Griffith v. City of Bay St. Louis

797 So. 2d 1037, 2001 WL 857731
CourtCourt of Appeals of Mississippi
DecidedJuly 31, 2001
Docket2000-KM-00013-COA
StatusPublished
Cited by4 cases

This text of 797 So. 2d 1037 (Griffith v. City of Bay St. Louis) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Griffith v. City of Bay St. Louis, 797 So. 2d 1037, 2001 WL 857731 (Mich. Ct. App. 2001).

Opinion

797 So.2d 1037 (2001)

Montgomery GRIFFITH a/k/a Montgomery Griffith-Mair, Appellant,
v.
CITY OF BAY ST. LOUIS, Mississippi, Appellee.

No. 2000-KM-00013-COA.

Court of Appeals of Mississippi.

July 31, 2001.
Rehearing Denied October 23, 2001.

*1038 James G. Tucker III, Bay St. Louis, for Appellant.

Samuel Trent Favre, Bay St. Louis, for Appellee.

Before McMILLIN, C.J., PAYNE, LEE, and IRVING, JJ.

IRVING, J., for the Court:

¶ 1. Montgomery Griffith was charged and convicted of simple assault, trespassing and disturbing the peace in the Municipal Court of Bay St. Louis. He appealed to the Circuit Court of Hancock County where, after a trial de novo, he was again found guilty. He was fined five hundred dollars for each conviction, given a suspended sentence of eighteen months and five years probation subject to good behavior and certain specific conditions of probation.

¶ 2. In this appeal, Griffith asserts five issues which we have rephrased and combined into four as follows: (1) the circuit court lacked jurisdiction, (2) the trespass and disturbing the peace affidavits charge no crime, (3) the guilty verdict of simple assault is against the weight of the evidence and is not undergirded thereby, and (4) the sentence is unlawful in that it imposed a post-trial gag order upon the defendant in violation of the First Amendment.

¶ 3. Finding no reversible error, we affirm.

*1039 FACTS

¶ 4. This appeal emanates from an altercation between Griffith and Marsha Favre. Favre drove into the driveway of a piece of property she had purchased from Griffith and noticed that Griffith had pulled in behind her. Favre requested that Griffith leave her property, but he refused, stating that he desired to speak with her. She renewed her request for Griffith to leave, and Griffith responded by calling her a slut and one of the horsemeat gang.[1] At this point, both Griffith and Favre were out of their cars and standing near each other. After Favre's refusal to speak with Griffith, he made a motion toward his vehicle. In doing so, he bumped into her chest area with his shoulder. A neighbor who witnessed the incident testified that she witnessed Griffith holding Favre by her wrists. Griffith claimed that, as a result of the fray, his shirt was ripped and a family heirloom pectoral cross was torn from his neck and never recovered.

ANALYSIS OF THE ISSUES

I. Circuit Court Jurisdiction

¶ 5. Griffith argues that the circuit court lacked jurisdiction because the record from the municipal court failed to show a separate sentence for each conviction. He argues that, to be final, the judgment must reflect the sentence on each conviction. In support of his argument, Griffith cites Rules 12.02 and 3.10 of the Uniform Rules of Circuit and County Court Practice. Without compliance with these rules, according to Griffith, the appellate court lacks jurisdiction to hear the case on appeal.

¶ 6. Rule 12.02 of URCCC provides in parts that:

Any person 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 by filing simultaneously a written notice of appeal and cost bond within 30 days of such judgment with the clerk of the circuit court having jurisdiction. This written notice of appeal and posting cost bond perfects the appeal.
* * *
It shall be the duty of the judge from whose judgment the appeal is taken to deliver to the clerk of the circuit court, within 10 days after the appeal bond and cost, as required herein, are given and approved, a certified copy of the record in the case with all the original papers in the case.

(emphasis added).

¶ 7. In the case sub judice, the municipal court sent to the circuit court a certified copy of the record, and there is no contention that this was not done. Rule 12.02 expressly provides that the appeal is perfected upon the filing of the notice of appeal and posting of the bond. Clearly, perfection of the appeal confers upon the appellate court the power to decide the appeal.

¶ 8. Rule 3.10 of the Uniform Rules of Procedure for Justice Court provides:

Where the defendant is adjudged guilty of the offense charged, sentence must be imposed without unreasonable delay. A defendant is adjudged guilty when the defendant has been found guilty by a verdict of the jury, found guilty by the court sitting as a trier of fact, on the *1040 acceptance of a plea of guilty, or on acceptance of a plea of nolo contendere.

We fail to see any relevance of Rule 3.10 to the issue before us. Therefore, we decline further discussion as to it.

¶ 9. As stated, after the appeal was initiated, the municipal court forwarded the record to the circuit court. Among the documents certified to the circuit court was a document setting forth the disposition of the case in the Municipal Court of the City of Bay St. Louis. That document provided that Griffith had been convicted of simple assault, trespassing and disturbing the peace and ordered to pay fines of $300 plus assessments of $147.[2] Griffith does not argue that he was not convicted of the three separate offenses and sentenced to pay the fines and assessments. His argument is that the document from the municipal court does not show a separate penalty for each offense. It is not clear to us from the sentencing document in the record whether Griffith was fined $300 plus $147 in assessments for each offense or whether the aggregate fine and assessment was $300 and $147, respectively. For sure, that document could have been clearer. Nevertheless, the procedure used here did not negate, for lack of form, compliance with the certification provision of Rule 12.02. We have not found any precedent, nor has Griffith cited any, which holds that a judgment of conviction on multiple offenses is defective, and robs the appellate court of jurisdiction, if it sets forth the penalty collectively, rather than severally, for the separate offenses.

II. The Trespass and Disturbing the Peace Affidavits

¶ 10. Griffith's second argument is that the affidavit accusing him of trespass is legally defective in that it fails to recite the essential elements of the offense. More specifically, Griffith asserts that the affidavit fails to allege entry upon or refusal to leave the premises over the owner's objection.

¶ 11. We have searched the record and can find no place in the record where Griffith objected to the legality of the affidavits in the court below. An objection to an affidavit in a criminal case cannot be made for the first time on appeal. Evans v. State, 92 Miss. 34, 45 So. 706, 707 (1908). To properly challenge an affidavit in a criminal case the objecting party must raise the objection during the lower court proceeding so that the trial court can rule on its sufficiency. See id. The recourse offered for an improper affidavit is the opportunity to amend such affidavit. See id.

¶ 12. Here, Griffith failed to raise an objection to the affidavit at the proper time, and thus waived the right to do such. Therefore, this claim is procedurally barred and not properly before this Court.

¶ 13. Even if the claim were not procedurally barred, we do not find reversible error. The affidavit was captioned "The City of Bay St. Louis v. Montgomery Griffith-Mair," but Griffith's name was not inserted in the body of the affidavit.

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Bluebook (online)
797 So. 2d 1037, 2001 WL 857731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffith-v-city-of-bay-st-louis-missctapp-2001.