
    David L. BENNETT v. STATE of Mississippi.
    No. 57496.
    Supreme Court of Mississippi.
    July 6, 1988.
    
      H.W. Sonny Jones, Meridian, for appellant.
    Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Paul B. Johnson, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
   PRATHER, Justice,

for the Court:

This is a criminal appeal taken from the Circuit Court of Lauderdale County, Mississippi, wherein David L. Bennett was tried and convicted of negligent injury to another while driving under the influence of alcohol in violation of Miss. Code Ann. § 63-11-30(4) (Supp.1985). The appellant was sentenced to serve a term of four (4) years in the custody of the Mississippi Department of Corrections, and it is from this conviction and judgment that Bennett appeals and assigns the following three assignments of error:

(1) The court erred in failing to dismiss the charge against the defendant, David L. Bennett, on the ground of double jeopardy.

(2) The court erred in admitting into evidence the results of a blood test of the defendant taken pursuant to § 63-11-1, et seq., of the Miss. Code of 1972, as amended.

(3) The court erred in failing to grant the defendant’s motion for recusal of the presiding judge.

STATEMENT OF FACTS

On March 27, 1985, the defendant, David L. Bennett, and Jackie Gault were involved in a two-car automobile accident. As a direct result of the accident, Mrs. Gault had her nose cut off, suffered numerous lacerations of the face, had one of her legs broken in 25 or more places, and received 8 broken ribs and a punctured lung. Following the accident, Mr. Bennett, pursuant to § 63-11-7 was subjected to a blood test while he was unconscious to determine the alcoholic content of his blood. The blood sample of the defendant/appellant was found to contain a zero point one four percent (0.14) ethyl alcohol content. On the date of the accident Mr. Bennett was charged with misdemeanor driving under the influence of alcohol and driving with a suspended driver’s license in Justice Court.

On May 15,1985, Mr. Bennett was found guilty, in absentia, in Justice Court of the misdemeanor charge of driving while intoxicated pursuant to Miss. Code Ann. § 63-11-30(1-2) (Supp.1985) (Cause No. 126) and driving with a suspended driver’s license (Cause No. 40) and sentenced to serve two days in jail on each charge and to pay a $200 fine on each charge.

On June 11, 1985 a felony warrant was issued for Bennett charging him with “permanently disfiguring or maiming the body of Jackie A. Gault in an automobile accident while driving under the influence of alcohol.” (Docket No. 584). He was arrested on June 13, 1985 and appointed counsel was named on an indigency affidavit.

The Justice Court Clerk testified regarding the entry on docket Case No. 40 that she believed that Bennett posted a cash bond at the jail which was forwarded to the Justice Court Clerk. Of a $600.00 cash bond posted, $258.50 was credited to the no driver’s license charge, $250.00 was forwarded to the Circuit Court, and the remaining $91.50 was not reflected by the docket entry. These payments were made September 23, 1985 after the defendant Bennett had spent three and one-half months in jail.

On the same date of September 23, 1986 an unknown person made an entry of Justice Court Docket Cause No. 126, the D.U.I. charge, “Marked in error 9/23/85” and also “stand trial for felonious charge of maiming and permanently disfiguring as a result of D.U.I.” Additionally, the former entry of the Court’s having found the defendant “guilty” was marked through. The Justice Judge Howell testified that he had no independent recollection of the case and further that he “did not write, ‘marked in error and stand trial for felonious maiming and permanent disfigurement.’ Probably Marilyn Jones wrote that.” Later in his testimony he added that the entry “could have been done at my direction.”

At the November, 1985 Term of Circuit Court, there was a felony indictment under Miss. Code Ann. § 63-11-30(4) (Supp.1985) returned against David Bennett for operating a motor vehicle while under the influence of ethyl alcohol having 0.14% by weight volume in his blood, and in said condition, causing the permanent injuries of Jackie Gault on March 27, 1985.

Prior to trial, a motion to dismiss based upon a double jeopardy charge and a motion asking for the judge to recuse himself were heard and denied.

Having been tried on the felony charge, Mr. Bennett was convicted of violation of Miss. Code Ann. § 63-11-30(4) (Supp.1985). He was sentenced to serve a term of four years in the custody of the Mississippi Department of Corrections.

PROPOSITION NO. 1

DID THE TRIAL COURT ERR IN OVERRULING THE APPELLANT’S MOTION FOR DISMISSAL ON THE GROUNDS OF FORMER JEOPARDY?

Counsel for Mr. Bennett contends that the trial court erred in overruling his motion to dismiss based on the grounds of double jeopardy, alleging that Mr. Bennett was duly convicted of driving under the influence pursuant to Miss. Code Ann. § 63-11-30(1-2) (Supp.1985) on May 15, 1985, and that because of said misdemean- or conviction Mr. Bennett could not be tried subsequently for felony driving under the influence (D.U.I.) pursuant to Miss. Code Ann. § 63-11-30(4) (Supp.1985). The law of former jeopardy is well grounded in both the federal and state constitutions.

No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb....

U.S.Const.Amend. V.

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.

In Harden v. State, 460 So.2d 1194 (Miss.1984), this Court writes:

The first is the inviolate right of any person not to be prosecuted twice for the same offense. This treasured right is deeply embedded in our national conscience and in our system of laws that any violation is absolutely odious.

Id. at 1200 (citing U.S. Const. Amend V and Miss. Const. Art. 3, § 22). With this precedent in mind, counsel for Mr. Bennett argues that the felony conviction of David L. Bennett in Lauderdale County Circuit Court for violation of § 63-11-30(4) after his prior conviction of misdemeanor driving under the influence (D.U.I.) is a double jeopardy violation.

To support this contention, counsel points to the testimony of Shirley Shaw, Justice Court Clerk of Lauderdale County. Mrs. Shaw is questioned about whether Mr. Bennett on May 15, 1985 was found guilty of the charge of D.U.I. and was ordered to pay a fine of $200 and serve two days in jail. The record reveals the following testimony:

Q. So, on May 15, 1985 this docket reflects that Mr. Bennett was found guilty of D.U.I. Isn’t that correct?
A. That’s what the docket reflects.

Bearing in mind this testimony, counsel for Mr. Bennett also points to further testimony of Mrs. Shaw. The witness further corroborated the fact that the docket had been changed after a three month period. Her testimony is as follows:

Q. And, then some three — over three months later someone came into the docket and wrote in it — or struck out the guilty and inserted, “marked in error, 9/23/85” and added this additional, stand trial for felonious charges of — isn’t that correct?
A. That’s what the docket says.
Q. So, the entry marked in error and the additional material alleging that he was to stand trial was entered some three and a half months after he had already been adjudicated guilty D.U.I. and fined. Isn’t that correct?
A. That’s what the docket says.

In addition to the testimony by Mrs. Shaw, the defense also points to the testimony of the Honorable John Howell, licensed attorney and justice court judge. Judge Howell testified that he had no independent recollection of the case. Reviewing the record the judge testified as follows:

Q. You didn’t add, marked in error, and strike through the guilty and then add, “stand trial for felonious maiming and permanent disfigurement”?
A. In the first place I have no further recollection of when and why I marked the first part, and in the second place I did not write, “marked in error and stand trial for felonious maiming and permanent disfigurement.” Probably Marilyn Jones wrote that.

Judge Howell acknowledged that the only thing written in the docket on the D.U.I. charge in his hand was the “guilty” finding and the fine of “200” and the notation of “two days”.

Although the district attorney attempted to argue the fact that no witnesses were heard by the justice court, it is clear that a classic bond forfeiture connected to a finding of guilty and a sentence of $200 and two days was entered by the justice court judge on May 15, 1985. Miss. Code Ann. § 63-11-37 states:

For the purposes of Section 63-11-30, a bond forfeiture shall operate as and be considered as a conviction.

In addition, the judgment reflects that the court heard testimony and found the defendant guilty. A bond forfeiture followed. Therefore, this Court concludes that the judgment and forfeiture of Mr. Bennett’s bond operates as a conviction.

In rebuttal to Mr. Bennett’s argument, the State urges that double jeopardy never attached in the case at bar. In an attempt to substantiate this theory, the State points to the fact that on March 27, 1985, Deputy Sheriff Willie Burton charged Mr. Bennett with felony D.U.I. in violation of Miss. Code Ann. § 63-11-30(4). This case was assigned to Justice Court Judge Marilyn G. Jones.

In line with this charge, Deputy Burton, on April 12, 1985, filed another affidavit charging the appellant with misdemeanor D.U.I. in violation of Miss. Code Ann. § 63-11-30(1-2). This case was assigned to Justice Court Judge John E. Howell. Mr. Bennett was subsequently arrested and posted bail and released on April 12, 1985.

Respectively, on May 15, Judge Jones rendered a decision which stated that the D.U.I. felony should be turned over to the circuit court and listed upon the official record the words, “Unable to be tried in justice court having been committed a felony.” Thereto, on May 15, 1985, Judge John Howell also entered an order of guilty in Mr. Bennett’s case because the appellant failed to show up for court. Mr. Bennett’s fine was forfeited.

Following these events, the State explains that on June 13, 1985, Mr. Bennett was arrested and made his first appearance on the felony D.U.I. pursuant to Miss. Code Ann. § 63-11-30(4). This proceeding took place before Justice Court Judge Marilyn Jones.

With the felony charge before Judge Jones, the State explains that a mistake was corrected in the docket. This mistake, the misdemeanor charge of D.U.I., was corrected by adding the words, “Marked in error” and a line was drawn through guilty and the date 9/23/85 was added.

The State argues that no execution to the judgment of guilty was taken upon Mr. Bennett. Upon discovering the mistake by the justice court, the docket was corrected and judgment was held void. These changes made by someone other than the judge were admitted into evidence in the motion hearing. This Court has held improper a trial court’s changing of a suspended sentence from three to five years after expiration of the three years period as beyond their authority. Sisson v. State, 483 So.2d 1338 (Miss.1986).

In Wallace v. State, 466 So.2d 900 (Miss.1985), this Court explains, “In order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial on the merits of the crime for which he is again sought to be convicted.” Id. at 902.

Mr. Bennett’s bond was forfeited in the justice court. With the forfeiture of this money, a sentence of guilty was entered into the docket and this constitutes a conviction of the misdemeanor charge of driving under the influence.

In Illinois v. Vitale, 447 U.S. 410, 421, 100 S.Ct. 2260, 2267, 65 L.Ed.2d 228, 238, (1980) the U.S. Supreme Court ruled that “a conviction on a lesser included offense bars subsequent trial on the greater offense.” Therefore, Mr. Bennett’s misdemeanor conviction bars the subsequent trial for felonious D.U.I. Thigpen v. Roberts, 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984).

This Court concludes that the constitutional principle of double jeopardy does attach in this case. The Motion to Dismiss of the defendant should have been granted on this basis.

This Court, therefore, reverses the trial court on the overruling of the motion. The defendant’s other assignments of error do not require addressing, since this Court concludes that the first assigned error requires a reversal of the conviction and a discharge of the defendant.

REVERSED AND DEFENDANT DISCHARGED.

ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and ROBERTSON, SULLIVAN, ANDERSON and ZUCCARO, JJ., concur.

GRIFFIN, J., and HAWKINS, P.J., dissent.

GRIFFIN, Justice,

dissenting:

With deference, I respectfully dissent.

Today, Mississippi is first again — the first jurisdiction in the United States to consider a bail bond forfeiture as the basis for a plea of double jeopardy. Although Miss. Code Ann. § 63-11-37 (Supp.1987) states that for “purposes of Section 63-11-30, a bond forfeiture shall operate as and be considered as a conviction,” the majority’s inference that such a provision implicates the Double Jeopardy Clause flies in the teeth of the constitutional language at issue: “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.” (emphasis added) Miss. Const. Art. 3, § 22 (1890). See also, U.S. Const. Amend. V.

The statutory language at issue first appeared in Chapter 515, § 8, Laws of 1971, and reads as follows: “For the purposes of Sections 5, 6, or 7 of this act, a bond forfeiture shall operate as and be considered as a conviction.” Sections 5, 6, and 7 provided the various punishments for D.U.I., and the codifiers designated these sections as Miss. Code Ann. §§ 63-11-31, 63-11-33 and 63-11-35 (1972), since repealed. Yet, under Chapter 491, § 6, Laws of 1981, these statutes were re-codified as Miss. Code Ann. § 63-11-30. Also, Chapter 491, § 8, Laws of 1981 became § 63-11-37. Finally, Chapter 466, §§ 7 and 13, Laws of 1983 amended § 63-11-30, providing for chemical tests and enhanced punishment.

Our first duty, when construing a legislative act, is to give it such an interpretation as will render it constitutional. Clark v. State ex rel. Mississippi State Medical Association, 381 So.2d 1046, 1048 (Miss.1980); Peterson v. State, 268 So.2d 335, 337 (Miss.1972). Only when we adhere to the statute’s purpose, may we give it any semblance of constitutionality, even though this statute may well be subject to challenge by a defendant, whose license is revoked without trial.

Specifically, § 63-11-37, entitled “Copy of conviction record sent to commissioner; reduction of revocation or suspension period; additional restrictions on driving privileges,” concerns the administrative duties of the trial judge and Commissioner of Public Safety in docketing and recording convictions for driving under the influence of alcohol or drugs. This statute quite properly provides that a bond forfeiture on such a charge is the equivalent of a conviction only under § 63-11-30, which provides stiffer punishment for a second and third conviction for D.U.I. It is obvious then that the legislature, when including the bond forfeiture language in § 63-11-37, solely meant to hold a repeat offender liable for stiffer punishment, if he or she had skipped trial on a previous D.U.I. charge in favor of a bond forfeiture.

The majority’s position is that the Double Jeopardy Clause always precludes a trial on the merits whenever someone arrested for D.U.I. jumps bond, since the bond forfeiture, alone, convicts the defendant. This raises serious implications for the defendant’s right to due process. Miss. Const. Art. 3, § 14 (1890).

Yet, even if the majority were correct in its interpretation of the statute, the facts themselves are at odds with the majority’s conclusion. For example, docket entries reflect that Bennett neither posted nor forfeited a bond on the misdemeanor D.U.I. charge, Cause No. 126; rather, Bennett posted and forfeited his bond on the separate charge of driving under a suspended license, Cause No. 40. On September 23, 1985, when the Justice Court Deputy Clerk finally assessed the fine for driving under a suspended license, the fine and costs for this charge alone were assessed against the bond’s proceeds. No docket entry reflects that any proceeds from the bond were applied to the fine for misdemeanor D.U.I.

Moreover, Miss. Code Ann. § 99-33-3 (Supp.1987) requires an “affidavit of the commission of [a] crime” before the “justice court judge shall try and dispose of the case according to law.” In this case, Judge Howell testified, “The case did not come to trial. There was no witness sworn; there was no testimony taken. Merely the fact that the ticket was given to him on D.U.I. and that he failed to respond, to answer or respond.” Significantly, the record discloses only an affidavit charging Bennett with felony D.U.I., dated March 27, 1985. There is no record of an affidavit charging Bennett with either misdemeanor D.U.I. or driving under a suspended license. Indeed, the docket even reflects that the ticket, underlying the misdemeanor D.U.I., issued on April 12, 1985, more than two weeks after the felony affidavit. In accord with this evidence, Judge Howell, as quoted above, testified that he had simply signed his name to the docket, acting solely on the basis of the ticket, not an affidavit.

In Dunaway v. State, 398 So.2d 658 (Miss.1981), the appellant pled guilty to a ticket for reckless driving, paying the justice court a $237.50 fine, though there was no affidavit lodged against him in justice court. Later, when convicted for manslaughter by culpable negligence, the appellant asserted double jeopardy as a defense. Justice Hawkins, writing for the Court, held that “no jurisdiction was ever in the justice court to compel appellant to pay any fine in the absence of the affidavit ...”. Id. at 659. Consequently, the double jeopardy defense “just won’t work.” Id. See also, Boring v. Mississippi State Board of Dental Examiners, 300 So.2d 135, 139 (Miss.1974). Likewise, in the absence of an affidavit on the misdemeanor D.U.I. here, Dunaway should be our guide, since under § 99-33-3, Bennett’s defense “just won’t work.”

Our treatment of justice court judgments is well stated by Justice Griffith in Keene v. State, 194 Miss. 233, 235, 11 So.2d 899, 900 (1943), and I copy the whole opinion:

Appellant was convicted in the Circuit Court under an indictment charging a misdemeanor. The evidence was ample in support of the verdict. It appears, however, that a previous prosecution for the identical offense had been instituted in the justice court, and was there dismissed; and this is relied on as a bar to the judgment and sentence in the present case.
The judgment entered by the justice of the peace is as follows: “This cause was dismissed for the lack of evidence.”
It will be at once observed that it cannot be told from the cryptic entry whether the case was dismissed because no evidence was produced, which would be a dismissal for want of prosecution, or whether evidence was introduced but was found lacking in probative force. Oral testimony was received by the Circuit Court, without objection and without dispute, which showed that no evidence whatever was introduced in the justice court, and that in fact the cause was dismissed for want of prosecution. We lay this aside as if objection had been made and sustained.
Liberal rules of interpretation must of necessity be applied to judgments of justices of the peace, Ladnier v. Ladnier, 64 Miss. 368, 372, 1 So. 492, and mere matters of form will not invalidate them. At the same time they must in substance fulfill the requirement, applicable to all courts, that a judgment shall be reasonably definite and certain. 35 C.J. 656, and authorities under note 42. See, also, 31 Am.Jur. 753, 754. The quoted judgment fails to meet this test and is not sufficient to sustain the plea of former acquittal.

Citing Keene, the Court denied a double jeopardy defense in Moorehead v. State, 229 Miss. 454, 457, 91 So.2d 272, 273 (1956):

Appellant was indicted, tried and convicted in circuit court on a charge of assault. A previous prosecution for the identical offense had been instituted in the justice of the peace court, where the following order was entered: “The defendant did appear for trial but the prosecution did not appear with any evidence. The case was thrown out of court for want of prosecution.” The justice of the peace testified without objection that he did not swear any witness and took no testimony, but we lay aside this testimony as if objection had been made and sustained. The order of the justice of the peace shows that appellant was not prosecuted in that court and appellant was not there put in jeopardy. The judgment entered by the justice of the peace was not sufficient to sustain the plea of former jeopardy relied upon by appellant in bar of the judgment and sentence in the present case. Keene v. State, 194 Miss. 233, 11 So.2d 899.

Although the burden of proof never shifts from the State in criminal prosecutions, the defendant still must prove any distinct substantive matter relied on as a defense, e.g., double jeopardy. See, Talbert v. State, 347 So.2d 352, 354 (Miss.1977); White v. City of Philadelphia, 197 Miss. 166, 173, 19 So.2d 493, 494 (1944); Bennett v. State, 100 Miss. 684, 696, 56 So. 777, 779 (1911). In this case, Bennett first asserted double jeopardy on the basis of the bond forfeiture as a defense on appeal; he made no record of this objection, below. Based on this waiver and the facts of this case, it is wrong to predicate a reversal on such an issue.

In conclusion, although trial on a misdemeanor charge may occur in the defendant’s absence, where he jumps bond, resulting in a valid judgment and sentence, Miss. Code Ann. § 99-17-9 (1972), the majority now upholds a conviction as the basis for a double jeopardy defense, where the defendant received no trial. This contradicts the specific provision of the Double Jeopardy Clause. In addition, the record discloses no bond forfeiture whatsoever on the underlying charge of misdemeanor D.U.I.

The majority makes much of the fact that the word “guilty” was struck out and “marked in error” inserted. This should have happened. The record clearly reflects that it was error. No trial was conducted as provided by § 99-17-9, no witnesses appeared, no evidence was taken, nor was the defendant punished in accordance with the erroneous judgment. There is no inference of surreptitious conduct on the part of the person correcting the error. Certainly, the defendant was not in jeopardy on the day the word “guilty” was written.

The parol evidence as to what took place was properly considered. Lovern v. State, 140 Miss. 635, 638-9, 105 So. 759 (1925). In Lovem, the Court stated:

The appellant pleaded former jeopardy, and in support thereof introduced in evidence the following judgment rendered by a justice of the peace:
This case came on to be heard before J.T. Harmon, justice of the peace for Fifth district of Itawamba county. Said case was called, and, it appearing that there was insufficient evidence to convict the defendant, the case was dismissed and the defendant discharged.
It does not appear from this judgment against whom it was rendered or what the charge against the defendant therein was, but the district attorney agreed that it was rendered in a prosecution against the defendant for the crime for which he was then being tried in the circuit court.
In order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial “on the merits” of the crime for which he is again sought to be convicted. Constitution, § 22.
The judgment here relied on recites neither an acquittal nor conviction “on the merits,” but that “the case was dismissed and the defendant discharged.” If the judgment contained. this recital only, it would exclude any idea that the defendant was adjudged either guilty or not guilty, but a doubt relative thereto arises because of the further recital that “there was insufficient evidence to convict the defendant.” It does not appear from this recital whether the insufficiency of the evidence was ascertained by the justice after the witnesses had been sworn and testified, or whether the information was obtained before the trial was begun. Whether the dismissal of the defendant was pursuant to an acquittal on the merits is left in doubt, which doubt parol evidence is admissible to remove. Robinson v. Lane, 14 Smedes & M. (Miss.) 161; 34 C.J. § 1515.
The evidence in explanation of this judgment was introduced by the appellant himself, from which it appears that the case was not tried on its merits, but was dismissed at the request of the county attorney after a conference with the witnesses. The judgment therefore constitutes no foundation for a plea of former jeopardy.

Id. There, as here, there was evidence which explained the judgment, and from this evidence it was shown that there was no trial on the merits.

HAWKINS, P.J., joins in this dissent. 
      
      . Miss. Code Ann. § 99-15-55 (1972) reads in part:
      If the conservator of the peace in such case be a justice of the peace, having territorial jurisdiction of the offense, he shall convict the offender and punish him accordingly, but such conviction shall not bar a subsequent prosecution for felony in the same matter.
     