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Bailey v. State11/26/1997
scussions: . . .(2) a plea of nolo contendere." Miss. R. Evid. 410. Miss. R. Evid. 803 (22) states that evidence of a final judgment, entered after a trial or upon a plea of guilty, may be used to prove a fact essential to sustain the judgment and is not excluded by the hearsay rule. Nonetheless, Miss. R. Evid. 803(22) explicitly states that evidence of a plea of nolo contendere is excluded by the hearsay rule. As a result, a conviction based on a nolo contendere plea cannot form the basis of enhancement for recidivist purposes, since it can have neither an estoppel effect nor be used as substantive evidence in a subsequent criminal proceeding.
. Further recognizing that the issue in this case is much like the one presented and resolved in Keyes v. State, 312 So. 2d 7, 10 (Miss. 1975), I join Justice Sullivan's dissenting opinion.
SULLIVAN, P.J., JOINS THIS OPINION.
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