Lead Opinion
for the Court:
¶ 1. On October 27, 2006, Rachel Nelson was involved in an automobile collision. The City of Richland charged her with driving under the influence (DUI), first offense. On November 15, 2006, Nelson pleaded nolo contendere in the Municipal Court of Richland. The court found Nelson guilty and imposed a sentence of forty-eight hours in jail, suspended, along with a $1,000 fine and $244 in assessments.
¶ 2. On November 29, 2006, Nelson filed a notice of appeal in the Rankin County Circuit Clerk’s office pursuant to Uniform Rule of Circuit and County Court Procedure 12.02, stating that a sufficient cash appeal and cash bond had been posted, and requesting a jury trial in county court de novo. The trial date was set for April 2, 2007. On March 27, 2007, Nelson filed a motion to dismiss the appeal on writ of procedendo and return the cause of action to the Municipal Court of Richland for imposition of sentence. On the same day, the Rankin County Court granted Nelson’s Motion to Dismiss and ordered the matter back to the Municipal Court of Richland on writ of procedendo.
¶ 3. On March 30, 2007, a Richland city prosecutor filed a motion to set aside the order of dismissal, to reinstate Nelson’s appeal, and to stay the proceedings. In this motion, the prosecutor argued that Nelson’s accident had caused serious injuries to Debra Easterling, but that the matter inadvertently had been presented in municipal court as a DUI first offense without court personnel or the prosecutor having had knowledge of the injuries. The prosecutor also argued that the county court had dismissed Nelson’s appeal with no notice to the State,
¶ 4. A hearing on the prosecutor’s motion took place on April 12, 2007, in the county court. The county court found that the city’s motion to set aside the order of dismissal had been timely filed. Although the case had been dismissed, the county court asserted jurisdiction over it for the limited purpose of adjudicating the city’s motion to'set aside the order of dismissal. Both the prosecutor and Nelson’s attorney informed the court that, at the time of Nelson’s plea in municipal court, neither pаrty had known that the accident victims had been seriously injured. Nelson’s attorney stated that he first had discovered the injuries when informed by counsel for one of the victims on December 28, 2006. He stated that he then had discussed the matter with the prosecutor, and they had decided neither party would take any action in the case until they conferred on March 21, 2007. However, Nelson’s attorney stated that the prosecutor did not respond to his attempts to contact him in March 2007. Nelson’s attorney stated that, due to the approaching trial date and his inability tо communicate with the prosecutor, he had filed the motion to voluntarily dismiss the case.
¶ 5. The court heard testimony from Detective John King, an investigator with the Richland Police Department. King testified that his first meeting with the district attorney’s office was on March 29, 2007. He testified that the case was not ready for presentation to the grand jury due to the absence of medical records under subpoena. Nelson’s attorney argued that the case should be dismissed due to the city’s delay in presenting the case to the district attorney’s office.
¶ 6. The county cоurt stated that it had granted the motion to dismiss the appeal because the investigating officer was no longer available, the city had secured a conviction for Nelson’s offense, and the city had taken no steps to submit the matter to the district attorney’s office. The county court found that, under the Uniform Rules of Circuit and County Court Practice, and the prerules cases of Bang v. State,
¶ 7. The county court found that Nelson had neither withheld information nor gained an unfair advantage over the State. However, the county court found that it should have given the city an oppоrtunity to respond to Nelson’s motion to dismiss. The county court reinstated the appeal to hear the city’s response. The city moved to nolle prosequi the DUI-first charge, to enable its indictment of Nelson for the felony crime of DUI mayhem. The county court granted the motion and nolle prossed the DUI-first charge. The order entered after the hearing stated:
IT IS ORDERED AND ADJUDGED that the previous order to Dismiss andOrder to Remand Back on Writ of Pro-cedendo entered March 27, 2007 is hereby set aside and the Appeal is hereby reinstated.
IT IS FURTHER ORDERED AND ADJUDGED that the request to Stay the Proceeding is denied.
IT IS FURTHER ORDERED AND ADJUDGED that the counsel for the State of Mississippi made a motion ore terms that the above styled case be Nolle Prosequi and that an Order of Nolle Prosequi in the above styled cause be and hereby is entered.
Nelson filed a motion for reconsideration. This motion was denied.
¶ 8. Nelson appealed to the Circuit Court of Rankin County. On April 1, 2010, the circuit court issued an order affirming the county court’s ruling. Nelson filed a motion to permit appeal to this Court pursuant to Mississippi Code Section 11-51-81, and on May 27, 2010, this Court permitted Nelson’s appeal.
DISCUSSION
I. WHETHER THE COUNTY COURT HAD JURISDICTION TO SET ASIDE THE ORDER OF DISMISSAL AND REMAND.
¶ 9. Nelson argues that she had a right to dismiss her appeal voluntarily. She argues that the dismissal and remand on writ of procedendo deprived the county court of jurisdiction. According to Nelson, once her appeal was dismissed and the case remanded on writ of procedendo, the county court was unable to retake jurisdiction even for the limited purpose of considering whether to set aside the order of dismissal and remand on writ of proceden-do. The jurisdictionаl question presented is governed by Mississippi’s procedural law.
¶ 10. The county court found that it has authority to dismiss an appeal on the appellant’s motion to voluntarily dismiss the appeal, and that it was within its authority to dismiss Nelson’s appeal at her request. However, on reconsideration, the county court determined that it had erred by dismissing Nelson’s appeal without timely notice to the city, and without the benefit of the city’s arguments in opposition to dismissal. We must determine whether the county court erred by reconsidering the dismissal of Nelson’s appeаl under these circumstances.
¶ 11. The Uniform Rules of Circuit and County Court allow appeals to county court from justice court or municipal court. URCCC 12.02. Rule 12.02 states that an individual who has been “adjudged guilty of a criminal offense by a justice or municipal court may appeal to county court or, if there is no county court having jurisdiction, then to circuit court ....” for a trial de novo. URCCC 12.02(A)(1), (C). Perfecting the appeal requires the simulta
¶ 12. On several occasions, this Court has discussed a dеfendant’s ability to obtain a dismissal of an appeal from justice court or municipal court for a trial de novo. In Bang v. State,
It will be seen that the casе is brought into the circuit court by appeal from the judgment of the justice of the peace court. When it reaches the circuit court, it is there for trial anew, and disposition just as other cases therein pending. The circuit court is a trial court. The case, although brought to that court by appeal, is there for trial. In this prosecution for a criminal offense, appellant, while his case was being tried, occupied the same position as any other defendant being tried on a criminal charge.
Id. The Court also appeared to rеly on the fact that the State had presented its evidence against Bang before he had moved for dismissal, stating:
The trial judge did not err when he overruled the motion of appellant in this case for permission to dismiss his appeal. Appellant was being tried anew in the circuit court. He was on trial for the crime charged against him. His case was being disposed of as other and like cases in that court. All of the evidence to prove his guilt had been introduced on behalf of the state. The proof was sufficient to support a verdict convicting him. Hе had no right then to have his case dismissed.
Id.
¶ 13. The Court addressed the issue again in Thigpen v. State,
¶ 15. The Court revisited the issue in Lee v. State,
¶ 16. The Court found that, in order to dismiss an appeal and remand on а writ of procedendo, the defendant must be called in open court and given an opportunity to prosecute the appeal. Id. (citing McCoy v. State,
¶ 17. Nelson cites Lee in support of her argument that the county court lacks jurisdictiоn to reinstate an appeal that has been dismissed and the case remanded on writ of procedendo. She specifically relies on the language in Lee that “where the justice court had already found the appellant guilty and had passed sentence in the cause, an order dismissing an appeal on a writ of procedendo is tantamount to a guilty plea and acceptance of the justice court sentence.” Lee,
¶ 18. However, Lee actually stands for the opposite of Nelson’s proposition. In Lee, the Court reversed the circuit court’s denial of a motion to set aside an order that had dismissed an appeal and remanded on writ of procedendo. Id. The Court remanded for a hearing and a determination of whether the order of dismissal and remand on writ of procedendo should be upheld or set aside. Id. This Court determined that dismissal may have been improper because Lee had not been present in open court and was not given the opportunity to prosecute the appeal. Therefore, Lee exрlicitly recognized that a court to which an appeal has been taken for a trial de novo is empowered to: (1) grant the defendant’s appropriately timed
¶ 19. Under Lee, the county court had jurisdiction to consider the motion to set aside the order of dismissal and remand. The county court determined that the order of dismissal and remand was improper because the city had lacked notice and an opportunity to respond to Nelson’s motion to dismiss. Therefore, the court reinstated the appeal, giving the State an opportunity to respond to Nelson’s motion to dismiss. Nelson argues that this ruling infringed upon her right to dismiss the appeal voluntarily without the city’s consent. She cites precedent from Oklahoma and Wyoming that a party may dismiss an appeal from justice court to county court at any time before the commencement of the trial without the consent of the other party. O’Rourke v. O’Rourke,
II. WHETHER DOUBLE-JEOPARDY PROTECTIONS ARE INVOKED WHEN THE COUNTY COURT ALLOWS THE STATE TO NOLLE PROSEQUI A CRIMINAL CHARGE AFTER AN APPEAL FOR A TRIAL DE NOVO HAS BEEN DISMISSED BY THE APPELLANT.
¶ 20. After setting aside the order of dismissal and remand on writ of proceden-do, the county court granted the State’s motion to nolle prosequi the DUI-first charge against Nelson. Nelson argues that, because she has been convicted of DUI-first and sentenced by the municipal court, double-jeopardy considerations prevent the State from obtaining a nolle pro-sequi on that charge with the intention of subsequently indicting her for felony DUI.
¶ 21. Section 22 of the Mississippi Constitution of 1890 provides that “no person’s life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.” Miss. Const, art. 3, § 22. “Under the plain wording of Article 3, § 22, in order for this state’s Double Jeopardy Clause to apply the accused must first suffer an actual acquittal or conviction on the merits of the offense.” State v. Fleming,
¶ 22. The entry of a nolle prose-qui does not bar another prosecution for the same offense under a new indictment. De La Beckwith v. State,
CONCLUSION
¶ 23. We find that the county court had jurisdiction to set aside the order of dismissal and remаnd on writ of procedendo and reinstate the appeal. We further find that Nelson’s double-jeopardy argument is not ripe for our consideration. Therefore, we affirm the decision of the circuit court, which affirmed the decision of the county court.
¶ 24. AFFIRMED.
Notes
. "A writ of procedendo is issued by a court of superior jurisdiction to a court of inferior jurisdiction to enforce the lower court's judgment.” Ferrell v. State,
. A certificate of service states that Nelson’s motion to dismiss was served on the prosecutor the day it was filed, on March 27, 2007. However, the order of dismissal was entered on that same day. Our review of the record indicates it was the understanding of the parties and the court that, for all practical pur
. Nelson’s appeal came to this Court under the former "three-court rule.” In Jones v. City of Ridgeland,
prohibits defendants who are aggrieved by a decision originating in justice or municipal court, and who have appealed to both county court and circuit court, from successfully appealing to this Court unless two requirements are met: (1) the appeal must involve a federal or state constitutional question, and (2) either the circuit court judge or a Supreme Court justice must "allow” the appeal.
Id. at 534.
. As the dissent points out, "in [Thigpen v. Roberts,
Dissenting Opinion
dissenting:
¶ 25. The only reason cited by the State as grounds for reinstating Nelson’s appeal and nolle prossing the misdemeanor charge was to allow the State an opportunity to indict Nelson for a felony charge. The United States Supreme Court has clearly held that thе Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits the State’s pursuing a felony indictment following a defendant’s appeal of a misdemeanor charge for the same conduct. Thigpen v. Roberts,
¶ 26. The majority’s belief that “at the time of Nelson’s plea in municipal court, neither party had known that the accident victims had been seriously injured,” is not entirely accurate. Maj. Op. ¶4. At the hearing in county court on the State’s motion to reinstate Nelson’s appeal, Nelson’s attorney, Victor Carmody, informed the county court that, at the time of the arraignment, everyone was aware that there were “potential but unknown injuries” as a result of the automobile accident. According to Carmody, he had discussed with the Richland city prosecutor, Greg Harper, the possibility of more serious charges’ being brought against his client because of these “potential injuries” and that Carmody had wished tо “handle this as a DUI first offense specifically to minimize any potential criminal liability and prevent the creation of further criminal liability.” Carmo-dy also told the court that Harper had agreed to proceed on the misdemeanor DUI charge and allow Nelson to appeal so that she could “finish her R.N. nursing qualifications.” On December 28, 2006, Carmody received a call from the accident victims’ attorney, but this was not when he
¶ 27. Harper did not dispute that he was present in the Richland Municipal Court the day Nelson was arraigned and found guilty of driving under the influence (DUI). While he did not deny Carmody’s version of events, Harper told the county court that he had “no recollection of knowledge of any injuries” on the day of the arraignment. Harper did, however, recall that Nelson was pursuing her nursing license and acknowledged that he had agreed to prosecute her on the misdemeanor charge.
¶ 28. Judge Kent McDaniel, the county court judge, seemed displeased with the manner in which the case had been handled, telling the prosecutor:
All the information about the nature of the injuries and how bad this person[5 ] was hurt, that they went to the hospital in an ambulance, I presume, that was all available to the State. You may not have known about it, but somebody at Richland should have, as I say, awakened from their coma and said, “Listen, we don’t want to plead this as a[DUI] first.”
Thus, the judge correctly observed that, regardless of Harper’s personal knowledge, the City of Richland was on notice that potentially serious injuries had resulted from the accident. See State v. Blenden,
¶ 29. Thirty-seven years ago, the United States Supreme Court declared, “[a] person convicted of an offense is entitled to pursue his statutory right to a trial de novo without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.” Blackledge,
¶ 30. Procedurally, this case is different from Blackledge and Thigpen in that, in those cases, felony indictments had been brought while the defendants’ appeals were pending. However, those cases still are controlling, and the issue of due process is ripe for review regardless of the existence of a felony indictment. The prosecution does not enjoy unbridled discretion in nolle prossing charges and must obtain the court’s consent. Miss.Code Ann. § 99-15-53 (Rev.2007). “The requirement of court approval for dismissal of a criminal action ‘is primarily intended to protect the defendant against prosecuto-rial harassment.’ ” State v. Adams County Circuit Court,
¶ 31. In most of the cases cited by the majority, the defendants attempted to have their appeals dismissed еither during trial or on the day of trial, and in none of those cases did the a defendant seek a dismissal based on the prosecution’s threat of greater charges. Parham v. State,
¶ 32. The majority also cites Lee v. State,
¶ 33. For the foregoing reasons, it was error to reinstate Nelson’s appeal over her objection and to nolle pros the misdemean- or charge of which she already had been convicted. Accordingly, I would reverse the judgments of the circuit court and county court and reinstate the writ of pro-cedendo.
. Two people were injured in the accident, and while the record is clear that one was seriously injured, the extent of the other victim's injuries is unclear from the record.
. The majority finds that O'Rourke and May-ott are “inapposite to this case. The reason the county court set aside the order of dismissal and remand was not because the city had not consented to the order. Rather, the court set aside the order of dismissal and remand because the city had not been afforded an opportunity to respond to the motion to dismiss.” This is a distinction without a difference.