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Smith v. State

Court of Appeals of Mississippi

February 25, 2014

SALLY BEEBE SMITH A/K/A SALLY B. A/K/A SALLY S. SMITH A/K/A SALLY SHEILA SMITH, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 07/23/2012. TRIAL JUDGE: HON. DAVID H. STRONG JR. TRIAL COURT DISPOSITION: CONVICTED OF THIRD OFFENSE OF OPERATION OF A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR AND SENTENCED TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS AND SIX MONTHS TO SERVE AND TWO YEARS AND SIX MONTHS OF POST-RELEASE SUPERVISION, AND UPON RELEASE TO COMPLETE THE FOURTEENTH CIRCUIT COURT DISTRICT'S DUI DRUG COURT PROGRAM, AND TO PAY A $2,000 FINE AND RESTITUTION OF $1,650 TO ERIC COWART, $745.50 TO BRODRICK SMITH, AND FULL RESTITUTION TO KRISTINA ANN CLAUSE.

FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: MOLLIE MCMILLIN.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: STEPHANIE BRELAND WOOD.

BEFORE ISHEE, P.J., FAIR AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 377

NATURE OF THE CASE: CRIMINAL - FELONY

ISHEE, J.

¶1. In 2012, Sally Beebe Smith was convicted in the Pike County Circuit Court of third offense of operation of a motor vehicle while under the influence of intoxicating liquor. She was sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC), with two and a half years to serve and two and a half years of post-release supervision (PRS). She was ordered to attend the DUI drug court program upon her release and to pay a fine of $2,000, all court costs, and restitution. Aggrieved, Smith now appeals the circuit court's order of restitution.

STATEMENT OF FACTS

¶2. On December 13, 2011, Smith was involved in a two-vehicle accident on Highway 98 in McComb, Mississippi. At the time of the accident, Smith had been the driver of one vehicle, with Kristina Clause as her passenger. The other vehicle had been driven by Eric Cowart, with Brodrick Smith as the passenger.

¶3. Mississippi Highway Patrol Officer John Purser arrived at the scene at approximately 6:22 p.m. By the time Officer Purser reached the scene, Clause had fled due to an outstanding bench warrant for her arrest and several unpaid fines. Nonetheless, Smith, Cowart, and Brodrick remained. Upon questioning Smith, Officer Purser observed that Smith was slurring her speech and could not remain balanced while standing. He also noticed the smell of alcohol on her breath.

¶4. Smith agreed to undergo a blood-alcohol evaluation. Approximately two hours after Officer Purser arrived on the scene, he transported Smith to the Pike County Sheriff's Department, where she registered a blood-alcohol content (BAC) of .10 percent -- above the legal limit of .08 percent. Smith had been convicted of driving under the influence of alcohol (DUI) in January 2011 and in September 2011. Thereafter, Smith was charged with her third count of DUI.

¶5. At trial, Clause testified that Smith had been drinking on the day of the incident. She stated that as Smith pulled onto Highway 98, Clause looked to the side and saw a car headed straight for them. Clause was injured in the collision and later sought medical treatment. Cowart testified that Smith pulled out onto Highway 98 and then stopped. He slowed down, thinking she would continue crossing over the highway. When he realized that she was not moving, he slammed on his brakes, but could not avoid impact. Brodrick testified to the same. Brodrick was also injured in the accident and sought medical treatment.

¶6. Smith was convicted in the circuit court of felony DUI since it was her third DUI in less than five years. The circuit judge sentenced her to five years, with two and a half years to serve in the custody of the MDOC and two and a half years of PRS. Upon her release, she was required to attend the DUI drug court program. The circuit judge also fined her $2,000, plus court costs. Finally, the circuit judge ordered her to pay restitution to the three other parties involved. Estimates were entered into evidence at the sentencing hearing for the damage to ...


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