The opinion of the court was delivered by: Smith, Justice
DATE OF JUDGMENT: 07/02/97
TRIAL JUDGE: HON. BARRY W. FORD
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED- 11/19/98
MOTION FOR REHEARING FILED:
¶1. The State of Mississippi appeals to this court from a dismissal of an indictment in favor of Anthony Shumpert by the Circuit Court of Lee County.
¶2. The dismissal order had its origin in the re-indictment of Shumpert after a nolle prosequi by the State which was based on erroneous information reflecting that Officer Allen Gilbert could not identify Shumpert, when in fact, later when personally asked about this, Officer Gilbert stated that he could identify Shumpert.
¶3. We find that the re-indictment for the same offense after an order of Nolle prosequi does not bar prosecution. Beckwith v. State, 615 So. 2d 1134, 1147-48 (Miss. 1992) (citing Smith v. State, 158 Miss. 355, 359, 128 So. 891, 892 (1930)). Accordingly, we reverse and remand.
¶4. Anthony Shumpert and his brother, Kevin Antonio Shumpert, were initially indicted by a Lee County Grand Jury on charges of simple assault on Police Officer Allen J. Gilbert. Assistant District Attorney, Roland Geddie, was assigned the case after the indictment was returned.
¶5. Geddie received information that led him to believe that Officer Allen Gilbert, the investigating officer, would not be able to identify the defendants. Geddie attempted to contact Officer Gilbert to verify this supposed correct information, but Gilbert was out of town. Geddie, thinking that Officer Gilbert could not identify the defendants, filed a Motion to Nolle Prosequi the case. The Circuit Court of Lee County sustained the motion to nolle prosequi on August 26, 1996. Officer Gilbert was subsequently contacted and notified of the nolle prosequi by the chief of police. Gilbert then informed his chief that he had known the defendants for years and could absolutely identify them. The chief then informed Geddie that he (Geddie) had been acting under a misunderstanding when the case was nolle prossed because, in fact, Officer Gilbert could identify both defendants.
¶6. In September of 1996, Anthony Shumpert filed suit in the United States District Court for the Northern District of Mississippi against Officer Allen Gilbert for malicious prosecution.
¶7. Acknowledging that Assistant District Attorney Geddie had made a mistake, the case was re-presented during the February 1997 grand jury term and an indictment was enteredon the case. The defense then filed a motion to dismiss stating, "this indictment is brought solely in retaliation for the filing of a federal lawsuit." The motion to dismiss was then granted by Circuit Court Judge Barry Ford. However, Judge Ford did not make any finding that the case was re-presented to the ...