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Porter v. State8/24/1999
s." The State concedes as much. Applying the Mississippi Supreme Court's definition of "plain," we acknowledge that Porter's substantive rights were affected by the application of the amended provisions of § 63-11-30(2)(c), rather than those in effect at the time of the May, 13, 1995. His liberty interests clearly were abridged by his conviction and sentencing under the enhanced provisions of the amended statute charging him with a felony rather than a misdemeanor. Porter thus was prejudiced by the error, satisfying the third prong of the plain error analysis. While the evidence clearly supports his DUI conviction, he was sentenced for a felony rather than a second offense misdemeanor, a term in excess of that which he would have been required to serve under the provisions of the statute in effect at the time of the offense.
39.Because it was plain error to convict and sentence Porter for a felony DUI conviction rather than a second offense misdemeanor, we reverse and remand for re-sentencing in accordance with the provisions of § 63-11-30(2)(c) in effect in at the time of his arrest.
. THE JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF BOLIVAR COUNTY ADJUDICATING THE APPELLANT GUILTY OF FELONY DUI AND ITS SENTENCE OF THE APPELLANT TO SERVE A TERM OF FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED ARE REVERSED BUT APPELLANT'S CONVICTION OF DUI - SECOND OFFENSE, A MISDEMEANOR, IS AFFIRMED. THIS CASE IS REMANDED FOR THE TRIAL COURT'S RE-SENTENCING OF PORTER AS A CONVICT OF THE MISDEMEANOR OF DRIVING UNDER THE INFLUENCE OF ALCOHOL - SECOND OFFENSE. COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, PAYNE, AND THOMAS, JJ., CONCUR. IRVING, LEE, and MOORE, JJ. NOT PARTICIPATING.
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