Scott v. City of Booneville

962 So. 2d 698, 2007 WL 900810
CourtCourt of Appeals of Mississippi
DecidedMarch 27, 2007
Docket2005-KM-02094-COA
StatusPublished
Cited by3 cases

This text of 962 So. 2d 698 (Scott v. City of Booneville) 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
Scott v. City of Booneville, 962 So. 2d 698, 2007 WL 900810 (Mich. Ct. App. 2007).

Opinion

962 So.2d 698 (2007)

Gene Arnold SCOTT, Appellant
v.
CITY OF BOONEVILLE, Mississippi, Appellee.

No. 2005-KM-02094-COA.

Court of Appeals of Mississippi.

March 27, 2007.
Rehearing Denied August 14, 2007.

*700 Tommy Dexter Cadle, Kenneth Eugene Floyd, Attorneys for Appellant.

William Wayne Smith, Yazoo City, Attorney for Appellee.

Before KING, C.J., CHANDLER and ISHEE, JJ.

ISHEE, J., for the Court.

¶ 1. On December 9, 2004, the Municipal Court of Booneville, Mississippi convicted Gene Arnold Scott of the following charges: driving under the influence, improper equipment, making an improper turn, possession of whiskey in a dry county, and possession of beer in a dry county. Scott then appealed his conviction to the Prentiss County Circuit Court. A trial de novo was held on October 7, 2005, and Scott was found guilty of all charges. Aggrieved, Scott appeals and asserts the following issues:

I. Whether the lower court committed reversible error in adjudging Appellant guilty of driving under the influence on June 15, 2004, notwithstanding the fact that the affidavit charging Appellant with driving under the influence charged Appellant with committing said offense on June 16, 2004.
II. Whether a two year old outdated DUI citation, which is not a Uniform Traffic Ticket, citation, or affidavit in accordance with section 63-9-21(3)(b) constitutes a legal/valid affidavit and/or is a Defendant not entitled to a dismissal when a charge of driving under the influence is lodged on such a citation.
III. Whether a DUI citation with an erroneous address of the court in which the cause is to be heard constitutes a sworn complaint.
IV. Whether the trial court erred in finding there was probable cause to make the relevant stop.

Finding no error, we affirm.

FACTS

¶ 2. Shortly before midnight on June 15, 2004, Sergeant Eddie Greene of the Booneville Police Department pulled over a red eighteen-wheeler driven by the Gene Arnold Scott. Greene testified that he had received a call from dispatch to be on the lookout for a vehicle matching the description of that driven by Scott. In addition, Greene stated he pulled Scott over for making an improper turn and because a headlight was out on the truck.

¶ 3. During the ensuing conversation with Scott, Sergeant Greene noticed the smell of alcohol on or about Scott's breath. Greene then performed a field sobriety test that included a horizontal gaze nystagmus, a walk and turn, and a one leg stand. Based on these tests Greene believed Scott to be under the influence and decided to take him to the justice center. During an inventory of Scott's vehicle, Greene found three twelve-ounce cans of Coors Light beer and a bottle of Canadian Mist whiskey.

*701 ¶ 4. Shortly after midnight on June 16, 2004, and upon arrival at the justice center, Greene administered a breathalyzer test to Scott using the CMI Intoxilyzer 5000. The Department of Public Safety had certified the machine, and Sergeant Greene was also certified to operate it. The results indicated that Scott had an alcohol concentration of 0.089%, in excess of the 0.04% allowed for operators of a commercial vehicle.

¶ 5. Based on Sergeant Greene's observations and the breathalyzer test, Scott was charged with the following crimes: improper equipment for having only one headlight, making an improper turn, driving under the influence, possession of beer in a dry county, and possession of whiskey in a dry county. The City of Booneville Municipal Court tried Greene and found him guilty of all the charges. On appeal, the Prentiss County Circuit Court conducted a trial de novo and again found Scott guilty of all charges.

¶ 6. In the courts below, Greene filed motions challenging the sufficiency of the affidavit that charged him with DUI and argued there was no probable cause for Sergeant Greene to make the stop. The DUI ticket issued to Scott by Greene was a two-year old version; however, it did contain the relevant provision that stated it was a crime for anyone with an alcohol concentration of 0.04% or above to operate a commercial motor vehicle.[1] The same ticket also incorrectly stated the address of the Booneville Municipal Court, which the city had moved some years ago. Lastly, the DUI ticket included the incorrect date of the incident. Greene had written on the ticket that he pulled over Scott on June 16, 2004, when in fact he had done so on June 15. Greene testified that it was a scrivener's error based on the fact that he stopped Scott shortly before midnight and administered the breathalyzer test shortly after midnight. The tickets given to Scott for improper equipment and making an improper turn were current and contained the correct date and address for the courthouse.

¶ 7. The courts below dismissed the above motions. Aggrieved, Scott appeals to this Court.

ISSUES AND ANALYSIS

I. Whether the lower court committed reversible error in adjudging Appellant guilty of driving under the influence on June 15, 2004, notwithstanding the fact that the affidavit charging Appellant with driving under the influence charged Appellant with committing said offense on June 16, 2004.

¶ 8. Rule 7.06 of the Uniform Rules of Circuit and County Court states that an indictment shall contain the date and time of the alleged offense. Nevertheless, "Failure to state the correct date shall not render the indictment insufficient." Id. Furthermore, an indictment is not insufficient "for stating the offense to have been committed on day subsequent to the finding of the indictment." Miss.Code Ann. § 99-7-5 (Rev.2000). An incorrect date will not render an indictment defective. See Corley v. State, 536 So.2d 1314, 1316 (Miss.1988); Wofford v. State, 875 So.2d 251, 253(¶ 8) (Miss.Ct.App.2004). A *702 Uniform Traffic Ticket serves as an indictment in this case, putting the defendant on notice of the charges against him. The requirements for a traffic ticket are as follows:

Every traffic ticket shall show, among other necessary information, the name of the issuing officer, the name of the court in which the case is to be heard, and the date and time such person is to appear to answer the charge. The ticket shall include information which will constitute a complaint charging the offense for which the ticket was issued, and when duly sworn to and filed with a court of competent jurisdiction, prosecution may proceed thereunder.

Miss.Code Ann. § 63-9-21(3)(c) (Rev. 2004). Such a traffic ticket constitutes a sworn affidavit sufficient to charge a defendant in municipal court. Wheeler v. Stewart, 798 So.2d 386, 390(¶ 8) (Miss. 2001).

¶ 9. Scott does not cite any authority to support his argument that the discrepancy in dates meant there was insufficient proof to convict him. While the prosecution did not submit any proof at trial that Scott was driving under the influence on June 16, 2004, it did point out that the date on the Uniform Traffic Ticket was a scrivener's error. The error happened because Sergeant Greene stopped Scott shortly before midnight and conducted a breathalyzer test shortly after midnight. The trial court agreed that it was a scrivener's error, and the prosecution amended the ticket to state the correct date, June 15, 2004.

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962 So. 2d 698, 2007 WL 900810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-city-of-booneville-missctapp-2007.