                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-KA-01227-SCT
C. L. WILLIAMS
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                              10/28/96
TRIAL JUDGE:                                   HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                     JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        ANTHONY J. BUCKLEY
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                               BY: BILLY L. GORE
DISTRICT ATTORNEY:                             JEANNENE T. PACIFIC
NATURE OF THE CASE:                            CRIMINAL - FELONY
DISPOSITION:                                   AFFIRMED - 3/26/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                4/16/98




     BEFORE PITTMAN, P.J., McRAE AND ROBERTS, JJ.


     ROBERTS, JUSTICE, FOR THE COURT:


                                  STATEMENT OF THE CASE

¶1. C.L. Williams was indicted by the Grand Jury of Jones County, Mississippi, on April 22, 1996,
for the crime of felony DUI in violation of Miss. Code Ann. § 63-11-30(2)(c). The offense occurred
on January 9, 1996, when Williams was stopped on Interstate 59 in the City of Laurel, Mississippi.
Williams submitted to an intoxilyzer test that showed his blood-alcohol content (BAC) to be .191. He
had been convicted twice previously for DUI, with the first conviction on August 1, 1991, and the
second on July 21, 1993.

¶2. Williams' trial was had on August 28, 1996, with the Honorable Billy Joe Landrum presiding. At
the conclusion of the evidence the jury returned with a guilty verdict. Judge Landrum sentenced
Williams to five years with the Mississippi Department of Corrections, with forty-two months
suspended and eighteen months to serve in the penitentiary. He was also placed on forty-two months
probation and assessed a fine of $2,000, plus court costs.

¶3. Williams' motion for a new trial was denied by the trial court. Aggrieved by the decision of the
lower court, Williams has appealed to this Court raising the following:

     I. WHETHER THE LOWER COURT ERRED IN OVERRULING WILLIAMS'
     MOTION TO DISMISS THE FELONY CAUSE ON THE GROUNDS THAT THE
     INDICTMENT WAS LEGALLY INSUFFICIENT TO CHARGE A FELONY.

     II. WHETHER THE LOWER COURT ERRED IN OVERRULING WILLIAMS'
     MOTION FOR A BIFURCATED TRIAL, THEREBY ALLOWING THE TWO
     UNDERLYING MISDEMEANORS TO BE PUBLISHED AND ARGUED TO THE
     JURY.

     III. WHETHER THE OFFENSE WAS PROPERLY BEFORE THE LOWER COURT
     BECAUSE THE ARRESTING OFFICER DID NOT ISSUE A UNIFORM STANDARD
     TICKET FOR THE THIRD OFFENSE.

¶4. In light of this Court's recent decisions in McIlwain v. State, 700 So. 2d 586 (Miss. 1997)and
Weaver v. State, No. 95-KA-01034-SCT, 1997 WL 703057 (Miss. Nov. 13, 1997), we find all three
issues are without merit. The lower court's decision is affirmed.

                                  STATEMENT OF THE FACTS

¶5. C.L. Williams was traveling along Interstate 59 in the Laurel, Mississippi, on the evening of
January 9, 1996. He passed an officer who was checking for speeding vehicles with radar. Officer
Bryan Boutwell testified that Williams was driving with his headlights on bright, so Boutwell
followed him. Boutwell stated that he observed Williams cross the center line with the left side of his
car. Williams was stopped and asked to produce a valid driver's license, which he did not do.
Boutwell testified that he could smell the odor of alcohol and requested Williams to get out of the
car.

¶6. At this point, Boutwell observed Williams to have slurred speech and glossy eyes. Williams failed
the hand-held portable intoxilyzer. Officer Doug Hill, the DUI officer on duty, was contacted.
Williams was asked to perform three field sobriety tests. In the opinions of the officers, Williams
failed these tests. Williams was placed under investigative detention for possible DUI, and
transported to the Laurel Police Station. Having been previously convicted of two misdemeanor
DUIs, Williams was charged with third offense felony DUI after he registered .191 BAC on the
printout of the CMI Intoxilyzer 5000 test.

¶7. At the close of the State's case-in-chief, Williams moved for a directed verdict on the ground the
evidence was insufficient as a matter of law to sustain a conviction of felony DUI. Williams claimed
the proof only demonstrated two first offense misdemeanors and that by virtue of the charges alleged
in the indictment he was entitled to a bifurcated trial. The defense presented no witnesses, and
Williams did not testify in his own behalf. The jury found Williams guilty of felony DUI. Judge
Landrum imposed the sentence and assessed the fine and court costs. Williams' motion for a new trial
was overruled. Williams now seeks relief from the lower court's decision by appealing to this Court.

                                  DISCUSSION OF THE ISSUES
     I. WHETHER THE LOWER COURT ERRED IN OVERRULING WILLIAMS'
     MOTION TO DISMISS THE FELONY CAUSE ON THE GROUNDS THAT THE
     INDICTMENT WAS LEGALLY INSUFFICIENT TO CHARGE A FELONY.

¶8. Williams made a pre-trial motion and a motion for a directed verdict at the close of the State's
case on the ground that the face of the indictment alleged nothing more than a misdemeanor based on
this Court's holding in Page v. State. Both motions were overruled. On appeal, Williams argues that
the indictment fails to specifically charge that he had been convicted of anything other than two first
offense violations of the implied consent law within five years prior to the felony charge.

¶9. Williams contends the indictment must show as a condition precedent to the third offense felony
charge that the defendant has been charged and convicted specifically of a "first offense" and then a
"second offense". He states that the indictment fails to allege the requisite elements of the felony
offense.

¶10. In response to this Court's decisions in Page v. State, 607 So. 2d 1163 (Miss. 1992) and
Ashcraft v. City of Richland, 620 So. 2d 1210 (Miss. 1993), the Legislature in 1994 enacted a new
paragraph to Miss. Code Ann. § 63-11-30. 1994 Miss. Laws ch. 340, §4, approved March 14, 1994,
effective June 6, 1994. In subsection (7) the Legislature added the following language:

     For the purpose of determining how to impose the sentence for a second, third or subsequent
     conviction under this section, the indictment shall not be required to enumerate previous
     convictions. It shall only be necessary that the indictment state the number of times that the
     defendant has been convicted and sentenced within the past five (5) years under this section to
     determine if an enhanced penalty shall be imposed. The amount of fine and imprisonment
     imposed in previous convictions shall not be considered in calculating offenses to determine a
     second, third or subsequent offense of this section.

Miss. Code Ann. § 63-11-30 (7) (1996).

¶11. This Court specifically overruled Page and Ashcraft to the extent they interpret the statute to
require the indictment to specifically show a previous conviction for DUI First prior to being
convicted for DUI Second and a conviction of DUI Second prior to being convicted for DUI Third.
McIlwain, 700 So. 2d at 589. "The obvious intent of this statute is to remove repeat DUI offenders
from our streets. This goal will be better accomplished by simply reading the clear language of the
statute." Id.

¶12. Williams argues that Page stands firmly behind URCCC 7.06, which supersedes the statutes.
Williams provides this Court with no authority for this argument. "This Court has held that it is the
duty of an appellant to provide authority and support of an assignment." Hoops v. State, 681 So. 2d
521, 526 (Miss. 1996); Kelly v. State, 553 So. 2d 517, 521 (Miss. 1989). "This Court has repeatedly
held that failure to cite any authority may be treated as a procedural bar, and it is under no obligation
to consider the assignment." Weaver, 1997 WL 703057, at *4 citing McClain v. State, 625 So. 2d
774, 781(Miss. 1993). "If a party does not provide this support this Court is under no duty to
consider assignments of error when no authority is cited." Hoops, 681 So. 2d at 526; Hewlett v.
State, 607 So. 2d 1097, 1106 (Miss. 1992).
¶13. Williams' failure to cite authority clearly invokes the procedural bar; thus, this issue is barred.
Alternatively, his argument is without merit. This Court has recently stated that "defining crimes and
prescribing punishments are exclusively legislative functions as a matter of constitutional law."
Weaver, 1997 WL 703057, at *4 (citing Winters v. State, 473 So. 2d 452, 456 (Miss. 1985)). "'[T]
he authority to say what constitutes a crime, and what punishment shall be inflicted is in its entirety a
legislative question . . . .'" Id. (quoting Winters, 473 So. 2d at 456).

¶14. In order to comply with the language in Miss. Code Ann. § 63-11-30(7), the indictment merely
had to state "'the number of times that the defendant has been convicted and sentenced within the
past five (5) years under this section to determine if an enhanced penalty shall be imposed'" in order
to charge Williams with felony DUI. Weaver, 1997 WL 703057, at *4(quoting Miss. Code Ann. §
63-11-30(7)). The indictment charging Williams was filed on April 22, 1996, well after the
amendment to Miss. Code Ann. § 63-11-30 became effective. The indictment stated Williams "has
two or more convictions for violation of Section 63-11-30(1) of the Mississippi Code of 1972. Said
offenses all have occurred within a five year period of this offense, evidence of which is attached
hereto by court abstracts as Exhibits 1 and 2." The abstracts showed the charge, date of violation and
court date, and the judgment and the sentence imposed by the court in each of Williams' two previous
DUI convictions. "[T]he attachment of the abstracts provide a clear and concise statement of the
charges as required by both the DUI indictment case law and the Rules of Circuit Court Practice."
McIlwain, 700 So. 2d at 589. The indictment in the case presently before the Court complied with
the requirements of Miss. Code Ann. § 63-11-30(7), as well as this Court's subsequent holding in
McIlwain.

¶15. Williams asserts that the Constitution demands that he be made aware that his continued
violations would increase the punishment for the offense. He contends that adding paragraph seven to
Miss. Code Ann. § 63-11-30 cannot circumvent the constitutional requirements described in Benson
v. State, 551 So. 2d 188, 196 (Miss. 1989).

¶16. This Court has found these arguments unpersuasive. "The plain language of Miss. Code Ann. §
63-11-30 is clear that a DUI-Third offense within a five year period will subject a violator to a felony
charge. Mistake of law is not a defense to a crime." Weaver, 1997 WL 703057, at *3. Williams, like
Weaver, makes a very liberal reading of this Court's decision in Page. "What ultimately is
constitutionally important is that 'sufficient information. . .[be] afforded the defendant to inform him
of the specific prior convictions upon which the State relied for enhanced punishment . . . .'" Page,
607 So. 2d at 1169 (quoting Benson, 551 So. 2d at 196). Despite this Court's partial overruling of
Page and Ashcraft, the Court reiterated that indictments must "'supply enough information to the
defendant to identify with certainty the prior convictions relied upon by the State for enhanced
punishment.'" McIlwain, 700 So. 2d at 589 (quoting Benson, 551 So. 2d at 196).

¶17. As the Court stated in Weaver, "[a]ll this requires is for [a defendant] to be informed of the
specific prior convictions relied upon by the State." Weaver, 1997 WL 703057, at *4. This
information was explicitly and specifically enumerated in the indictment charging Williams with
felony DUI. Further, this Court in Weaver held that the unambiguous language of Miss. Code Ann. §
63-11-30 is clear that three DUIs within a five year time frame will subject the violator to a felony
charge. Id. at *3. Williams cannot say he was not made aware of the prior convictions relied upon by
the State to charge him with felony DUI.
¶18. After a thorough review of the record, we find that the indictment charging Williams with felony
DUI was sufficient according to the requirements of Miss. Code Ann. § 63-11-30(7) and this Court's
recent decisions in McIlwain and Weaver. Williams was properly informed of the charge against him,
along with the underlying prior convictions that raised his third offense DUI to a felony charge. The
trial court did not err by overruling Williams' motion to dismiss the felony cause of the indictment.

     II. WHETHER THE LOWER COURT ERRED IN OVERRULING WILLIAMS'
     MOTION FOR A BIFURCATED TRIAL, THEREBY ALLOWING THE TWO
     UNDERLYING MISDEMEANORS TO BE PUBLISHED AND ARGUED TO THE
     JURY.

¶19. Williams' attorney argued to the lower court that Miss. Code Ann. § 63-11-30(7) made the
statute one of enhanced punishment. Therefore, he argues on appeal that the court should have
followed URCCC 11.03, which requires bifurcation. Williams states that since the underlying
misdemeanors no longer have to be specifically charged, a felony DUI trial should be bifurcated.

¶20. In Page, this Court held that "'each prior conviction is an element of the felony offense, and each
must be specifically charged.'" McIlwain, 700 So. 2d at 588 (quoting Page, 607 So. 2d at 1168).
This Court did not completely overrule its holding in Page by its decision in McIlwain. The language
used by the Court was as follows:

     Today we specifically overrule Page v. State, 607 So. 2d 1163 (Miss. 1992) and Ashcraft v.
     City of Richland, 620 So. 2d 1210 (Miss. 1993) to the extent that they interpret the statute to
     require that the indictment must specifically show a previous conviction for DUI First prior to
     being convicted for DUI Second and a conviction of DUI Second prior to being convicted for
     DUI Third.

Id. at 589 (emphasis added).

¶21. This Court's holding in Page was twofold; first, the Court stated that each prior conviction is an
element of the felony offense. Page, 607 So. 2d at 1168. Second, the Court held that each prior
conviction must be specifically charged. Id. McIlwain overruled the holding in Page only to the
extent that it required "the indictment must specifically show a previous conviction for DUI First
prior to being convicted for DUI Second and a conviction of DUI Second prior to being convicted
for DUI Third." McIlwain, 700 So. 2d at 589. The first part of the Court's holding in Page is still
good law. In other words, each prior conviction is still an element of the felony offense. Page, 607
So. 2d at 1168. The State has to prove the prior convictions in order to meet its burden under Miss.
Code Ann. § 63-11-30 (2)(c) and obtain a conviction for felony DUI. Weaver, 1997 WL 703057, at
*7.

¶22. We find that the dissenters in Weaver misinterpreted the holding by the Court in McIlwain.
Chief Justice Lee wrote, "this Court ostensibly abandoned the notion that each previous conviction
was an element of the felony charge." Weaver, 1997 WL 703057, at *9. That is not the holding in
McIlwain. There, the Court interpreted Miss. Code Ann. § 63-11-30(7) to no longer require a DUI
First conviction prior to a DUI Second and a DUI Second prior to a DUI Third. The plain language
of Miss. Code Ann. § 63-11-30(7) merely requires two prior DUI convictions within a five year time
period of the third DUI charge in order to charge the defendant with felony DUI. McIlwain, 700 So.
2d at 589. The Court did not overturn the portion of Page that holds each prior conviction to be an
element of the felony offense.

¶23. Justice Banks dissented to the majority's holding in Weaver as well. He wrote, "§ 63-11-30(2)(a-
e) prescribe penalties, not elements, and they provide for enhanced penalties for subsequent
convictions. The elements of felony DUI are contained in § 63-11-30(1)." Weaver, 1997 WL
703057, at *10. Miss. Code Ann. § 63-11-30(2)(c) contains the elements of felony DUI.

     For any third or subsequent conviction of any person violating subsection (1) of this section,
     the offenses being committed within a period of five (5) years, such person shall be guilty of
     a felony and fined not less than Two Thousand Dollars ($2,000.00) nor more than Five
     Thousand Dollars ($5,000.00) and shall be imprisoned not less than one (1) year nor more than
     five (5) years in the State Penitentiary. The law enforcement agency shall seize the vehicle
     operated by any person charged with a third or subsequent violation of subsection (1) of this
     section, if such convicted person was driving the vehicle at the time the offense was committed.
     Such vehicle may be forfeited in the manner provided by Sections 63-11-49 through 63-11-53.
     Except as may be otherwise provided by paragraph (e) of this subsection, the Commissioner of
     Public Safety shall suspend the driver's license of such person for five (5) years. The suspension
     of a commercial driver's license shall be governed by Section 63-1-83.

Miss. Code Ann. § 63-11-30(2)(c) (1996) (emphasis added). Miss. Code Ann. § 63-11-30(1) (1996)
enumerates what actions will subject a person to prosecution for a DUI. As stated earlier, "defining
crimes and prescribing punishments are exclusively legislative functions as a matter of constitutional
law." Weaver, 1997 WL 703057, at*4. What constitutes (i.e. the elements) a felony DUI is defined
by the legislature in Miss. Code Ann. § 63-11-30(2)(c) (1996).

¶24. McIlwain overruled Page to the extent that it required numbers to be attached to the prior DUI
convictions. The language in McIlwain does not overrule the entire holding of this Court in Page.
Two prior convictions within a five year time period of the third charge must be proven by the State
in order to obtain a conviction for felony DUI. There is no requirement that the prosecution of a
felony DUI comply with the guidelines for bifurcation found in URCCC 11.03. Therefore, the lower
court did not commit error by denying Williams' motion for a bifurcated trial.

     III. WHETHER THE OFFENSE WAS PROPERLY BEFORE THE LOWER COURT
     BECAUSE THE ARRESTING OFFICER DID NOT ISSUE A UNIFORM STANDARD
     TICKET FOR THE THIRD OFFENSE.

¶25. Williams contends that because there was no third offense DUI ticket issued charging him with a
third DUI under the Implied Consent Law his case should be reversed and rendered. He argues that
under Miss. Code Ann. § 63-11-5(3) the traffic ticket issued to a person arrested for violation of the
implied consent law shall conform to the requirements of Miss. Code Ann. § 63-9-21(3)(b). Williams
claims that because he was not issued a Uniform Traffic Ticket he was not properly charged with a
felony DUI.

¶26. Williams misconstrues the statutes and the prior decisions of this Court. Miss. Code Ann. § 63-
11-5(3) (1996) states "[t]he traffic ticket, citation or affidavit issued to a person arrested for a
violation of this chapter shall conform to the requirements of Section 63-9-21(3)(b)." Miss. Code
Ann. § 63-9-21(3)(b) (1996) reads as follows:

     The traffic ticket, citation or affidavit which is issued to a person arrested for a violation of the
     Mississippi Implied Consent Law shall be uniform throughout all jurisdictions in the State of
     Mississippi. It shall contain a place for the trial judge hearing the case or accepting the guilty
     plea, as the case may be, to sign, stating that the person arrested either employed an attorney or
     waived his right to an attorney after having been properly advised of his right to have an
     attorney. If the person arrested employed an attorney, the name, address and telephone number
     of the attorney shall be written on the ticket, citation or affidavit.

¶27. The State responds that the basis for Williams' prosecution was not a Uniform Ticket Citation.
Williams was charged with a felony by an indictment returned on April 22, 1996, by the Jones County
grand jury. This indictment served several purposes.

     1. The indictment furnished Williams with a description of the charge against him to enable him
     to prepare a defense and availed him of his conviction or acquittal to protect him from further
     prosecution for the same crime.

     2. The indictment informed the court of the facts alleged so that it could decide whether they
     were sufficient in law to support a conviction if it should be obtained.

     3. The indictment served to guard against malicious, groundless prosecution.

See Jefferson v. State, 556 So. 2d 1016, 1021 (Miss. 1989).

¶28. This Court has held "[o]nce a grand jury has convened and found that probable cause exists,
there is no further need for a preliminary hearing." Mayfield v. State, 612 So. 2d 1120, 1129 (Miss.
1992). The Mayfield analysis applies here. A statutorily sufficient indictment, as measured by Miss.
Code Ann. § 63-11-30(7), goes beyond the requirements of Miss. Code Ann. § 63-11-5(3) and § 63-
9-21(3)(b). An indictment in compliance with these statutes and the recent holdings by this Court in
McIlwain and Weaver is sufficient to charge a defendant with felony DUI. If an indictment serves as
the basis for the prosecution for a felony DUI, a traffic ticket, citation, or affidavit is not required.

¶29. Further, prior holdings of this Court suggest that an indictment must be returned by a grand jury
prior to prosecution of a defendant for a felony. Section 27 of the Mississippi Constitution requires
that a grand jury return an indictment before a prosecution for a felony may be had. State v.
Sansome, 133 Miss. 428, 438, 97 So. 753, 754 (1923); Box v. State, 241 So. 2d 158, 159 (Miss.
1970), overruled on other grounds by Jefferson v. State, 556 So. 2d 1016 (Miss. 1989).

¶30. However, the Court would note that this could have been done by criminal information pursuant
to art. 3, § 27 of the Miss. Const. That section provides "[n]o person shall, for any indictable offense,
be proceeded against criminally by information, except. . .by leave of the court for misdemeanor in
office or where a defendant represented by counsel by sworn statement waives indictment." Miss.
Const. art. 3, § 27. In this particular case pursuant to Miss. Code Ann. § 63-11-5(3) (1996), under
the Implied Consent Law, "[t]he traffic ticket, citation, or affidavit issued to a person arrested for a
violation of this chapter shall conform to the requirements of Section 63-9-21(3)(b)." Miss. Code
Ann. § 63-9-21(3)(b) (1996) provides:
     The traffic ticket, citation or affidavit which is issued to a person arrested for a violation of the
     Mississippi Implied Consent Law shall be uniform throughout all jurisdictions in the State of
     Mississippi. It shall contain a place for the trial judge hearing the case or accepting the guilty
     plea, as the case may be, to sign, stating that the person arrested either employed an attorney or
     waived his right to an attorney after having been properly advised of his right to have an
     attorney. If the person arrested employed an attorney, the name, address and telephone number
     of the attorney shall be written on the ticket, citation or affidavit.

¶31. The indictment was sufficient to charge Williams with felony DUI. Williams' third argument is
without merit. The lower court was correct in denying Williams' pre-trial motion and motion for
directed verdict claiming the felony was not properly before the court.

                                           CONCLUSION

¶32. The indictment charging Williams with felony DUI was sufficiently drafted. This Court's holding
in McIlwain requires the indictment to enumerate two prior convictions for DUI within a five year
time period of the third DUI offense in order to charge the defendant with felony DUI.

¶33. The lower court did not err by denying Williams' motion to bifurcate the proceedings. The two
prior convictions for misdemeanor DUI are still requirements of the felony and must be alleged in the
indictment. McIlwain only did away with the interpretation of Miss. Code Ann. § 63-11-30 that
required the indictment to specifically show a DUI First conviction prior to a DUI Second conviction
and a DUI Second conviction prior to a DUI Third conviction.

¶34. The indictment sufficiently charged Williams with felony DUI. An indictment must be issued by
a grand jury before a prosecution for a felony can be had. The indictment went well beyond the
information requirements of a traffic ticket, citation, or affidavit; any of which would have sufficed to
have served as a basis for Williams' prosecution. We find the felony charge was properly before the
court.

¶35. The lower court did not commit error in the proceedings below. Williams was sufficiently
charged and found guilty of felony DUI, and the lower court decision is affirmed.

¶36. CONVICTION OF FELONY DUI AND SENTENCE OF FIVE (5) YEARS AS AN
HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH FORTY-TWO (42) MONTHS SUSPENDED, LEAVING
EIGHTEEN (18) MONTHS TO SERVE, WITH CONDITIONS, AND PAYMENT OF A
FINE OF TWO THOUSAND ($2,000.00) DOLLARS AND COURT COSTS AFFIRMED.

PITTMAN, P.J., SMITH, MILLS AND WALLER, JJ., CONCUR. BANKS, J., CONCURS
WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER, C.J., SULLIVAN, P.J.,
AND McRAE, J.


     BANKS, JUSTICE, CONCURRING:


¶37. I concur in the result. For the reasons expressed in my dissent in Weaver v. State, No. 95-KA-
01034-SCT, 1997 WL 703057 (Miss. Nov. 13, 1997), I do not agree with the majority's analysis of
Issue II regarding the proper way to handle what I view as the enhanced penalty present in our DUI
statutory scheme. I remain unconvinced that each prior conviction is an element of felony DUI. I am
fortified in that view by the realization that this Court has specifically embraced that position in the
rule regarding amendment of indictments.

¶38. As I stated in Weaver, Miss. Code Ann. § 63-11-30(2) (a-e) prescribe penalties, not elements,
and they provide for enhanced penalties for subsequent convictions. The elements of felony DUI are
contained in Miss. Code Ann. § 63-11-30(1). We have said as much in the rules. The plain language
of URCCC 7.09, concerning amendment of indictments, makes it readily apparent that prior offenses
used to charge the defendant as an habitual offender are not substantive elements of the offense
charged. Remarkably, the rule cites as an example the very statute at issue in Weaver and in the
present case:

     All indictments may be amended as to form but not as to the substance of the offense charged.
     Indictments may also be amended to charge the defendant as an habitual offender or to elevate
     the level of the offense where the offense is one which is subject to enhanced punishment for
     subsequent offenses and the amendment is to assert prior offenses justifying such enhancement
     (e.g., driving under the influence, Miss. Code Ann. § 63-11-30).

URCCC 7.09 (emphasis added).

¶39. I concur in the result reached by the majority only because the circumstances here, in contrast to
those in Weaver, clearly indicate that the error in failure to bifurcate the proceedings is harmless.

PRATHER, C.J., SULLIVAN, P.J., AND McRAE, J., JOIN THIS OPINION.
