106 So. 3d 378
Miss. Ct. App.2012Background
- Mississippi forbids pretrial pleadings from testing the sufficiency of evidence to support an indictment.
- Parkman, former Columbia police chief, was indicted on one embezzlement count and two false-statements counts.
- Parkman moved to dismiss the embezzlement count, arguing the evidence was insufficient because he had paid for the gun.
- The trial court dismissed the embezzlement count with prejudice, pretrial.
- The State appealed to challenge the improper pretrial dismissal and seek reinstatement of the charge.
- The issue on appeal was whether a pretrial dismissal testing evidentiary sufficiency could be reversed and the case remanded for trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May a pretrial dismissal test evidentiary sufficiency? | State argues pretrial dismissal cannot test sufficiency and should be reversed. | Parkman contends pretrial challenges are improper; dismissal was justified. | Pretrial dismissal to test sufficiency is improper; reversal and remand required. |
| What appellate avenue allows reversal of a pretrial dismissal? | State relies on §99-35-103(a) for appeal and reversal/remand. | Parkman would limit appeal if not permitted under the statute. | Section 99-35-103(a) provides the proper avenue for reversal/remand. |
| Does §99-35-103(b) apply to pretrial dismissals and raise double jeopardy concerns? | State could rely on §99-35-103(b) only if there had been an actual acquittal at trial. | Parkman argues jeopardy concerns may bar such relief. | §99-35-103(b) does not bar relief for a pretrial dismissal; jeopardy does not attach pre-trial. |
Key Cases Cited
- Costello v. United States, 350 U.S. 359 (1956) (indictment validity tested at trial, not pretrial)
- United States v. Williams, 504 U.S. 86 (1992) (pretrial review of facial indictments would undermine grand jury)
- State v. Peoples, 481 So.2d 1069 (Miss.1986) (no summary judgment in criminal cases; challenge timing)
- Grady, 281 So.2d 678 (Miss.1973) (no pretrial dismissal testing evidentiary sufficiency)
- State v. Delaney, 52 So.3d 348 (Miss.2011) (reinstated indictment after improper pretrial dismissal)
- Serfass v. United States, 420 U.S. 377 (1975) (jeopardy protections and timing of trial)
- McDowell, 72 Miss. 138 (1894) (jeopardy perspective on §99-35-103(b) applicability)
- United States v. Jorn, 400 U.S. 470 (1971) (jeopardy not attached before trial; pretrial review permissible)