Fluker v. State


<- Return to Search Results


Docket Number: 2009-KM-00238-COA
Linked Case(s): 2009-KM-00238-COA ; 2009-CT-00238-SCT

Court of Appeals: Opinion Link
Opinion Date: 02-23-2010
Opinion Author: King, C.J.
Holding: Affirmed in part, reversed and rendered in part. (The judgment of the Grenada County Circuit Court of conviction of driving near the center line for more than 200 yards and sentence to pay a $40.50 fine is reversed and rendered. )

Additional Case Information: Topic: DUI & Driving near center line for more than 200 yards - Probable cause - Section 63-3-617 - Elements of proof - Ineffective assistance of counsel - Modification of record - M.R.A.P. 10(e) & (f)
Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ.
Concur in Part, Dissent in Part 1: Carlton, J., with separate written opinion.
Procedural History: Bench Trial
Nature of the Case: CRIMINAL - MISDEMEANOR

Trial Court: Date of Trial Judgment: 01-07-2009
Appealed from: Grenada County Circuit Court
Judge: Joseph H. Loper
Disposition: CONVICTED OF DRIVING NEAR THE CENTER LINE FOR MORE THAN 200 YARDS AND SENTENCED TO PAY A $40.50 FINE
District Attorney: Jay Gore, III
Case Number: 2008-177-CR
  Consolidated: Consolidated with 2009-KM-00237-COA; Christopher Fluker v. State of Mississippi; Grenada Circuit Court; LC Case #: 2008-183-CR; Ruling Date: 01/07/2009; Ruling Judge: Joseph Loper, Jr.

Note: Consolidated with 2009-KM-00237-COA

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: CHRISTOPHER FLUKER




TROY PHILIP HUSKEY, J. STEPHEN WRIGHT



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND  

    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.

    Topic: DUI & Driving near center line for more than 200 yards - Probable cause - Section 63-3-617 - Elements of proof - Ineffective assistance of counsel - Modification of record - M.R.A.P. 10(e) & (f)

    Summary of the Facts: On an appeal from the Grenada County Justice Court, the Grenada Circuit Court found Christopher Fluker guilty of DUI and driving near the center line for more than 200 yards. Fluker appeals.

    Summary of Opinion Analysis: Issue 1: Probable cause Fluker argues that the State failed to establish the existence of probable cause for the stop. Fluker argues that the patrolman’s observations prior to the stop were not based on an objective standard and that the matter was not a violation of section 63-3-617. Probable cause for a traffic stop may arise from an officer's reasonable belief that windows of the vehicle are excessively tinted in violation of law. Failure to have regard for the width and use of the street by swerving off the side of the road or crossing the marker lines constitutes probable cause for a traffic stop. In this case, the patrolman testified that he observed Fluker’s vehicle traveling eastbound and the vehicle, which was behind two other cars, had black tinted windows, and the vehicle was traveling close to the center line. Thus, he had probable cause to believe that Fluker had committed at least two traffic violations. Issue 2: Elements of proof Fluker argues that the State failed to meet its burden of proof in convicting him of driving near the center line of any highway or refusing to turn to the right to allow an overtaking vehicle to pass. At trial, there was no proof that Fluker drove more than 200 yards in or near the center line of any highway. The only evidence presented by the State as it relates to this violation was the patrolman’s testimony that he charged Fluker with driving near the center line for more than 200 yards and that he believed that the statute prohibited such action. There was no actual testimony that Fluker did in fact drive in or near the center line for a distance of more than 200 yards, nor was there any evidence presented from which it could be inferred or specifically determined that Fluker traveled for 200 yards near the center line. In addition, the patrolman charged Fluker with violating section 63-3-617. The history of this statute indicates that it was intended to address the issues related to following too closely and prohibiting another vehicle from overtaking and passing. It is clear that according to the intent of the statute and the facts in the record that Fluker did not violate this statute. There was no mention or indication that the patrolman observed Fluker following too close to the center line of any highway, nor was there any evidence to suggest that he observed Fluker driving in such a manner as to impede a driver of any truck or vehicle from overtaking and passing him. Therefore, the State failed to prove the elements of the offense of driving in or near the center of any highway for a distance of more than 200 yards. Issue 3: Ineffective assistance of counsel Fluker argues that he received ineffective assistance of counsel. Fluker’s allegations of ineffective assistance of counsel would be more appropriately raised in a petition for post-conviction relief. Issue 4: Modification of record Fluker filed a motion for modification of the record pursuant to M.R.A.P. 10(e) to include an affidavit signed five months after the trial informing the court that he had never received notice from his trial counsel of his trial date. The motion was denied, and Fluker argues this was error. Under M.R.A.P. 10(f), the court is confined to what actually appears in the record. Thus, the court did not err in ruling that because nothing contained in Fluker’s affidavit happened in the trial court, it could not allow the record to be modified to contain information that was not within its knowledge.


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court