Opinion
No. 39701.
May 2, 1955.
1. Criminal law — plea of not guilty and sentence thereon — not a judgment of conviction.
Order which shows plea of not guilty and a sentence thereon is not a judgment of conviction.
2. Criminal law — plea of not guilty — sentence only upon trial and conviction.
Following plea of not guilty, accused may be sentenced only upon trial and conviction.
3. Criminal law — Courts — jurisdiction — appeal from order reciting plea of not guilty — and sentence thereon — properly remanded.
In assault case, where order of Mayor's Court recited that defendant entered plea of not guilty and had been sentenced but did not recite that defendant had been either tried or convicted, the Circuit Court was without jurisdiction, and on motion to quash properly remanded case to the Mayor's Court.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Monroe County; RAYMOND T. JARVIS, Judge.
Cason Rankin, Tupelo, for appellant.
I. The Court erred in sustaining the motion of the defendant to quash the judgment of the Mayor's Court. Keene v. State, 194 Miss. 233, 11 So.2d 899; Ladnier v. Ladnier, 64 Miss. 368, 372, 1 So. 492.
E.K. Windham, Booneville, for appellee.
I. The Circuit Court properly sustained appellee's motion to quash the judgment. Ball, Brown Co. v. Sledge, 82 Miss. 747, 35 So. 214; Griffin v. State, 140 Miss. 175, 105 So. 457; Young v. State, 140 Miss. 165, 105 So. 461.
By affidavit filed in mayor's court, appellant was charged with assault. The order of the mayor's court recited that defendant entered a plea of not guilty and was sentenced to prison for thirty days and fined $100.00. The order did not recite that the defendant was either tried or convicted. Defendant appealed to the circuit court, where, on motion of defendant, the court quashed the proceeding of the mayor's court and remanded the case. The town appeals here.
(Hn 1) The circuit court has no jurisdiction absent a record showing a judgment of conviction in the mayor's court. An order showing a plea of not guilty and a sentence thereon is not a judgment of conviction. (Hn 2) Upon a not guilty plea, an accused may not be sentenced except upon trial and conviction. (Hn 3) The circuit court had no jurisdiction, and properly remanded the case to the mayor's court. Gilmer v. State, 157 Miss. 622, 128 So. 773; Young v. State, 140 Miss. 165, 105 So. 461; Ball v. Sledge, 82 Miss. 747, 35 So. 214; Burrows v. State, 143 Miss. 221, 108 So. 505. The alleged defective affidavit may be amended on remand.
Affirmed and remanded.
McGehee, C.J., and Kyle, Arrington and Ethridge, JJ., concur.