Howard v. State
| Docket Number: | 2011-CA-00729-COA Linked Case(s): 2011-CA-00729-COA ; 2011-CT-00729-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-05-2012 Opinion Author: Lee, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Felony DUI third offense - Prior conviction - Section 63-11-30 - Zero Tolerance for Minors Judge(s) Concurring: Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton, Maxwell, Russell and Fair, JJ. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 05-02-2011 Appealed from: Oktibbeha County Circuit Court Judge: Lee J. Howard Disposition: DISMISSED MOTION FOR POST-CONVICTION RELIEF Case Number: 2011-0148-CV H |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | William Howard a/k/a William C. Howard a/k/a William Christopher Howard |
JAMES H. POWELL III |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE | ||
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 - Felony DUI third offense - Prior conviction - Section 63-11-30 - Zero Tolerance for Minors |
| Summary of the Facts: | William Howard pled guilty to felony driving under the influence, third offense. Howard was sentenced to five years, with the first year to be served on house arrest followed by supervised probation for four years upon successful completion of house arrest. Howard filed a motion for post-conviction relief which was dismissed. He appeals. |
| Summary of Opinion Analysis: | Howard argues his conviction and sentence for the felony DUI, third offense, violated section 63-11-30. Specifically, Howard argues his second DUI conviction should not have been used as a prior conviction for his felony DUI because the second conviction fell under section 63-11-30(3)(a), which is the Zero Tolerance for Minors section of DUI sentencing provisions. Section 63-11-30(3)(a) “shall apply” when section 63-11-30(1) is violated by a person who is under twenty-one years of age and has a BAC of less than .08% but greater than .02% or more. At the time of his second DUI conviction, Howard was under twenty-one years old and his BAC was .023%. It appears Howard should have been sentenced under the Zero Tolerance for Minors subsection. However, there is nothing in the statute to indicate that a conviction under the Zero Tolerance for Minors subsection cannot be used as a sentence enhancement for subsequent DUI convictions, regardless of whether the subsequent convictions fall under the Zero Tolerance subsection. A defendant merely has to be convicted of DUI three times within five years, without any further stipulations. |
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