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Harkins v. State3/31/1999
DATE OF JUDGMENT: 09/10/97
TRIAL JUDGE: HON. LEE HOWARD
COURT FROM WHICH APPEALED: NOXUBEE COUNTY CIRCUIT COURT
BY: RODERICK DIXIE WALKER JOLENE M. LOWRY
DISTRICT ATTORNEY: FORREST ALLGOOD
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
DISPOSITION: REVERSED AND REMANDED
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE PRATHER, C.J., SMITH AND WALLER, JJ.
STATEMENT OF THE CASE
. On November 1, 1995, Appellant Henry Harkins was tried and convicted of driving under the influence (D.U.I.), second offense, in the Justice Court of Noxubee County. Harkins appealed to the Circuit Court of Noxubee County, where he requested, but was denied, a jury trial. Following a bench trial, Circuit Judge Lee Howard found Harkins guilty and sentenced him to five (5) days imprisonment in the county jail, suspended, and ordered him to pay a fine of $750 plus court costs. Harkins timely appealed to this Court.
ISSUES
I. Whether the trial court erred in refusing the appellant a trial by jury.
. The State confesses reversible error in the present case, acknowledging that the trial court erred in refusing Harkins' request for a jury trial. Uniform Rules of Circuit and County Court Practice 12.02(c) provides in part that " n appeals from Justice or municipal court when the maximum possible sentence is six months or less, the case may be tried without a jury at the court's discretion ..." Rule 12.02(c) thus only grants the trial court discretion to deny a defendant's request for a jury trial in cases in which the maximum possible sentence is six months or less. This provision is based upon United States Supreme Court decisions presumption that offenses carrying maximum sentences of six months or less are "petty offenses" to which the Sixth Amendment right to trial by jury does not apply. See e.g., Lewis v. United States, 516 U.S. 322 (1996); Blanton v. City of North Las Vegas, 489 U.S. 538 (1989); Baldwin v. New York, 399 U.S. 66 (1970)(plurality).
. Harkins was tried pursuant to Miss. Code Ann. § 63-11-30(2)(b)(1996 & Supp. 1998), which provided (in its version effective July 1, 1995) for a statutory maximum sentence of one year for second offense D.U.I.:
"(b) Upon any second conviction of any person violating subsection (1) of this section, the offenses being committed within a period of ten (10) years, such person shall be fined not less than Six Hundred Dollars ($600.00) nor more than One Thousand Five Hundred Dollars ($1,500.00) and shall be imprisoned not less than ten (10) days nor more than one (1) year."
It is thus apparent that the trial court committed reversible error in denying Harkins' request for a jury trial. The judgment of the trial court is reversed, and the case is remanded for a trial before a jury.
II. Whether the trial court erred in admitting a Certificate of Calibration of the intoxilyzer.
III. Whether the trial court erred in admitting the results of the intoxilyzer test.
III. Whether the trial court erred in allowing evidence of the horizontal gaze test.
IV. Whether the verdict of guilty of DUI is supported by sufficient evidence.
. Although the State acknowledges reversible error on the jury trial issue, both parties have requested that this Court address the trial court's decision to admit into evidence two certificates of calibration for the intoxilyzer used in the present case. Harkins objected to the admission of the certificates of calibration on the basis of the "confrontation clause and Rul
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