
    Gustavo Damean VILLAVERDE v. STATE of Mississippi.
    No. 92-KA-00627-SCT.
    Supreme Court of Mississippi.
    May 9, 1996.
    Woodrow W. Pringle, III, Gulfport, for Appellant.
    Michael C. Moore, Attorney General, Pat S. Flynn, Asst. Attorney General, Jackson, for Appellee.
    Before DAN M. LEE, C.J, and McRAE and SMITH, JJ.
   SMITH, Justice,

for the Court:

This ease eomes before this Court from the Circuit Court of Harrison County, where the court found Gustavo Damean Villaverde guilty of one count of possession of cocaine with intent to sell, and one count of possession of marijuana. Villaverde was sentenced to ten years for the cocaine charge, and three years for the marijuana, to run concurrently.

Villaverde did not show up for trial. His attorney asked for a continuance, which the lower court overruled, allowing the trial to continue without the presence of the defendant. ViUaverde claims that such was error, raising the foUowing three issues:

I. WHETHER THE DEFENDANT HAD SUFFICIENT NOTICE OF THE TRIAL DATE, SO AS TO ALLOW THE JUDGE TO CONTINUE THE TRIAL WITHOUT HIS PRESENCE.
II. WHETHER THE EVIDENCE WAS SUFFICIENT TO ESTABLISH THE INTENT TO SELL COCAINE.
III. WHETHER THE LOWER COURT ERRED BY ALLOWING A WITNESS TO TESTIFY ABOUT STATEMENTS MADE BY VILLAVERDE ON INTENT TO SELL THE COCAINE, SO AS TO BE A DISCOVERY VIOLATION.

Only the issue concerning the denial of the continuance and aUowance of the trial to proceed without the presence of ViUaverde warrants discussion. After thorough consideration, this Court finds that Issue I is con-troUed by our opinion in Sandoval v. State, 631 So.2d 159 (Miss.1994). Issues II and III are without merit and need not be discussed. We reverse the trial judge for holding the trial in absentia of the defendant.

STATEMENT OF FACTS

Gustavo Damean ViUaverde was puUed over on Interstate Highway 10 in Harrison County by Officer Victor Smith for weaving in and out of lanes erraticaUy. Officer Smith had with him a drug-detecting canine, Magnum, and as a routine, would utilize the dog on his traffic stops. Magnum gave two positive alerts for the presence of drugs. Officer Smith then searched the car after obtaining consent from ViUaverde. ViUaverde signed a search consent form, which was written in both Spanish and EngUsh. Smith found marijuana and a total of 71 grams of cocaine dispersed in twenty smaU plastic bags. The bag in which the cocaine was found also contained over $4000 in loose cash. ViUav-erde was arrested, taken to jail, subsequently indicted and aUowed to post bond.

Trial was set for March 31, 1992. At docket call the previous day, his attorney was present and announced that he was ready for trial. The next day, upon approaching the time of the trial, ViUaverde was stiU not present, and thus, his attorney, Earl StegaU asked for a continuance. The judge held a hearing to determine whether to grant the motion.

At the hearing, StegaU indicated that he was expecting the defendant to show up. StegaU’s secretary had given ViUaverde notice to appear in court, and Stegall himself had also eaUed and left messages on the answering machine at the number which VU-laverde left as his residence or where persons could contact him. This phone number belonged to his girlfriend’s telephone. The girlfriend’s number was the only one sup-pUed by ViUaverde when he left after posting bond. StegaU also stated that four days prior to trial, ViUaverde had caUed him and left a message on his answering machine stating that he would be there for trial. On the day before the trial, the bail bondsman talked to ViUaverde’s girlfriend, who told him that ViUaverde was on his way to Mississippi for trial. StegaU admitted in that hearing that ViUaverde “in fact, had actual and constructive notice of the hearing today.” After hearing the evidence, the lower court denied the motion for continuance and let the trial proceed without the presence of the defendant.

DISCUSSION OF LAW

WHETHER THE DEFENDANT HAD SUFFICIENT NOTICE OF THE TRIAL DATE SO AS NOT TO HAVE HAD HIS SIXTH AMENDMENT RIGHTS VIOLATED, AND TO ALLOW THE JUDGE TO CONTINUE THE TRIAL WITHOUT HIS PRESENCE.

The State argues that a defendant’s knowing, inteUigent and voluntary absence from his trial acts as a waiver of his Sixth Amendment right to confrontation. Samuels v. State, 567 So.2d 843 (Miss.1990). A court is not precluded from holding a trial if the defendant voluntarily waives his presence before the trial commences. Id. “When after sufficient notice, a defendant voluntarily absents himself from any proceeding, he waives any right he has to be present at that proceeding.” Samuels, 567 So.2d at 846. Our statute on this matter states:

In criminal cases, the presence of the prisoner may be waived, and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto. If the defendant in cases less than felony, be on recognizance or bail or have been arrested and escaped or having been notified by the proper officer of the pendency of the indictment against him, and resisted or fled or refused to be taken, or be in any way in default for non appearance, the trial may progress at the discretion of the court and the judgment final and sentence be awarded as though such defendant were personally present in court.

Miss.Code Ann. § 99-17-9 (1972). In Samu-els, in applying this section, the Court upheld the denial of the motion for a continuance primarily because the defendant had executed a bond which required his presence. Samuels only came to the docket call, when his attorney announced that he was ready for trial. Samuels was not present during the trial or the sentencing phase. He apparently fled. Moreover, no notice was ever given to Samuels. See also McMillian v. State, 361 So.2d 495 (Miss.1978) (Court found defendant voluntarily waived Sixth Amendment right when he absented himself from trial after being present for the beginning of the trial, and then fleeing).

Villaverde argues the exception to the general rule: “Both [attorney and defendant] need not be present; where the defendant is represented by counsel, the attorney may represent the defendant at any critical stage in the proceedings, and the defendant’s absence will not violate his constitutional rights.” Caldwell v. State, 481 So.2d 850 (Miss.1985), vacated on other grounds, 479 U.S. 1075, 107 S.Ct. 1269, 94 L.Ed.2d 130 (1987). Villaverde states that the “exception to this general rule is where the presence of the defendant is necessary to prevent prejudice to him.” Id. at 852. When requesting the motion for a continuance, his attorney stated that having the defendant present would “assist ... in the defense of his case and particularly in arguing the motions to suppress.” On his motion for a new trial, attorney Stegall did not argue that Villav-erde’s absence from the courtroom prejudiced his case as a ground for granting a new trial.

Unfortunately for the State, at this point, Samuels has been overruled and defendants charged with felonies may not be tried in absentia. Sandoval v. State, 631 So.2d 159 (Miss.1994); Banos v. State, 632 So.2d 1305 (Miss.1994). Under Sandoval, Samuels is implicitly overruled, and it is error if a judge continues a trial without the presence of the defendant at the beginning of trial. Sandoval at 164; Banos at 1308 (further entrenching Sandoval). This Court in Sandoval stated:

Mississippi Code Annotated § 99-17-9 (1972) clearly states the waiver rule in felony eases “if he be in custody and consenting thereto” and then makes an exception for misdemeanors. Only in discussing “cases less than felony” does the statute permit trial in absentia of defendant “on recognizance or bail.” This statute, unchanged since 1857, expresses the legislative intent to limit waiver of trial presence of accused felons to those instances where the accused is “in custody and consenting thereto.”

Sandoval, 631 So.2d at 164.

Our precedent requires that we reverse the trial judge on this issue for holding the trial in absentia of Villaverde, an accused felon.

CONCLUSION

This Court’s decision in Sandoval overruling Samuels dictates that a defendant charged with a felony may not be tried in absentia. The case must be reversed and remanded for a new trial.

REVERSED AND REMANDED.

DAN M. LEE, C.J., PRATHER and SULLIVAN, P.JJ., and BANKS, McRAE, JAMES L. ROBERTS, Jr. and MILLS, JJ., concur.

PITTMAN, J., specially concurs with separate written opinion joined by MILLS, J.

PITTMAN, Justice,

specially concurring:

I write today only to again express my concerns with Sandoval v. State, 631 So.2d 159 (Miss.1994). It is not time to abandon Samuels v. State, 567 So.2d 843 (Miss.1990). We should find a better rule than to require the defendant to be present at the first minute of trial, but at no other point. If a defendant has notice and voluntarily absents himself from trial, then the judge has the discretion to proceed without him. In the present case, there is insufficient evidence that Villaverde had proper notice of trial, and thus, the trial court abused its discretion in proceeding without him. Therefore, I concur in the case sub judice without abandoning my previous stand on this troublesome issue.

MILLS, J., joins this opinion.  