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McDonald v. City Of Aberdeen12/14/2004
the improper stop charge on the basis that the City failed to provide sufficient evidence that he had improperly stopped. The trial judge agreed and dismissed both charges. However, after dismissing the improper-stop charge, the trial judge remarked, "I'm not sure that's a proper charge in any event." Apparently, the City takes this remark to mean that the trial judge was finding that McDonald had not been properly charged with improper stopping because the charge was made by giving McDonald a ticket which only referenced the code section allegedly violated without describing the acts constituting the violation.
14. We cannot know what the trial judge meant since there is no explanation of the remark in the record. Nevertheless, we agree with the City that the traffic ticket given to McDonald was legally sufficient to charge him with improper stopping inasmuch as it referenced the statute which was allegedly violated. However, we affirm the dismissal of the improper stopping charge because it would be a violation of McDonald's constitutional rights to retry him on this charge. Moreover, the basis for the trial judge's dismissal of the improper stopping charge is not clear in the record. What is clear is that he dismissed the charge prior to making the comment about his not being sure the charge was proper. His dismissal can only be construed as a dismissal on the merits. As to the dismissal of the open-container charge, it is clear in the record that the dismissal was on the merits.
15. Article 3 Section 22 of the Mississippi Constitution, the State's double jeopardy statute, provides:
No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.
"Under the plain wording of [the statute], in order for this state's Double Jeopardy clause to apply[,] the accused must first suffer an actual acquittal or conviction on the merits of the offense." State v. Fleming, 726 So.2d 113, 115( 9) (Miss.1998). "Then, and only then, will a second prosecution for that same offense be barred." Id.
*4 16. The dismissal of the open-container and improper stop charges against McDonald was, in effect, an acquittal of the charges for which he was being tried. A reversal of his acquittal by this Court for a second trial would violate McDonald's constitutional right to protection from double jeopardy. Therefore, we affirm the trial court on all issues.
17. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY OF DISMISSAL OF THE CHARGES OF IMPROPER STOPPING AND POSSESSION OF AN OPEN CONTAINER AND CONVICTION OF THE CHARGE OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF TWO DAYS' INCARCERATION IN THE MONROE COUNTY JAIL, WITH SENTENCE SUSPENDED, 180 DAYS OF UNSUPERVISED PROBATION, AND PAYMENT OF $1,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
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