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Bailey v. State11/26/1997
conviction. This position preserves the benefits of the nolo contendere plea to a defendant who fears subsequent civil liability based upon an admission of guilt to a criminal charge. At the same time, however, the majority position looks to the conviction and sentence imposed by the court after the plea and finds the conviction as conclusive as a conviction entered after a plea of guilty or entered after a trial and a plea of not guilty.
In contrast, the minority position reasons that a plea of nolo contendere and any conviction entered on the plea has no effect beyond the instant criminal proceedings. 'If the plea itself could not be used in any collateral matter, it follows that anything growing out of that plea * * * could not be used as a conviction if the plea itself is deprived of that classification.' To use a conviction collaterally would be tantamount in the minority view to an admission of guilt, precisely that result which the plea of nolo contendere is intended to avoid.
There is no compelling reason to differentiate between a conviction entered after a nolo contendere plea and a conviction entered after any other plea. Lewis, 209 N.W. 2d at 209 (citations omitted).
. This Court finds the majority view to be persuasive. Therefore, Bailey's prior convictions for DUI-first offense and DUI-second offense (even though based upon pleas of nolo contendere) are convictions for purposes of sentence enhancement in this subsequent DUI case, prosecuted under Mississippi's implied consent statute.
B. WHETHER PRIOR MISDEMEANOR CONVICTIONS BASED UPON PLEAS OF NOLO CONTENDERE OF APPELLANT MAY BE USED AGAINST THE APPELLANT IN THE PRESENT CRIMINAL PROCEEDINGS PURSUANT TO EX POST FACTO PROHIBITIONS AND OTHER CONSTITUTIONAL GUARANTEES?
. Bailey next contends that the use of the nolo contendere pleas to enhance punishment in this case would violate the ex post facto clause of the federal and State constitutions.
Article I, § 9, Clause 3 of the United States Constitution states "No Bill of Attainder or ex post facto Law shall be passed." Article I, § 10, Clause 1 of the United States Constitution prohibits a state from passing ex post facto laws, stating "No State shall ... pass any ... ex post facto Law...." The State of Mississippi adopted this prohibition in its Constitution in Article 3, § 16 stating, "Ex post facto laws ... shall not be passed."
The United States Supreme Court has interpreted Article I, § 10 of the United States Constitution to forbid the enactment of any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time the act was committed.
In accordance with this original understanding, we have held that the Clause is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts. The United States Constitution forbids the application of any new punitive measure to a crime already consummated.
The Supreme Court has held that the purpose of the Ex post facto Clause is to assure that legislative acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed and to restrict governmental power by restraining arbitrary and potentially vindictive legislation. A statute may violate the Ex post facto Clause even if it alters punitive conditions outside the sentence or where it substantially alters the consequences attached to a crime already completed, and therefore changes the quantum of punishmen
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