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Crime Laboratory v. Blenden6/24/1999
Supervisors, as the payor of claims against the county, receive notice from the Circuit Court before this type of hearing is held and have the option of allowing their attorney participate in the hearing, if they so elect. . . ." 583 So. 2d at 1285.
. In the case at bar, Harrison County Board of Supervisors were not noticed on either the hearing on the Motion for Sanctions or on the hearing on the Supplemental Motion for Sanctions. However, the County's Board of Supervisors were notified of the hearing on the District Attorney's Motion to Clarify and were represented by counsel at the hearing. The County made no motions in relation to being allowed to cross-examine the witnesses from the previous hearings. Nor did the County complain to the trial court regarding the notice that it received. Also the County's attorney was given an opportunity to argue the County's position at the hearing. Due process is satisfied where there is notice and an opportunity to be heard. Mississippi Power Co. v. Goudy, 459 So. 2d 257, 271 (Miss. 1984). Harrison County was given notice and an opportunity to be heard. Therefore, this assignment of error is without merit.
D.
. On appeal Brandon raises the issue of whether the trial court erred in failing to dismiss the case on double jeopardy grounds. When a defendant moves for a mistrial he or she will be barred from later claiming a double jeopardy violation, unless it can be shown that the error at issue was committed by the prosecution with the intent of forcing the defendant to move for a mistrial. Nicholson on Behalf of Gollott v. State, 672 So. 2d 744, 750 (Miss. 1996). In this case, although the trial court found that the errors which necessitated the mistrial were committed by the prosecution, the trial court did not find that the prosecution committed those errors with the intent to force Brandon to move for a mistrial. This Court has held that " n order to prevail on this kind of error, it is incumbent upon an appellant to show that the prosecution by its argument 'intended to 'goad' the defendant into moving for a mistrial,' or 'intended to provoke the defendant into moving for a mistrial.'" Wheat v. State, 599 So. 2d 963, 956 (Miss. 1992) (quoting Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 2088, 72 L.Ed.2d 416 (1982)). In this case Brandon failed to offer any evidence that the prosecutor had the intent to force the defense to move for a mistrial. A prosecutorial error necessitating the declaration of a mistrial does not necessarily amount to an intent to force the defendant to move for a mistrial. Wheat, 599 So. 2d at 956. This assignment of error is without merit.
III.
. For the above and foregoing reasons the trial court's judgments are affirmed.
. CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR CAUSING DEATH AND SENTENCE OF 25 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH 5 YEARS SUSPENDED AFFIRMED. BRANDON C. BLENDEN SHALL PAY RESTITUTION TO ANN AND JACK LEE IN THE AMOUNT OF $520 UNDER THE TERMS AND CONDITIONS SET OUT IN THE JUDGMENT OF THE TRIAL COURT. UPON RELEASE BRANDON C. BLENDEN IS TO BE PLACED UPON SUPERVISED PROBATION FOR 5 YEARS UNDER THE TERMS AND CONDITIONS SET OUT IN THE JUDGMENT OF THE TRIAL COURT.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., SMITH, MILLS, WALLER AND COBB, JJ., CONCUR. McRAE, J., NOT PARTICIPATING.
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