
    The Town of Nettleton v. McCollum.
    No. 39701
    May 2, 1955
    79 So. 2d 735
    
      
      Cason Rankin, Tupelo, for appellant.
    
      E. K. Windham, Booneville, for appellee.
   Gillespie, J.

By affidavit filed in mayor’s court, appellant was charged with assault. The order of the mayor’s court recited that defendant entered a plea of not guilty and was sentenced to prison for thirty days and fined $100.00. The order did not recite that the defendant was either tried or convicted. Defendant appealed to the circuit court, where, on motion of defendant, the court quashed the proceeding of the mayor’s court and remanded the case. The town appeals here.

The circuit court has no jurisdiction absent a record showing a judgment of conviction in the mayor’s court. An order showing a plea of not guilty and a sentence thereon is not a judgment of conviction. Upon a not guilty plea, an accused may not be sentenced except upon trial and conviction. The circuit court had no jurisdiction, and properly remanded the case to the mayor’s court. Gilmer v. State, 157 Miss. 622, 128 So. 773; Young v. State, 140 Miss. 165, 105 So. 461; Ball v. Sledge, 82 Miss. 747, 35 So. 214; Burrows v. State, 143 Miss. 221, 108 So. 505. The alleged defective affidavit may be amended on remand.

Affirmed and remanded.

McGehee, C. Jand Kyle, Arrington and Ethridge, ,7,7., concur.  