy of $500 plus restitution. Moody was given the option of paying a $500 fine plus restitution and having the case nolle prossed, or not paying the fine and being subjected to prosecution. Jeanne Jefcoat of the district attorney's office testified that this fine is imposed automatically once a defendant is indicted. Jefcoat testified that this was the practice after these cases were tried in circuit court instead of Justice court. Moody testified that she could not pay all the fine, restitution and other costs at one time. Moody's motion to dismiss the action was denied and the case proceeded to trial. The State presented sufficient evidence to establish grounds for a conviction. Her was subsequently convicted of the crime of false pretense and appeals, raising a violation of the Fourteenth Amendment to the Constitution of the United States as her sole ground on appeal.
¶4. Moody claims that the district attorney's office lacks statutory or constitutional authority to automatically impose a set fine of $500 on all defendants indicted under the Mississippi Bad Check Law. Furthermore, she claims that such a fine violates an indigent's right to equal protection under the Fourteenth Amendment. The State argues that the fine is merely a plea bargain, and as such is in the discretion of the district attorney. This is a case of first impression before this Court. We are unable to find any cases directly on point in any other jurisdiction. There is an abundance of case law dealing with indigents' equal protection arguments based on sentencing and probation revocation for failure to pay a fine. There is also case law dealing with a prosecutor's discretion in plea bargaining.
¶5. In Bearden v. Georgia, 461 U.S. 660, (1983), the United States Supreme Court considered whether a sentencing court can revoke a defendant's probation for failure to pay the ...