Ude v. State
| Docket Number: | 2010-KP-00329-COA Linked Case(s): 2010-KP-00329-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-03-2012 Opinion Author: Irving, P.J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Stalking - Double jeopardy - Writ of procedendo - Mandate rule - Law of the case doctrine - Right to court-appointed counsel Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Carlton, Russell and Fair, JJ. Concur in Part, Concur in Result 1: Maxwell, J., concurs in part and in the result without separate written opinion Procedural History: Bench Trial Nature of the Case: CRIMINAL - MISDEMEANOR |
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| Trial Court: |
Date of Trial Judgment: 01-25-2010 Appealed from: Oktibbeha County Circuit Court Judge: James T. Kitchens, Jr. Disposition: APPEAL DISMISSED, WRIT OF PROCEDENDO ISSUED District Attorney: Forrest Allgood Case Number: 2005-0185-CR |
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| Party Name: | Attorney Name: | |||
| Appellant: | Bart Ude |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
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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: | Stalking - Double jeopardy - Writ of procedendo - Mandate rule - Law of the case doctrine - Right to court-appointed counsel |
| Summary of the Facts: | The Oktibbeha County Justice Court found Bart Ude guilty of “stalking on the telephone.” Ude received a suspended six-month sentence, pending two years of good behavior, and a $500 fine. Ude appealed to circuit court and requested a jury trial, which the court denied. The circuit court proceeded with a trial de novo via bench trial and found Ude guilty of stalking. Ude appealed his conviction, and the Court of Appeals reversed the circuit court’s judgment and remanded the case for a jury trial. On remand, the circuit court, rather than conduct a jury trial as ordered, issued a writ of procedendo, dismissing Ude’s case and directing the justice court to enforce its judgment. Ude appeals. |
| Summary of Opinion Analysis: | Ude argues that double jeopardy and the mandate rule prohibited the issuance of the writ of procedendo. According to the mandate rule, also known as the law-of-the-case doctrine, a mandate issued by a superior court is binding on the trial court on remand. Thus, the circuit court was bound by the Court of Appeal’s directive on remand and erred in issuing the writ of procedendo. In addition, there was no judgment to which the writ could apply. Ude also argues that double jeopardy prohibited the circuit court from holding a trial on January 25, 2010. When a criminal defendant successfully obtains a reversal and remand of the circuit court’s judgment, granting a new trial does not amount to double jeopardy. Even if the circuit court had held a trial on January 25, 2010, a new trial on remand would not have constituted a double-jeopardy violation because Ude had successfully obtained a reversal of the circuit court’s judgment. Ude argues that he should have been informed of his right to have counsel appointed for him. There is no evidence in the record that Ude was indigent on January 25, 2010. Ude never stated that he could not afford to retain an attorney. In fact, Ude repeatedly told the circuit court that he was actively seeking counsel to represent him and even stated on two occasions that he had retained counsel. Thus, the circuit court did not err in failing to sua sponte advise Ude of his right to court-appointed counsel. The circuit court, on remand, shall appoint counsel to represent him if it finds that Ude remains indigent and determines that in the event of conviction, Ude likely will be sentenced to serve a period of incarceration. |
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