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Holmes v. State6/8/1999
DATE OF JUDGMENT: 03/07/97
TRIAL JUDGE: HON. LARRY EUGENE ROBERTS
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: BILBO MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: FELONIOUS DRIVING UNDER THE INFLUENCE : SENTENCED TO SERVE A TERM OF 5 YRS IN THE CUSTODY OF THE MDOC WITH 3 YRS & 6 MONTHS OF SUCH SENTENCE SUSPENDED & 1 YEAR & 6 MONTHS TO SERVE & 5 YRS REPORTING PROBATION
. A grand jury in Lauderdale County indicted the appellant, Dale Holmes, for driving under the influence (third offense). In compliance with Rule 11.03 of the Uniform Circuit and County Court Rules, the trial court bifurcated Holmes's trial on the principal charge of driving under the influence and on the charge of previous convictions. Pursuant to the jury's finding him "guilty of driving under the influence," the trial court conducted a separate trial the next day on the "charge of previous convictions [of two misdemeanor DUI's]" and entered its judgment of conviction of "felony driving under the influence."
However, the trial court deferred sentencing Holmes to allow a parole officer to prepare a pre-sentencing investigation. After it had concluded its sentencing hearing, the trial court sentenced Holmes "to serve a term of five (5) years in the custody of the Mississippi Department of Corrections with three (3) years and six (6) months of such sentence suspended and one (1) year and six (6) months to serve and also to five (5) years reporting probation under the supervision of the Mississippi Department of Corrections." After the trial court denied Holmes's motion for a new trial, Holmes appealed from that court's judgment of conviction and its sentencing and probation order. Holmes presents the following six issues, quoted verbatim from his statement of issues required by Mississippi Rule of Appellate Procedure 28(a)(3), for this Court's analysis and resolution:
"1. Did the trial court commit reversible error by allowing a police officer to render expert opinion testimony regarding the administration of certain field sobriety tests?"
"2. Did the trial court commit reversible error by failing to suppress the testimony and videotape evidence concerning Mr. Holmes' performance on certain . . . field sobriety tests considered invalid if administered to persons fifty pounds overweight?"
"3. Did the trial court commit reversible error by failing to suppress the testimony concerning the administration of the horizontal gaze nystagmus test?"
"4. Did improper comments by the prosecution during closing argument amount to reversible error?"
"5. Did the trial court commit reversible error by permitting a previous uncounseled misdemeanor DUI conviction to be considered for enhancement purposes in the sentencing phase?"
"6. Did the prosecution of this criminal action amount to a second punishment for the same offense for which the defendant had already been punished, thus in violation of the Double Jeopardy Clause of the Fifth Amendment?" Young v. City of Brookhaven, 693 So. 2d 1355 (Miss. 1997), which was decided after this case was tried in the circuit court but which held that the horizontal gaze nystagmus (HGN) test could only be used as a basis for probable cause to require the detainee to submit to a breath test, requires that this Court hold that the trial court erred when it "fail to suppress the testimony concerning the administration of the test." Because we remand this case for a new trial, we also resolved Holmes's fifth and sixth issues.
I. Facts
. As Meridia
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