Scott v. State
| Docket Number: | 2008-CP-01017-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-05-2010 Opinion Author: Carlton, J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Post-conviction relief - Blood test - Probable cause - M.R.A.P. 10 - Revocation of probation Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Barnes, Ishee, Roberts and Maxwell, JJ. Dissenting Author : Myers, P.J., and Griffis, J., without separate written opinion. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 10-19-2007 Appealed from: Jackson County Circuit Court Judge: Robert P. Krebs Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED Case Number: 2007-002861(1) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | MICHAEL W. SCOTT |
MICHAEL W. SCOTT (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY, JR. | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Blood test - Probable cause - M.R.A.P. 10 - Revocation of probation |
| Summary of the Facts: | Michael Scott pled guilty to one count of felony malicious mischief. His adjudication of guilt was deferred, and he was placed on five years of non-adjudicated probation. After Scott was arrested and charged with DUI Refusal and Leaving the Scene of an Accident, he was subsequently charged with violating the conditions of his probation and his probation was revoked. Scott filed a motion for post-conviction relief which the court denied. Scott appeals. |
| Summary of Opinion Analysis: | Scott argues that the court erred in denying his motion for post-conviction relief without an evidentiary hearing and that the blood test violated his Fourth Amendment rights, because he did not consent to the test. Where a defendant has not been lawfully arrested when his blood was drawn for testing, the court must determine whether the police officer had probable cause to detain the defendant and order a blood test after he went to the hospital. Scott fails to provide in the record, among other things, evidence of whether or not he was arrested before the blood test was drawn. He also fails to provide the transcripts from the revocation hearing, which may shed light on whether or not the police officer who ordered the blood test had probable cause to do so. M.R.A.P. 10 mandates that if the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion. Scott’s argument that the court erred in revoking his probation by basing its decision solely on the fact of his arrest also lacks evidentiary support. A conviction is not necessary for revocation of probation; probation may be revoked upon a showing that the defendant more likely than not violated the terms of probation. On the face of the order of revocation of Scott’s non-adjudicated probation, the order fails to reflect whether the circuit judge considered evidence showing that Scott more likely than not committed the offenses for which he was arrested. The order of revocation of probation appears, on its face, to be based upon Scott’s arrest and his being charged, but not on the underlying facts and circumstances behind the arrest. Additionally, the record as a whole also contains no evidence that Scott violated the conditions of his probation. Thus, the case is remanded for an evidentiary hearing. |
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