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Jamison v. City of Carthage2/3/2004
case at bar. Ronald Ostrander was arrested and charged with DUI second offense due to a pending DUI which had been appealed. Ostrander, 803 So. 2d at 1173 ( -3). The State rested without being able to prove Ostrander had a previous conviction for DUI. Id. at ( ). The trial judge denied a motion for directed verdict to the case as a whole and allowed the case to go to the jury as a DUI first offense as a lesser-included offense of a DUI second, and the jury returned a verdict of guilty which Ostrander subsequently appealed. Id. at 1173-74 ( ). The Mississippi Supreme Court affirmed the trial court in Ostrander, holding that there was no reduction in charge, but simply that Ostrander had been charged with both and the trial court granted a directed verdict only in regard to DUI second. Id. at 1176 ( ). The court noted that the trial judge "expressly limited his directed verdict to the second-offense DUI." Id. at 1177 ( ).
. Although the municipal judge could have dismissed only that part of the affidavit charging DUI second and allowed the City to proceed on DUI first, the judge dismissed the entire DUI charge against Jamison. When the judgment was entered, jeopardy attached. Ostrander is therefore distinguished from the case at bar. Such dismissal is inclusive of both the offense charged in the affidavit, as well as any lesser-included offenses. Any further proceedings would amount to a violation of the double jeopardy provisions of the Mississippi and United States Constitutions.
. Although appropriate for the circuit court to grant certiorari in order to answer the question of law under Mississippi Code Annotated Section 99-35-103(b) (Rev. 2000), the circuit court erred in reversing the dismissal of the charges by the Municipal Court of Carthage. We therefore reverse the judgment of the circuit court and reinstate the judgment of the municipal court.
. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF DRIVING WITH A SUSPENDED LICENSE AND FINE OF $425 IS AFFIRMED; THE JUDGMENT OF CONVICTION OF DUI FIRST OFFENSE IS REVERSED AND RENDERED AND THE JUDGMENT OF THE MUNICIPAL COURT OF CARTHAGE IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE CITY OF CARTHAGE.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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