                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2009-CA-01640-SCT

STATE OF MISSISSIPPI

v.

JOHNNY DELANEY


DATE OF JUDGMENT:                          09/28/2009
TRIAL JUDGE:                               HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:                 HOLMES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   JAMES H. POWELL, III
                                           STEVEN WALDRUP
                                           OFFICE OF THE ATTORNEY GENERAL
                                           BY: JOHN HENRY, JR.
ATTORNEY FOR APPELLEE:                     EDWARD BLACKMON, JR.
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               REVERSED AND REMANDED - 01/13/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE CARLSON, P.J., RANDOLPH AND KITCHENS, JJ.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    This is a case of first impression, involving an appeal by the State from the dismissal

of an indictment with prejudice. This Court is asked to interpret Mississippi Code Section

99-3-28 (Rev. 2007), which requires that a probable cause hearing be held prior to the

issuance of warrants for the arrest of law enforcement officers and other enumerated classes

of persons. Specifically, the Court is asked to determine whether Section 99-3-28 is

applicable to the present case and whether a lack of compliance with this statute warranted

dismissal of the indictment. Finding that Section 99-3-28 does not apply once an indictment
has been returned by a grand jury, we reverse the dismissal, reinstate the indictment, and

remand the case for trial.

                              Facts and Procedural History

¶2.    On December 1, 2008, Johnny Delaney, a trooper with the Mississippi Highway

Safety Patrol, was indicted by a Holmes County grand jury for one count of extortion

pursuant to Mississippi Code Section 97-11-33 (Rev. 2006). The indictment alleged that

Delaney, while acting under color of his office, promised Jessie Jordan that he would dismiss

Jordan’s speeding ticket in exchange for cash. Following the return of the indictment, the

Holmes County Circuit Clerk immediately issued a capias for Trooper Delaney’s arrest. Bail

was set and posted on December 19, 2008. On December 22, 2008, Delaney waived formal

arraignment and entered a plea of not guilty.

¶3.    On September 16, 2009, the defendant filed a motion to dismiss the indictment,

arguing that the State had failed to comply with Mississippi Code Section 99-3-28, which

provides, in its entirety,

       (1)(a) Except as provided in subsection (2) of this section, before an arrest
       warrant shall be issued against any teacher who is a licensed public school
       employee as defined in Section 37-9-1, a certified jail officer as defined in
       Section 45-4-9, a counselor at an adolescent offender program created under
       Section 43-27-201 et seq., or a sworn law enforcement officer within this state
       as defined in Section 45-6-3 for a criminal act, whether misdemeanor or
       felony, which is alleged to have occurred while the teacher, jail officer,
       counselor at an adolescent offender program or law enforcement officer was
       in the performance of official duties, a probable cause hearing shall be held
       before a circuit court judge. The purpose of the hearing shall be to determine
       if adequate probable cause exists for the issuance of a warrant. All parties
       testifying in these proceedings shall do so under oath. The accused shall have
       the right to enter an appearance at the hearing, represented by legal counsel at
       his own expense, to hear the accusations and evidence against him; he may
       present evidence or testify in his own behalf.


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       (b) The authority receiving any such charge or complaint against a teacher, jail
       officer, counselor at an adolescent offender program or law enforcement
       officer shall immediately present same to the county prosecuting attorney
       having jurisdiction who shall immediately present the charge or complaint to
       a circuit judge in the judicial district where the action arose for disposition
       pursuant to this section.

       (2) Nothing in this section shall prohibit the issuance of an arrest warrant by
       a circuit court judge upon presentation of probable cause, without the holding
       of a probable cause hearing, if adequate evidence is presented to satisfy the
       court that there is a significant risk that the accused will flee the court's
       jurisdiction or that the accused poses a threat to the safety or wellbeing [sic]
       of the public.

Miss. Code Ann. § 99-3-28 (Rev. 2007).

¶4.    The trial judge conducted a hearing on Delaney’s motion to dismiss and heard

argument by both sides. Defense counsel contended that the language of the statute is

mandatory, and that there are but two exceptions to the requirement of holding a probable

cause hearing, neither of which was present in his client’s case. The district attorney argued

that Section 99-3-28 applied only to charges filed in justice court or municipal court, and that

the indictment obviated the need for a probable cause hearing. He also argued that the circuit

court could not apply the statute to the present case because it conflicts with Mississippi

Uniform Circuit and County Court Rule 7.06, which governs indictments. The trial judge

considered the arguments and found that the probable cause hearing mandated by Section 99-

3-28 could not be bypassed by means of an indictment. The trial judge also found that the

proper remedy was dismissal with prejudice because, she opined, if Delaney were to be

indicted again on the same charge, he would be subjected to double jeopardy.




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¶5.       The State timely appealed the dismissal, challenging the applicability and the

constitutionality of Section 99-3-28. Because the validity of a statute was being challenged,

this Court ordered the parties to serve the Attorney General with copies of their briefs and

allowed the Attorney General thirty days from the last date of service to file a response. See

Miss. Code Ann. § 7-5-1 (Rev. 2002) (tasking the Attorney General with the duty to

intervene and argue the constitutionality of any challenged statute); M.R.A.P. 44(a)

(requiring service of brief on the Attorney General when the validity of a statute is

challenged). The Attorney General timely filed a response defending the statute in question.

                                             Issues

¶6.       The State raises four issues on appeal: (1) whether Section 99-3-28 applies in cases

in which an indictment has been returned by a grand jury; (2) whether the statute is an

unconstitutional infringement on this Court’s rule-making powers; (3) whether the statute

violates equal protection of the law; and (4) in the alternative, whether double jeopardy

requires dismissal with prejudice. Finding that an indictment obviates the need for a hearing

pursuant to Section 99-3-28, we do not address the equal protection or double jeopardy

issues.

                                          Discussion

¶7.       All points of error raised by the State involve questions of law, which are reviewed

on appeal under a de novo standard of review. Debrow v. State, 972 So. 2d 550, 552 (Miss.

2007) (citing Biglane v. Under the Hill Corp., 949 So. 2d 9, 14 (Miss. 2007)).

¶8.       The State argues that, once an indictment has been issued, a probable cause hearing

pursuant to Mississippi Code Section 99-3-28 is unnecessary. The State points to case law

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which provides that, once a defendant has been indicted by a grand jury, probable cause has

been established, and a preliminary hearing is no longer required. Shields v. State, 702 So.

2d 380, 383 (Miss. 1997) (quoting Mayfield v. State, 612 So. 2d 1120, 1129 (Miss.1992)).

In addition, Rule 6.05 of the Uniform Rules of Circuit and County Court provides, in relevant

part, “[a] defendant who has been indicted by a grand jury shall not be entitled to a

preliminary hearing.” The reasoning behind the rule has been explained by this Court as

follows:

       It is true . . . that the accused is permitted to confront and cross-examine his
       accusers and to discover evidence during the course of a preliminary hearing.
       We are of the opinion, however, that these functions are merely incidental and
       wholly subordinate to the true purpose of a preliminary hearing: determining
       whether probable cause exists. Once a defendant is indicted by a grand jury,
       that purpose is fulfilled and the whole issue of a preliminary hearing and all
       privileges which attach thereto become moot.

Mayfield, 612 So. 2d at 1129. Moreover, this Court has established that the denial of a

preliminary hearing, on its own, “does not void a subsequent conviction.” Esparaza v. State,

595 So. 2d 418, 423 (Miss. 1992) (quoting Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct.

854, 43 L. Ed. 2d 54 (1975)).

¶9.    Our case law and uniform rules do not address probable cause hearings pursuant to

Section 99-3-28,1 and a traditional preliminary hearing is somewhat different from the sort

of statutory probable cause hearing under review in this case. For example, Section 99-3-28

requires that the hearing take place before arrest and in the circuit court, while a traditional




       1
        This is a relatively new Mississippi statute, which took effect July 1, 2001.
Originally, the statute applied only to public school teachers but was amended in 2002 to
include law enforcement officers.

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preliminary hearing occurs after arrest and in a municipal court, justice court, or county

court. Nevertheless, the principal purpose – though not the only purpose – of both hearings

is the same: to determine whether probable cause for arrest exists.

¶10.   The plain language of the statute does not make exceptions for cases in which

indictments have been returned. However, to require a probable cause hearing pursuant to

Mississippi Code Section 99-3-28 after an indictment has been returned by a state grand jury

would create an inherent conflict with this Court’s precedent and its rules.

¶11.   It is now well established that “the constitutional concept of separation of powers

dictates that it is within the inherent power of this Court to promulgate procedural rules to

govern judicial matters.” State v. Blenden, 748 So. 2d 77, 88 (Miss. 1999) (citing Newell

v. State, 308 So. 2d 71 (Miss. 1975)). See also Miss. Const. art. 1, §§ 1, 2 (providing for

separation of governmental powers). Thus, when a statute conflicts with this Court’s rules

regarding matters of judicial procedure, our rules control. Stevens v. Lake, 615 So. 2d 1177,

1183-84 (Miss. 1993) (citations omitted). Because Section 99-3-28 conflicts with this

Court’s precedent and uniform rules in that it does not provide an exception for indictments,

we hold that the procedural requirements of Section 99-3-28 are inapplicable once an

indictment has been returned by a Mississippi grand jury. Therefore, the trial judge erred in

dismissing the indictment based on the absence of a probable cause hearing pursuant to

Section 99-3-28.




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                                       Conclusion

¶12.   Once Delaney had been indicted, the need for a hearing pursuant to Mississippi Code

Section 99-3-28 was obviated. Because the trial judge erred by dismissing the indictment

on this basis, we reverse the dismissal, reinstate the indictment, and remand the case for

further proceedings.

¶13.   REVERSED AND REMANDED.

    WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH,
LAMAR, CHANDLER AND PIERCE, JJ., CONCUR.




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