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Ali v. State12/7/2004
re that the State did not have an expert testify regarding the results of the Intoxilyzer.
The indictment could have been amended had the variance been called to the attention of the trial court. Had the appellant mentioned the variance in her motion for a directed verdict, during the trial or in her motion for a new trial, the indictment could then have been amended. Since the variance between the indictment and the proof is not jurisdictional and is not fatal, failure to call the variance to the attention of the trial court is considered a waiver of any objection thereto.
Banks v. State, 394 So. 2d 875, 877 (Miss. 1981).
. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF THIRD OFFENSE FELONY DUI AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR YEARS SUSPENDED IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
MYERS, CHANDLER, GRIFFIS AND ISHEE, JJ. CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., LEE, P.J. AND BARNES, J.
IRVING, J., DISSENTING:
. The majority, relying upon Jefferson v. State, 807 So. 2d 1222 (Miss. 2002), finds that the trial court did not err in trying Mohamed in absentia. I believe that the majority has misread Jefferson as establishing a bright line rule that a criminal defendant may be tried in absentia if he has knowledge of his trial setting and fails to appear for trial. I do not believe that Jefferson establishes such a bright line rule. Further, I believe the facts of our case are undeniably distinguishable from the facts in Jefferson. Consequently, I respectfully dissent. I would reverse and remand this case for a new trial.
. In Jefferson, John Wayne Jefferson's trial date was March 20, 2000. Jefferson did not appear for trial on that date. His trial was rescheduled for March 22 and a warrant for his arrest was issued. Jefferson did not appear for trial on the new date. Consequently, he was tried in absentia. Id. at ( -3).
. Before proceeding to try Jefferson in absentia, the Jefferson trial judge conducted a hearing in chambers. During the hearing, it was revealed (1) that Jefferson was present for his arraignment when the March 20 trial date was set, (2) that beginning on March 1, Jefferson's counsel had attempted, without success, to reach Jefferson via telephone, (3) that on March 13, defense counsel sent a letter to Jefferson advising him that his trial was set for March 20, (4) that Jefferson responded to the letter by calling his counsel on March 14 at which time Jefferson and his counsel discussed the case for approximately thirty minutes, (5) that during the telephone conversation, defense counsel advised Jefferson that the plea date had been changed to March 16 and that Jefferson needed to come to court on that date even if he was not going to plead guilty, (6) that Jefferson did not come to court on March 16 as instructed, (7) that on March 19, defense counsel tried unsuccessfully to reach Jefferson by telephone, using the same telephone number that he had used previously to reach Jefferson, (8) that on March 20, defense counsel tried again, to no avail, to reach Jefferson by telephone, (9) that although defense counsel did not speak to Jefferson on March 20, he did speak to Jefferson's cousin who advised defense counsel that she had telephoned Jefferson's mother to let her know that Jefferson's counsel was looking for him, and (10) that Jefferson's counsel called the same telephone number each day following the March 20 call and spoke with the same woman who advised him that she had not seen nor spoken with Jefferson since the previous week. Jefferson,
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