Background

• Trooper Johnny Delaney was indicted by a Holmes County grand jury on Dec 1, 2008 for extortion under Miss. Code § 97-11-38; a capias issued and bail was posted on Dec 19, 2008; Delaney entered a not guilty plea on Dec 22, 2008.
• Delaney argued the indictment did not absolve the State from complying with Miss. Code § 99-3-28, which requires a probable cause hearing before arrest when certain officers are charged with a crime.
• The trial court conducted a hearing on Delaney’s motion to dismiss and found § 99-3-28 required a hearing and that dismissal with prejudice was the proper remedy due to presumed double jeopardy if indicted again.
• The State appealed the dismissal, contending § 99-3-28 applies only to charges in justice/municipal courts and that indictments obviate the need for a hearing; the State also argued conflicts with Uniform Circuit and County Court Rule 7.06.
• The Mississippi Supreme Court held § 99-3-28 does not apply after an indictment has been returned by a grand jury, and that the statute conflicts with this Court’s rules; the indictment was reinstated and the case remanded for trial.

Issues

Key Cases Cited

• Shields v. State, 702 So.2d 380 (Miss. 1997) (probable cause determinations after grand jury no longer required)
• Mayfield v. State, 612 So.2d 1120 (Miss. 1992) (grand jury indictment moots preliminary hearing purpose)
• Esparaza v. State, 595 So.2d 418 (Miss. 1992) (denial of preliminary hearing does not void conviction)
• Gerstein v. Pugh, 420 U.S. 103 (U.S. 1975) (constitutional basis for preliminary/probable cause procedures)
• State v. Blenden, 748 So.2d 77 (Miss. 1999) (separation of powers; court rules govern procedure)
• Newell v. State, 308 So.2d 71 (Miss. 1975) (separation of powers; procedural rules control)
• Stevens v. Lake, 615 So.2d 1177 (Miss. 1993) (procedural rules precedence over statutes governing procedure)