Kelly v. State
| Docket Number: | 2010-KA-01923-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 02-23-2012 Opinion Author: Carlson, P.J. Holding: Affirmed and remanded |
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| Additional Case Information: |
Topic: Aggravated assault - Prejudgment double jeopardy - Reckless driving Judge(s) Concurring: Waller, C.J., Dickinson, P.J., Randolph, Lamar, Kitchens, Chandler, Pierce and King, JJ. Procedural History: Interlocutory Appeal Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-19-2010 Appealed from: Humphreys County Circuit Court Judge: Jannie M. Lewis Disposition: Denied a motion to dismiss based on double jeopardy. District Attorney: Steven E. Waldrup Case Number: 6395 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Michael Kelly |
ROBERT D. EVANS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: SCOTT STUART |
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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: | Aggravated assault - Prejudgment double jeopardy - Reckless driving |
| Summary of the Facts: | Michael Kelly was convicted of reckless driving in justice court, and he paid a fine of $114. Arising out of the same facts, a grand jury handed down a two-count indictment against Kelly charging him with aggravated assault and felony malicious mischief. Kelly moved for dismissal of his indictment, asserting his double-jeopardy rights. The trial court denied Kelly’s motion. The Supreme Court granted Kelly’s Petition for Permission to Appeal from an Interlocutory Order. |
| Summary of Opinion Analysis: | Prejudgment double-jeopardy appeals are reviewed on an interlocutory basis; therefore Kelly's double-jeopardy claim is properly before the Court. A conviction can withstand a double-jeopardy analysis only each offense contains an element not contained in the other. If they do not, the two offenses are, for double-jeopardy purposes, considered the same offense, barring prosecution and punishment for both. Kelly argues that reckless driving is a lesser-included offense of aggravated assault. Since Kelly entered a plea of guilty to reckless driving, he argues that to try him for aggravated assault would violate the prohibition against double jeopardy. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. The trial court held that, to prove aggravated assault, no element requires proof of a willful or wanton disregard for the safety of person or property. The trial court also held that to prove reckless driving, no element requires proof of injury or attempt to injure. Therefore, the trial court found that each offense had elements not contained in the other. To prove aggravated assault, it is not necessary to prove the element of willful or wanton disregard for the safety of person or property, nor of driving a vehicle. To prove reckless driving, it is not necessary to prove the elements of injury or attempt to injure. Since each of these charges contains separate elements, the prosecution of Kelly for aggravated assault does not violate his double-jeopardy rights, and that contention is without merit. |
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