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IN THE COURT OF APPEALS 12/17/96 OF THE STATE OF MISSISSIPPI
NO. 95-KA-00682 COA

DEMETRICE WARNSLEY, A/K/A DEMETRICE LAWAYNE WARNSLEY, A/K/A DEMETRICE LAYWANE WARNSLEY APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

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: CHARLES W. MARIS, JR. DISTRICT ATTORNEY: JEANNENE T. PACIFIC NATURE OF THE CASE: FELONY DRIVING UNDER THE INFLUENCE (THIRD OFFENSE) TRIAL COURT DISPOSITION: FELONY DUI: SENTENCED TO A TERM OF 3 YEARS,

WITH 2 YEARS SUSPENDED, FINED $2000.00

BEFORE FRAISER, C.J., DIAZ, AND KING, JJ. DIAZ, J., FOR THE COURT:

Demetrice Warnsley (Warnsley) was convicted of felony driving under the influence (third offense) in the Circuit Court of Jones County. On appeal Warnsley raises two issues: (1) the court erred in overruling the defendant's motion to dismiss the indictment, and (2) it was error to charge and convict the defendant with a third offense D.U.I. when the two underlying D.U.I.'s were both first offense misdemeanors which occurred prior to July, 1994.

FACTS On January 9, 1995, Officer Robby McLaurin (McLaurin), a Laurel police officer, stopped the Appellant for crossing the centerline. McLaurin detected a strong alcohol smell coming from the vehicle and noticed that Warnsley had red eyes and slurred speech. The officer then had Warnsley perform several field sobriety tests which he failed. Warnsley was transported to the Laurel police station where an intoxilyzer test was administered. McLaurin's blood alcohol count registered .254. McLaurin was subsequently charged with third offense felony D.U.I. On June 27, 1995, Judge Billy Landrum found Warnsley guilty of felony driving under the influence (third offense) in violation of Mississippi's Implied Consent Law. Warnsley was sentenced to serve a term of three years in the custody of the Mississippi Department of Corrections with two years suspended, fined $2,000.00 and be allowed to participate in the regimented inmate discipline program. DISCUSSION Because of the similarities in the Appellant's two propositions, we will address the Appellant's arguments simultaneously. Warnsley maintains on appeal that the indictment is fatally flawed because it failed to specifically charge that, within five years of the present charge, he had been convicted of anything other than two "first offense" misdemeanor violations. In support of his position, he cites Page v. State, 607 So. 2d 1163 (Miss. 1992). Additionally, he argues that it was error to charge and convict him of D.U.I. "third offense" because he had never been charged and convicted of D.U.I. "second offense." The State contends that the addition of subsection (6) and (7) to section 63-11-30 cured any alleged defects in the charging instrument and Page is no longer applicable to the situation at bar. Furthermore, the State argues that the 1994 amendment plainly states that it is not necessary to be convicted of "first" and "second" offense D.U.I. to be convicted of "third offense" D.U.I.

Section 63-11-30(1) of our Implied Consent Law prohibits operating a vehicle while under the influence of alcohol. Additionally, sections 63-11-30(2)(a)-(c) indicate increased punishments for each successive offense. Miss. Code Ann.

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