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Holmes v. State6/8/1999
three previous charges, Ghoston was never sentenced to serve time in jail on any of those convictions. Relying on Nichols v. United States, 511 U.S. 738 (1994), the Mississippi Supreme Court held that Ghoston's three previous misdemeanor DUI convictions could be used to enhance his punishment. Ghoston, 645 So. 2d at 938. In Nichols, the United States Supreme Court had held "that previous uncounseled misdemeanor convictions may be considered in sentencing a defendant for a subsequent offense so long as the previous uncounseled misdemeanor conviction did not result in a sentence of imprisonment." Ghoston, 645 So. 2d at 938. Because Holmes received no sentence of imprisonment for his DUI conviction in the Madison County Justice Court, that uncounseled conviction could be used to enhance his punishment in the case sub judice.
4. Summary of Holmes's fifth issue
. The State introduced sufficient documentation of Holmes's DUI conviction in the Madison County Justice Court to invoke "the presumption of regularity of judgment" which Sheffield holds is "sufficient to meet the original burden of proof." See Sheffield, 556 So. 2d at 1053. The State's introduction of the certified copy of the Justice court docket page which provided the information missing in the abstract of court record was sufficient to meet the State's burden of overcoming Holmes's objections to those deficiencies. Because Holmes received no sentence of incarceration (the forty-eight hour sentence was suspended), his conviction, even if uncounseled, was admissible to enhance his sentence as a convict of "felony DUI."
C. Holmes's sixth issue
. Holmes's sixth issue attacks his conviction because it "amounted to double jeopardy." However, in Keyes v. State, 708 So. 2d 540, 548 (Miss. 1998), the Mississippi Supreme Court held "that the Double Jeopardy Clauses of the United States and Mississippi Constitutions do not preclude criminal prosecution for violation of Miss. Code Ann. § 63-11-30 subsequent to administrative license suspension pursuant to § 63-11-23(2)." Keyes resolves Holmes's sixth issue adversely to him. . THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF APPELLANT'S CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, AND DIAZ, JJ., CONCUR. PAYNE, J., DISSENTS WITH SEPARATE WRITTEN OPINION. IRVING, LEE, AND THOMAS, JJ., NOT PARTICIPATING.
PAYNE, J., DISSENTING:
. I respectfully Dissent to the majority's analysis of issue III. In my opinion, the use of the horizontal gaze nystagmus test, better known as the HGN test, does not per se, mandate reversal of a conviction when "overwhelming evidence presented by the State" proves intoxication. Young v. City of Brookhaven, 693 So. 2d 1355, 1361-62 (Miss. 1997).
. As the majority correctly sets forth, the Mississippi Supreme Court delivered a "stern warning" in Young that " he State cannot use the results of the HGN test merely as an indicator to show that the defendant was 'under the influence of intoxicating liquor' to prove the requisite elements of Section 63-11-30 (1)(a)." However, according to the majority's analysis, the fact that the HGN was mentioned rules out other forms of evidence which point guilt in Holmes's direction. While I can not "explain away" the use of the HGN test as it is clear that the test may not be employed to denote inebriation, I do state, as in Young, that there is other evidence of Holmes intoxication which is sufficient to present to the jury for resolution of this matter. See Young, 693 So. 2d at 1361-62.
. As the
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