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Jamison v. City of Carthage2/3/2004
and the municipal court erred in not allowing the City to amend the charge to DUI first offense. The circuit court remanded the cause to the municipal court for sentencing of Jamison on the charge of DUI first offense. Jamison then perfected an appeal to this Court.
ANALYSIS
I. DID THE CIRCUIT COURT ERR IN GRANTING THE CITY OF CARTHAGE'S PETITION FOR CERTIORARI ON A CRIMINAL MATTER AND CONVICTING JAMISON OF DUI FIRST OFFENSE?
II. DID THE CIRCUIT COURT'S CONVICTION OF JAMISON AMOUNT TO DOUBLE JEOPARDY AS JAMISON WAS TRIED AND FOUND NOT GUILTY IN THE MUNICIPAL COURT OF THE CITY OF CARTHAGE?
. Jamison asserts that the circuit court erred in granting the City of Carthage's petition for certiorari on a criminal matter and convicting him of DUI first offense because it amounts to double jeopardy as Jamison was tried in the Municipal Court of Carthage and the charge was dismissed. We will examine both of Jamison's assertions together.
. Pursuant to Mississippi Code Annotated Section 99-35-103 (Rev. 2000), a state or municipality is limited in its ability to prosecute an appeal in a criminal cause. This statute authorizes appeals by the State:
(a) From a judgment sustaining a demurrer to, or a motion to quash an indictment, or an affidavit charging crime; but such appeals shall not bar or preclude another prosecution of the defendant for the same offense.
(b) From a judgment actually acquitting the defendant where a question of law has been decided adversely to the state or municipality; but in such case the appeal shall not subject the defendant to further prosecution, nor shall the judgment of acquittal be reversed, but the supreme court shall nevertheless decide the question of law presented.
(c) From a ruling adverse to the state or municipality in every case in which the defendant is convicted and prosecutes an appeal; and the case shall be treated as if a cross appeal had been formally prosecuted by the state. All questions of law thus presented shall be decided by the Supreme Court.
Pool v. State, 724 So. 2d 1044, 1048 ( ) (Miss. Ct. App. 1998) (citing Miss. Code Ann. 99-35-103 (Rev. 1994)). Appeals by the prosecution are severely limited, granted only in situations which can generally be divided into two basic groups: (a) appeals permitted in order to determine a question of law; and (b) appeals permitted so long as the traditional concept of double jeopardy is not violated. Stave v. Insley, 606 So. 2d 600, 602 (Miss. 1992). Jamison asserts that the circuit court could have decided the question of law, but under Section 99-35-103(b),it was error for the circuit court to reverse his acquittal, grant the motion made by the prosecution, and affirm the conviction for DUI first offense which the municipal court had not entered. We agree.
. The municipal court held that the prosecution could not amend its indictment because the motion to do so was made at the conclusion of all of the evidence and the prosecution had rested. It is true that amendments cannot be made that would result in prejudice to the defendant. Smith v. State, 725 So. 2d 922, 928 ( ) (Miss. Ct. App. 1998). All substantive amendments to indictments must be made by a grand jury. Id. "The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment is made." Eakes v. State, 665 So. 2d 852, 859-60 (Miss. 1995).
. The City of Carthage, and the circuit court below, both relied on the case of Ostrander v. State, 803 So. 2d 1172 (Miss. 2002). Indeed, the initial facts in Ostrander seem very similar to the
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