author: PAINTER, Judge.

text:
    STATE of Louisiana v. Tanesha HARDY.
    No. 11-267.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Van H. Kyzar, District Attorney, R. Stuart Wright, Assistant District Attorney, Natchitoches, LA, for the State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Tanesha Hardy.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

[, Defendant, Tanesha Hardy, appeals her conviction on the charge of second degree murder. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 17, 2009, Defendant shot the victim, Walter Johnson (also known as “Dinky”), three times. He died as a result of the gunshot wounds.

Defendant was indicted on January 6, 2010, for second degree murder, a violation of La.R.S. 14:30.1. A jury trial commenced on July 19, 2010, and on July 20, 2010, she was found guilty as charged. On August 18, 2010, Defendant was sentenced to life imprisonment. Defendant did not file a motion to reconsider the sentence.

Defendant now appeals, asserting that the evidence was insufficient to sustain the verdict of second degree murder and that the trial court erred when it allowed a conviction by a non-unanimous vote. For the following reasons, we find that the evidence was sufficient to sustain the verdict of second degree murder and that there was no error in the trial court’s ruling regarding the ten-to-two verdict for second degree murder.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

Sufficiency of the Evidence

Defendant argues that there was insufficient evidence to support a conviction for second degree murder in that she had no choice but to shoot the |2victim. At the time she fired the shots, she alleges that she believed that the victim was reaching for a gun.

In State In re D.P.B., 02-1742, pp. 4-6 (La.5/20/03), 846 So.2d 753, 756-57 (footnotes omitted), wherein the defendant had asserted justifiable homicide, the supreme court observed:

“In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).... Furthermore, in a case in which defendant asserts that he acted in self-defense, the state has the burden of establishing beyond a reasonable doubt that he did not act in self-defense. State v. Brown, 414 So.2d 726, 728 (La.1982). When defendant challenges the sufficiency of the evidence in such a case, the question becomes whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Matthews, 464 So.2d 298 (La.1985).

Second degree murder is defined as the killing of a human being “[w]hen the offender has a specific intent to kill or to inflict great bodily harm.” La.R.S. 14:30.1. Justifiable homicide is defined, in pertinent part, as a killing when committed in self-defense by one who reasonably believes that “he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” La.R.S. 14:20(A)(1).

Jessica Young Williams, a detective with the Natchitoches Police Department, was called to an apartment on Washington Street at approximately 11:00 p.m. on October 17, 2009. She found ambulance personnel on the scene. She also found the victim, lying on the couch of his sister’s apartment, with three gunshot wounds. The victim died at the scene. Also in the apartment were several people, including two sisters, several children, and Dikianna Berguin. Detective ^Williams was told that Defendant was the shooter and that she had fled. The detective also located several casings from a .45 caliber pistol and an unspent bullet from a .380 caliber handgun. However, the detective did not find any weapons in the apartment.

Detective Williams located Defendant in the early morning hours of October 18, 2009, at a house on Lucille Street. Defendant surrendered without incident. Inside the residence, the detective located a semiautomatic .45 caliber pistol. She testified that upon apprehension, Defendant asked her if the victim was dead. When she was told that the victim had died, she stated that she had no choice but to shoot him.

A video interview with Defendant was played for the jury. During the interview, Defendant related an acrimonious history with the victim, which started a few months before with the shooting of her cousin. However, she also related that she and the victim “had a little falling out about Dikianna.” She said that a few days prior, she had kicked Dikianna out of her house because Dikianna had been sexually-involved with the victim. However, on the afternoon of the shooting, she went to the victim’s sister’s apartment to get Dikianna and take her home. She said that the victim came, out of the apartment, argued with her, and showed her a gun that he had in the waistband of his pants. She stated that she left, but after she calmed down, she called the apartment but was not allowed to talk to Dikianna. She said that she called twice. Later, she went to the apartment to again try to talk Dikian-na into coming home. She said that Diki-anna opened the door when she knocked, and she saw the victim lying on the couch with a “mug on his face. And he was sticking his hand under the cover, pretty fast.” Defendant told the detectives that she believed that the victim was reaching for a gun under the 1 ¿covers, “[s]o I pulled the gun out. I just started ... I just started shooting.” A transcription of the interview was put into the trial record.

Dikianna testified that she had known Defendant for a few years and had lived with her for about six months prior to the shooting. However, Defendant had kicked her out because Defendant had heard that she was sleeping -with the victim. On the day of the shooting, Dikianna and the victim’s sisters and their children had gone to a fair, where they saw Defendant. Later, in the afternoon, Defendant went to the victim’s sister’s apartment. Dikianna stated that the victim was there and that he was “talking crazy to her [Defendant] ... just kept running up to her telling her he was gonna [sic] slap her[.]” Dikianna testified that, on the night in question, she and the victim were lying on a couch watching television when there was a knock at the door. Dikianna testified that she answered the door and was not surprised to see Defendant. Defendant asked who was in the apartment. Dikianna testified that Defendant appeared calm and that as she turned to point out all who were there, Defendant began shooting.

Dr. Charles Curtis, the coroner for Natchitoches Parish, testified that the gunshot to the victim’s neck was the cause of his death. Richard Beighley, a criminalist with North Louisiana Crime Laboratory, testified that the gun retrieved from the house where Defendant was apprehended was the gun that discharged the bullets recovered from the victim.

Defendant argues that she has consistently maintained that the victim had a gun and that her only alternative was to shoot first. She argues that a thorough review of the record reveals reasonable doubt concerning her guilt. In State v. Patterson, 10-415, p. 13 (La.App. 5 Cir. 1/11/11), 63 So.3d 140, 149, writ denied, 11-338 (La.6/17/11), 63 So.3d 1037, the fifth circuit noted:

IsThe determination of a defendant’s culpability rests on a two-fold test: 1) whether, given the facts presented, the defendant could reasonably have believed his life to be in imminent danger; and 2) whether deadly force was necessary to prevent the danger. [State v.] Theriot, 07-71 at 12, [La.App 5 Cir. 6/26/07),] 963 So.2d [1012] at 1020. The jury is the ultimate fact-finder in determining whether a defendant proved his condition and whether the State negated the defense beyond a reasonable doubt. Theriot, 07-71 at 13, 963 So.2d at 1020.

Furthermore, while discussing self-defense in the case of a second degree murder conviction, this court has held:

The standard in La.R.S. 14:20 is whether the Defendant’s subjective belief that he was in danger was reasonable. State v. Brown, 93-1471 (La.App. 3 Cir. 5/4/94), 640 So.2d 488.
Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant’s bad character. State v. Hardeman, 467 So.2d 1163 (La.App. 2d Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982).

State v. Spivey, 38,243, p. 6 (La.App. 2 Cir. 5/12/04), 874 So.2d 352, 357.

In cases where the defendant claims self-defense as a justification, the absence of a weapon from the victim’s person or immediate reach is often a critical element of the state’s proof. See State v. Davis, 28,662 (La.App. 2d Cir. 9/25/96), 680 So.2d 1296.... The absence of weapon on the victim, however, is not dispositive of the issue.
State in Interest of D.S., 29,554, p. 3 (La.App. 2 Cir. 5/7/97), 694 So.2d 565, 567.

State v. Griffin, 06-543, pp. 8-9 (La.App. 3 Cir. 9/27/06), 940 So.2d 845, 851, writ denied, 07-02 (La.9/14/07), 963 So.2d 995.

|6During her videotaped interview, Defendant stated that she had had problems with the victim for several months. It was unclear, but apparently there was a shooting incident a few months prior that involved the victim and Defendant’s cousin, who was married at one time to one of the victim’s sisters. Defendant stated that after he showed an interest in Dikianna and after Defendant had told him to stay away, he started coming around her house and “get to going off about, you know, he’ll use his guns and all that.” Defendant said that at one point “we had to leave for about a month[;] ... they made us leave home and go stay with a friend[; and,] they say until everything calm [sic] down.” She claimed that she gave “statements” and “wrote reports ... but that still didn’t stop anything.”

Based on our review of the record, Defendant did not show a reasonable belief that the use of deadly force was necessary to avoid imminent danger and that the State’s evidence negated the self-defense claim beyond a reasonable doubt. Detective Williams testified that although an unspent .380 caliber bullet was found under the couch, no gun was found on the body of the victim or anywhere in the apartment. Except for Defendant’s self-serving statements made during the videotaped interview, there was no testimony that the victim ever made verbal threats to Defendant. There was no testimony regarding whether the victim had a violent nature. At the time of the shooting, the victim was lying on a couch, and, according to testimony, Defendant immediately began shooting as she walked into the apartment without a word or gesture from the victim. Therefore, we find no merit to this assignment of error.

Louisiana Code of Criminal Procedure Article 782

Defendant states in brief that after the verdict of second degree murder was pronounced by a ten to two vote, she “objected to the non-unanimous verdict. The |7Court noted the Defense objection but permitted the verdict to stand.” Defendant argued that La.Code Crim.P. art. 782, which allows for non-unanimous verdicts when the punishment involves incarceration at hard labor (but not for capital offenses), was unconstitutional. According to Defendant, the trial court erred when it denied her objection to the non-unanimous decision.

In brief, Defendant argues that this court should ignore the plurality ruling of Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), and hold that a ten to two verdict fails to satisfy due process of law. In Apodaca, the United States Supreme Court upheld non-unanimous verdicts in state felony cases. The Supreme Court concluded that the Sixth Amendment’s jury trial guarantee did not require unanimous verdicts. The holding of Apodaca was discussed with approval by the Louisiana Supreme Court in State v. Bertrand, 08-2215, (La.3/17/09), 6 So.3d 738, while reviewing a Louisiana judicial district court’s declaration that Article 782 was unconstitutional for the reason that it permitted non-unanimous verdicts. The Louisiana Supreme Court stated:

In Apodaca, the United States Supreme Court examined an Oregon statute similar to Article 782, in that the Oregon statute did not require unanimous jury verdicts in noncapital cases. In a plurality decision, the Court determined that the United States Constitution did not mandate unanimous jury verdicts in state court felony criminal trials, with four Justices holding that the Sixth Amendment guarantee of a jury trial, made applicable to the States by the Fourteenth Amendment, does not require that a jury’s vote be unanimous. Justice Powell concurred in the judgment of the Court for reasons different than those expressed by the author of the opinion. Four Justices, disagreed, finding that the Sixth Amendment guarantee of a jury trial was made applicable to the States by the Fourteenth Amendment, and does require a unanimous jury.
This Court has previously discussed and affirmed the constitutionality of Article 782 on at least three occasions. In State v. Jones, 381 So.2d 416 (La.1980), we ruled that Article 782 did not violate the Sixth and Fourteenth Amendments. Later, in State v. Simmons, 414 So.2d 705 (La.1982), we found that Article 782 did not [¿violate either the Fifth or Fourteenth Amendments. Finally, in State v. Edwards, 420 So.2d 663 (La.1982), we again affirmed the statute’s constitutionality.
Despite defendants’ arguments to the contrary, the case law of the United States Supreme Court also supports the validity of these decisions. Although the Apodaca decision was, indeed, a plurality decision rather than a majority one, the Court has cited or discussed the opinion not less than sixteen times since its issuance. On each of these occasions, it is apparent that the Court considered that Apodaca’s holding as to non-unanimous jury verdicts represents well-settled law. For instance, in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 1626-27, 60 L.Ed.2d 96 (1979), the Court matter-of-factly recognized the reasoning behind the Apodaca holding as support for its overturning of a jury conviction by a 5-1 margin. Further, in Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 823, 107 L.Ed.2d 905 (1990) (Stevens, J., dissenting), Justice Stevens stated that it was the fair cross section principle underlying the Sixth Amendment’s right to a jury trial that permitted non-unanimous juries. Justice Sca-lia, a noted originalist on the Court, explicitly rejected a unanimity requirement in his dissent McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), saying:
Of course the Court’s holding today — and its underlying thesis that each individual juror must be empowered to “give effect” to his own view— invalidates not just a requirement of unanimity for the defendant to benefit from a mitigating factor, but a requirement for any number of jurors more than one. This it is also in tension with Leland v. Oregon [343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) ] (citation omitted), which upheld, in a capital case, a requirement that the defense of insanity be proved (beyond a reasonable doubt) to the satisfaction of at least 10 of the 12-member jury. Even with respect to proof of the substantive offense, as opposed to an affirmative defense, we have approved verdicts by less than a unanimous jury. See Apodaca v. Oregon (citation omitted) (upholding state statute providing for conviction by a 10-to-2 vote).
McKoy, 110 S.Ct. at 1246-47 (Scalia, J., dissenting) (emphasis in original). Likewise, in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 2314, 132 L.Ed.2d 444 (1995), the Court, in a unanimous opinion, recognized the reasoning behind the Apodaca decision. Finally, Justice Souter, dissenting in Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2484, 168 L.Ed.2d 203, (2007) (Souter, J., dissenting), again recognized the Apodaca holding as well-settled law.

Id. at 741-42.

| ciDefendant has presented no original argument as to why this court should find the statute unconstitutional other “than wait for a higher court to correct this wrong.” Therefore, there is no merit to this assignment of error.

DECREE

For all of the foregoing reasons, Defendant’s conviction on the charge of second degree murder is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Bernadette WILLIAMS v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT.
    No. 11-281.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Rickey W. Miniex, Clyde R. Simien, Todd M. Swartzendruber, Erica R. Mayon, Simien & Miniex, Lafayette, LA, for Defendant/Appellee, Lafayette City-Parish Consolidated Government.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant, Bernadette Williams.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

11 After the plaintiff fell on a public bus, she filed suit against the city-parish government, alleging that she fell as a result of the bus driver’s negligence and that she injured her knees as a result of the fall. After a trial, the trial court entered judgment in favor of the defendant, finding it rebutted any presumption of negligence that arose under the common carrier law. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Bernadette Williams, alleges that on December 12, 2001, she was a passenger on a bus owned and operated by the defendant, Lafayette City-Parish Consolidated Government. According to Ms. Williams, after she and her children boarded the bus, she paid their fares and began to walk to her seat. Ms. Williams alleges that, before she got to her seat, the bus driver, Jude Duhon, “took off’ with a “jerk,” causing her to fall to her knees. She also alleges that Mr. Duhon did not stop or submit an accident report after she told him that she hurt herself.

According to the record, Ms. Williams first sought treatment for her knees approximately two weeks after the accident. Ms. Williams was eventually referred to an orthopedic surgeon, Dr. Harold Granger, who diagnosed her with bilateral knee contusions and bilateral patellofemoral chon-dromalacia. Dr. Granger performed two surgeries on Ms. Williams’ right knee. Dr. Granger indicated that in the first surgery he repaired a torn meniscus and smoothed out cartilage and in the other he inserted a “UniSpacer” device in an attempt to relieve some of Ms. Williams’ pain. Ms. Williams eventually had two total knee replacements. Although Dr. Granger testified at his deposition that Ms. Williams’ knee condition was a degenerative or arthritic condition that likely pre-existed her fall, he contemplated that the fall caused an asymptomatic condition to become | symptomatic. Dr. Granger attributed Ms. Williams’ first two knee surgeries to the fall, but did not attribute her subsequent total knee replacement surgeries to the fall.

At trial, the defendant contested both Ms. Williams’ version of the accident and whether the fall was the cause of her knee condition. Mr. Duhon, the bus driver, testified that the bus was not moving when the plaintiff “went down on one knee.” He further testified that the plaintiff did not tell him that she was injured and that she said was “okay” when she got off the bus. Mr. Duhon also testified that, even if the bus was moving when the plaintiff fell, the mechanics of the bus prevented it from “jerking” as it began to move. Further, Mr. Duhon noted that there were overhead handholds in the area where Ms. Williams fell. Ms. Williams testified that she had never tried to reach the overhead handholds.

Further, the defendant argued that Ms. Williams’ knee condition was not caused by the fall. Although Ms. Williams testified that prior to the accident she had “never” had pain in her knees, the defendant introduced medical records from 1999 and 2000 indicating that Ms. Williams sought treatment for knee pain and her “legs going out on her.” Dr. Douglas Bernard, an orthopedic surgeon, performed an examination on Ms. Williams in 2009 at the defendant’s request. At his deposition, Dr. Bernard also testified that chondromalacia was an arthritic or degenerative condition. However, Dr. Bernard suspected that the fall only caused Ms. Williams’ bilateral knee contusions, noting that Ms. Williams’ MRI and x-rays did not reveal an acute injury. Further, Dr. Bernard rejected the plaintiffs contention that the fall accelerated her arthritic condition, although he conceded that he had seen cases where trauma had caused an asymptomatic condition to become symptomatic.

13At the close of evidence, the trial court took the matter under advisement and requested that the parties submit post-trial briefs on the issues of common carrier liability and the appropriate burden of proof. Thereafter, the trial court issued judgment in favor of the defendant, finding that the defendant successfully rebutted any presumption of negligence. The plaintiff appeals, asserting that:

I. The trial court committed manifest error and was clearly wrong in finding that the Lafayette City-Parish Consolidated Government was not liable for Ms. Bernadette Williams!’] injuries.

II. The trial court committed manifest error and was clearly wrong in its application of the Common Carrier law to the facts of this case and the trial court[’]s own admissions at the conclusion of trial.

III. The trial court committed manifest error and was clearly wrong in its review and interpretation of Jude Duhon’s personnel file containing four accidents and three reprimands while driving a city bus for the Lafayette City-Parish Consolidated Government.

IV. The trial court committed manifest error and abused its discretion by excluding the testimony of Joseph Martin and limiting the testimony of Andrea Edwards Williams.

Discussion

Evidentiary Issues

In her fourth assignment of error, the plaintiff contends that the trial court erred in excluding the testimony of Joseph Martin and limiting the testimony of Andrea Edwards Williams. We address this preliminary issue before turning to the trial court’s judgment.

According to her witness list, Ms. Williams intended to call Mr. Martin, Mr. Duhon’s former supervisor, to testify about Mr. Duhon’s driving habits and the defendant’s training procedures, if any. The defendant filed a motion in limine seeking to exclude the testimony. The trial court found that the proposed testimony was irrelevant and that any evidence regarding Mr. Duhon’s driving |4habits would only be admissible for the purposes of impeachment. The plaintiff also called Ms. Andrea Edwards Williams, another city-parish bus driver, to testify that the plaintiff reported the fall to her immediately after the accident. The trial court sustained objections to her testimony regarding the defendant’s policy for reporting incidents on buses and her own driving habits.

“When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.” La. Code Civ.P. art. 1636(A). A panel of this court further addressed appellate review of inadmissible evidence in Whitehead v. Kansas City Southern Railway Co., 99-896 (La.App. 3 Cir. 12/22/99), 758 So.2d 211, writ denied, 00-209 (La.4/7/00), 759 So.2d 767. The court stated:

However, if a party fails to proffer excluded evidence, an appellate court cannot analyze it and its admissibility, and that party is precluded from complaining of the excluded testimony. Broussard v. Olin Corp., 546 So.2d 1301 (La.App. 3 Cir.1989). Additionally, the trial court has vast discretion in deciding the admissibility of evidence, and its decision will not be reversed on appeal absent an abuse of that discretion. O’Neill v. Thibodeaux, 97-1065 (La.App. 3 Cir. 3/6/98), 709 So.2d 962.

Id. at 218-19.

Mr. Martin’s Excluded Testimony

The plaintiff did not proffer Mr. Martin’s excluded testimony. However, the plaintiffs attorney addressed the trial court concerning the topics of Mr. Martin’s expected testimony, stating:

Your Honor, this witness was the assistant supervisor of Mr. Jude Duhon. He traveled in the buses. He is familiar with the buses and how they operate and whether they take off smoothly as Mr. Duhon testified to or how they take off in the different buses and so forth.
|sSo, basically, he’s being called on rebuttal to rebut Mr. Duhon’s testimony regarding how the buses operate. We’re not asking for opinion testimony, just his facts on what his knowledge is of those buses, because he operated those buses, and he’s the one who trained how to drive the buses. So he’s familiar with those buses and whether or not they smoothly operate or if they can take— you know, just how they operate.

The plaintiff, in brief, further contends that Mr. Martin would have testified regarding the operation and mechanics of the type of bus that Mr. Duhon was driving and whether drivers should wait until all passengers are sitting down before proceeding.

On at least two occasions, our courts have found that an attorney’s statement as to what a witness would say does not meet the requirements of La.Code Civ.P. art. 1636, insofar as it calls for “a statement setting forth the nature of the evidence.” See Holt v. Bethany Land Co., 36,888 (La.App. 2 Cir. 4/9/03), 843 So.2d 606; McHale v. Schwegmann Bros. Giant Super Mkts., Inc., 97-788 (La.App. 5 Cir. 11/23/98), 722 So.2d 328. We note, however, that the failure to proffer excluded testimony or evidence may be excused if there is sufficient other evidence in the record to make the content of the excluded testimony abundantly clear from the face of the record. See Taylor v. Tommie’s Gaming, 38,568 (La.App. 2 Cir. 6/25/04), 878 So.2d 853, rev’d on other grounds, 04-2254 (La.5/24/05), 902 So.2d 380; Gulf Outlet Marina, Inc. v. Spain, 02-1589 (La.App. 4 Cir. 6/25/03), 854 So.2d 386, writ denied, 03-2075 (La.11/7/03), 857 So.2d 497.

We find that, under these facts, the attorney’s statements to the trial court concerning the topic of Mr. Martin’s testimony do not make the factual content of that testimony abundantly clear such that it would permit review on appeal. Instead, while the plaintiffs attorney generally disclosed the topics that Mr. Martin’s testimony would address, the factual statements and/or conclusions to lfiwhich he would have testified are not apparent from the record. As Mr. Martin’s excluded testimony was not preserved for review, the plaintiff is precluded from complaining about it on appeal. Therefore, we do not address the plaintiffs argument regarding Mr. Martin’s testimony.

Ms. Andrea Edward Williams’ Excluded Testimony

With regards to Ms. Andrea Edwards Williams, the trial court sustained two of the defendant’s objections to her testimony. The first, regarding the defendant’s policies for reporting accidents, was sustained on the basis that, unless Ms. Andrea Edwards Williams was a policy-maker, she only had personal knowledge of what was required of her. The second, regarding whether she waited for passengers to be seated before starting the bus, was sustained on the basis of relevance.

The trial court has vast discretion regarding the admissibility of evidence and its determination will not be reversed absent an abuse of discretion. Whitehead, 758 So.2d 211. “[Rjelevant evidence is admissible except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible.” La.Code Evid. art. 402. Evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La.Code Evid. art. 401. However, relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La.Code Evid. art. 403. Further, a lay witness may not testify regarding matters outside of his or her personal knowledge. La.Code Evid. art. 602.

1.¡With regard to the policy for reporting accidents, although the plaintiff did not proffer the excluded testimony, the content of the testimony is “abundantly clear” from the face of the record. See Taylor, 878 So.2d 853; Spain, 854 So.2d 386. Andrea Edwards Williams testified that, at least in her case, she had to “radio it in, and they would get risk management out.” Accordingly, we are able to review this aspect of the excluded evidence.

The trial court sustained the objection regarding the policy for reporting accidents on the basis that, unless she was a policy-maker, Andrea Edwards Williams did not have personal knowledge of the policies. Andrea Edwards Williams testified that she “had to radio it in” if someone fell on one of her buses, but that she had no idea whether Mr. Duhon had done so. In light of the witness’ lack of personal knowledge in this regard, we find no error in the trial court’s determination excluding the witness’ testimony regarding the policies of the defendant with regard to reporting accidents. See La.Code Evid. art. 602.

However, we do not review the second instance in which the trial court sustained an objection to Andrea Edward Williams’ testimony. In that instance, the plaintiffs attorney asked whether Andrea Edwards Williams “wait[ed] until a passenger sits down before taking off on a bus?” In this case, the objection was lodged before the witness had the opportunity to respond. Here, although we know the topic to which the witness would have testified, it is not “abundantly clear” from the record what factual statements and/or conclusions she would have made. See Taylor, 878 So.2d 853; Spain, 854 So.2d 386. Further, even if the trial |scourt had allowed the testimony, it was entitled to give it no weight as the finder of fact. See Spain, 854 So.2d 386.

This assignment of error is without merit.

Factual Findings

The remainder of Ms. Williams’ assignments of error address the factual findings of the trial court.

The trial court’s findings of fact are reviewed using the manifest error/clearly wrong standard of review set out in Rosell v. ESCO, 549 So.2d 840 (La.1989). After reviewing the record in its entirety, an appellate court cannot overturn a reasonable finding of fact even if it would have weighed the evidence differently. State ex rel. B.A., 10-896 (La.App. 4 Cir. 12/15/10), 54 So.3d 186. Even where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed. Givens v. Givens, 10-0680 (La.App. 1 Cir. 12/22/10), 53 So.3d 720, citing Stobart v. State, DOTD, 617 So.2d 880 (La.1993). Therefore, when the fact finder is presented with two permissible views of the evidence, the fact finder’s determination cannot be manifestly erroneous or clearly wrong. Id. However, even where a factual finding is purportedly based on a finding of credibility, the appellate court can determine that the finder of fact was manifestly erroneous or clearly wrong “[w]here documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story.” Rosell, 549 So.2d at 844-45.

Ms. Williams asserts that her injuries occurred as a result of a fall on a public bus. The owner and operator of a public bus is considered a common carrier, and owes a heightened standard of care to the passengers he or she |9undertakes to transport. Lewis v. City of Shreveport, 43,249 (La.App. 2 Cir. 6/4/08), 985 So.2d 1249, writ denied, 08-1477 (La.10/3/08), 992 So.2d 1018; Amos v. St. Martin Parish Sch. Bd., 00-808 (La.App. 3 Cir. 12/6/00), 773 So.2d 300. The second circuit discussed the heightened standard of care under the common carrier doctrine in Lewis, 985 So.2d at 1250-51, stating:

Although a common carrier is not an insurer of its passengers’ safety, the carrier is required to exercise the highest degree of care and is liable for the slightest negligence. Dupree v. Louisiana Transit [Mgmt.], Inc., 441 So.2d 436 (La.App. 2 Cir.1983), writ denied, 445 So.2d 1233 (La.1984). The mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence. Where there is proof of injury to a passenger, the burden shifts to the defendant carrier to show that it is free from negligence. Gotland v. New Orleans [Pub. Serv.], Inc., 377 So.2d 84 (La.1979); Dupree, supra.
When a prima facie case of negligence against the common carrier is established, the defendant has the burden to exculpate itself by proving that it exercised the highest degree of diligence, care and precaution for the safety of its passengers. Dupree, supra. The defendant has the burden of proving by clear and convincing evidence an affirmative defense such as sudden unforeseeable loss of consciousness. Cash v. McGregor, 31,537 (La.App. 2 Cir. 2/24/99), 730 So.2d 497, writ denied, 99-1117 (La.6/4/99), 744 So.2d 628. The carrier must do all that human sagacity and foresight can accomplish under the circumstances in view of the character and mode of conveyance to prevent injury to passengers. There is a heavy presumption of negligence accompanying a carrier’s duty of care toward its passengers. Dupree, supra.

Relying on Craighead v. Preferred Mutual Risk Insurance Co., 33,731 (La.App. 2 Cir. 8/25/00), 769 So.2d 112, writ denied, 00-2946 (La.12/15/00), 777 So.2d 1230, Ms. Williams argues that it was error for the trial court to base its determination of non-liability on whether or not the bus was moving. Ms. Williams also contends that the trial court erred in crediting Mr. Du-hon’s testimony that the bus was not moving and, if it was, that it did not “jerk” when it began to move. Further, Ms. Williams contends that the trial court erred in finding |inthat Mr. Duhon’s personnel record contained only one accident and no reprimands, arguing that the personnel record indicates that Mr. Duhon had multiple accidents and reprimands. Finally, at the close of evidence, the trial court requested that the parties file post-trial briefs, and especially requested that the parties address “[W]hat should [the trial court] do in the event of a tie?” Ms. Williams argues that this statement indicates that the trial court incorrectly applied the burden prescribed by the common carrier doctrine.

The trial court issued lengthy reasons for judgment, and ultimately, although finding that Ms. Williams had made a pri-ma facie case that she was a fare-paying passenger on a common carrier and that an incident occurred on the bus that caused her injury, found that the defendant successfully rebutted the presumption of negligence. In reaching that finding, the trial court quoted both Ms. Williams’ and Mr. Duhon’s testimony regarding their versions of the accident. The trial court noted that Mr. Duhon did not have an interest in the outcome of this case, that he was able to testify regarding the mechanical inability of the bus to “jerk” as it began to move, and that there were railings that the plaintiff testified that she did not use. With regard to Mr. Duhon’s personnel file, the trial court stated:

During the trial, there was an attack on [Mr. Duhon’s] credibility regarding alleged ‘reprimands’ in his personnel file he failed to disclose during his deposition. The court has reviewed the evidence in this case thoroughly and has found the alleged reprimands not to be reprimands at all, but rather normal reports on performance. The first two were entitled ‘Report on Probationer’, these were filled out at the start of the bus driver’s employment in increments of three months. The last was entitled ‘Performance Evaluation’ for the period of the first year the bus driver was employed. All three returned satisfactory performance and the last even returned some outstanding marks. All indicated the bus driver was doing a good job and to continue to keep up the good work despite one accident during his employment as a driver. He was recommended for a promotion shortly after the incident. He was accepted and held that position until he retired from the Lafayette City employ as a safety officer.

I,'The common carrier doctrine requires that, in order to establish a prima facie case of negligence, the plaintiff must establish that she was a fare-paying passenger on a public conveyance and that she failed to reach her destination safely. Lewis, 985 So.2d 1249. Despite Ms. Williams’ contention to the contrary, we note that there is no requirement that a bus driver wait until all passengers reach their seats before moving, unless something about the appearance of the passenger makes it apparent that he or she is old, infirm, or otherwise physically incapacitated, or is unusually laden with packages. Covington v. La. Transit Co., 07-827 (La.App. 5 Cir. 2/6/08), 980 So.2d 11.

A review of the record indicates that the plaintiff testified that she boarded Mr. Duhon’s bus and paid her fare before she began walking to her seat. According to the plaintiffs testimony, she fell to her knees when the bus “took off’ with a “jerk.” Ms. Williams’ two children also testified that the bus took off with a “jerk.” Further, although Dr. Granger contemplated that the fall accelerated the progression of Ms. Williams’ arthritic condition and contributed to her first two knee surgeries, both Dr. Granger and Dr. Bernard agreed that, at a minimum, the fall caused Ms. Williams’ bilateral knee contusions. Additionally, despite the defendant’s contention that Ms. Williams’ knee pain was the result of a pre-existing degenerative condition, Dr. Bernard conceded that trauma could cause an asymptomatic degenerative condition to become symptomatic. Based on this evidence, we find no error in the trial court’s conclusion that Ms. Williams established a prima facie case under the common carrier doctrine.

With regard to Ms. Williams’ contention that the trial court erred in finding that the defendant successfully rebutted the presumption of negligence, the record reveals that Ms. Williams’ version of the accident was contradicted by the 112testimony of Mr. Duhon. Mr. Duhon testified that the bus was not moving when Ms. Williams “went down on one knee like you genuflect.” Further, Mr. Duhon testified that even if the bus was moving, its automatic transmission and weight would prevent it from “jerking” when it began to move. Additionally, although the plaintiff had previously denied that she had any preexisting knee problems or knee pain, medical records introduced into evidence indicated that the plaintiff sought treatment for knee pain and had problems with her “legs going out” as early as 1999. The plaintiff testified that she attributed her prior falls to anemia and that she had not disclosed them because she never hurt herself before.

In his testimony, Mr. Duhon denied that he had received any reprimands or been involved in any “incidents;” Ms. Williams contends that the contents of Mr. Duhon’s personnel record contradict Mr. Duhon’s testimony. Ms. Williams therefore contends that the trial court mischaracterized Mr. Duhon’s personnel record. However, the appellate record supports the trial court’s interpretation of the personnel record. Mr. Duhon’s personnel record contains several evaluations, two made during his probationary period and one annual evaluation. All of the evaluations indicate that Mr. Duhon’s performance was either “satisfactory,” “very good,” or “outstanding.” Although Mr. Duhon was apparently involved in several accidents, the records indicate that only one was “preventable.” Additionally, a review of Mr. Duhon’s testimony supports the trial court’s conclusion that Mr. Duhon differentiated between “incidents” and “reprimands” as opposed to “accidents” or constructive criticism.

Further, we do not find the trial court’s request that post-trial briefs should address “what should [the trial court] do in the event of a tie?” at the close of evidence to suggest that the trial court applied an incorrect burden under the 11scommon carrier doctrine. A review of the record indicates that the trial court recognized that the testimony in this case created two mutually exclusive versions regarding how Ms. Williams fell. The trial court indicated that it intended to review the evidence submitted at trial and requested additional argument by the parties about the burden of proof under the common carrier doctrine. The record does not indicate that the trial court actually found that evidence presented resulted in a “tie.”

Because the evidence in this case established two mutually exclusive versions of the accident, the trial court’s factual findings were necessarily based on a finding of credibility. See State ex rel. B.A., 54 So.3d 186. Based on our review of the record, the trial court clearly credited Mr. Duhoris testimony regarding the accident. We do not find Mr. Duhoris testimony to be “so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story.” Rosell, 549 So.2d at 845. Mr. Duhoris testimony was further supported by Ms. Williams’ medical records indicating that her legs had been “going out” prior to the accident and that she had a history of previous falls that she attributed to her anemia. Therefore, the trial court did not err in finding that the defendant successfully rebutted the presumption of negligence.

Ms. Williams’ remaining assignments of error are without merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assessed against the plaintiff, Bernadette Williams.

AFFIRMED.

      . The record indicates that the trial court considered Ms. Andrea Edwards Williams' driving habits irrelevant to the driving habits of Mr. Duhon.

      . We note that, although the plaintiff contends that Mr. Duhon should have waited until she was seated before he began to accelerate, the plaintiff conceded that "he usually wait[s] until we sit down, you know, some of the bus drivers, not all of them.... ”


author: GENOVESE, Judge.

text:
    James LYNCH v. A DOOR WORKS, INC.
    No. 11-414.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Kathleen W. Will, Briney Foret Corry, Lafayette, LA, for Defendant/Appellant, A Door Works, Inc.
    Mark Zimmerman, Lake Charles, LA, for Plaintiff/Appellee, James Lynch.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| ,In this workers’ compensation case, employer, A Door Works, Inc. (Door Works), appeals a judgment of the workers’ compensation judge (WCJ) rendered in favor of its former employee, James Lynch. Mr. Lynch has answered the appeal, seeking attorney fees for legal work done on appeal. For the following reasons, we affirm and award $3,500.00 in attorney fees on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Lynch was employed with Door Works from October 27, 2007, until March 6, 2008. Mr. Lynch states that while working on December 12, 2007, he began feeling discomfort in his abdomen. Mr. Lynch claims that he initially believed his discomfort was simply a stomach cramp, and he continued working. Over the course of the next few days, however, and specifically after straining to lift a door on December 15, 2007, Mr. Lynch claims that his abdominal discomfort became more painful.

On December 17, 2007, Mr. Lynch reported his injury to Joy Abshire, part-owner of Door Works. Mr. Lynch sought medical treatment at Sulphur Urgent Care and was evaluated by Dr. Dwayne Helms. He was diagnosed as having a hernia. Dr. Helms referred Mr. Lynch to Sulphur Surgical Care, where he was evaluated by Dr. A. Kent Seale. According to Dr. Seale’s medical report, Mr. Lynch had “an incarcerated hernia two fingers above the umbilicus,” and “surgical repair” was recommended.

Mrs. Abshire reported Mr. Lynch’s injury to Summit Claims (Summit), the workers’ compensation administrator for Door Works. Summit commenced an investigation into Mr. Lynch’s claim purportedly due, in part, to Mrs. Abshire’s report that Mr. Lynch stated he had been diagnosed as having a hernia years earlier and, in part, because Mr. Lynch allegedly reported to his sister, also an employee 12at Door Woi'ks, that his injury was to his lower back. Surgery to repair Mr. Lynch’s hernia was not authorized pending Summit’s investigation. From December 20, 2007, until March 6, 2008, Mr. Lynch worked in a light duty capacity at Door Works.

Mr. Lynch filed a Disputed Claim for Compensation on June 6, 2008, asserting that he was wrongfully denied medical treatment and seeking indemnity benefits, penalties, and attorney fees based on Door Works’ failure to reasonably controvert his claim. On August 26, 2008, Door Works answered Mr. Lynch’s claim, denying that his injury was job-related. Door Works then filed a reconventional demand, asserting that Mr. Lynch committed workers’ compensation fraud pursuant to La.R.S. 23:1208.

At the September 1, 2010 trial, the parties stipulated: (1) that Mr. Lynch worked for Door Works from October 27, 2007 through March 6, 2008; (2) that from December 20, 2007 through March 6, 2008, he worked in a light duty capacity; (3) that no indemnity benefits were paid subsequent to March 6, 2008; (4) that except for some initial medical expenses, no other medical expenses have been paid; (5) that no hernia surgery recommended by Dr. Seale has been authorized or paid; and (6) that Mr. Lynch’s average weekly wage was $662.95. At the close of testimony, the matter was taken under advisement. Oral reasons for judgment were rendered on November 29, 2010. Therein, the WCJ found that Mr. Lynch sustained an accident within the course and scope of his employment during the week of December 11, 2007, and December 15, 2007, which caused him injury, thus making that injury compensable under the workers’ compensation statute. The WCJ denied Door Works’ reconventional demand and granted Mr. Lynch’s request for penalties and attorney fees. The WCJ awarded a $2,000.00 penalty for failure to pay indemnity benefits, a $2,000.00 penalty for | .¡failure to pay medical benefits, and $14,000.00 in attorney fees. A written judgment was rendered in accordance with these findings.

Door Works has filed a suspensive appeal, claiming that the following findings made by the WCJ are not supported by the record, are manifestly erroneous, and require reversal: (1) that Mr. Lynch sustained a hernia as a result of an accident arising out of the course and scope of his employment with Door Works; (2) that Mr. Lynch did not commit workers’ compensation fraud pursuant to La.R.S. 23:1208; (3) that Mr. Lynch is entitled to workers’ compensation benefits available to him under Louisiana’s Workers’ Compensation Act; and (4) that Mr. Lynch is entitled to penalties and attorney fees for Door Works’ failure to pay indemnity benefits and medical expenses. Mr. Lynch has answered Door Works’ appeal, requesting additional attorney fees for work done on this appeal.

LAW AND DISCUSSION

The standard of review applied in workers’ compensation cases to a WCJ’s finding of fact is the “manifest error— clearly wrong” standard. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. The court of appeal may not set aside the findings of the WCJ “unless they are found to be clearly wrong in light of the record reviewed in its entirety.” Id. (quoting Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). “[E]ven where the appellate court is convinced it would have weighed the evidence differently if it had been sitting as trier, the court of appeal may not reverse if the factfin-der’s findings are reasonable in light of the record reviewed in its entirety.” Winford v. Conerly Corp., 04-1278, pp. 15-16 (La.3/11/05), 897 So.2d 560, 569-70.

Louisiana Revised Statutes 23:1021(1) defines an “accident” as an “unexpected or unforeseen actual, identifiable, precipitous event happening |4suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” In order to secure workers’ compensation benefits, the employee must prove the existence of a work-related accident and that the accident is causally related to the complained of disability. Dousay v. Dousay Floor Covering, 07-195 (La.App. 3 Cir. 9/12/07), 966 So.2d 677, writ denied, 07-2023 (La.12/7/07), 969 So.2d 639.

In determining that Mr. Lynch’s injury was compensable under the workers’ compensation statute, we note that the WCJ was particularly persuaded by the medical evidence corroborating Mr. Lynch’s testimony and that the WCJ was not convinced by the testimony of his employer and co-workers who disputed Mr. Lynch’s injury claim. In oral reasons for judgment, the WCJ reached the following conclusion:

Mrs. Abshire testified that claimant was a good and orderly worker. Furthermore, he had no problems doing his job, nor did he complain of pain. Although there seems to be some confusion as to whether claimant injured his back or his injuries resulted from a preexisting hernia, claimant was placed on light duty until March 2008.
None of the workers working the job with the claimant confirmed that the claimant was injured on the job. However, there is no indication that the claimant sustained a hernia at dinner or elsewhere after work hours. Instead, the medical evidence supports that the claimant, Mr. Lynch, has a ventral hernia/acute onset after lifting. Therefore, the [cjourt finds that even if claimant has a previous hernia, he was able to work his job satisfactorily until the Target incident.
Based on the evidence presented, the [cjourt finds that the claimant, James Lynch, is entitled to workers’ compensation benefits available to him under the Workers’ Compensation Act. Proof is sufficient to show that there is a causal relationship between claimant’s Rhernia and the work accident. The claimant has established, by a preponderance of the evidence, that the injuries he suffered were caused as he installed rolling steel doors in the Target Store in Lafayette. The corroborative testimony supports the claimant’s position from a medical standpoint. Furthermore, the accident was reported[,j claimant was sent to the doctor, and he was placed on light duty. The conflicting testimony of claimant’s co-workers lead to more questions than real answers. As a result, the [cjourt finds the claimant did not commit workers’ compensation fraud[,j but, instead, he proved a work[-]related accident by a preponderance of the evidence. ...

Although there is contradictory and disputed evidence with regard to Mr. Lynch’s version as to how and when his injury occurred, we conclude that the WCJ clearly articulated a reasonable basis for its decision to rule in favor of Mr. Lynch, and we cannot say that such a finding is manifestly erroneous or clearly wrong.

Moreover, it is well established that “[a] worker’s preexisting condition does not bar his or her recovery under the workers’ compensation laws because an employer takes the worker as he finds him or her. An abnormally susceptible worker is entitled to no less protection under the workers’ compensation statute than a healthy worker.” Halker v. Am. Sheet Metal, 03-678, pp. 3-4 (La.App. 3 Cir. 12/10/03), 861 So.2d 740, 743 (citations omitted) (quoting Baker v. Conagra Broiler Co., 93-1230, p. 8 (La.App. 3 Cir. 5/4/94), 640 So.2d 494, 498, writ denied, 94-1435 (La.9/23/94), 642 So.2d 1289). It is important to note that prior to the week of his alleged injury, Mr. Lynch exhibited no problems working. It is reasonable to conclude that the events of that week may have caused Mr. Lynch’s hernia or, at the very least, may have aggravated his preexisting hernia.- In either event, Mr. Lynch would not be precluded from receiving workers’ compensation benefits.

| fiThe factual conclusions reached by the WCJ are reasonable and are supported by the evidence. After thoroughly reviewing the evidence in the record and considering the WCJ’s detailed reasons for judgment, we find that the WCJ was not manifestly erroneous or clearly wrong in her determination that Mr. Lynch met the requisite burden of proof for entitlement to workers’ compensation benefits and that Door Works failed to prove fraud on the part of Mr. Lynch. We also find no error in the WCJ’s determination that Mr. Lynch is entitled to penalties and attorney fees for Door Works’ failure to pay indemnity benefits and medical expenses.

Answer to Appeal

The WCJ awarded Mr. Lynch attorney fees. Mr. Lynch requests additional attorney fees for work done on this appeal. “The general rule is that an increase in attorney fees is usually allowed where the WCJ awarded a party attorney fees and that party is forced to and successfully defends an appeal, provided that the party properly requests such an increase.” Simpson v. Lafayette Consol. Gov’t, 09-816, p. 10 (La.App. 8 Cir. 2/3/10), 29 So.3d 727, 733, writ denied, 10-477 (La.4/30/10), 34 So.3d 292 (citing McKelvey v. City of Dequincy, 07-604 (La.App. 3 Cir. 11/14/07), 970 So.2d 682). Having affirmed the judgment of the WCJ, we award $3,500.00 for attorney fees on appeal.

DECREE

For the foregoing reasons, the judgment of the WCJ is affirmed in all respects. We award Mr. Lynch $3,500.00 in attorney fees for work done on this appeal. All costs of this appeal are assessed against A Door Works, Inc.

AFFIRMED AND RENDERED.


author: CHANDLER, Justice, KITCHENS, Justice,

text:
    Rachel D. NELSON v. STATE of Mississippi.
    No. 2010-KM-00698-SCT.
    Supreme Court of Mississippi.
    Aug. 25, 2011.
    Rehearing Denied Nov. 10, 2011.

      Lance O’Neal Mixon, Victor W. Carmo-dy, Jr., Jackson, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. On October 27, 2006, Rachel Nelson was involved in an automobile collision. The City of Richland charged her with driving under the influence (DUI), first offense. On November 15, 2006, Nelson pleaded nolo contendere in the Municipal Court of Richland. The court found Nelson guilty and imposed a sentence of forty-eight hours in jail, suspended, along with a $1,000 fine and $244 in assessments.

¶ 2. On November 29, 2006, Nelson filed a notice of appeal in the Rankin County Circuit Clerk’s office pursuant to Uniform Rule of Circuit and County Court Procedure 12.02, stating that a sufficient cash appeal and cash bond had been posted, and requesting a jury trial in county court de novo. The trial date was set for April 2, 2007. On March 27, 2007, Nelson filed a motion to dismiss the appeal on writ of procedendo and return the cause of action to the Municipal Court of Richland for imposition of sentence. On the same day, the Rankin County Court granted Nelson’s Motion to Dismiss and ordered the matter back to the Municipal Court of Richland on writ of procedendo.

¶ 3. On March 30, 2007, a Richland city prosecutor filed a motion to set aside the order of dismissal, to reinstate Nelson’s appeal, and to stay the proceedings. In this motion, the prosecutor argued that Nelson’s accident had caused serious injuries to Debra Easterling, but that the matter inadvertently had been presented in municipal court as a DUI first offense without court personnel or the prosecutor having had knowledge of the injuries. The prosecutor also argued that the county court had dismissed Nelson’s appeal with no notice to the State, and that the county court had lacked the power to dismiss Nelson’s appeal without an agreement by the State. The prosecutor also asserted that no jeopardy had attached because Nelson had entered a “no contest” plea in the Municipal Court of Richland.

¶ 4. A hearing on the prosecutor’s motion took place on April 12, 2007, in the county court. The county court found that the city’s motion to set aside the order of dismissal had been timely filed. Although the case had been dismissed, the county court asserted jurisdiction over it for the limited purpose of adjudicating the city’s motion to'set aside the order of dismissal. Both the prosecutor and Nelson’s attorney informed the court that, at the time of Nelson’s plea in municipal court, neither party had known that the accident victims had been seriously injured. Nelson’s attorney stated that he first had discovered the injuries when informed by counsel for one of the victims on December 28, 2006. He stated that he then had discussed the matter with the prosecutor, and they had decided neither party would take any action in the case until they conferred on March 21, 2007. However, Nelson’s attorney stated that the prosecutor did not respond to his attempts to contact him in March 2007. Nelson’s attorney stated that, due to the approaching trial date and his inability to communicate with the prosecutor, he had filed the motion to voluntarily dismiss the case.

¶ 5. The court heard testimony from Detective John King, an investigator with the Richland Police Department. King testified that his first meeting with the district attorney’s office was on March 29, 2007. He testified that the case was not ready for presentation to the grand jury due to the absence of medical records under subpoena. Nelson’s attorney argued that the case should be dismissed due to the city’s delay in presenting the case to the district attorney’s office.

¶ 6. The county court stated that it had granted the motion to dismiss the appeal because the investigating officer was no longer available, the city had secured a conviction for Nelson’s offense, and the city had taken no steps to submit the matter to the district attorney’s office. The county court found that, under the Uniform Rules of Circuit and County Court Practice, and the prerules cases of Bang v. State, 106 Miss. 824, 64 So. 734 (Miss.1914), and Thigpen v. State, 206 Miss. 87, 39 So.2d 768 (Miss.1949), the county court may dismiss an appeal from municipal court at the appellant’s request at any time until the presentation of evidence begins, and may dismiss it after the presentation of evidence begins, with the agreement of the parties. However, the county court also found that it is the better practice to give the State an opportunity to respond to a motion to dismiss to assure the defendant has gained no advantage over the State by nondisclosure of information that was solely in the defendant’s possession.

¶ 7. The county court found that Nelson had neither withheld information nor gained an unfair advantage over the State. However, the county court found that it should have given the city an opportunity to respond to Nelson’s motion to dismiss. The county court reinstated the appeal to hear the city’s response. The city moved to nolle prosequi the DUI-first charge, to enable its indictment of Nelson for the felony crime of DUI mayhem. The county court granted the motion and nolle prossed the DUI-first charge. The order entered after the hearing stated:

IT IS ORDERED AND ADJUDGED that the previous order to Dismiss and Order to Remand Back on Writ of Pro-cedendo entered March 27, 2007 is hereby set aside and the Appeal is hereby reinstated.
IT IS FURTHER ORDERED AND ADJUDGED that the request to Stay the Proceeding is denied.
IT IS FURTHER ORDERED AND ADJUDGED that the counsel for the State of Mississippi made a motion ore terms that the above styled case be Nolle Prosequi and that an Order of Nolle Prosequi in the above styled cause be and hereby is entered.

Nelson filed a motion for reconsideration. This motion was denied.

¶ 8. Nelson appealed to the Circuit Court of Rankin County. On April 1, 2010, the circuit court issued an order affirming the county court’s ruling. Nelson filed a motion to permit appeal to this Court pursuant to Mississippi Code Section 11-51-81, and on May 27, 2010, this Court permitted Nelson’s appeal. Nelson argues that: (1) the county court had no jurisdiction to set aside the order of dismissal and remand on "writ of procedendo; and (2) double jeopardy was invoked because the county court nolle prossed the charge after the appeal was taken.

DISCUSSION

I. WHETHER THE COUNTY COURT HAD JURISDICTION TO SET ASIDE THE ORDER OF DISMISSAL AND REMAND.

¶ 9. Nelson argues that she had a right to dismiss her appeal voluntarily. She argues that the dismissal and remand on writ of procedendo deprived the county court of jurisdiction. According to Nelson, once her appeal was dismissed and the case remanded on writ of procedendo, the county court was unable to retake jurisdiction even for the limited purpose of considering whether to set aside the order of dismissal and remand on writ of proceden-do. The jurisdictional question presented is governed by Mississippi’s procedural law.

¶ 10. The county court found that it has authority to dismiss an appeal on the appellant’s motion to voluntarily dismiss the appeal, and that it was within its authority to dismiss Nelson’s appeal at her request. However, on reconsideration, the county court determined that it had erred by dismissing Nelson’s appeal without timely notice to the city, and without the benefit of the city’s arguments in opposition to dismissal. We must determine whether the county court erred by reconsidering the dismissal of Nelson’s appeal under these circumstances.

¶ 11. The Uniform Rules of Circuit and County Court allow appeals to county court from justice court or municipal court. URCCC 12.02. Rule 12.02 states that an individual who has been “adjudged guilty of a criminal offense by a justice or municipal court may appeal to county court or, if there is no county court having jurisdiction, then to circuit court ....” for a trial de novo. URCCC 12.02(A)(1), (C). Perfecting the appeal requires the simultaneous filing of a notice of appeal, a cost bond, and an appearance bond or cash deposit within thirty days of the judgment. URCCC 12.02(A)(1). When the appeal is perfected, the prior judgment of conviction is stayed. URCCC 12.02(C). Rule 12.02 expressly sets out three situations in which the trial court may dismiss the appeal with prejudice: (1) if the defendant fails to post the required appearance bond or cash deposit; (2) if the notice of appeal does not contain the information required by Rule 12.02(A)(2), and the court does not allow amendment; or (3) if the defendant fails to appear at the time and place set by the court. URCCC 12.02(A)(1), (A)(2), (B)(1).

¶ 12. On several occasions, this Court has discussed a defendant’s ability to obtain a dismissal of an appeal from justice court or municipal court for a trial de novo. In Bang v. State, 106 Miss. 824, 64 So. 734, 735 (1914), Pier Bang was convicted in justice court of the unlawful sale of intoxicating liquors and fined $150. Bang appealed to the circuit court, and a trial took place. Id. After the State had rested its case, Bang moved to dismiss the appeal. Id. The circuit court overruled the motion, and Bang appealed the ruling to the Supreme Court. Id. In holding that Bang had no right to have the appeal dismissed, the Court stated:

It will be seen that the case is brought into the circuit court by appeal from the judgment of the justice of the peace court. When it reaches the circuit court, it is there for trial anew, and disposition just as other cases therein pending. The circuit court is a trial court. The case, although brought to that court by appeal, is there for trial. In this prosecution for a criminal offense, appellant, while his case was being tried, occupied the same position as any other defendant being tried on a criminal charge.

Id. The Court also appeared to rely on the fact that the State had presented its evidence against Bang before he had moved for dismissal, stating:

The trial judge did not err when he overruled the motion of appellant in this case for permission to dismiss his appeal. Appellant was being tried anew in the circuit court. He was on trial for the crime charged against him. His case was being disposed of as other and like cases in that court. All of the evidence to prove his guilt had been introduced on behalf of the state. The proof was sufficient to support a verdict convicting him. He had no right then to have his case dismissed.

Id.

¶ 13. The Court addressed the issue again in Thigpen v. State, 206 Miss. 87, 39 So.2d 768 (1949). Henry Clay Thigpen was convicted in justice court of the unlawful sale of intoxicating liquors and sentenced to pay a fine of $250 and costs. Thigpen appealed to the circuit court, but on the morning of trial, he moved for a continuance. Id. at 769. When the trial court denied the motion, Thigpen moved to dismiss the appeal on a writ of procedendo. Id. Thigpen was found guilty and appealed to the Supreme Court. Id. Citing Bang, the Court stated that “one appealing a conviction from the Justice of the Peace court to the Circuit Court stands there for trial de novo as defendant and he occupies in that court the same attitude of a defendant as he did in the court of the Justice of the Peace and as such is impotent to dismiss the case.” Id. The Court held that Thigpen “had no more right to dismiss the appeal in the Circuit Court than he had to enter a nolle prosequi in the court of the Justice of the Peace” because a defendant charged with a crime has no right to dismiss the case against him from the docket. Id.

¶ 14. In Peeples v. State, 216 Miss. 790, 63 So.2d 236 (1953), and Parham v. State, 229 So.2d 582 (Miss.1969), this Court relied upon Bang and Thigpen to find a defendant was not entitled to dismiss an appeal from justice court. In each case, the trial court had overruled the defendant’s motion to dismiss the appeal, made on the day of trial. In Peeples, the Court, citing Bang and Thigpen, found without discussion that the issue was without merit. In Parham, the Court, citing Thigpen and Peeples, found that “the argument that the circuit court is required to dismiss an appeal from the Justice of the Peace Court upon the request of the defendant has been refuted in at least two cases from this Court.” The Court supported its holding with a quote from Thigpen’s discussion of Bang. Parham, 229 So.2d at 584.

¶ 15. The Court revisited the issue in Lee v. State, 357 So.2d 111 (Miss.1978). Wilbert Lee was convicted in justice court of driving while intoxicated and sentenced to ninety days in jail and fined $320. Id. at 112. He appealed to circuit court for a trial de novo. Subsequently, his counsel moved to dismiss the appeal. The circuit court granted the motion and remanded the case to justice court on writ of proce-dendo. Id. With new counsel, Lee moved to set aside the dismissal and writ of pro-cedendo and reinstate the appeal; the trial court overruled the motion. Id. Lee appealed to this Court, arguing that he was improperly denied a hearing on the motion to set aside. Id. Lee argued that he would have shown at a hearing that he never had authorized his prior counsel to move for dismissal. Id.

¶ 16. The Court found that, in order to dismiss an appeal and remand on a writ of procedendo, the defendant must be called in open court and given an opportunity to prosecute the appeal. Id. (citing McCoy v. State, 302 So.2d 509 (Miss.1974)). Because the appellate record was inconclusive as to whether the defendant had been present at the dismissal of the appeal, a hearing on the issue was necessary. Id. at 113. The Court reversed and remanded for a hearing on whether dismissal of the appeal was proper, or whether the motion to set aside the dismissal should be granted. Id.

¶ 17. Nelson cites Lee in support of her argument that the county court lacks jurisdiction to reinstate an appeal that has been dismissed and the case remanded on writ of procedendo. She specifically relies on the language in Lee that “where the justice court had already found the appellant guilty and had passed sentence in the cause, an order dismissing an appeal on a writ of procedendo is tantamount to a guilty plea and acceptance of the justice court sentence.” Lee, 357 So.2d at 113. From this statement, Nelson concludes that, with the order dismissing the appeal and remanding on writ of procedendo, the county court deprived itself of any further jurisdiction, and that the county court was without jurisdiction to set aside the order of dismissal.

¶ 18. However, Lee actually stands for the opposite of Nelson’s proposition. In Lee, the Court reversed the circuit court’s denial of a motion to set aside an order that had dismissed an appeal and remanded on writ of procedendo. Id. The Court remanded for a hearing and a determination of whether the order of dismissal and remand on writ of procedendo should be upheld or set aside. Id. This Court determined that dismissal may have been improper because Lee had not been present in open court and was not given the opportunity to prosecute the appeal. Therefore, Lee explicitly recognized that a court to which an appeal has been taken for a trial de novo is empowered to: (1) grant the defendant’s appropriately timed motion to dismiss the appeal and remand on writ of procedendo; and (2) set aside the order of dismissal and remand on writ of procedendo, upon a determination that the order of dismissal and remand was improper. Id.; see also Ferrell v. State, 785 So.2d 317, 320-21 (Miss.Ct.App.2001).

¶ 19. Under Lee, the county court had jurisdiction to consider the motion to set aside the order of dismissal and remand. The county court determined that the order of dismissal and remand was improper because the city had lacked notice and an opportunity to respond to Nelson’s motion to dismiss. Therefore, the court reinstated the appeal, giving the State an opportunity to respond to Nelson’s motion to dismiss. Nelson argues that this ruling infringed upon her right to dismiss the appeal voluntarily without the city’s consent. She cites precedent from Oklahoma and Wyoming that a party may dismiss an appeal from justice court to county court at any time before the commencement of the trial without the consent of the other party. O’Rourke v. O’Rourke, 142 Okla. 238, 286 P. 341, 343 (1930); Mayott v. Knott, 16 Wyo. 108, 92 P. 240, 241 (1907). However, this precedent is inapposite to this case. The reason the county court set aside the order of dismissal and remand was not because the city had not consented to the order. Rather, the court set aside the order of dismissal and remand because the city had not been afforded an opportunity to respond to the motion to dismiss. On reconsideration, the county court determined that it had erred by entering the order of dismissal and remand without allowing a response from the city. Therefore, the county court set aside the order of dismissal and remand. We find that the decision to hear the city’s arguments on the motion to dismiss in this case was within the county court’s sound discretion.

II. WHETHER DOUBLE-JEOPARDY PROTECTIONS ARE INVOKED WHEN THE COUNTY COURT ALLOWS THE STATE TO NOLLE PROSEQUI A CRIMINAL CHARGE AFTER AN APPEAL FOR A TRIAL DE NOVO HAS BEEN DISMISSED BY THE APPELLANT.

¶ 20. After setting aside the order of dismissal and remand on writ of proceden-do, the county court granted the State’s motion to nolle prosequi the DUI-first charge against Nelson. Nelson argues that, because she has been convicted of DUI-first and sentenced by the municipal court, double-jeopardy considerations prevent the State from obtaining a nolle pro-sequi on that charge with the intention of subsequently indicting her for felony DUI.

¶ 21. Section 22 of the Mississippi Constitution of 1890 provides that “no person’s life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.” Miss. Const, art. 3, § 22. “Under the plain wording of Article 3, § 22, in order for this state’s Double Jeopardy Clause to apply the accused must first suffer an actual acquittal or conviction on the merits of the offense.” State v. Fleming, 726 So.2d 113, 115 (Miss.1998)). Double jeopardy protects against a second prosecution after acquittal or conviction, as well as protecting against multiple punishments. Brawner v. State, 947 So.2d 254, 266 (Miss.2006) (citing Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994)).

¶ 22. The entry of a nolle prose-qui does not bar another prosecution for the same offense under a new indictment. De La Beckwith v. State, 707 So.2d 547, 569 (Miss.1997). But Nelson does not claim she has been twice placed in jeopardy for the same offense. Rather, she contends that she may be prosecuted in the future for felony DUI. Therefore, the question of whether the municipal court proceedings would bar a subsequent prosecution under double-jeopardy considerations is not ripe for determination. See York v. State, 751 So.2d 1194, 1999-1200 (Miss.Ct.App.1999). For the same reason, the due-process arguments posited by the dissent are inappropriate for consideration at this time. This Court does not issue advisory opinions. Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 93 (Miss.2010).

CONCLUSION

¶ 23. We find that the county court had jurisdiction to set aside the order of dismissal and remand on writ of procedendo and reinstate the appeal. We further find that Nelson’s double-jeopardy argument is not ripe for our consideration. Therefore, we affirm the decision of the circuit court, which affirmed the decision of the county court.

¶ 24. AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J. LAMAR, J., JOINS IN PART.

KITCHENS, Justice,

dissenting:

¶ 25. The only reason cited by the State as grounds for reinstating Nelson’s appeal and nolle prossing the misdemeanor charge was to allow the State an opportunity to indict Nelson for a felony charge. The United States Supreme Court has clearly held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits the State’s pursuing a felony indictment following a defendant’s appeal of a misdemeanor charge for the same conduct. Thigpen v. Roberts, 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). Accordingly, because there was no valid reason to set aside the dismissal of Nelson’s appeal and to nolle pros the misdemeanor charge without her consent, I must respectfully dissent.

¶ 26. The majority’s belief that “at the time of Nelson’s plea in municipal court, neither party had known that the accident victims had been seriously injured,” is not entirely accurate. Maj. Op. ¶4. At the hearing in county court on the State’s motion to reinstate Nelson’s appeal, Nelson’s attorney, Victor Carmody, informed the county court that, at the time of the arraignment, everyone was aware that there were “potential but unknown injuries” as a result of the automobile accident. According to Carmody, he had discussed with the Richland city prosecutor, Greg Harper, the possibility of more serious charges’ being brought against his client because of these “potential injuries” and that Carmody had wished to “handle this as a DUI first offense specifically to minimize any potential criminal liability and prevent the creation of further criminal liability.” Carmo-dy also told the court that Harper had agreed to proceed on the misdemeanor DUI charge and allow Nelson to appeal so that she could “finish her R.N. nursing qualifications.” On December 28, 2006, Carmody received a call from the accident victims’ attorney, but this was not when he first discovered the injuries, as the majority states. Maj. Op. ¶ 4.

¶ 27. Harper did not dispute that he was present in the Richland Municipal Court the day Nelson was arraigned and found guilty of driving under the influence (DUI). While he did not deny Carmody’s version of events, Harper told the county court that he had “no recollection of knowledge of any injuries” on the day of the arraignment. Harper did, however, recall that Nelson was pursuing her nursing license and acknowledged that he had agreed to prosecute her on the misdemeanor charge.

¶ 28. Judge Kent McDaniel, the county court judge, seemed displeased with the manner in which the case had been handled, telling the prosecutor:

All the information about the nature of the injuries and how bad this person[] was hurt, that they went to the hospital in an ambulance, I presume, that was all available to the State. You may not have known about it, but somebody at Richland should have, as I say, awakened from their coma and said, “Listen, we don’t want to plead this as a[DUI] first.”

Thus, the judge correctly observed that, regardless of Harper’s personal knowledge, the City of Richland was on notice that potentially serious injuries had resulted from the accident. See State v. Blenden, 748 So.2d 77, 86 (Miss.1999) (knowledge of governmental officer imputed to prosecution) (citing Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); United States v. Antone, 603 F.2d 566, 569 (5th Cir. 1979)). However, over the defendant’s objection, the judge reinstated Nelson’s appeal and allowed the original charge to be nolle prossed by the prosecutor, reasoning “this is a case that should have been presented as a[DUI] mayhem that never should have been tried below.”

¶ 29. Thirty-seven years ago, the United States Supreme Court declared, “[a] person convicted of an offense is entitled to pursue his statutory right to a trial de novo without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.” Blackledge, 417 U.S. at 28, 94 S.Ct. 2098. Thus, even if the prosecutor acts in good faith, the Due Process Clause of the Fourteenth Amendment prohibits a State from “ ‘upping the ante’ through a felony indictment whenever a convicted misde-meanant pursues his statutory appellate remedy.” Id. The Supreme Court noted that “[t]his would clearly be a different case if the State had shown that it was impossible to proceed on the more serious charge at the outset.” Id. at 29 n. 7, 94 S.Ct. 2098 (citing Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912)). Of course, in the present case, the State was on notice of facts that may have supported an indictment for a felony. The defendant should not be prejudiced because the prosecutor initially elected to pursue the case as a misdemeanor. Id. at 30, 94 S.Ct. 2098 (“Having chosen originally to proceed on the misdemeanor charge in [municipal court], the [State] was, under the facts of this case, simply precluded by the Due Process Clause from calling upon the respondent to answer to the more serious charge in [circuit court].”) Notably, a decade later, the United States Supreme Court applied Blackledge to Mississippi’s statutory scheme allowing criminal defendants the right to appeal directly a conviction from justice court or municipal court. Thigpen, 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23.

¶ 30. Procedurally, this case is different from Blackledge and Thigpen in that, in those cases, felony indictments had been brought while the defendants’ appeals were pending. However, those cases still are controlling, and the issue of due process is ripe for review regardless of the existence of a felony indictment. The prosecution does not enjoy unbridled discretion in nolle prossing charges and must obtain the court’s consent. Miss.Code Ann. § 99-15-53 (Rev.2007). “The requirement of court approval for dismissal of a criminal action ‘is primarily intended to protect the defendant against prosecuto-rial harassment.’ ” State v. Adams County Circuit Court, 735 So.2d 201, 205 (Miss.1999) (quoting United States v. Hamm, 659 F.2d 624, 628 (5th Cir.1981)). Thus, the State must offer a legitimate basis for dismissing a criminal prosecution, and the trial court must have a “reasonable basis” for granting or denying the State’s motion to dismiss. Id. The only reason cited by the prosecutor in support of his motion to reinstate Nelson’s appeal and nolle pros the charge against her was to allow the indictment of Nelson for a more serious charge. Moreover, the only basis cited by the trial judge for granting the State’s motion was that “that never should have been tried below.” Because due process of law prohibits the State’s instituting greater charges following the defendant’s exercising her statutory right to appeal, the State did not provide a legitimate basis for nolle prossing the charge, and it was, therefore, error to grant the State’s motion and nolle pros the charge over the defendant’s objection.

¶ 31. In most of the cases cited by the majority, the defendants attempted to have their appeals dismissed either during trial or on the day of trial, and in none of those cases did the a defendant seek a dismissal based on the prosecution’s threat of greater charges. Parham v. State, 229 So.2d 582 (Miss.1969) (dismissal of appeal sought the day of trial and after the defendant’s motion for a continuance was denied); Peeples v. State, 216 Miss. 790, 801, 63 So.2d 236 (1953) (motion to dismiss appeal sought at the beginning of trial in circuit court); Thigpen v. State, 206 Miss. 87, 39 So.2d 768 (1949) (dismissal of appeal sought the day of trial and after the defendant’s motion for a continuance was denied); Bang v. State, 106 Miss. 824, 64 So. 734 (1914) (motion to dismiss appeal sought after the State had presented all of its evidence). Thus, those cases are consistent with the practice in other jurisdictions that a defendant has a right to dismiss an appeal from a lower court prior to the empaneling of a jury or to the production of evidence in an appellate trial. Hilburn v. City of Gardendale, 591 So.2d 8, 12 (Ala.1991). See also O’Rourke v. O’Rourke, 142 Okla. 238, 286 P. 341, 343 (1930); Mayott v. Knott, 16 Wyo. 108, 92 P. 240, 241 (1907).

¶ 32. The majority also cites Lee v. State, 357 So.2d 111 (Miss.1978), and Ferrell v. State, 785 So.2d 317, 320 (Miss.Ct.App.2001), for the proposition that the State has the right to object to a defendant’s motion to dismiss his or her appeal. However, the focus of Lee and Ferrell is on the defendant’s right to object to the dismissal of his or her appeal. As more than one state supreme court has noted, a statutory scheme “allowing for de novo relitigation of the charge is solely for the benefit and protection of the accused.” Hilburn, 591 So.2d at 12 (quoting State ex rel. Garrett v. Gagne, 531 S.W.2d 264, 267 (Mo.1975)). Thus, it logically follows that a criminal defendant would have a right to dismiss his or her appeal until the day of trial. See Garrett, 531 S.W.2d at 267 (“In the normal procedures involving prosecutions for offenses against society, the law customarily does not force an appeal upon an accused.”)

¶ 33. For the foregoing reasons, it was error to reinstate Nelson’s appeal over her objection and to nolle pros the misdemean- or charge of which she already had been convicted. Accordingly, I would reverse the judgments of the circuit court and county court and reinstate the writ of pro-cedendo.

DICKINSON, P.J., AND KING, J., JOIN THIS OPINION. LAMAR, J., JOINS THIS OPINION IN PART.

      . "A writ of procedendo is issued by a court of superior jurisdiction to a court of inferior jurisdiction to enforce the lower court's judgment.” Ferrell v. State, 785 So.2d 317, 319 (Miss.Ct.App.2001) (citing Pool v. State, 176 Miss. 514, 515, 169 So. 886, 887 (1936)).

      . A certificate of service states that Nelson’s motion to dismiss was served on the prosecutor the day it was filed, on March 27, 2007. However, the order of dismissal was entered on that same day. Our review of the record indicates it was the understanding of the parties and the court that, for all practical purposes, the prosecutor had no opportunity to respond to the motion.

      . Nelson’s appeal came to this Court under the former "three-court rule.” In Jones v. City of Ridgeland, 48 So.3d 530 (Miss.2010), this Court found the three-court rule to be unconstitutional. In describing the rule, this Court stated that it
      prohibits defendants who are aggrieved by a decision originating in justice or municipal court, and who have appealed to both county court and circuit court, from successfully appealing to this Court unless two requirements are met: (1) the appeal must involve a federal or state constitutional question, and (2) either the circuit court judge or a Supreme Court justice must "allow” the appeal.

        Id. at 534.

      . As the dissent points out, "in [Thigpen v. Roberts, 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) ], felony indictments had been brought while the defendants’ appeals were pending.”

      . Two people were injured in the accident, and while the record is clear that one was seriously injured, the extent of the other victim's injuries is unclear from the record.

      . The majority finds that O'Rourke and May-ott are “inapposite to this case. The reason the county court set aside the order of dismissal and remand was not because the city had not consented to the order. Rather, the court set aside the order of dismissal and remand because the city had not been afforded an opportunity to respond to the motion to dismiss.” This is a distinction without a difference.