McLarty v. State
| Docket Number: | 2001-KA-01584-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-08-2003 Opinion Author: Thomas, J. Holding: reversed and remanded |
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| Additional Case Information: |
Topic: Aggravated assault - Polling the jury - UCCCR 3.10 - Amendment of indictment - Section 97-3-7(2)(a) & (b) Judge(s) Concurring: McMillin, C.J., King, P.J., Bridges, Lee, Myers and Chandler, JJ., concur. Griffis, J. Judge(s) Concurring Separately: Southwick, P.J. Votes: McMillin, C.J., Lee and Chandler, JJ. Non Participating Judge(s): Griffis, J. Dissenting Author : Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-24-2001 Appealed from: Lee County Circuit Court Judge: Richard Bowen Disposition: AGGRAVATED ASSAULT: SENTENCED TO SERVE A TERM OF 15 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; THAT 7 YEARS OF SAID SENTENCE SHALL BE SUSPENDED AND DEFENDANT SHALL BE PLACED UNDER POST-RELEASE SUPERVISION FOR A PERIOD OF 5 YEARS. DEFENDANT IS ORDERED TO PAY COURT COSTS IN THE AMOUNT OF $1,544 AND A FINE OF $1,500. District Attorney: John Richard Young Case Number: CR-00-135 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Rodney "Kipp" McLarty |
J. STEWART PARRISH |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY |
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| Topic: | Aggravated assault - Polling the jury - UCCCR 3.10 - Amendment of indictment - Section 97-3-7(2)(a) & (b) |
| Summary of the Facts: | Rodney McLarty was found guilty of aggravated assault and sentenced to fifteen years, with seven years suspended and five years under post-release supervision. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Polling the jury McLarty argues that the court erred in denying his request to poll the jury after the verdict was read in open court. The right to poll the jury is explicit in Rule 3.10 of the Uniform Rules of Circuit and County Court. Although defendant's counsel was tardy in his request for a jury poll, the jury was still in the courtroom, and the court erred in failing to poll the jury. Issue 2: Amendment of indictment McLarty argues that the indictment charging him with aggravated assault was amended erroneously less than five days before trial, because the amended indictment changed the substance of the charge from aggravated assault under section 97-3-7 (2)(b) to a charge under section 97-3-7(2)(a). An amendment to an indictment goes to form rather than substance if the change does not materially alter facts which are the essence of the offense on the face of the original indictment or if the change does not materially alter a defense to the original indictment so as to prejudice the defendant's case. Any amendment not approved by the grand jury must be of form only and must not affect the substance of the charge pending. The amended indictment replaced the pluralized weapons with weapon and instead of listing the weapons, stated “with other means likely to produce death or serious bodily harm.” The amended indictment had the effect of changing the substance of the indictment and confuses the two subsections of section 97-3-7. |
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