Nelson v. State
| Docket Number: | 2010-KA-00097-COA Linked Case(s): 2010-KA-00097-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-07-2011 Opinion Author: Griffis, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: DUI third offense - Proof of prior offenses - Section 63-11-30(c) - Sufficiency of indictment Judge(s) Concurring: Lee, C.J., Irving, P.J., Myers, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Non Participating Judge(s): Russell, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-14-2010 Appealed from: Leake County Circuit Court Judge: Marcus D. Gordon Disposition: Convicted of DUI third offense and sentenced to two years in the custody of the Mississippi Department of Corrections with 120 days to serve in the Leake County Jail and the remainder to be served under house arrest and to pay a $2,000 fine District Attorney: Mark Sheldon Duncan Case Number: 09-CR-038-LE-G |
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| Party Name: | Attorney Name: | |||
| Appellant: | William Bryan Nelson |
EDMUND J. PHILLIPS JR., KEVIN D. CAMP |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LISA LYNN BLOUNT |
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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: | DUI third offense - Proof of prior offenses - Section 63-11-30(c) - Sufficiency of indictment |
| Summary of the Facts: | William Nelson was convicted of DUI third offense. He was sentenced to two years with 120 days to serve in the Leake County Jail and the remainder of the sentence to serve on house arrest. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Proof of offenses Nelson argues that the State failed to meet its burden of proof that he committed three DUI offenses within five years because the abstract of the conviction in the Richland Municipal Court did not disclose the date of the offense or arrest. Nelson’s argument is partly correct. The record shows that the abstract does not state the date of the offense. And he is correct that section 63-11-30(c) requires the State to prove that the date of offense for each of the three convictions occurred within five years of each other, not the date of the convictions. However, the abstract of Nelson’s conviction in the Richland Municipal Court does include the date of arrest. As the State asserts, a reasonable juror could infer that the date of arrest for the DUI was the same date that the offense occurred. Thus, the State presented sufficient evidence for the jury to find the necessary elements to convict Nelson of three DUI offenses within five years. Issue 2: Sufficiency of indictment Nelson argues that his indictment failed to state the essential elements of the crime with certainty, because the indictment alleged that he had .08% or more alcohol in his blood by “weight volume” and there is no such measurable characteristic as the weight volume of alcohol. While section 63-11-30(1)(c) does not use the term weight volume, the supreme court has held that the indictment is not required to have the exact terms of the statute if the crime can be substantially described without using them. The indictment clearly notified Nelson of the State’s allegation that Nelson had a .08% alcohol content in his blood. Thus, the indictment was legally sufficient to charge Nelson with a DUI offense. |
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