author: McMILLIN, C.J., for the Court:

text:
    C.D. PICKLE, Jr., Appellant, v. MISSISSIPPI STATE PAROLE BOARD, Appellee.
    No. 2002-CP-00839-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.
    C.D. Pickle, Jr., Appellant, pro se.
    James M. Norris, Jane L. Mapp, Jackson, Attorneys for Appellee.
    Before McMILLIN, C.J., Thomas and Chandler, JJ.
   McMILLIN, C.J., for the Court:

¶ 1. C.D. Pickle, Jr., a prisoner in the custody of the Mississippi Department of Corrections, has appealed to,this Court from an order of the Circuit Court of Sunflower County denying his petition for writ of mandamus to compel the Mississippi State Parole Board (hereafter “the Board”) to conduct annual reviews of his eligibility .for parole. Finding no error in the circuit court’s ruling, we affirm.

¶ 2. According to Pickle’s pleadings, he was considered for parole by the Board and denied release in April 2001. Pickle offers no dispute as to this aspect of the Board’s decision; however, the Board’s ruling also apparently contained a provision that no further review of Pickle’s eligibility would be undertaken for a period of five years.

¶ 3. Pickle contends that this portion of the Board’s decision violates the mandates of an amendment to Section 47-7-5 of the Mississippi Code adopted in 2000 that reads as follows:

The State Parole Board, immediately after the effective date of this act, shall review all cases where an offender was denied parole and any eligibility for reconsideration for parole for at least one (1) year after denial.

Miss.Code Ann. § 47-7-5(7) (Rev.2000) (repealed July 1, 2002).

¶ 4. Pickle argues that this provision requires that every potentially eligible inmate receive reconsideration for parole on an annual basis. The Parole Board, on the other hand, contends that this subsection required only a one-time action by the Board. Additionally, the Board points out that Section 47-7-5 was further amended in 2002 and that the language quoted above was removed.

It is a well recognized principle of law in this State that ambiguity must exist in the language used by the Legislature in a statute before resort will be had to any rules of statutory construction or interpretation. Without ambiguity, the controlling law of this State requires that the Court look no further than the clear language of the statute and apply it.

Forman v. Carter, 269 So.2d 865, 868 (Miss.1972) (emphasis supplied).

¶ 5. It is the view of this Court that a plain reading of the passage in question indicates that the Legislature intended to mandate a one-time review in the year 2000 of all inmates then falling within the class of offenders defined in the subsection. Had the Legislature intended to institute an on-going requirement that, henceforth, all potentially-eligible inmates would receive at least an annual formal evaluation of eligibility, we are satisfied that it would have said so in clear terms. We decline to undertake the strained reading of this passage that would be required to obtain from it the meaning Pickle contends is there.

¶ 6. In his appeal for the first time, Pickle also contends that, if the law is interpreted as permitting the Board such virtually unlimited discretion in deciding when to undertake formal consideration of an inmate’s parole eligibility, the laws creating the Board are unconstitutional for having vested too much unchecked discretion in the Board. Matters not presented to the trial court for decision may not be raised for the first time on appeal. Pierce v. State, 811 So.2d 395, 396(¶ 4) (Miss.Ct.App.2001). We find this contention to be procedurally barred.

¶ 7. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


source: Caselaw Access Project

author: McMILLIN, C.J., for the court.

license: Public Domain

text:
    Orlando Tremayne GRAYSON a/k/a Trim Grayson, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00420-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      Joe Thomas Gay, Ripley, for appellant.
    Office of the Attorney General by John R. Henry, for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J., for the court.

¶ 1. Orlando Tremayne Grayson was found guilty of conspiracy to possess more than one kilogram of marijuana with intent to sell or distribute, Grayson has appealed his conviction, alleging reversible error by the Circuit Court of Alcorn County when it allowed inadmissible hearsay testimony to be presented to the jury on several different occasions during trial. We find Grayson’s contentions to be without merit and affirm his conviction.

I.

Facts

¶2. In November 1999, employees of United Parcel Service working in Boone-ville discovered a package that had split open. The employees suspected that the contents might be marijuana, and, as a result, they notified local law enforcement officers. The police found that the package contained twenty-one bricks of marijuana packed in newspaper from the Los Angeles Times. The package had been shipped from an address in Rowland Heights, California, and was addressed to Mark Johnson in Corinth. Upon investigating, officers determined that the actual residents at that address were individuals named Rodney Spence and Tasha Williams.

¶ 3. A police officer, disguised as a UPS deliveryman, delivered the package to the indicated address in Alcorn County. An individual named Cory Spence, who proved to be a cousin of Rodney Spence, was present at the address and signed for the package. He was arrested shortly thereafter and charged with conspiracy to possess more than one kilogram of marijuana. Cory Spence cooperated in the subsequent investigation that implicated Grayson and ultimately testified for the State at Gray-son’s conspiracy trial.

II.

Discussion

¶ 4. Grayson contends that the trial court committed reversible error on several different occasions when the court permitted inadmissible hearsay testimony to be presented.

¶ 5. The first instance, according to Grayson, was when Officer Jeff Palmer was permitted to read a written statement taken by him during the investigation allegedly made by a third party discussing his knowledge of Grayson’s marijuana sales. Despite Grayson’s contention in this appeal that the statement was inadmissible, when the matter of allowing the officer to read the statement came up at trial, defense counsel specifically said, “No objection at all, your Honor.” Failure to timely object to alleged hearsay evidence acts as a bar preventing the aggrieved party from raising the issue on appeal. M.R.E. 103; Murphy v. State, 453 So.2d 1290, 1293-94 (Miss.1984). For that reason, we find the allegation that this constituted reversible error to be without merit.

¶ 6. Grayson’s second instance of alleged inadmissible hearsay occurred during Cory Spence’s testimony. Spence testified about a prior occasion when he had dropped off a package at Grayson’s house and about conversations that Cory Spence had with his cousin, Rodney Spence, concerning delivering packages to Grayson. Grayson’s counsel objected on the ground of hearsay. The State claimed that the statements were by one of Grayson’s co-conspirators in furtherance of the conspiracy, and, thus, did not constitute hearsay under authority of Mississippi Rule of Evidence 801(d)(2)(E). The court agreed with the State and overruled the defense’s objection.

¶ 7. On appeal, Grayson argues that Cory Spence’s testimony should have been excluded because the statements testified to by Spence were not made in the course of the conspiracy. As a more basic failure, Grayson contends that the State failed to establish the existence of a conspiracy between Cory Spence and Grayson. This argument is without foundation. The State charged in the indictment, and made an evidentiary showing, that Grayson, Cory Spence and Rodney Spence were involved in conspiring to obtain and sell large amounts of marijuana. The testimony of Cory Spence involved alleged statements made by Rodney Spence in furtherance of the conspiracy. Statements of this sort are admissible and not considered to be hearsay. M.R.E. 801(d)(2)(E); Mitchell v. State, 495 So.2d 5, 12 (Miss.1986).

¶ 8. Finally, Grayson argues that the testimony of Police Officer Jeff Palmer as to what UPS employees related to him about the package and its contents was inadmissible hearsay. We find that the trial court was correct in overruling the defense’s hearsay objection. Officer Palmer was merely attempting to “explain the steps taken ... to investigate the incident. The truth of the statement [made to the officer] was not in issue.” Butler v. State, 758 So.2d 1063, 1066(¶9) (Miss.Ct.App. 2000). No critical element of the crime of conspiracy depended upon the truth of matters asserted by the UPS employees in their conversations with police regarding the ruptured package or their opinion as to what the contents of the package might have been, and the evidence clearly was not offered for that purpose. Rather, the information was presented to permit the jury to have a full picture of the circumstances regarding how law enforcement became involved in the case, thus permitting the State’s case to unfold in a coherent and understandable manner. Viewed in this light, the testimony was not objectionable hearsay and was correctly allowed into evidence. This issue is without merit.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF ALCORN COUNTY OF CONVICTION OF CONSPIRACY TO POSSESS MORE THAN ONE KILOGRAM OF MARIJUANA WITH INTENT TO SELL OR DISTRIBUTE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH EIGHT YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION AND FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Clifford CROWDER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01433-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      Clifford Crowder, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, Attorney for Appellee.
    Before MCMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J., for the Court:

¶ 1. On August 1, 2000, Clifford Crowder entered a plea of guilty in the Circuit Court of Grenada County to eight charges against him for sale of cocaine. In July 2002, Crowder filed a motion for post-conviction relief in that court, claiming that his attorney’s performance was constitutionally deficient for (1) counsel’s failure to discuss with Crowder the fact that he would be tried as a violent offender, (2) his failure to provide Crowder with information concerning the evidence obtained from the State in discovery, and (3) his failure to permit Crowder to view and evaluate the videotapes alleged to show Crowder involved in drug sales. Crowder also made a general allegation that counsel was ineffective because he lacked the proper concern for the welfare of his client.

¶ 2. The trial court denied relief on the motion without conducting an evidentiary hearing; a procedure authorized in certain circumstances by Section 99-39-11(2) of the Mississippi Code. Dissatisfied with this outcome, however, Crowder has perfected an appeal to this Court.

¶ 3. In his pro se appeal, Crowder again advances the general theme that he received ineffective assistance of counsel in the proceedings leading up to his guilty pleas. However, in his brief, Crowder has changed the underlying basis for his claim to an assertion that defense counsel misled him into believing that he would only be pleading guilty to two counts of sale of cocaine. In support of this contention, Crowder attaches to his brief the written plea petition in Cause No. 2000-116CR, which does, in fact, state that “I wish to plead guilty to the charges of sale of cocaine — two counts.” Crowder’s argument on appeal depends for its strength entirely on this assertion.

¶ 4. There are two equally compelling reasons to affirm the trial court’s decision.

¶ 5. First, a litigant cannot, as a general rule, raise issues for the first time on appeal. Rather, an appellate court’s proper function is to detect and deal with errors committed by the trial court in the conduct of the proceeding in that court. Robinson v. State, 758 So.2d 480, 490 (¶ 45) (Miss.Ct.App.2000). In the situation where the trial court had no opportunity to deal with an issue, there can be no resulting error to be dealt with at the appellate level.

¶ 6. Second, assuming we were inclined to overlook the procedural bar discussed in the preceding paragraph, the most cursory review of the record shows that the petition attached to Crowder’s brief was only one of five petitions executed by Crowder in connection with his guilty pleas. The eight counts to which Crowder entered pleas on that date were contained in five different indictments, and separate petitions were prepared and filed for each of the indictments. Copies of these additional petitions appear in the record. Thus, there is no factual basis for Crowder’s untimely assertion that he was misled into believing he was only pleading to two counts.

¶7. Crowder also attempts to argue that he is being summarily denied relief because he is unable to properly articulate the legal basis for his entitlement to relief. He attributes this to the fact that he has no attorney in this proceeding and his own poor writing skills hinder his ability to properly state his claims. He contends that a more lenient reading of his pleadings and an appropriate inquiry would demonstrate the legal basis for his claims even though he may not have properly stated that basis. There is no indication that the trial court denied relief based on the failure of Crowder to effectively articulate his grievances about the way he was represented. The claims he asserted at the trial level are easily understandable from his motion and appear to have been dealt with by the trial court based on established procedures.

¶ 8. As for his efforts before this Court, Crowder has not shown that he has particularly poor writing skills. Instead, he has demonstrated a willingness to attempt to distort the record in order to advance a basis for his claim that is factually inaccurate. It is for the reason that Crowder has failed to demonstrate the existence of facts that, if established by the proper evidentiary standard at a hearing, would entitle him to relief that we find his appeal to be without merit, and not because we seek to penalize him for what he contends is his lack of skill in the field of legal drafting.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY OF DENIAL OF POST CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GRENADA COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR.


author: MCMILLIN, C.J., for the court.

text:
    Sidney NELSON a/k/a Solo, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00435-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      Pamela A. Ferrington, Natchez, for appellant.
    Office of the Attorney General by Jean Smith Vaughan, for appellee.
    Before MCMILLIN, C.J., THOMAS AND CHANDLER, JJ.
   MCMILLIN, C.J., for the court.

¶ 1. Sidney Nelson was convicted of murder by an Adams County Circuit Court jury in 1998. After obtaining permission of the circuit court to file an out-of-time appeal, Nelson has appealed that conviction to this Court. In his appeal, he contends that the trial court committed reversible error when it failed to grant his requested continuance filed on the day trial began. Additionally, he alleges that the evidence was insufficient as a matter of law to support a guilty verdict on the charge of murder. We find these contentions to be without merit and affirm the conviction and resulting judgment of sentence.

I.

Facts

¶ 2. Sidney Nelson shot and killed Henry Banks, Jr. in the presence of numerous onlookers. He then fled the scene of the shooting, cut his hair in an attempt to disguise his appearance, and went into hiding until he was apprehended by police acting on an anonymous tip. Nelson did not deny the shooting. Rather, his defense consisted of the assertion that he acted in self-defense or, at worst, was guilty only of manslaughter based on what has come to be known as “imperfect self-defense.”

¶ 3. Evidence presented by the State indicated that Nelson and Banks had been involved in a verbal confrontation at a convenience store. Shortly after that, Nelson arrived at a residence where Banks and a number of friends had gone after the incident. Nelson was observed to draw a pistol and shoot Banks in the chest.

¶ 4. In Nelson’s statement to the police, which was read to the jury, Nelson contended that he went to the house in response to a cell phone page from his girlfriend and that, as he approached, he saw Banks reach into his pocket. Nelson claimed that he feared Banks was reaching for a gun and that he drew his own gun to fire a warning shot but that the shot accidentally struck Banks in the chest, inflicting a mortal wound.

II.

Request for a Continuance

¶ 5. Nelson was indicted in November 1997, and was given appointed counsel. In March 1998, Nelson’s court-appointed lawyer withdrew at Nelson’s request, when Nelson indicated that he was not satisfied with the representation he was receiving. The order allowing counsel to withdraw also appointed a new attorney and the order stated that the change would not affect the previously set trial date. Trial was held as scheduled April 2-3, 1998.

¶ 6. The day before trial, Nelson demanded that his attorney seek a continu-anee so that Nelson could retain private counsel. Nelson’s mother and father contacted the attorney directly and also indicated a desire to retain private counsel for their son. The attorney did not actually present the motion to the trial court until after the jury had been selected. The court denied the motion after the court determined that no action had been taken toward retaining private counsel.

¶ 7. On appeal, Nelson claims this constituted reversible error. He contends that there was no pressing need for the case to go to trial as scheduled so that the trial court abused its discretion when it denied the motion. The denial of a last minute continuance to retain new counsel is within the trial court’s discretion. Atterberry v. State, 667 So.2d 622, 629 (Miss.1995). If the motion is denied, the defendant must show not only an abuse of this discretion, but also that the abuse actually worked an injustice in his case in order to obtain relief on an appeal of that ruling. Arteigapiloto v. State, 496 So.2d 681, 685 (Miss.1986). Nelson’s contention that the trial court’s decision was error requiring reversal of his conviction fails both tests. He has not articulated an arguable basis to conclude that the court acted arbitrarily in denying his eleventh-hour motion when he had done nothing to pursue retained counsel in the weeks and months leading up to trial. There is further no contention that appointed counsel was unprepared for trial or had delayed preparation in anticipation of being replaced by retained counsel, making it difficult to see where any injustice has occurred.

¶ 8. Nelson argues that refusing to allow a continuance effectively denied him the right to retain counsel of his choice. While a defendant has the right to counsel of his choice, this right is not absolute. Atterberry, 667 So.2d at 628. Suddenly emerging assertions that the defendant is dissatisfied with his attorney on the eve of trial are often nothing other than poorly-disguised attempts to delay the trial. Weeks before trial began, the court permitted Nelson to end the representation of one appointed counsel based on Nelson’s dissatisfaction with his services. After that substitution of counsel made at Nelson’s insistence, there were apparently no indications that Nelson was unhappy with new counsel’s performance in the days leading up to trial. In this situation, we do not find that Nelson was improperly denied suitable and competent representation.

¶ 9. Nelson makes an argument in connection with this issue that three weeks was insufficient time for counsel to prepare for a murder trial. Such an assertion is not necessarily connected to a defendant’s desire to replace existing counsel. If counsel lacked time to prepare, that would be a matter that would need to be raised even if the same attorney was continuing on the case. No claim was made in the continuance motion that defense counsel was not prepared to proceed. Issues not appropriately presented for decision by the trial court may not normally be advanced for the first time on appeal. Griffin v. State, 824 So.2d 632, 635(¶ 7) (Miss.Ct.App.2002).

III.

Sufficiency of the Evidence

¶ 10. At the close of the evidence, Nelson filed a motion for a directed verdict of acquittal. The motion was denied. After the jury returned a verdict of guilty, Nelson filed a motion for a JNOV, which was also denied. Nelson contends on appeal that these rulings constitute reversible error. He argues, in essence, that the evidence supports a finding of self-defense or imperfect self-defense as a matter of law. Both of these motions raise a claim that the State’s evidence of guilt was insufficient as a matter of law.

¶ 11. The trial court, in considering these motions, must view the evidence in the light most favorable to upholding the verdict, giving the prosecution the benefit of all favorable inferences which may be reasonably drawn from the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The court is obligated to reverse a conviction and render a judgment of acquittal when it determines that, viewed in that light, the State’s evidence as to one or more of the critical elements of the crime is so lacking that reasonable jurors could not have found appellant guilty. Id. If the trial court denies the motions and that denial is raised as an issue on appeal, this Court is charged to review the evidence by the same standard to determine whether the trial court erred in so ruling. Id. at 781. It is in that posture that we now consider Nelson’s challenge to the legal sufficiency of the State’s evidence.

¶ 12. The State had the burden of proving that Nelson killed Banks, a human being, without the authority of law, with the deliberate design of effecting the victim’s death. Miss.Code Ann. § 97-3-19 (Rev.2000). In furtherance of that burden, the prosecution presented evidence tending to show that Nelson purposely drew a pistol and fired a shot into Banks’s chest, causing his death. Nelson’s contention that he fired in self-defense, having a reasonable fear that Banks was in the process of drawing a weapon finds no support in the evidence beyond Nelson’s own pre-trial statements read to the jury. Though the jury instructions are not a part of the record, it appears from our review of the discussion regarding instructions that the jury was given a self-defense instruction as well as an instruction on accidental shooting. The jury, after being properly instructed on the law, acts as the finder of fact having the duty to resolve conflicting evidence to determine what the jury finds to be more believable. “It is well settled that in such a case of conflicting testimony, each distinct view is absorbed into the minds of the jury as the finders of fact, and it is within the province of the jury to determine the credibility among several witnesses.” Jackson v. State, 614 So.2d 965, 972 (Miss.1993). Once the duty to resolve conflicts in the proof is accomplished, the jury’s determinations are entitled to deference when challenged at the trial level or on appeal. Windham v. State, 800 So.2d 1257, 1263 (¶ 18) (Miss.Ct.App.2001). We do not find the evidence that Nelson acted in self-defense so compelling as to lead to the conclusion that a fair-minded juror was obligated to accept it as true. For that reason, Nelson was not entitled to a directed verdict of acquittal or a JNOV and the trial court did not commit reversible error when it denied these motions.

¶ 13. Alternatively, Nelson alleges that, at worst, he was guilty of no greater crime than manslaughter on the theory that he acted in imperfect self-defense. Mississippi case law recognizes this concept when the person purposely causing the death of another is found to have acted on a bona fide belief, though there is no reasoned basis for that belief, that his actions were necessary to prevent his own death or great bodily harm. Wade v. State, 748 So.2d 771, 775 (¶ 12) (Miss.1999). It is not entirely clear from our review of the record that the jury was given a lesser-included offense instruction for manslaughter based on the theory of imperfect self-defense. A defendant may not complain concerning the failure to give a lesser-included offense instruction if he did not ask for one. Ballenger v. State, 667 So.2d 1242, 1252 (Miss.1995). However, even were we to assume for sake of argument that the lesser-included offense was properly put before the jury, our review of the record convinces us that there was very little, if any, evidence to support such a verdict — certainly not enough to compel a reasonable juror to accept the theory that Nelson was acting under a genuine but unwarranted belief that he was in danger of imminent death or serious bodily harm.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Anthony G. SASSER, Appellant, v. CITY OF RICHLAND, Mississippi, Appellee.
    No. 2002-KM-01641-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      William P. Featherston, Ridgeland, attorney for appellant.
    Jay Max Kilpatrick, Paul B. Henderson, Jackson, attorneys for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J., for the court.

¶ 1. Anthony Sasser was found guilty in Richland City Court of driving under the influence of intoxicating liquor, first offense. He appealed to the County Court of Rankin County and was found guilty in a de novo bench trial. Sasser then perfected an appeal to the Circuit Court of Rankin County. That court affirmed the conviction. Thereafter, Sasser obtained permission to further appeal his conviction to this Court under authority of Section 11-51-81 of the Mississippi Code, contending that the appeal necessarily raised a constitutional issue; namely, that the roadblock set up by the City of Richland Police Department which resulted in his arrest constituted an unreasonable search and seizure under the Constitution of the State of Mississippi. ■ Sasser also seeks to raise two additional issues that do not give rise to constitutional issues. We are unconvinced that the roadblock in question was conducted in violation of Sasser’s rights arising under the applicable provisions of this state’s constitution and decline to reverse his conviction on that basis. We also find that the remaining issues are not properly before us. For the foregoing reasons, we affirm Sasser’s conviction and judgment of sentence.

I.

Facts

¶ 2. At approximately midnight on June 18, 2000, Sasser passed through a fixed safety checkpoint that had been set up by the City of Richland Police Department. The officer charged with checking the validity of Sasser’s operator’s license became concerned that Sasser may have been drinking alcoholic beverages. Ultimately, Sasser was given an intoxilyzer test that indicated his blood alcohol content exceeded the amount allowed by the statute on impaired drivers. As a result, he was charged with driving under the influence. The proceedings outlined in the initial paragraph ensued, resulting in the matter now coming before this Court.

II.

The Roadblock

¶ 3. In his first issue, Sasser contends that the checkpoint set up by the City of Richland Police Department was conducted in violation of protections afforded him under Article 3, Section 23 of the Constitution of the State of Mississippi, which provides as follows:

The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.

¶ 4. At the trial in county court, the only time Sasser sought to deal with the matter of the roadblock was at the close of the evidence when he sought to have the charge dismissed as follows:

I also want to move for basically a judgment of acquittal on- the ground that the initial stop was an unconstitutional violation of the Fourth Amendment....

¶ 5. This Court, relying on the case of Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), has previously held that roadblocks of this nature do not violate the Fourth Amendment to the Constitution of the United States. Briggs v. State, 741 So.2d 986, 989-90 (¶¶ 8-10) (Miss.Ct.App.1999). That case, as we observed in Briggs, dealt with the distinction between fixed roadblocks where all motorists are subjected to a brief stop and roving roadblocks that are nothing more than random incidents of pulling over individual motorists. Briggs, 741 So.2d at 989(¶ 8). Although defense counsel, in cross-examining the arresting officer, was able to elicit an affirmative response to his inquiry as to whether the roadblock in question was, in essence, a “roving roadblock,”, it is not clear that the officer was versed in the distinctions made by the United States Supreme Court in Sitz and we do not conclude that the State is bound by that purported “admission.” Rather, the facts of the roadblock were established by proof showing it to be at a fixed location involving at least four law enforcement vehicles, all of which had their blue lights activated, and at which all vehicles approaching from both directions were subjected to at least a brief stop. In terms of searching for a Fourth Amendment violation in these circumstances, we are unable to distinguish this case from Briggs.

¶ 6. This requires the Court to confront Sasser’s assertion on appeal that the stop violated heightened protections afforded him under the above-quoted section of the Mississippi Constitution. There can be no doubt that this issue as framed in Sasser’s appeal is different from that presented to the trial court in Sasser’s motion for judgment of acquittal. It is a well-accepted principle in this state that an appellate court’s function is to consider claims of error committed at the trial level and that matters not presented to the trial court for ruling may not normally be raised for the first time on appeal. Robinson v. State, 758 So.2d 480, 490 (¶45) (Miss.Ct.App.2000). For that reason, we find the issue as framed to be procedurally barred.

¶ 7. Notwithstanding the procedural bar, we observe that Sasser cites the Court to no authority indicating that the Mississippi Supreme Court has held that the relevant language of the Mississippi Constitution affords a higher level of insulation from searches and seizures than those afforded by the Fourth Amendment. Instead, he cites to decisions in two other states — Michigan and Indiana — that have found their state constitutions to guarantee more expansive protection to the motoring public than that extended under the Fourth Amendment. State of Indiana v. Gerschoffer, 738 N.E.2d 713 (Ind.App.2000); Sitz v. Dept. of State Police, 443 Mich. 744, 506 N.W.2d 209 (1993). In view of the striking similarities between the Fourth Amendment and Article 3, Section 23, of the Mississippi Constitution and the lack of a history of differentiation between the two by the Mississippi Supreme Court, we do not find a tenable basis to accept Sasser’s contention, even were we inclined to overlook the procedural bar. We note that, in a somewhat similar situation involving the privilege against self-incrimination, the supreme court said:

[W]e believe it wise to begin with the presumption that similar sections of the United States Constitution and the Mississippi Constitution ought to be construed similarly. As a general rule, the imposition of two different standards would .introduce unnecessary confusion among lawyers, judges, and law enforcement officers throughout the state.

McCrory v. State, 342 So.2d 897, 900 (Miss.1977). We see no reason in this case to disregard the presumption described in McCrory.

1Í 8. Sasser sought to raise two additional issues in this appeal. The issues relate to alleged errors in the trial court’s rulings on evidentiary matters and do not invoke constitutional considerations. This Court, deriving its jurisdiction to consider Sasser’s appeal from Section 11-51-81 of the Mississippi Code, is limited to issues that involve constitutional questions. Goforth v. City of Ridgeland, 603 So.2d 323, 326 (Miss.1992); Davis v. City of Biloxi, 797 So.2d 1036, 1036-37(¶ 4) (Miss.Ct.App.2001). We are, therefore, procedurally barred from reaching the merits of these. two issues.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS IN THE RANKIN COUNTY JAIL, SUSPENDED, AND FINE OF $749.50, IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING AND SOUTHWICK, P.JJ„ BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., Concur.


text:
    Karen M. SCHUSTZ, Tanya Ann Schustz, Cynthia Marie Schustz and Lisa M. Gros, Appellants, v. BUCCANEER, INC. and Norbert W. Kohnke, II, Appellees.
    No. 2001-CA-00592-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      John F. Ketcherside, Bay St. Louis, Patricia Broussard Judice, attorneys for appellant.
    Donald Rafferty, Gulfport, Patrick H. Zachary, Hattiesburg, attorneys for appel-lee.
   ON MOTION FOR REHEARING

McMILLIN, C.J., for the court.

¶ 1. The motion for rehearing is denied and the original opinion is withdrawn and this opinion is substituted therefor. This case originated as a wrongful death action arising out of the drowning death of Len-nie Schustz while a guest at the Paddle Wheel Motel in Hancock County. At the time of Schustz’s death in December 1995, the motel was owned by a Mississippi corporation named Buccaneer, Inc. (hereafter “Buccaneer”). The action was brought initially against Buccaneer. Later, an individual named Norbert W. Kohnke, who was alleged to be a successor in interest to Buccaneer insofar as the motel property was concerned, was added as a defendant. The matter now before this Court involves the limited question of whether the trial court erred in dismissing Buccaneer as a defendant pursuant to Mississippi Rule of Civil Procedure 4(h), which permits dismissal of a defendant if process is not completed within 120 days of filing of the complaint and the plaintiffs are unable to demonstrate good cause for the failure to accomplish service. Though this ruling did not resolve the case as to all parties, the trial court certified its ruling as to Buccaneer as a final judgment under Mississippi Rule of Civil Procedure 54(b), and this appeal ensued.

¶ 2. The appellants now before this Court are the statutorily-designated wrongful death beneficiaries of Schustz. For purposes of simplicity and clarity, these parties will be referred to as “the Beneficiaries.” The Beneficiaries assert that the circuit court erred in dismissing Buccaneer for two alternative reasons, either of which they contend is sufficient to demonstrate the court’s error. First, they contend that the corporation was properly served within 120 days of the filing of the complaint. Alternatively, they contend that any defects in the method or timeliness of the service of process were waived when Buccaneer, through counsel, entered a general appearance in the suit.

¶ 3. Finding merit in the second assertion, we reverse and remand.

I.

Facts

¶ 4. The critical facts on which this appeal turns involve procedural matters unaffected by any potential disputes concerning the underlying facts of the Beneficiaries’ claims. These pivotal facts relating to procedure appear in the record and are not in dispute. As a result, the disputed issues on appeal strictly involve questions of law and we review issues of law decided by the trial court on a de novo basis. Bailey v. Al-Mefty, 807 So.2d 1203, 1205(¶ 8) (Miss.2001).

¶ 5. This suit was originally filed on April 21, 1998, naming Buccaneer Inc. as the sole defendant. The complaint asserted that Buccaneer was a Mississippi corporation and that its registered agent for service of process was Luden Gex, whose office was at 700 Highway 90, Waveland, Mississippi. A summons was issued for Buccaneer to be served on Gex. The return on the summons indicates that the summons and complaint were served, not on Gex personally, but on another individual named Ronnie Artigues, who was apparently physically present in Gex’s office when the process server arrived. Counsel for the Beneficiaries further certified in the court record that he had mailed a copy of the summons and complaint to Gex “pursuant to Rule 4(d)(1)(B) of the Mississippi Rules of Civil Procedure.” Copies of records from the Mississippi Secretary of State’s Office 1 filed in the record of this cause indicate, however, that Gex had formally resigned as agent for process for Buccaneer prior to these attempts to serve him in his capacity as agent for the corporation.

¶ 6. On June 22, 1998, the Beneficiaries filed an amended complaint in which it was alleged that Norbert W. Kohnke had bought Buccaneer and that the corporation had been administratively dissolved on November 17, 1997. The complaint asserted that “such purchase carries with it not only the assets, but also the liabilities of the corporation .... ” and that Kohnke, as the successor in interest to the dissolved corporation, was personally liable on the claim.

¶ 7. Kohnke was served with a summons and filed an answer and counterclaim on July 31, 1998. The record does not reveal any further effort to serve Buccaneer; however, on April 9, 1999, Attorney Patrick H. Zachary filed an entry of appearance in the cause, the text of which we quote in full:

Comes now the undersigned, Patrick H. Zachary, of the firm of Zachary & Leggett, PLLC, and hereby enters his appearance as counsel for Buccaneer, Inc.

¶8. It is perhaps helpful to observe at this point that, though Buccaneer had been administratively dissolved (apparently for failing to file the required annual reports with the Secretary of State) and that such administrative dissolution had occurred prior to the filing of this suit, the corporation was nevertheless amenable to suit under authority of Section 79-4-14.05 of the Mississippi Code. Miss.Code Ann. § 79^4-14.05(b)(5) (Rev.2001). The importance of obtaining jurisdiction over this corporation, though administratively dissolved and apparently bereft of any assets by virtue of its earlier conveyance to Kohnke, appears to arise out of the possible existence of liability insurance that may have been in force on the day that Lennie Schustz drowned.

¶ 9. The next activity in the record involving Buccaneer did not occur until May 30, 2000, when counsel for the Beneficiaries filed a motion for default judgment alleging that Zachary had made a general appearance on behalf of Buccaneer and that Buccaneer’s subsequent failure to answer or otherwise defend the suit for a period in excess of twelve months constituted an act of default. Apparently there was no subsequent effort by the Beneficiaries to bring this motion on for hearing. On January 3, 2001 — over twenty months after counsel appeared in this action on its behalf — Buccaneer finally filed a motion styled “Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment.” In that motion, Buccaneer asserted that it had not been properly served within 120 days of the filing of the complaint against it and that no good cause existed for this failure to timely serve the corporation. For that reason, Buccaneer urged that the complaint should be dismissed under Mississippi Rule of Civil Procedure 4(h).

¶ 10. The Beneficiaries’ response to this motion focused on the proposition that Zachary’s appearance was a general appearance on behalf of Buccaneer, which waived any defects in service on the corporation.

¶ 11. The trial court, in a brief order, found that dismissal of Buccaneer without prejudice under Rule 4(h) was appropriate.

II.

Discussion

¶ 12. We may summarily resolve the contention that Buccaneer was properly served within 120 days of the filing of the complaint. The only attempted service during that period — or ever — was an effort to serve an agent for process who had formally resigned in accordance with the applicable statutes and had ensured that his resignation had been properly noted in the appropriate public records maintained by the Secretary of State. While it is true that Buccaneer did not, as it should have done, proceed to name a new agent for process on Gex’s resignation, there is no requirement in the law that the former agent must continue to serve until a suitable replacement is properly appointed. There are several alternate methods of serving process on a corporation besides service on the registered agent, all of which were available to the Beneficiaries, but none of them were attempted, even after Gex had taken steps to ensure that the Beneficiaries were aware that he was no longer acting as agent for process for the corporation.

¶ 13. The conclusion that Buccaneer was not properly served with process leaves us to deal with the Beneficiaries’ alternate claim that counsel for Buccaneer’s voluntary appearance constituted a general appearance that acted as a waiver of any previously-existing problems with the form or method of service.

¶ 14. A voluntary entry of appearance by a defendant no longer serves as a waiver of that defendant’s right to subsequently contest the court’s in personam jurisdiction arising from an alleged defect in the manner in which the defendant was served with process. See Rains v. Gardner, 731 So.2d 1192, 1194-97 (¶¶9-17) (Miss.1999). Thus, earlier disputes over whether an appearance was a general appearance or a special appearance for the limited purpose of contesting the court’s jurisdiction (or, in Mississippi at least, whether there was even such a thing as a limited appearance; see Turner v. Williams, 162 Miss. 258, 139 So. 606 (1932)) have become moot.

¶ 15. Despite this change that has grown out of the adoption of rules of procedure that mirror the Federal Rules of Civil Procedure, the right to contest the court’s jurisdiction based on some perceived problem with service may yet be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity. Young v. Huron Smith Oil Co., Inc., 564 So.2d 36, 38-39 (Miss.1990). Thus, a defendant appearing and filing an answer or otherwise proceeding to defend the case on the merits in some way — such as participating in hearings or discovery — may not subsequently attempt to assert jurisdictional questions based on claims of defects in service of process. See Brown v. Brown, 493 So.2d 961, 963 (Miss.1986).

¶ 16. The written entry of appearance itself is not considered a responsive pleading for these purposes. Therefore, that document standing alone does not effect a waiver of the right to contest in personam jurisdiction based on a challenge to the process. Marcial Ucin SA v. SS Galicia, 723 F.2d 994, 997 (1st Cir. 1983). However, case law makes it clear that the challenge must be asserted by motion or otherwise at the first opportunity after the appearance or it is deemed waived. Young, 564 So.2d at 38-39. The issue presented in this case and not answered by previous Mississippi decisions, is whether the concepts of “first opportunity” and “timely” have a temporal component or whether they mean nothing more than that the claim was asserted before other pleadings have been filed or actions inconsistent with an assertion of lack of jurisdiction have occurred. In other words, the issue can be framed as whether (a) a voluntary appearance followed by (b) a prolonged failure to affirmatively challenge the validity of the service may, in combination, constitute a waiver of the right to contest in personam jurisdiction in the same way that a subsequent affirmative act to defend on the merits without first challenging the court’s jurisdiction is deemed a waiver of the jurisdiction issue.

¶ 17. In this case, there was, beyond question, an extended period of inactivity after counsel’s appearance for Buccaneer before any overt attempt was made to resolve Buccaneer’s status as a party defendant to the action. Buccaneer contends that it had no duty to proceed affirmatively because it had not been properly served. This position does not find support in case law from other jurisdictions that have faced similar situations. Rather, those cases seem to suggest rather plainly an obligation on a (possible) party to resolve any available challenges to the court’s in personam jurisdiction in a timely manner. For example, in Emerson v. National Cylinder Gas Co., 131 F.Supp. 299 (Mass.Dist.Ct.1955), counsel entered an appearance “for the defendants.” That entry was deemed to have included a named partnership defendant even though the partnership had, admittedly, not been served with a summons and copy of the complaint. The appearance was made in early December 1954 and counsel agreed to an extension of the time to answer or otherwise plead until January 7, 1955. No motion or answer containing a contest to the court’s jurisdiction over the partnership was filed until April 1955, when plaintiffs moved for default against the partnership based on its voluntary appearance and failure to offer any sort of defense. The partnership at that point sought to raise the issue of lack of service. However, the court denied relief on that basis — not solely because of counsel’s appearance — but on the combined fact of counsel’s appearance and the defendant’s failure to promptly pursue its claim that the court lacked personal jurisdiction over it. In part, the court said:

“Under Rule 12, a general appearance will not prevent a subsequent contest of the court’s jurisdiction over the person. However, that contest must be timely. When [the partnership] failed to answer or otherwise plead on January 7th, the general appearance stood.... ”

Emerson, 131 F.Supp. at 301 (emphasis supplied).

¶ 18. Similarly, in Marcial, the First Circuit said as follows:

Furthermore, it is well settled that a general appearance by a defendant does not constitute a waiver of the defense of lack of jurisdiction over the person. However, if defendant appears, a subsequent contest of the court’s jurisdiction over the person must be timely. Otherwise, the movant would be guilty of lach-es.

Marcial, 723 F.2d at 997 (citations omitted). The court went on to say that “[t]o hold that the privilege of lack of personal jurisdiction may be retained by an appearing defendant for as long as he does not file a pre-answer motion or responsive pleading would be subversive of orderly procedure and make for harmful delay and confusion.” Id. at 997 (internal quotation marks omitted).

¶ 19. A widely-respected and oft-quoted work on federal procedure has this to say on the subject:

The elimination of the former distinction between special and general appearance does not mean that a litigant is protected against loss of his personal jurisdiction, venue, and service of process defenses under all circumstances. If defendant appears in the action, he must interpose any of these objections he may have by motion or in his answer or they will be deemed waived by virtue of Rule 12(h)(1). In addition, he should act in timely fashion lest the court consider his conduct sufficiently dilatory or inconsistent with the later assertion of one of these defenses to justify declaring a waiver.

5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1344 (2d ed.1990) (emphasis supplied).

¶ 20. In this case, we conclude that Buccaneer’s delay in contesting the court’s in personam jurisdiction over it for a period in excess of twelve months after having appeared in the action through counsel was untimely. For that reason, the appearance and lengthy ensuing period of inactivity, acting in conjunction, constituted a waiver of any defects in the form or manner of service.

¶ 21. We conclude that the trial court had jurisdiction over Buccaneer when the corporation finally proceeded to file a motion to test that jurisdiction. The trial court erred, therefore, in dismissing Buccaneer as a party. We conclude that we must reverse the court’s decision and find that Buccaneer remains properly before the court as a party defendant. We remand for proceedings consistent with the terms of this opinion.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY DISMISSING THE DEFENDANT, BUCCANEER, INC., AS A DEFENDANT IS REVERSED AND THIS CAUSE IS REMANDED TO THE CIRCUIT COURT FOR SUCH FURTHER PROCEEDINGS AS ARE CONSISTENT WITH THE TERMS OF THIS OPINION. COSTS OF APPEAL ARE ASSESSED TO THE APPELLEES.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ., Concur. GRIFFIS, J., Not Participating.


author: THOMAS, J., for the Court:

text:
    Michael KITCHENS, Appellant, v. ESTATE OF Sharon Snoddy KITCHENS, Deceased, Appellee.
    No. 2002-CA-01090-COA.
    Court of Appeals of Mississippi.
    July 22, 2003.

      Edwin L. Bean, McComb, Attorney for Appellant.
    Irving Conrad Mord, Attorney for Ap-pellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J., for the Court:

¶ 1. Michael Kitchens and Sharon Snod-dy Kitchens entered into an antenuptial agreement. Sharon died unexpectedly two months later. Michael filed an action to establish heirship and for accounting of Sharon’s estate. The trial court found the antenuptial agreement to be valid and binding. Aggrieved, Michael asserts the following issues on appeal:

I. THE ANTENUPTIAL AGREEMENT EXECUTED BY THE PARTIES IS INVALID DUE TO SHARON SNODDY KITCHENS’ FAILURE TO MAKE A FULL DISCLOSURE OF HER ASSETS, AND THEREFORE IS UNCONSCIONABLE AND FRAUD.

II. THE ANTENUPTIAL AGREEMENT EXECUTED BY THE PARTIES IS INVALID DUE TO THE CIRCUMSTANCES SURROUNDING ITS EXECUTION.

Finding no error, we affirm.

FACTS

¶2. Michael Kitchens, Jr. and Sharon Snoddy lived together in a home owned by Sharon in Magnolia, Mississippi, for approximately a year and a half before they discussed marriage. Michael had two years of college education and served as a water plant operator in McComb, Mississippi. According to Michael, he thought that Sharon managed two day care facili-rties, although she actually owned both of them. Sharon had made several phone conversations with attorney Dee Shandy in Magnolia regarding an antenuptial agreement and requested that Shandy prepare an agreement which would keep Michael from gaming any interest in her home or the two day care facilities. According to Shandy’s testimony, on November 9, 2000, approximately two and a half months after Sharon and Michael had decided to get married, Sharon arrived at Shandy’s office, telephoned Michael, signed the agreement prepared by Shandy, and took the original agreement to Michael so that he could go over it. On November 10, Michael took the original agreement back to Shandy’s office and executed it before a notary public and obtained a copy of the signed agreement. Michael and Sharon were married on November 11, 2000, and departed on a cruise.

¶ 3. Sharon died unexpectedly on February 1, 2001. Michael made no effort to discover Sharon’s assets after her death until he was asked to leave the marital home owned by Sharon. Michael filed an action to establish heirship and for accounting on May 8, 2001, alleging that he was an heir at law and requesting that the court declare the antenuptial agreement null and void. After trial on March 25, 2002, the trial court entered a final judgment finding the antenuptial agreement executed by Michael and Sharon to be valid and binding. Michael filed a motion for reconsideration which was denied by the court after oral arguments on the issue. Michael then perfected an appeal to this Court.

ANALYSIS

I. WAS THE ANTENUPTIAL AGREEMENT EXECUTED BY THE PARTIES INVALID DUE TO SHARON SNODDY KITCHENS’ FAILURE TO MAKE A FULL DISCLOSURE OF HER ASSETS, AND IS IT THEREFORE UNCONSCIONABLE AND FRAUDULENT? ■

¶4. Michael Kitchens alleges that the antenuptial agreement executed by he and Sharon was invalid due to Sharon’s failure to make a full disclosure of her assets. Kitchens cites Smith v. Smith, 656 So.2d 1143, 1147 (Miss.1995), which imposed a “requirement of fairness in the execution of such contracts” and added, “the restriction on enforceability encompassed a duty of disclosure.” A “full disclosure” has not been defined further in the context of an antenuptial agreement in Mississippi. Michael therefore directs this Court to other jurisdictions.

¶ 5. Michael cites Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990), although Michael states that the Pennsylvania Supreme Court set aside the antenuptial agreement. In actuality, it upheld the agreement and stated:

If an agreement provides that full disclosure has been made, a presumption of full disclosure arises. If a spouse attempts to rebut this presumption through an assertion of fraud or misrepresentation then this presumption can be rebutted if it is proven by clear and convincing evidence.

Id. at 403, 581 A.2d. at 167. In Michael’s case, the antenuptial agreement does state clearly that a full disclosure has been made by the parties.

¶ 6. Michael next cites Mathis v. Crane, 360 Mo. 631, 230 S.W.2d 707 (Mo.1950), and In Re: Maag’s Estate, 119 Neb. 237, 228 N.W. 537 (Neb.1930). In Mathis, the husband misled his wife in regard to the size of his estate and told her that he would ensure that she would not have to work for the remainder of her life. Mathis, 360 Mo. at 640, 230 S.W.2d at 711. This promise was denied by the evidence. Id, Mathis also failed to make a full disclosure to the court when he was brought before it in an action for temporary maintenance.

¶ 7. In In Re: Maag’s Estate, the Nebraska court held that an antenuptial agreement was invalid due to the disparity in value of what the wife would have received if not for the agreement. There were other factors involved, however, including that she was misled as to the contents, never read the agreement nor had it read to her before she signed it, was never given a copy of the agreement, and never had the opportunity to obtain independent counsel. In Re: Maag’s Estate, 228 N.W. at 540.

¶ 8. These cases are easily distinguishable from the case at bar. Michael has failed to show by clear and convincing evidence that the agreement was fraudulent or that Sharon misrepresented herself in it. The agreement clearly stated that the home and two day care businesses owned by Sharon were affected by the antenuptial agreement. The record does not show that Michael produced any evidence to show that- Sharon owned any other assets not listed in the agreement. Michael testified that he read the agreement and that there was nothing contained in the agreement which was not true. He also testified that, no one rushed him to sign the agreement and that he signed it of his own free will.

¶ 9. An antenuptial contract is just as enforceable as any other contract. Smith, 656 So.2d at 1147. “It is not now and never has been the function of this Court to relieve a party to a freely negotiated contract of the burdens of a provision which becomes more onerous than had originally been anticipated.” Estate of Hensley v. Estate of Hensley, 524 So.2d 325, 328 (Miss.1988). “This Court will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996). It was not an abuse of discretion for the chancellor to find the antenup-tial agreement valid and the decision was supported by substantial evidence. This issue is without merit.

II. WAS THE ANTENUPTIAL AGREEMENT EXECUTED BY THE PARTIES INVALID DUE TO THE CIRCUMSTANCES SURROUNDING ITS EXECUTION?

¶ 10. Michael asserts that the antenup-tial agreement was invalid due to the circumstances surrounding its execution. Again lacking any Mississippi case law on point, Michael cites Lutgert v. Lutgert, 338 So.2d 1111 (Fla. 2d DCA 1976), in which the Florida Supreme Court held that a husband presenting his wife with an ante-nuptial agreement approximately twelve hours before their wedding and honeymoon cruise did not allow her the opportunity to obtain independent advice and therefore voided the agreement. Similarly, in In Re: Marriage of Matson, 41 Wash.App. 660, 705 P.2d 817 (1985), the Washington Supreme Court found that the wife’s execution of a prenuptial agreement on the evening before the wedding negated any inclination that she had an opportunity-to obtain independent legal advice and the agreement was therefore void. Michael therefore asserts that according to other jurisdictions, the availability of independent counsel to the party attacking the validity of the agreement must be examined.

¶ 11. The appellee distinguishes Lutgert by noting that Mr. Lutgert’s estate was worth approximately $25,000,000 as opposed to the less than $4,000,000 that he had disclosed. Lutgert, 338 So.2d at 1114. Also, the Lutgerts had discussed an- agreement for some time, with the wife consistently objecting to such an agreement until the husband presented it to her within twelve hours of their wedding and demanded that she sign it or he would call off the wedding. Id. at 1114. In the case at bar, Michael testified that he signed the agreement of his own free will. The agreement also states that Sharon is represented by counsel and that said counsel advised Michael to seek private legal counsel to advise him regarding the agreement.

¶ 12. In regard to In Re: Marriage of Matson, the appellee points Out that Washington is a community property state, and the Washington Supreme Court held the agreement void because, at least in part, “where a contractual agreement attempts to limit or, as in this case, totally eliminate community property rights, equity will zealously and scrupulously examine it for fairness.” Matson, 705 P.2d at 821.

¶ 13. Michael has failed to show that the trial court abused its discretion in finding the antenuptial agreement valid. Sharon disclosed the three major assets that she owned at the time of the execution of the agreement. Michael testified that he read the agreement, that he was not rushed to sign it and signed it of his own free will, and that everything contained in the agreement was true. The agreement states in part:

[E]ach party has full knowledge of the value, nature, and extent of the property of the other, including assets, liabilities, and income, has full knowledge of all the rights, but for this agreement would be conferred by law upon each of them in the property and the estate of the other by virtue of the consummation of the proposed marriage; and ... [E]ach party is entering into this prenuptial agreement freely, voluntarily, and with full knowledge of its legal effect.

Michael’s own testimony supports the validity of the agreement. This issue is without merit.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF PIKE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    James Donald PIERCY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01362-COA.
    Court of Appeals of Mississippi.
    July 22, 2003.

      William F. Travis, Southaven, Attorney for Appellant.
    Office of the Attorney General by Billy L. Gore, Attorney for Appellee.
    Before MCMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J., for the Court:

¶ 1. James Donald Piercy was convicted of sexual battery in the Circuit Court of DeSoto County and sentenced to serve a term of twenty years and pay a fine of $1,000. Aggrieved, he asserts the following issues on appeal:

I. WHETHER THE TRIAL COURT ERRED BY DENYING THE MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE’S CASE IN CHIEF.
II. WHETHER THE TRIAL COURT ERRED BY NOT GRANTING THE DEFENDANT A CONTINUANCE OF HIS TRIAL BASED UPON THE DEFENDANT’S APPEARANCE.
III. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL AFTER THE DISTRICT ATTORNEY REFERRED TO THE DEFENDANT AS A “PREDATOR” IN CLOSING ARGUMENT.

Finding no error, we affirm.

FACTS

¶ 2. On December 21, 2001, forty-year-old James Donald Piercy took his son to a Memphis Grizzlies basketball game. After the game, Piercy took his son home and he went to Club 152 on Beale Street in Memphis. At the club, Piercy met twenty-one-year-old M.D. who was celebrating her birthday at the club. Piercy offered to give M.D. a ride home. At approximately 5:00 a.m. on December 22, they left the club in Piercy’s rental car. Piercy did not take M.D. directly to her home near Horn Lake, Mississippi but instead pulled off the road in a wooded area near Horn Lake. Piercy stated that they intended to park and “make out.”

¶ 3. According to M.D.’s testimony, Pier-cy forced himself on top of her and began groping all over her, including penetrating her with his fingers without her consent. M.D. fought back and scratched Piercy’s face. The owner of the property drove up and witnessed Piercy holding M.D.’s hands down. Piercy told police that he was holding her hands down to keep her from scratching him anymore.

¶ 4. Four witnesses testified for the State of Mississippi in its case-in-chief including the victim. Piercy moved for a directed verdict at the close of the State’s case and the trial court denied the motion. Piercy was advised of his right to testify but chose not to and produced no evidence in his own defense. After deliberation, the jury found Piercy guilty of sexual battery.

ANALYSIS

I. DID THE TRIAL COURT ERR BY DENYING THE MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE’S CASE IN CHIEF?

¶ 5. Piercy asserts that the trial court erred in denying his motion for a directed verdict at the close of the State’s case-in-chief. According to Piercy, the State’s witnesses failed to prove beyond a reasonable doubt that he lacked M.D.’s consent at the time of the alleged incident. Piercy points out that M.D. had consumed alcohol at the club and voluntarily chose to ride with Piercy. Also, Police Officer Edward Jones testified that Piercy cooperated with officers and that there was no evidence M.D. had been penetrated nor any evidence of blood in Piercy’s rental car.

¶ 6. A motion for a directed verdict, request for peremptory instruction, and motion for judgment notwithstanding the verdict all challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “If there is. sufficient evidence to support a verdict of guilty, this Court will not reverse.” Meshell v. State, 506 So.2d 989, 990 (Miss.1987). See also Raymond v. State, 478 So.2d 297, 300 (Miss.1985); Fairley v. State, 467 So.2d 894, 902 (Miss.1985). This Court should reverse only where, “with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty.” Alexander v. State, 759 So.2d 411, 421(¶23) (Miss.2000) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)).

¶ 7. M.D. testified clearly that Pi-ercy acted without her consent and that she struggled with him,' scratching and hitting him in order to try and get him to stop. Pictures of Piercy with scratches on his face were introduced into evidence supporting M.D.’s testimony. It has been established that “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell v. State, 506 So.2d at 991. See also Hilliard v. State, 749 So.2d 1015, 1017(¶ 9) (Miss.1999); Lewis v. State, 580 So.2d 1279, 1288 (Miss.1991); Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979).

¶ 8. The evidence was sufficient for a reasonable and fair minded jury to find Piercy guilty of sexual battery. The trial judge did not err in denying Piercy’s motion for directed verdict. This issue is without merit.

II. DID THE TRIAL COURT ERR BY NOT GRANTING THE DEFENDANT A CONTINUANCE OF HIS TRIAL BASED UPON THE DEFENDANT’S APPEARANCE?

¶ 9. Piercy asserts that the trial court erred in not granting a continuance of his trial based upon his appearance. Piercy was allegedly attacked by some inmates shortly before his trial. According to Pier-cy, this attack left him swollen, blackened, scarred, and with a bloody left eye, which made him appear similar to his condition in the photographs admitted into evidence that were taken following the incident with M.D. Piercy states no authority in support of his assertion other than a reference to the Sixth Amendment of the Constitution which provides for a fair and impartial trial.

¶ 10. The trial judge attempted to determine if there were any problems caused by Piercy’s appearance by questioning the prospective jurors during voir dire. The judge told the jurors that Piercy had been involved in an accident and that it had nothing to do with the trial. The judge then asked if this would affect any of the prospective jurors. None of the prospective jurors said that it would affect them. After the jury was selected, Piercy moved for a continuance based upon his appearance and the similarity to the photographs. The trial judge denied the motion and observed on the record that he had already handled the issue with the jury, and that in his opinion Piercy looked to have a typical black eye with a small scratch above his left eyebrow. This injury would be distinguishable from the pictures taken after the incident.

¶ 11. “The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be grounds for reversal unless shown to have resulted in manifest injustice.” Simmons v. State, 805 So.2d 452, 484(¶ 72) (Miss.2002). The moving party has the burden of proving the trial court abused its discretion in denying the motion for continuance. Wilson v. State, 755 So.2d 2, 5(¶ 11) (Miss.Ct.App.1999). The trial court had an opportunity to view the defendant, consider his appearance, and to hear argument of counsel on the issue. Piercy fails to meet his burden of proof that the trial court’s denial of a continuance was an abuse of discretion. This issue is without merit.

III. DID THE TRIAL COURT ERR IN NOT GRANTING A MISTRIAL AFTER THE DISTRICT ATTORNEY REFERRED TO THE DEFENDANT AS A “PREDATOR” IN CLOSING ARGUMENT?

¶ 12. Piercy contends that the trial court erred in not granting a mistrial after the district attorney referred to him as a “predator” in his closing argument. In discussing the victim and Piercy, the district attorney stated:

He’s almost twice her age. He’s forty and she’s twenty-one. She has every right to be free from his predatory nature.

Piercy failed to object to the statement until after the jury had returned with its verdict and it had been read in open court and the jury polled. The trial judge ruled that Piercy was too late in his objection, and that in his opinion the evidence was clear and overwhelming and the statement did not have anything tó do with the conviction.

¶ 13. By failing to make a contemporaneous objection at trial, Piercy is procedurally barred from challenging remarks made by the prosecution during closing argument. Crawford v. State, 716 So.2d 1028, 1044(¶54) (Miss.1998) (citing Foster v. State, 689 So.2d 1268, 1289 (Miss.1994)). Notwithstanding the procedural bar, “attorneys are to be given wide latitude in making their closing arguments.” Wilcher v. State, 697 So.2d 1087, 1110(¶ 39) (Miss.1997) (citing Shook v. State, 552 So.2d 841, 851 (Miss.1989); Jimpson v. State, 532 So.2d 985, 991 (Miss.1988); Johnson v. State, 477 So.2d 196, 209 (Miss.1985)). “The circuit judge is in the best position to weigh the consequences of the objectionable argument, and unless serious and irreparable damage has been done, admonish the jury then and there to disregard the improper comment.” Johnson, 477 So.2d at 210. Although after the jury had already returned its verdict, the trial judge in this case did just that, and found that the comments by the prosecutor were not prejudicial to the extent that a mistrial was warranted. This issue is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $1,000 IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

McMILLIN, C. J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: KING, P.J., for the Court:

text:
    James T. HILL, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CA-00447-COA.
    Court of Appeals of Mississippi.
    July 22, 2003.

      Sidney Franklin Beck, Olive Branch, Attorney for Appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, Attorney for Appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   KING, P.J., for the Court:

¶ 1. James T. Hill, Jr. perfected this appeal from an order dismissing his petition for post-conviction collateral relief entered by the Circuit Court of DeSoto County, Mississippi. On June 5, 2001, Hill pled guilty to a charge of aggravated assault and was sentenced to a term of twenty years, with twelve years suspended and eight years to serve in the custody of the Mississippi Department of Corrections, and was ordered to pay restitution and court costs.

¶ 2. Hill filed his petition for post-conviction collateral relief on February 5, 2002. On March 1, 2002, the petition was dismissed by the trial court. On appeal, Hill raises the following issues:

I. Whether it was error to deny Hill’s petition for post-conviction collateral relief.

II. Whether Hill received effective assistance of counsel.

FACTS

¶ 3. On March 22, 2001, Hill was indicted for aggravated assault. Hill was represented by appointed counsel.

¶ 4. On June 5, 2001, Hill executed a petition to enter a plea of guilty to the aggravated assault charge. During the guilty plea hearing on June 5, 2001, the trial judge questioned Hill to determine whether his plea to the aggravated assault charge was knowingly and voluntarily made. The trial judge asked if Hill understood that he was entitled to a public trial by jury, and that he had the right to cross-examine those persons testifying against him, as well as the right to subpoena witnesses to testify. Hill indicated that he understood these rights.

¶ 5. The trial judge questioned Hill to determine whether he was under the influence of drugs or undergoing any mental treatment. Hill stated that he was on his normal medication, which did not interfere with his ability to know what he was doing. The trial judge informed Hill that pleading guilty would waive his constitutional rights including the right to testify on his own behalf, or not to testify, as he chose. Hill indicated that he understood his waiver of these rights.

¶ 6. Additionally, the trial judge asked Hill whether he had fully discussed all the facts and circumstances surrounding this case with his attorney. Hill responded affirmatively. The trial judge asked Hill whether he had talked about any defenses available to him if he went to trial. Hill indicated that he did in fact discuss this with his attorney. The trial judge questioned Hill regarding whether he had been threatened or coerced into pleading guilty, to which he stated, “[t]he time was quick.” The trial judge then asked Hill if he wanted to go to trial and Hill indicated that he did not want to go to trial. The trial judge asked Hill if he was satisfied with the advice given by his attorney, to which Hill responded, ‘Tes, sir.”

¶ 7. The trial judge then accepted Hill’s plea of guilty to aggravated assault.

ISSUES AND ANALYSIS

¶ 8. While Hill alleges two assignments of error, the two are combined in his brief. Therefore, we will address them as one.

¶9. Hill raises the issue that the trial court erred by denying his petition for post-conviction collateral relief. In its order, the trial court noted that it denied Hill’s petition without a hearing, after having reviewed the pleadings and court files, pursuant to Miss.Code Ann. Section 99-39-11(2) (Rev.2000), which states:

(2)If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.

¶ 10. When reviewing a trial court’s decision to deny a petition for post-conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Laushaw v. State, 791 So.2d 854(¶ 13) (Miss.Ct.App.2001). However, where questions of law are raised the applicable standard of review is de novo. Id. Hill bears the responsibility of offering proof of facts to support his claim. Howard v. State, 785 So.2d 297(¶ 6) (Miss.Ct.App.2001).

¶ 11. The trial judge determined that the petition for post-conviction collateral relief had no merit, after having reviewed the affidavits and the record in this matter. This Court’s review of the record, leads to the conclusion that Hill has failed to provide proof to support his claim.

¶ 12. Additionally, Hill contends that he did not receive effective assistance of counsel. He claims that he saw his attorney approximately four times prior to his guilty plea hearing and that each meeting was brief. He further claims that his attorney failed to investigate the case and obtain various records. To establish an ineffective assistance of counsel claim, a party must show a deficiency of counsel’s performance that is sufficient to constitute prejudice to his defense. Walker v. State, 703 So.2d 266(¶ 8) (Miss.1997).

¶ 13. Hill asserts that his attorney insisted that he “plead guilty or he would receive a sentence of 20 years to serve,” which placed pressure on him to plead guilty in fear of receiving such a long sentence. Hill also claims that he wanted to go to trial and that he advised his attorney of this. This assertion is belied by the transcript of the plea hearing. The trial judge asked Hill if he wished to go to trial, but Hill indicated that he did not want to go to trial. This Court is entitled to rely upon the statements made by Hill at his plea hearing. Andrews v. State, 791 So.2d 902(¶ 5) (Miss.Ct.App.2001).

¶ 14. Hill maintains that the outcome would have been different since “both parties were intoxicated, both parties were fighting, there were no major injuries, and a jury quite well could have returned a not guilty verdict, or found that the appellant was guilty of simple assault and not aggravated assault.” Hill has not established that the allegations of ineffectiveness against his attorney would have resulted in a different outcome. Clemons v. State, 732 So.2d 883(¶35) (Miss.1999). There exists a strong, but rebuttable presumption that counsel is competent. Ratliff v. State, 752 So.2d 416(¶ 6) (Miss.Ct.App.1999). Counsel’s choice of whether or not to file certain motions, call certain witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy. Scott v. State, 742 So.2d 1190(¶ 14) (Miss.Ct.App.1999). This Court will only under exceptional circumstances, second guess counsel on matters of trial strategy. Marshall v. State, 759 So.2d 511(¶ 11) (Miss.Ct.App.2000).

¶ 15. Hill relies on Payton v. State, 708 So.2d 559 (Miss.1998) to support his argument. In Payton, the supreme court reversed and remanded because the defendant’s attorney failed to investigate the factual circumstances surrounding the alleged crime and provide the defendant with a basic defense, thereby rendering ineffective assistance of counsel. At the evidentiary hearing, the attorney who represented Payton at trial testified that he did not talk to Payton about his case until seven or eight months after the first arrest because he thought Payton had other counsel. Payton’s attorney further testified that he did not do any investigation prior to trial because Payton’s former attorney did not tell him about any witnesses and the incident happened “six or seven months before he got on the case.” Payton, 708 So.2d at (¶ 5).

¶ 16. In contrast, Payton testified that the attorney in fact represented him at his initial appearance and the next time he saw the attorney was when he was arrested for the second charge of rape. Id. The supreme court indicated that “it is clear that there is conflicting evidence” and given this contradicting testimony, some investigation should have been done by his attorney. Id. at (¶¶ 7-8) In Payton, the supreme court noted that:

There is no question that the defendant is entitled to a basic defense. Triplett v. State, 666 So.2d 1356 (Miss.1995). As to what a basic defense may entail, the language from the Triplett Court is instructive:
Basic defense in this case required complete investigation to ascertain every material fact about this case, favorable and unfavorable. It required familiarity with the scene, and the setting. It required through his own resources and process of the court learning the names of, and interviewing every possible eyewitness, and getting statements from each. It required prior to trial learning all information held by the state available to the defense through pre-trial discovery motions.

Payton, 708 So.2d at (¶ 9).

¶ 17. Hill pled guilty rather than go to trial. He now claims to have told his attorney that he wanted to go to trial. This Court notes that Hill was given the opportunity to present his case to the trial court and present any complaints to the trial court regarding his attorney’s advice. He not only declined to do so, but affirmatively expressed satisfaction with the representation of his attorney.

¶ 18. We therefore affirm the trial court’s decision.

¶ 19. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT DENYING POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED AGAINST DESOTO COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: HARWOOD, Justice.

text:
    Ex parte William R. NESBITT. (In re William R. Nesbitt v. State of Alabama).
    1010676.
    Supreme Court of Alabama.
    June 7, 2002.
    William R. Nesbitt, pro se.
    William H. Pryor, Jr., atty. gen., and E. Vincent Carroll, asst. atty. gen., for respondent.

       Justice Stuart was the trial judge in this case.

   HARWOOD, Justice.

William R. Nesbitt petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals’ affirmance of the trial court’s dismissal of his Rule 32, Ala. R.Crim. P., petition for postconviction relief. We granted Nesbitt’s petition to consider whether the Court of Criminal Appeals correctly determined, based on the two issues presented in Nesbitt’s appeal to that court, that Nesbitt’s Rule 32 petition was due to be dismissed on the basis that the petition had not been filed within the two-year limitations period set out in Rule 32.2(c), Ala. R.Crim. P. Nesbitt v. State, (No. CR-00-2391, Nov. 21, 2001) — So.2d - (Aa.Crim.App.2001)(table). After considering Nesbitt’s arguments, we reverse and remand.

The Court of Criminal Appeals set out the following facts in an unpublished memorandum:

“The appellant, William R. Nesbitt, appeals from the circuit court’s dismissal of his petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his 1994 conviction for burglary in the third degree, possession of stolen property in the first degree, possession of burglary tools, and his resulting sentence of life imprisonment. This Court affirmed Nesbitt’s conviction on direct appeal, by unpublished memorandum. See Nesbitt v. State, 682 So.2d 525 (Ala.Crim.App.1995)(table). A certificate of judgment was issued on September 6,1996.
“Nesbitt filed this Rule 32 petition on November 1, 2000. The trial court held a hearing on Nesbitt’s petition on May 25, 2001, and denied his petition that same day.”

The Court of Criminal Appeals thereafter addressed two arguments Nesbitt made on appeal: (1) that the trial court had improperly applied the Habitual Felony Offender Act, and (2) that the trial court had erred in not conducting an evi-dentiary hearing on his claim alleging prosecutorial misconduct. As to Nesbitt’s claim that the trial court improperly applied the Habitual Felony Offender Act, the Court of Criminal Appeals determined that that claim was not a jurisdictional claim, that it was waivable, and that it was therefore subject to the two-year limitations period set out in Rule 32.2(c), Ala. R.Crim. P. That court, based upon the facts as set out in its unpublished memorandum, determined that because Nesbitt had filed his Rule 32 petition on November 1, 2000, some four years after September 6, 1996, the date a certificate of judgment had been entered in his direct appeal, that his time for filing had lapsed and that this claim was barred by Rule 32.2(c). In regard to Nesbitt’s claim that the trial court erred in not conducting an evidentiary hearing on his claim of prosecutorial misconduct, in which he specifically contended that Officer Troy Childress had committed perjury during Nesbitt’s trial and that this constituted newly discovered evidence, the Court of Criminal Appeals determined that the alleged perjured testimony was not newly discovered evidence pursuant to Rule 32.1(e), Ala. R.Crim. P. The Court of Criminal Appeals further stated that “Nes-bitt’s contention is nothing more than bare allegations supported by no evidence, not newly discovered evidence.” Therefore, it concluded that this claim was likewise barred by the application of Rule 32.2(c).

Upon reviewing Nesbitt’s statement of facts contained in his petition, the records maintained by the clerk of the Court of Criminal Appeals, and the record on appeal, we note that the following facts, most of which are not set out in the Court of Criminal Appeals’ unpublished memorandum, are pertinent to our review:

1. After a certificate of judgment had been issued in Nesbitt’s direct appeal on September 6, 1996, he, acting pro se, filed a Rule 32 petition in the Circuit Court of Baldwin County on February 2,1998, within the two-year limitations period of Rule 32.2(c). On May 26, 1998, Nesbitt filed an amended Rule 32 petition. On November 20, 1998, Nesbitt filed arguments in support of his Rule 32 petition. On June 18, 1999, the trial court denied Nesbitt’s petition. Nesbitt filed a notice of appeal to the Court of Criminal Appeals on July 6, 1999.

2. On January 28, 2000, the Court of Criminal Appeals affirmed the trial court’s denial of Nesbitt’s Rule 32 petition in an unpublished memorandum. However, on August 8, 2000, that court issued an order that stated:

“It is ORDERED that the certificate of judgment issued in this cause on February 24, 2000, be recalled and this cause placed on rehearing ex mero motu.
“It is further ORDERED that this Court’s memorandum of January 28, 2000, be and the same is hereby withdrawn and the following is substituted therefor.
“This case is before this Court on application for rehearing ex mero motu from this Court’s affirmance of the circuit court’s dismissal/denial of his post-conviction petition filed pursuant to Rule 32, Ala. R.Crim. P. Nesbitt v. State, 805 So.2d 787 (Ala.Crim.App.2000). This Court has determined that no filing fee was paid in circuit court nor was the appellant granted in forma pauperis status. (See C.R. 1-2, 92, 194.) This Court held in Goldsmith v. State, 709 So.2d 1352 (Ala.Crim.App.1997), that absent the payment of a filing fee“or the granting of [an] in forma pauperis request the circuit court fails to obtain subject matter jurisdiction to consider a postconviction petition. Because the circuit court did not have jurisdiction to consider the petition, this Court has no jurisdiction to consider this appeal. The circuit court’s order of June 18, 1999, is hereby set aside for lack of jurisdiction.
“For the foregoing reasons, it is hereby now ORDERED that this appeal be and is hereby dismissed.
“Lastly, it is ORDERED that the application for rehearing in this cause be and the same is hereby overruled.”

3. On October 4, 2000, Nesbitt filed a motion entitled “Motion for Order Permitting Petitioner to Refile Post-Conviction Petition Pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.” That motion stated:

“Comes now the petitioner in the above Cause and requests this honorable court to issue an ORDER granting permission to refile his ‘Rule 32 Petition,’ and instruct the Clerk of Court to file/docket same, and to assign said petition to a judge other than Judge Lyn Stuart, as Judge Stuart will be called as a witness in this Cause.
“Petitioner requests the ORDER based on the Alabama-Court of Criminal Appealsf] ruling dated 8/8/00, in which that court held that the Baldwin County Circuit Court failed to act on petitioner’s original [in] forma pauperis application, and therefore the court did not acquire subject matter jurisdiction to proceed with the hearing of the petition or the entering of judgment in this Cause. (SEE Nesbitt v. State, CR-98-2029, Order of 8/8/00).
“Petitioner, therefore, requests permission to ‘refile’ the petition, complete with [in] forma pauperis declaration and motion for appointment of counsel, and specifically requests this court to grant the [in] forma pauperis application (when filed) and instruct the Clerk of Court to enter that status on the official record (case action summary sheet) so that the refiled petition is not also later declared a nullity by the Court of Criminal Appeals.
“WHEREFORE, premises shown, petitioner requests an ORDER from this court permitting him to refile said petition within the next thirty days from the date of this court’s ORDER permitting refiling.”

On October 27, 2000, Nesbitt filed a “Notice of Refiling of Original Proceedings Under Alabama Rules of Criminal Procedure, Rule 32,” that stated, in pertinent part:

“Comes now the petitioner in this Cause and serves notice that the present filing is a continuation of the original filing entered into the record February 2, 1998 and that such refiling is made pursuant to the ORDER of the Alabama Court of Criminal Appeals dated August 8, 2000[,] vacating previous judgment and proceedings in this Cause, said judgment entered by this court on June 18,1999.”

(Emphasis added.) Also, on that same day, Nesbitt filed a motion for leave to proceed in forma pauperis, his “refiled” Rule 32 petition, and a memorandum in support of his petition. The petition presented 16 claims, which included the claim that the trial court had improperly applied the Habitual Felony Offender Act and the claim of prosecutorial misconduct based upon the use of perjured testimony, the two claims addressed by the Court of Criminal Appeals. The trial court thereafter acted on Nesbitt’s Rule 32 petition and filings by granting his motion to proceed in forma pauperis on November 28, 2000, and by entering a December 1, 2000, order setting a hearing on the petition.

The State filed a response to Nesbitt’s petition on December 7, 2000, to which Nesbitt filed a reply on December 12, 2000. After granting two motions for a continuance, the trial court conducted a hearing on Nesbitt’s petition on May 25, 2001, after which it entered an order dismissing Nesbitt’s petition that same day. Specifically, as to the two claims addressed in the Court of Criminal Appeals’ unpublished memorandum, the trial court found that those claims were precluded because they could have been, but were not, raised during Nesbitt’s direct appeal pursuant to Rule 32.2(a)(5), Ala. R.Crim. P. On July 5, 2001, Nesbitt filed a notice of appeal to the Court of Criminal Appeals.

Based upon our consideration of these facts, we conclude that the Court of Criminal Appeals erred in determining that the two claims Nesbitt presents in his appeal were barred by application of the two-year limitations period set out in Rule 32.2(c), Ala. R.Crim. P. As the additional facts we have set out show, this was not a case of Nesbitt’s simply filing his Rule 32 petition some four years after the certificate of judgment in his direct appeal had been entered. Rather, Nesbitt had filed a timely Rule 32 petition in 1998, and the subsequent procedural events, including the Court of Criminal Appeals’ August 8, 2000, order dismissing the appeal and setting aside the trial court’s judgment all flowed out of the 1998 petition.

After considering Nesbitt’s motion to “refile” and his notice of “refiling” his Rule 32 petition and the attendant circumstances presented in this case, we conclude that the October 27, 2000, Rule 32 petition was not a separate and distinct filing to which the Court of Criminal Appeals could look to determine that the petition was filed outside the two-year limitations period set out in Rule 32.2(c). Rather, that petition was, as stated by Nesbitt, a “continuation” of the timely filed 1998 petition. As a valid amended, or “continued,” petition, obviously accepted by the trial court as such, Nesbitt’s October 27, 2000, Rule 32 petition related back to his timely filed 1998 petition. See Garrett v. State, 644 So.2d 977, 980 (Ala.Crim.App.1994)(“We hold that the timely filing of a petition for post-conviction relief that is not in the proper form as prescribed by Rule 32, [Ala. R.Crim. P.], does ‘toll’ the two-year limitations period of Rule 32.2(c) and that an ‘amended petition’ relates back to the date of the filing of the original petition provided the amended petition is filed within a reasonable time following the order of the court returning the original petition.” (footnote omitted)). We note that for aught that appears, Nesbitt filed a Rule 32 petition that was in the proper form with the exception of the trial court’s proceeding on the petition without having first granted Nesbitt in forma pauperis status or collecting a filing fee. The trial court’s actions in this regard should not prevent Nesbitt’s petition from being addressed by the Court of Criminal Appeals on the ground that it was filed outside the two-year limitations period.

Further, by virtue of the Court of Criminal Appeals’ August 8, 2000, order, the trial court’s order on Nesbitt’s 1998 petition was set aside for lack of jurisdiction. Because that order set aside the trial court’s judgment, there had been no entry of judgment on Nesbitt’s petition. Rule 32.7(b), Ala. R.Crim. P., states that “[ajmendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment,'” and Rule 32.7(d) states that “[ljeave to amend shall be freely granted.” (Emphasis added.) The application of these rules was observed in Ex parte Allen, 825 So.2d 271 (Ala.2002), where this Court stated:

“Leave to amend a Rule 32 petition is within the discretion of the trial court, and it should be freely granted. Rule 32.7(d), Ala. R.Crim. P.; see, e.g., Talley v. State, 802 So.2d 1106, 1107 (Ala.Crim.App.2001). However, Rule 32.7(b) plainly states that amendments are allowed at any time ‘prior to the entry of judgment.’ ”

825 So.2d at 273. Thus, the trial court’s allowing Nesbitt to “refile,” or amend, his petition after the Court of Criminal Appeals had set aside its previous judgment, with no entry of judgment having been entered, was appropriate. Accordingly, the Court of Criminal Appeals erred in determining that Nesbitt’s claims were precluded by the application of Rule 32.2(c)’s two-year limitations period.

The Court of Criminal Appeals’ judgment is due to be reversed, and this cause is remanded to that court for it to proceed in a manner consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and WOODALL, JJ., concur.

STUART, J., recuses herself.

      . We note that the date stamped on Nesbitt’s petition showing that it had been filed with the Baldwin Circuit Court's clerk was Octo-her 27, 2000. We will consider the petition to have been filed on that date.

      . The trial court granted Nesbitt’s request, although belatedly, by noting "granted” on the face of the motion on January 4, 2001.