David E. Conwill v. State of Mississippi
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Serial: 169012
IN THE SUPREME COURT OF MISSISSIPPI
No. 2010-IA-00228-SCT
DAVID E. CONWILL
Appellant
v.
STATE OF MISSISSIPPI
Appellee
ORDER
This matter came before the Court en banc on the Court’s own motion. By order
entered on February 11, 2010, the Court granted the Petition for Interlocutory Appeal filed
by counsel for David E. Conwill. After due consideration, the Court finds that the petition
was improvidently granted and should be dismissed.
IT IS THEREFORE ORDERED that the Petition for Interlocutory Appeal filed by
David E. Conwill, is hereby dismissed as improvidently granted.
SO ORDERED, this the 5 TH day of May, 2011.
/s/ George C. Carlson, Jr.
GEORGE C. CARLSON, JR.,
PRESIDING JUSTICE
FOR THE COURT
TO DISMISS: CARLSON, P.J., RANDOLPH, LAMAR, PIERCE AND KING, JJ.
DICKINSON, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN
STATEMENT JOINED BY WALLER, C.J., KITCHENS AND CHANDLER, JJ.
IN THE SUPREME COURT OF MISSISSIPPI
NO. 2010-IA-00228-SCT
DAVID E. CONWILL
v.
STATE OF MISSISSIPPI
DICKINSON, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH
SEPARATE WRITTEN STATEMENT:
¶1.
David Conwill – who previously had received a ticket for driving under the influence
(“DUI”) – was arrested in Madison County and charged with possessing cocaine found in his
car. At a hearing, Conwill swore the drugs were not his; later the Madison County Sheriff’s
Department recorded a telephone call in which Conwill admitted the drugs were his.
¶2.
The Madison County District Attorney sent Conwill’s attorney a letter, pointing out
the recorded admission, and offering a deal for Conwill to plead guilty to both the cocaine
charge and the DUI. Conwill did plead guilty and was sentenced to five years, with four
years suspended and one year to serve.
¶3.
After Conwill began serving his sentence, the Madison County District Attorney
returned to the Madison County grand jury and obtained an indictment against Conwill for
perjury, related to Conwill’s initial denial that the cocaine was his. Because Conwill had
pleaded guilty on the cocaine and felony DUI charges, the perjury indictment charged
Conwill as a habitual offender.
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¶4.
Conwill filed a motion to dismiss the indictment, claiming in essence that his
negotiations with the district attorney, and his guilty plea, prohibited a prosecution for
perjury, because the false statement was made in connection with the cocaine charge to
which the district attorney negotiated a plea. The trial judge denied the motion to dismiss,
and Conwill filed an application for an interlocutory appeal, which we initially granted.
Because, for reasons I am unable to comprehend, the Court now dismisses the interlocutory
appeal, I respectfully dissent.
¶5.
When the district attorney negotiated the plea, he knew all the facts and circumstances
that led to the later perjury prosecution, and those facts and circumstances arose out of the
same case. By persuading Conwill to plead guilty – which required him to swear in court
that he was guilty – the district attorney assured himself of a perjury conviction, since
Conwill’s two sworn statements contradicted each other.
¶6.
The Court’s decision today raises serious questions about fairness and due process;
and it stands as a dangerous precedent. I would order the indictment dismissed.
WALLER, C.J., KITCHENS AND CHANDLER, JJ., JOIN THIS SEPARATE
WRITTEN STATEMENT.
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