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Porter v. State8/24/1999
DATE OF JUDGMENT: 11/28/95
TRIAL JUDGE: HON. KENNETH LEVENE THOMAS
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
BY: DEWITT T. ALLRED, III
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: GUILTY OF FELONY DUI: SENTENCED TO SERVE A TERM OF 4 YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; SENTENCE SHALL RUN CONSECUTIVE TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED
DISPOSITION: FELONY DUI CONVICTION REVERSED; ENHANCED MISDEMEANOR DUI -SECOND OFFENSE AFFIRMED, AND REMANDED FOR RE-SENTENCING OF APPELLANT - 08/24/99
MOTION FOR REHEARING FILED: 11/25/98
MODIFIED OPINION ON MOTION FOR REHEARING
EN BANC
. The original opinion is withdrawn, the motion for rehearing is granted, and the following opinion is substituted.
. Robert Porter, Jr., has appealed the judgment of the Circuit Court of the Second Judicial District of Bolivar County in which that court adjudicated him to be guilty of the crime of felony DUI and sentenced him to serve a term of four years in an institution under the supervision and control of the Mississippi Department of Corrections. Porter presents five issues for our review and resolution, which five issues we quote verbatim from Porter's brief:
1. The trial court erred in denying defendant's motion to strike the prior convictions and dismiss the indictment on the ground that the prior convictions were not properly set forth and charged in the indictment so as to trigger the felony offense provision of Miss. Code Ann. § 63-11-30 (Cum. Supp. 1994), the implied consent law.
2. The trial court erred in permitting defendant to be tried upon an indictment for the felony offense of driving under the influence , as the first three convictions used for enhancement should not have been considered in charging defendant with a subsequent offense. Section 63-11-30 as it appeared when defendant was convicted of the prior offenses in 1988 and 1989, permitted prior offenses to be used for enhancement which were committed [within] a period of five (5) years.
3. The trial court erred in failing to allow the defendant to present evidence to rebut the presumption that the presence of ten one-hundredths percent (.10%) or more by weight volume of alcohol in this defendant's blood impaired his ability to operate a motor vehicle.
4. The foreperson of the jury, Kennedy Johnson, failed to disclose to the court and the parties that he is a former law enforcement officer of the Mound Bayou Police Department when asked concerning the juror's involvement as law enforcement personnel. Said failure to disclose information precluded defendant from effective voir dire.
5. The verdict of the jury was against the overwhelming weight of the evidence; and further that the state failed to prove a prima facie case as charged in the indictment.
Except for Porter's second issue, we resolve all other issues adversely to him. The evidence in the record clearly supports the jury's verdict that Porter was driving under the influence . However, because it was plain error for the circuit court to allow Porter to be convicted and sentenced for a felony under the enhanced DUI statute rather than for a second offense misdemeanor under the provisions of the statute in effect at the time of his arrest, we reverse his conviction of felony DUI but affirm his conviction of misdemeanor DUI and remand for re-sentencing.
I. FACTS
. At approximately 10:00 o'clock on the morning of May 13, 1995, Officers Carl Norwood and Jeff Carruth, patrolmen with the Cleveland Police Dep
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