Levario v. State


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Docket Number: 2010-IA-02028-SCT
Supreme Court: Opinion Link
Opinion Date: 06-21-2012
Opinion Author: Randolph, J.
Holding: Affirmed and Remanded
Additional Case Information: Topic: Felony DUI - Double jeopardy - Justice court jurisdiction - Due process
Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Lamar, Kitchens, Chandler, Pierce and King, JJ.
Procedural History: Interlocutory Appeal
Nature of the Case: CRIMINAL - FELONY
Trial Court: Date of Trial Judgment: 11-23-2010
Appealed from: Jackson County Circuit Court
Judge: Robert P. Krebs
Disposition: Denied motion to dismiss.
Case Number: CR-2009-10658(1)
  Party Name: Attorney Name:  
Appellant: Rene C. Levario




 CALVIN D. TAYLOR



  
Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: TANYA L. HASBROUCK  
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Topic: Felony DUI - Double jeopardy - Justice court jurisdiction - Due process
Summary of the Facts: On August 18, 2008, Rene Levario pled not guilty to felony DUI Causing Death in the Jackson County Justice Court, and his case was continued to October 23, 2008. On October 23, 2008, Levario again appeared in the Jackson County Justice Court and was convicted of felony DUI Causing Death. On May 1, 2009, the State filed a “Motion to Set Aside Criminal Judgment” in justice court, arguing that the justice court had no jurisdiction to accept Levario’s guilty plea on a charge of felony DUI Causing Death. After conducting a hearing on the issue, the justice court issued an order setting aside the conviction. On October 13, 2009, the Jackson County Grand Jury returned an indictment charging Levario with felony DUI Causing Death. Levario filed a motion to dismiss claiming double jeopardy. The circuit court overruled the motion, and Levario appeals.
Summary of Opinion Analysis: Issue 1: Double jeopardy Levario was not placed in double jeopardy when he was convicted of felony DUI Causing Death by the justice court, which lacked jurisdiction for the felony conviction, and subsequently was indicted for the same offense by a circuit court, which did have felony jurisdiction. A party who has been tried and convicted by a court not having jurisdiction of the offense cannot plead former jeopardy if subsequently indicted for the same offense in a court having jurisdiction thereof. Justice courts have jurisdiction over misdemeanors, not felonies. Levario was never charged with misdemeanor DUI First Offense. Further, the justice court could not have reduced the felony charge and convicted Levario of a misdemeanor, as only circuit courts have jurisdiction to reduce a felony charge to a misdemeanor. Issue 2: Due process Levario argues that his due process rights were violated. He argues that the State did not have a right to appeal the justice court’s judgment. However, the State did not appeal that judgment; rather, the State filed a motion in justice court to set aside the conviction. The proceedings to set aside the conviction in justice court were procedurally proper. He also argues that the State’s filing of its motion to set aside the conviction was untimely. However, section 9-11-33 does not impose filing deadlines or timing requirements. Levario’s argument that the “Order Setting Aside Criminal Judgment” was an improper ex parte communication also fails. The State’s order did not constitute impermissible ex parte contact, because it did not communicate any position on the merits, and no party stood to gain a procedural or tactical advantage because of it. Levario also argues that the State acted vindictively and sought to punish him for exercising his right to accept his punishment. Since Levario had no right to plead guilty to the charged felony in justice court, his argument is without merit.


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