author: MYERS, J., for the court.

text:
    Rodney McBRIDE, Appellant, v. Emmitt L. SPARKMAN, Appellee.
    No. 2002-CP-01931-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      Rodney McBride, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   MYERS, J., for the court.

¶ 1. From an October 30, 2002, order dismissing with prejudice a petition for writ of habeas corpus or in the alternative motion to show cause, Rodney McBride (McBride) appeals to this Court pro se. McBride petitioned the Circuit Court of Sunflower County for a writ of habeas corpus or in the alternative a motion to show cause, claiming that the Mississippi Department of Corrections (MDOC) was illegally detaining him over the one-year Intensive Supervision Program (ISP)/House Arrest, failed to provide him with due process and equal protection of the law, and subjected him to double jeopardy. We find no error and affirm.

ISSUES PRESENTED

I.The Appellant was denied due process and equal protection of the law when his participation in the Intensive Supervision Program was revoked and he was placed in an MDOC facility to serve the remainder of his twenty-year sentence without an evidentiary hearing. II. The Appellant was subjected to double jeopardy in violation of the Fifth Amendment when he was placed in a pre-release program to complete the remainder of the one-year ISP sentence, but later had his original twenty-year sentence imposed.

III. The Circuit Court of Sunflower County erred when it denied appellant’s writ of habeas corpus or, in the alternative, motion to show cause without conducting an evidentiary hearing.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On October 20, 1998, Rodney McBride was indicted by a Lee County grand jury for possession of a Schedule II Controlled Substance, cocaine, with an intent to sell, transfer or distribute, within one thousand feet of a school, pursuant to Mississippi Code Annotated Sections 41-29-139(a)(l) and 41-29-142(1). McBride entered a guilty plea on said charge and the circuit court sentenced McBride to serve a twenty-year sentence, with one year in ISP.

¶ 3. McBride received a rule violation report on July 9, 1999, for failing a urine test by testing positive for cocaine. McBride was then arrested by MDOC for the rule violation pursuant to Mississippi Code Annotated Section 47-5-1003(3). A disciplinary/classification hearing was held on July 27, 1999. McBride was found guilty of the rule violation and was classified on August 23, 1999. The MDOC sent McBride to participate in the alcohol and drug treatment program at the Issaquena County Correctional Facility and the state/county work program. In his appellate briefs, McBride refers to these programs as “pre-release” programs. McBride was then removed from the program at the Issaquena County Correctional Facility and placed at the state penitentiary at Parehman.

¶4. McBride filed his grievances with the Administrative Remedy Program, pursuant to Mississippi Code Annotated Sections 47-5-801 through 47-5-807, stating that he was being held over his sentence of one year. McBride received several responses all of which replied that his sentence was twenty years not one year. The final opinion rendered by the MDOC stated that since McBride did not successfully complete his one year in ISP, his original twenty-year sentence was imposed. Aggrieved, McBride petitioned the Circuit Court of Sunflower County for a writ of habeas corpus or, in the alternative, motion to show cause. McBride asserted that the MDOC was illegally detaining him over the one-year Intensive Supervision Program/House Arrest, failed to provide him with due process and equal protection of the law, and subjected him to double jeopardy. The circuit court dismissed the motion with prejudice stating “McBride was sentenced to twenty years and placed on ISP for a one (1) year term, under the Mississippi Department of Corrections Classification. Once McBride violated ISP, he was classified back into prison to do the full twenty years.” The circuit court allowed McBride to proceed with his appeal in forma pauperis. McBride perfected his timely appeal of the dismissal.

LEGAL ANALYSIS

I. MCBRIDE WAS NOT DENIED DUE PROCESS OR EQUAL PROTECTION

¶ 5. McBride’s first issue is that the MDOC denied him due process and equal protection by revoking his ISP status and imposing the twenty-year sentence without holding an evidentiary hearing. The court held that “house arrest is nothing more than an alternative form of confinement” and that “the authority to remove an inmate from the program lies exclusively with the Department of Correction’s classification committee — not the original sentencing judge.” Lewis v. State, 761 So.2d 922, 923(¶ 4) (Miss.Ct.App.2000); Miss. Code Ann. § 47-5-1003(3) (Supp.2003). The code describes ISP and states: “(3) To protect and ensure the safety of the state’s citizens, any offender who violates an order or condition of the intensive supervision program shall be arrested by the correctional officer and placed in the actual custody of the Department of Corrections. Such offender is under full and complete jurisdiction of the department and subject to removal from the program by the classification committee.” Miss.Code Ann. § 47-5-1003 (Supp.2003). The sentencing order states that McBride’s sentence was twenty years with one year in ISP. As the court opined in Moore v. State, 830 So.2d 1274, 1277(¶13) (Miss.Ct.App.2002), had McBride successfully completed ISP and then was given a suspended sentence, he would have a right to a hearing prior to revocation. McBride did not make it to that point because he failed the urine test four months short of completing the one year in ISP.

¶ 6. In several cases, the court categorized ISP/house arrest as an internal classification issue. Lewis, 761 So.2d at 922(¶ 3); Perry v. State, 798 So.2d 643, 645(¶ 6) (Miss.Ct.App.2001). The court has ultimately held that inmates have no liberty interest in their classification and as such were not denied due process by not receiving an evidentiary hearing before being removed from ISP. Tubwell v. Griffith, 742 F.2d 250, 253 (5th Cir.1984); Lewis, 761 So.2d at 923(113); Edwards v. Booker, 796 So.2d 991, 995 (¶ 18) (Miss.1996); Moore, 830 So.2d at 1276 (¶ 11). As a result, the MDOC had the authority to remove McBride from ISP and place him into general population without first conducting an evidentiary hearing. Perry, 798 So.2d at 645(¶ 5). McBride was not denied due process or equal protection.

II. MCBRIDE WAS NOT SUBJECTED TO DOUBLE JEOPARDY

¶ 7. McBride argues that the MDOC subjected him to double jeopardy by revoking his ISP status, sending him to the Issaquena County Correctional Facility and imposing the twenty-year sentence. McBride contends that MDOC has placed him in jeopardy for the same offense twice in violation of federal and state law. The Fifth Amendment to the United States Constitution and Article 3 Section 22 of the Mississippi Constitution provide that a person may not be prosecuted twice for the same offense. “[F]or a plea of former jeopardy to avail it must be shown that a defendant was actually acquitted or convicted in a former trial on the merits of the crime for which he is again sought to be convicted.” Lightsey v. State, 493 So.2d 375, 377-78 (Miss.1986). Such a situation did not occur in the present case.

¶ 8. The actions of the MDOC on July 27, 1999, were simply carrying out the sentencing order of the court. The order stated that “if the defendant should fail to successfully complete the Intensive Supervision Program, the Mississippi Department of Corrections may, without further orders of this Court, place the defendant in whatever Mississippi Department of Corrections facility deemed appropriate to complete the sentence.” The classification committee found McBride guilty of the rules violation and by court order and statute had the authority to place McBride in whatever facility it wished. McBride is aggrieved that the MDOC placed him in the Issaquena Correctional Facility to serve the remainder of his one year left in ISP. That decision was for the MDOC to make not McBride.

¶ 9. McBride also contends that the MDOC subjected him to double jeopardy by revoking his ISP status and instituting his twenty-year sentence. The court held in Cooper v. State, 737 So.2d 1042 (¶ 15) (Miss.Ct.App.1999) that double jeopardy protections do not apply to suspension revocation hearings. This point alone defeats McBride’s double jeopardy claim. When the MDOC changed his classification on July 27, 1999, the decision was made to remove McBride from ISP for the rules violation, revoke his ISP status and invoke his twenty-year sentence. McBride’s double jeopardy claim also fails following the Lightsey case and its statement of the law. McBride was not being tried on the merits for the same crime on July 27, 1999. The MDOC simply changed his status as a prisoner by revoking him from ISP and placing him in an MDOC facility to serve the remainder of his sentence. The sentencing order states that McBride’s sentence was twenty years, not one year. According to statute and court order, the MDOC had the authority to change McBride’s classification following a rules violation. This is what occurred on July 27, 1999. Accordingly, McBride was not subjected to double jeopardy by the actions taken by the MDOC.

III. THE SUNFLOWER COUNTY CIRCUIT COURT DID NOT COMMIT ERROR BY DISMISSING MCBRIDE’S HABEAS CORPUS/SHOW CAUSE MOTION WITHOUT AN EVIDEN-TIARY HEARING

¶ 10. McBride contends that the circuit court committed error by dismissing McBride’s motion without conducting an evidentiary hearing. McBride argues that Section 47-5-803(2) of the Mississippi Code Annotated allows a state court to review a decision of an administrative body, so long as the offender has first exhausted all administrative remedies and that Section 47-5-807 grants offenders the right to judicial review. McBride is correct on this point. The facts of the present case indicate that McBride did properly exhaust all administrative remedies before seeking judicial action. However, in the case of Tubwell v. Anderson, 776 So.2d 654, 661-62 (¶ 23) (Miss.2000), the court stated that denying a habeas corpus petition without conducting an evi-dentiary hearing was proper where petitioner was unable to cite any disputed issues of fact requiring a hearing. The trial court was under no obligation to hold an evidentiary hearing. It is clear from the record that McBride’s sentence was twenty years and not one year. The possibility of the twenty-year sentence being suspended or altered in some way was dependent on McBride’s successful completion of one year in ISP. McBride did not do so and therefore he is serving the twenty-year sentence per the sentencing order. The trial court could easily determine that the MDOC was not unlawfully detaining McBride over the one-year sentence because his sentence was to serve twenty years. The other two issues McBride raised in his habeas corpus motion were questions of law and could be decided without the need for an evidentia-ry hearing. As the court stated in Tub-well, there is no indication that the trial court’s resolution of the issues would have been aided by conducting an evidentiary hearing. Id. at 662. This issue is without merit.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DISMISSING WITH PREJUDICE THE WRIT OF HABEAS CORPUS OR IN THE ALTERNATIVE MOTION TO SHOW CAUSE IS AFFIRMED. COSTS ARE ASSESSED TO SUNFLOWER COUNTY.

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


source: Caselaw Access Project

author: CHANDLER, J., for the Court.

license: Public Domain

text:
    Sheree THORNELL, Appellant, v. Chris THORNELL, Appellee.
    No. 2002-CA-00308-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.

      Travis T. Vance, Vicksburg, attorney for appellant.
    Wren Carroll Way, Vicksburg, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J., for the Court.

¶ 1. The Chancery Court of Warren County granted Chris and Sheree Thornell a divorce on the grounds of irreconcilable differences. The parties had entered into a joint property, child custody and support agreement wherein they agreed that they would have joint legal custody and joint physical custody of their only child, Leia-na, who was one year and eight months old at the time of the divorce. Each party was awarded custody on an alternating weekly basis with intermittent overnight Wednesday visitation for each parent during their non-custodial week. Subsequently, Sheree filed a motion for citation of contempt and to modify the decree alleging that Chris was wrongfully withholding Leiana from her. She also sought to have physical custody awarded to her on the ground that there had been a substantial and material change of circumstances that adversely affected the child. Chris filed an answer and counter petition to modify the decree in which he sought to have physical custody of Leiana awarded to him. He also claimed that there had been a material change in circumstances that adversely affected the child.

2. Following a hearing on the matter, the chancellor, without explanation, found that there had been a material change in circumstances which adversely affected the minor child and warranted a modification of custody. Ultimately, the chancellor awarded custody of Leiana to Chris during the school year, subject to visitation rights of Sheree, and awarded custody of Leiana to Sheree during the summer months, subject to visitation rights of Chris. Sheree was ordered to pay Chris $179 per month during the school year when he had custody and Chris was ordered to pay Sheree $276 per month during the summer months when she had custody.

¶ 3. Sheree appeals the order of the chancery court alleging, by way of summary, that the court erred in ordering a modification of custody on the basis of a material change in circumstances adversely affecting the welfare of the child without first identifying the specific change of circumstance and then analyzing and applying the factors enumerated in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), in light of that specific change. Finding reversible error, this Court reverses and remands.

ANALYSIS

¶ 4. The standard of review of a chancellor’s decision on a request for modification of custody is limited. A chancellor’s decision will only be reversed if it is either manifestly wrong or clearly erroneous, or if the chancellor has applied an erroneous legal standard. Brocato v. Brocato, 731 So.2d 1138, 1140(¶ 8) (Miss.1999).

¶ 5. Sheree Thornell argues that the chancellor should be reversed in this instance because the court applied an erroneous legal standard when it modified custody on the basis of a material change in circumstances that adversely affected the child without first identifying the specific change in circumstances that adversely affected the child and applying the Albright factors in light of that change. This Court agrees.

¶ 6. The totality of the chancellor’s finding with regard to the question of a material change in circumstances adverse to the welfare of the child consists of the following:

The Court finds that in considering all the evidence, the law applicable thereto and in light of the totality of the circumstances, that a material change in circumstances has occurred which adversely affects the welfare of the minor child, Leiana Thornell. The Court finds that it is in Leiana’s best interest that her custody be modified.

This Court has held that “[w]hen considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change. Where there is no specific identification of the alleged change in circumstances, this Court is placed in the position of attempting to guess what the chancellor determined was a proper basis for a change in custody.” Sturgis v. Sturgis, 792 So.2d 1020, 1025 (¶ 19) (Miss.Ct.App.2001).

¶ 7. This Court also finds that, as in Sturgis, the chancellor in the case at bar, rendered an opinion that attempted to analyze and apply the Albright factors; however, since the opinion does not reflect what the prior conditions were and does not identify any changed circumstances with which to make a comparison, that analysis failed.

¶ 8. Because the chancellor failed to first identify a specific change in circumstance that adversely affected the welfare of the child, and then do an on the record analysis of each of the Albright factors in light of the changed circumstance, we are compelled to reverse.

¶ 9. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


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

text:
    Johnny Ray HOLLOWAY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00926-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2003.

      Gus Grable Sermos, Summit, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   KING, P.J., for the Court.

¶ 1. Johnny Ray Holloway was convicted of the operation of a motor vehicle while under the influence of intoxicating liquor in Walthall County. He was sentenced to serve a term of five years in the custody of the Mississippi Department of Corrections, ordered to complete alcohol and drug treatment, get a GED, and pay a fine and court costs. Aggrieved by his conviction and sentence, Holloway has appealed and raises the following issue:

Whether the trial court erred in failing to grant Holloway’s motion for a judgment notwithstanding the verdict.

FACTS

¶ 2. Holloway testified that on December 21, 2001, at approximately 9:00 p.m., he drove to a club in Hakley, Louisiana. He indicated that he drank one sixteen-ounce beer and at 9:30 p.m., decided to return to his home in Foxworth, Mississippi. According to Holloway, while driving home near Dexter, he heard a popping noise and pulled to the side of the road, where the vehicle just shut down. Holloway stated that the power went off and he steered the vehicle out of the road. According to Holloway, his cell phone would not work in that area, so after moving the vehicle, he moved to the passenger side and lay on the front seat.

¶ 3. Deputy Sheriff Norman Goleman of the Walthall County Sheriffs Department testified that he received a call on December 22, 2001, between midnight and 1:00 a.m., regarding a vehicle on Highway 48 East of Dexter, which may have been broken down. Upon arriving at that location, Goleman and Deputy Randy Boyd saw a vehicle parked just across the bridge, on the highway in the eastbound lane, with its lights off.

¶ 4. Goleman went to the driver’s side of the vehicle and saw a male (Holloway) asleep behind the steering wheel of the vehicle. He tapped on the window until Holloway responded and then asked him to exit the vehicle. Goleman asked for Holloway’s driver’s license, Holloway said he did not have it with him. Goleman then asked for Holloway’s driver’s license number or his social security number. A check of the number given by Holloway showed that the license was suspended. Goleman indicated that he smelled the odor of alcohol emanating from Holloway’s breath as he inquired about the driver’s license number. At this time, Goleman noted that Holloway’s speech was slurred as well.

¶ 5. Goleman testified that Holloway was kind of swaying as he was questioned about his driver’s license and why his car was parked in the road. Holloway indicated that he heard something pop on his vehicle and just stopped in the road. When asked by Goleman why he did not coast to the shoulder of the road, Holloway offered no response. When Holloway exited the vehicle, Goleman noticed that Holloway’s eyes were dilated and glassy. After questioning Holloway, Goleman placed him under arrest for “driving under a suspended license.”

¶ 6. Goleman did not attempt to start Holloway’s vehicle and was thus unable to state whether it was in working condition. Following standard procedure, a tow truck was called to pick up the vehicle.

¶ 7. Goleman took Holloway to the sheriffs office. En route to the sheriffs office, Holloway fell asleep. After arriving at the sheriffs office, Holloway was advised of his rights, and then consented to take the intoxilyzer test. The results indicated that Holloway had a blood alcohol content of .125.

ISSUE AND ANALYSIS

Whether the trial court erred in failing to grant Holloway’s motion for a judgment notwithstanding the verdict.

¶8. Holloway contends that the trial court erred by failing to grant his motion for a judgment notwithstanding the verdict (JNOV). He claims there was insufficient evidence to show that he was “operating the vehicle within the meaning of Section 63-ll-30(l)(a) or (c).”

¶ 9. In appeals from a denied motion for JNOV the sufficiency of the evidence as a matter of law is viewed and tested in the light most favorable to the State. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The credible evidence consistent with Holloway’s guilt must be accepted as true. Id. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. We will not reweigh the evidence, as matters regarding the weight and credibility of the evidence are to be resolved by the jury. Id. We will reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Id.

¶ 10. In support of his argument, Holloway cites Lewis v. State, 831 So.2d 553, 557 (Miss.Ct.App.2002), where this Court indicated that Mississippi Code Annotated Section 63-11-30 (Rev.1996) required “that the vehicle at least be capable of being moved by the defendant, whether the accused was then in the act of causing it to move or not. Both the accused and the vehicle must have a present ability to cause the hazards against which this statute attempts to protect. That hazard is a moving vehicle with an intoxicated person in control.” Id. at (¶ 11).

¶ 11. In the instant case, Holloway did not indicate that anyone else had been driving. In fact, he testified that he was the person who drove the vehicle. Where the defendant admits having driven the vehicle to its present location, no additional proof of its ability to be driven is required.

¶ 12. Pursuant to Lewis, “to be guilty of driving or operating a motor vehicle while under the influence of drugs or alcohol, or with an illegally high blood-alcohol content, the person must be shown by direct proof or reasonable inferences to have driven the vehicle while in that condition, or as in Jones to be ‘operating’ the vehicle while sitting behind the wheel, in control with the motor running.” Id. at (¶ 18) (citing Jones v. State, 461 So.2d 686, 695 (Miss.1984)). A person may be arrested, tried, and convicted of operating a motor vehicle while under the influence of an intoxicating liquor even if there is no eyewitness presented who viewed the defendant operating the vehicle, provided there is sufficient evidence. Horn v. State, 825 So.2d 725 (¶¶ 6-8) (Miss.Ct.App.2002). Reasonable doubt need not be removed about whether the defendant had actually driven the vehicle prior to his discovery. Lewis, 831 So.2d at (¶ 18).

¶ 13. Holloway was charged with the felonious operation of a motor vehicle while under the influence of intoxicating liquor pursuant to Mississippi Code Annotated Section 63-11-30 (Rev.1996). Holloway’s statement to Deputy Goleman that he had consumed some beer prior to driving the vehicle to its then location, in conjunction with Deputy Goleman’s observations of Holloway, and the results of the intoxilyzer test, provided sufficient evidence that Holloway was guilty of DUI.

¶ 14. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT OF CONVICTION OF OPERATION OF A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WALTHALL COUNTY.

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

      . Mississippi Code Annotated Section 63 — 11— 30 (Rev.1996) provides in part: Operation of vehicle while under influence of intoxicating liquor, drugs or controlled substances, or other substances impairing ability to operate vehicle or with blood alcohol concentrations above specified levels; penalties generally; granting of hardship driving privileges; penalties for violations resulting in death, disfigurement, etc., of another; penalties for multiple offenses; concurrent running of suspensions.
      (1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person's ability to operate a motor vehicle; (c) has ten one-hundredths percent (.10%) or more for persons who are above the legal age to purchase alcoholic beverages under state law, or eight one-hundredths percent (.08%) or more for persons who are below the legal age to purchase alcoholic beverages under state law, in the person's blood based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis of such person’s breath, blood or urine administered as authorized by this chapter; (d) is under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law; or (e) has an alcohol concentration of four one-hundredths percent (.04%) or more, based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis of such person's blood, breath or urine, administered as authorized by this chapter for persons operating a commercial motor vehicle.


author: SOUTHWICK, P.J., for the court.

text:
    Deana MARTINEZ, Appellant, v. Ricardo Alfredo MARTINEZ, Appellee.
    No. 2002-CA-01709-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2003.

      David M. Sessums, Vicksburg, attorney for appellant.
    William Charles Bell, Ridgeland, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J., for the court.

¶ 1. Deana Martinez’s suit for personal injuries was dismissed because of a contract which the court found had relinquished the claim on which the suit was based. Ms. Martinez alleges that this was a misreading of the agreement. We find no error and affirm.

STATEMENT OF FACTS

¶2. Deana and Ricardo Martinez were divorced on February 9, 2001, in Madison County, Mississippi, on the grounds of irreconcilable differences. A property settlement agreement was incorporated into the final judgment. This agreement addressed several subjects. What concerns us are the following two paragraphs:

XIII
Wife hereby agrees to drop any charges of any nature filed by her against Husband, whether criminal or civil, and Husband hereby agrees that he will not file any charges, whatsoever, against wife.
XV
Except as otherwise provided in this Agreement, each party releases the other party from all claims or demands through the date of the execution of this Agreement....

¶3. Prior to seeking the divorce, Ms. Martinez had filed a criminal affidavit in the Madison County Justice Court against Mr. Martinez alleging that he assaulted her on September 1, 2000. This agreement required her to drop the charges. Ms. Martinez did that.

¶ 4. A few months later, Ms. Martinez filed this civil suit against her former husband in the Madison County Circuit Court. She sought damages for the same September 1, 2000 assault that had been the basis of the earlier justice court affidavit. Mr. Martinez filed an answer and counterclaim in which he denied the alleged assault and requested that the court grant sanctions for a frivolous lawsuit. A transfer to chancery court was also requested.

¶ 5. The circuit court found that jurisdiction was proper in that court. After a hearing, the court found that the property settlement agreement created an unambiguous contractual obligation. The court further concluded that the agreement’s reference to criminal and civil charges by the parties also incorporated personal injury claims. Finally, the court held that this suit violated paragraph XV of the agreement which released all claims through February 9, 2001. The case was dismissed for failure to state a claim upon which relief could be granted. The defendant was awarded the attorney’s fees incurred in defending the suit.

DISCUSSION

¶ 6. Ms. Martinez argues that she has not violated the agreement entered at the time of the divorce. She emphasizes that paragraph XIII of that agreement only required that she “drop any charges of any nature filed by her against Husband, whether criminal or civil,” while her husband was required not to “file any charges, whatsoever, against Wife.” We agree that “drop” suggests the abandoning of pending matters, with the implicit requirement not then to refile those charges.

¶ 7. Of equal importance is paragraph XV, which states that “except as otherwise provided in this Agreement, each party releases the other party from all claims or demands through the date of the execution of this Agreement....” It is this paragraph that the trial judge found to prevent the suit.

¶ 8. We consider the issues raised on appeal.

Jurisdiction

¶ 9. Ms. Martinez argues that the claim that she has now brought for personal injuries was never within the jurisdiction of the chancery court to resolve at the time of divorce. She relies on a precedent that held that “a claim for personal injury arising out of an assault and battery properly belongs in the circuit court.” Drumright v. Drumright, 812 So.2d 1021, 1028 (Miss.Ct.App.2001). However, this Court also stated that since the parties had submitted the claim as one of the issues for resolution before the chancellor as part of the divorce that they were seeking on the basis of irreconcilable differences, the claim could be resolved by the chancellor. Id.

¶ 10. Drumright is consistent with what occurred here, but ultimately it is irrelevant. The Martinez personal injury claim was not litigated before the chancellor as in Drumright. Instead, the divorcing parties entered a binding agreement later incorporated by reference into the final decree, that they would abandon any claims that they had against each other. These claims, these “dioses in action,” were matters eminently appropriate for addressing in a property settlement agreement since the relinquishment of the claims removed the possibility that whatever assets were distributed by agreement would be immediately threatened with redistribution by the results of litigation.

¶ 11. Claims can be the basis for suit by an injured party, can be assigned for others to pursue (Miss.Code Ann. § 11-7-3 (1972)), or can be voluntarily abandoned. The property settlement agreement was an appropriate location for a release of claims to appear.

Tort claim as personal property

¶ 12. Ms. Martinez argues that a claim for personal injury does not fall within the description of “property rights.” She states that the property settlement agreement was entered explicitly under the authority of a statute that she alleges only applies to property rights. Miss.Code Ann. § 93-5-2 (Rev.1994). The statute also refers to issues regarding custody and maintenance of children. Id.

¶ 13. Even if a property settlement agreement would be defective for addressing a matter other than property distribution and custody and maintenance of children, a point we do not address, this tort claim was a property right. A “chose in action” is personal property. Miss.Code Ann. § 1-3-41 (Rev.1998); Watson v. Caffery, 236 Miss. 223, 233, 109 So.2d 862, 866 (1959). The Supreme Court held that the right to bring a suit for tort damages was a personal property interest. Garrett v. Gay, 394 So.2d 321, 322-23 (Miss.1981).

¶ 14. The relinquishment of these tort claims was a valid provision in the agreement.

Property settlement agreement as contract

¶ 15. Ms. Martinez argues that the lower court erred in interpreting this agreement as a relinquishment of all claims against the other spouse for any personal injury.

¶ 16. A property settlement agreement has the character of other contracts and also has the nature of a court order when it is incorporated into the final decree. East v. East, 493 So.2d 927, 932 (Miss.1986). Under paragraph XV, “each party releases the other party from all claims or demands through the date of the execution of this Agreement,” with the exception of anything “otherwise provided in this Agreement....” Ms. Martinez takes the exception, blends it into paragraph XIII that she agreed to “drop any charges of any nature filed by her against Husband,” and concludes that only claims then pending were relinquished by paragraph XV.

¶ 17. With respect, that is a distorted reading of the agreement. Each party released the other from all claims according to paragraph XV. In order for paragraph XIII to be an exception to that release, it would have needed by plain language or reasonable implication to preserve all claims not yet brought despite requiring that Ms. Martinez drop all claims already filed. We can not read the paragraph as a savings clause. Its sole language is of abandonment, not preservation. There was no language that only the claims that had already been brought were affected by the agreement to release claims. We find nothing in the agreement that excepted the claim now being made.

Ambiguity in agreement

¶ 18. Ms. Martinez argues that the language of the property settlement agreement is ambiguous and therefore requires a trial in order to present other evidence. We find no ambiguity. Parol evidence would have been inadmissible. Dismissal on the pleadings was appropriate.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

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


author: GRIFFIS, J., for the Court.

text:
    Ronnie HARRIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-02115-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2003.
    Ronnie Harris, Appellant pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, P.J., IRVING, and GRIFFIS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Ronnie Harris appeals the denial of his motion for post-conviction relief from a conviction in which he received a sentence of five years. Harris contends that his conviction and sentence should be vacated and set aside because it violates his fundamental right to due process. Finding no error, we affirm.

FACTS

¶ 2. In 1985, Harris pled guilty in the Circuit Court of Oktibbeha County to burglary and was sentenced to five years. In 2002, Harris filed a motion for post-conviction relief from the 1985 burglary conviction. Harris argued that the indictment was defective, and that it resulted in an illegal sentence. In the motion, Harris asserted that his previous conviction of burglary, the one in question, was wrongly used as an enhancing factor in subsequent sentences. Harris was subsequently indicted for burglary as a habitual offender, escape as a habitual offender, and aggravated assault as a habitual offender. Harris was convicted and sentenced to a term of twenty-eight years. The circuit court summarily denied the motion for post-conviction relief.

LAW AND ANALYSIS

¶ 3. We will not address Harris’s claim that the-indictment was defective because he is no longer serving the sentence of which he complains. Shaw v. State, 803 So.2d 1282, 1284(¶ 7) (Miss.Ct.App.2002). The post-conviction relief statutes are an avenue for persons “in custody under sentence of a court of record” to seek relief from the conviction or sentence. Miss. Code Ann. Section 99-39-5(1) (Supp.2003). Harris is presently a prisoner within the jurisdiction of the Mississippi Department of Corrections. However, he is not being held under the sentence of which he complains. Harris’s 1985 sentence of five years expired in 1990, twelve years before the filing of his post-conviction relief motion. Furthermore, Harris has not provided this Court with any proof that he is still serving the sentence nor does he allege that he is still serving that particular sentence. Therefore, the post-conviction relief statutes provide him no remedy. Miss. Code Ann. § 99-39-5(1) (Supp.2003); Shaw, 803 So.2d at 1284(¶ 7). Thus, we affirm.

¶ 4. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

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


author: JOHNSTONE, Justice.

text:
    Ex parte Motis Franklin WRIGHT. (In re Motis Franklin Wright v. State).
    1001181.
    Supreme Court of Alabama.
    May 3, 2002.
    Motis F. Wright, pro se.
    William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for respondent.
   JOHNSTONE, Justice.

The defendant, Motis Franklin Wright, was convicted of first-degree robbery and was sentenced under the Habitual Felony Offender Act to life imprisonment without the possibility of parole. Acting pro se, Wright filed a Rule 32, Ala. R.Crim. P., petition complaining that the indictments in his cases were void, and the trial court denied the petition. Wright appealed the denial, and the Court of Criminal Appeals dismissed his appeal for untimeliness, without an opinion. Wright v. State, (No. CR-00-1073, March 1, 2001) 821 So.2d 1047 (Ala.Crim.App.2001) (table). The Court of Criminal Appeals subsequently-dismissed Wright’s motion to reinstate the appeal and his application for rehearing.

We granted Wright’s petition for a writ of certiorari to determine whether the Court of Criminal Appeals erred in dismissing Wright’s appeal as untimely filed. The only issue before us is whether Wright timely filed his notice of appeal. We reverse and remand with instructions.

On December 27, 2000, the trial judge signed and dated a separate order, not in bench notes or on the case action summary, denying Wright’s Rule 32 petition. This order was date-stamped as received by the trial court clerk on January 8, 2001.

Wright received notice of this order through the mad on January 10, 2001. Wright alleges that he placed his notice of appeal in the prison mailbox on February 19, 2001. February 19 was 42 days after the January 8 date of the trial court clerk’s receipt of the trial judge’s order. Wright’s notice of appeal bears a “Declaration of Mailing’’ signed by Wright and three witnesses stating: “I hereby certify that I have this 19th day of February, 2001, placed the foregoing Notice of Appeal in this Institution’s mailbox, postage pre-paid and properly addressed, pursuant to Houston v. Lack, 487 U.S. 266 [ (1988) ].” On February 21, 2001, the trial court clerk date-stamped Wright’s notice of appeal as received.

“[Pjostconviction proceedings filed pursuant to Rule 32 are civil proceedings.” State v. Hutcherson, 847 So.2d 378, 383 (Ala.Crim.App.2001). “[I]n all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3[, Ala. RApp. P.,] shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.... ” Rule 4(a)(1), Ala. R.App. P. See also Rule 32.10(a), Ala. R.Crim. P. “In the context of postconviction relief, the 42-day appeal period runs from the date of the trial court’s denial of the Rule 32 petition.” Ex parte Jones, 773 So.2d 989, 989 (Ala.1998). (Citation omitted.) “Clearly, the wording of the Rule [4(a)(1), Ala. R.App. P.,] states that [a] notice of appeal must be filed within 42 days ‘after a judgment’ has been entered in a case.” Miles v. State, 822 So.2d 468, 469 (Ala.Crim.App.2000). See also Thigpen v. State, 825 So.2d 241, 244 (Ala.Crim.App.2001). “ ‘[WJhen a judge renders a judgment by a separate written order, that judgment is not entered until it is filed in the clerk’s office.’ ” Allstate Ins. Co. v. Coastal Yacht Servs., Inc., 823 So.2d 632, 633 (Ala.2001) (quoting Smith v. Jackson, 770 So.2d 1068, 1071-72 (Ala.2000)) (emphasis added). See also Rule 58(c), Ala. R. Civ. P.

Therefore, Wright’s 42-day appeal time began on January 8, 2001, when the separate-order denial of his Rule 32 petition was filed in the trial court clerk’s office. If Wright’s notice of appeal be deemed and found to have been filed by February 19, 2001, then his appeal was timely and relief will be due.

Rule 4(c), Ala. R.App. P., provides:

“If an inmate confined in an institution and proceeding pro se files a notice of appeal in either a civil or a criminal case, the notice will be considered timely filed if it is deposited in the institution’s internal mail system on or before the last day for filing. If an institution has a system designed for ‘legal’ mail to be processed by the United States Post Office, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a notarized statement that sets forth the date the filing was deposited in the institution’s mail system.” (Emphasis added.)

In Holland v. State, 621 So.2d 373 (1993), the Court of Criminal Appeals observed and held:

“The appellant’s certificate of service averred that he placed the petition in the mail on March 19, four days before the limitations period elapsed. Although the petition may not have been received by the circuit clerk until March 24, one day after the statute of limitations ran, we conclude, based on the holding of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), that the appellant’s petition was timely filed....
“... In this case, we do not have the prison mail log before us. We cannot verify that the appellant in fact delivered his petition to prison authorities for mailing on March 19, four days before the limitations period elapsed, as his certificate of service avers. However, the district attorney failed to challenge this allegation in the circuit court and, consequently, it must be accepted as true. Ex parte Floyd, 4S1 So.2d 961, 962 (Ala.1984).”

Holland, 621 So.2d at 374-75. In Jones, 773 So.2d at 989, this Court explained and held:

“[T]he trial court denied [Jones’s Rule 32] petition, by a written order, on February 5, 1997. On March 17, Jones handed his notice of appeal to a prison official at the Limestone Correctional Facility, where Jones was imprisoned. Jones paid to have the notice of appeal sent by certified mail. It was sent by certified mail, and on March 21 — the 44th day after the February 5 denial of the petition — the Tuscaloosa County circuit clerk’s office received Jones’s envelope containing his notice of appeal. The Court of Criminal Appeals dismissed Jones’s appeal ... [as] untimely.
“... The 42d day after the trial court’s February 5, 1997, denial of Jones’s Rule 32 petition was March 19. Relying on Holland v. State, 621 So.2d 373 (Ala.Crim.App.1993), Jones argues that his notice of appeal should be deemed to have been ‘filed’ on the day he gave the notice of appeal to the prison official, that is, on March 17 — the 40th day after the entry of judgment.
“The record contains a copy of the envelope that contained Jones’s notice of appeal. The envelope was sent by certified mail to the office of the Tuscaloosa County circuit clerk, and it was postmarked March 17, 1997 — two days before the 42-day period for appeal would have expired. Further, Jones’s certificate of service for the notice of appeal was dated March 17. Thus, the record indicates that on or before March 17, Jones had given a prison official his notice of appeal to be mailed.... Because Jones was incarcerated and was filing his notice of appeal pro se, his notice of appeal should have been considered filed’ on March 17, the day he gave it over to the prison authorities.”

Jones, 773 So.2d at 989-90 (emphasis added).

In Hatfield v. State, 784 So.2d 377 (Ala.Crim.App.2000), Hatfield, a pro se inmate, timely appealed the denial by the trial court of his Rule 32 petition. In his Rule 32 petition, Hatfield had prayed that the trial court grant him an out-of-time direct appeal from his convictions because, he claimed, his original direct appeal had been improperly dismissed. Reversing the denial by the trial court of Hatfield’s Rule 32 petition, the Court of Criminal Appeals observed that Hatfield apparently had mailed from prison his notice of direct appeal exactly 42 days after the pronouncement of his sentence even though the trial court clerk did not mark the notice as filed until two days later. The Court of Criminal Appeals reasoned and ruled:

“We take judicial notice of the record of the dismissal of Hatfield’s direct appeal. Hatfield was sentenced on October 6, 1998. The 42nd day after pronouncement of sentence was November 17, 1998. Our records contain a pro se notice of appeal dated November 17, 1998. The notice of appeal indicates that at the time Hatfield was incarcerated in the Kilby Correctional Facility in Montgomery, Alabama. The notice of appeal is marked filed by the DeKalb circuit clerk on November 19, 1998 — the 44th day after the pronouncement of the sentence.
“Hatfield’s claim that he is entitled to an out-of-time appeal is, at least on its face, meritorious. Therefore, we remand this cause to the circuit court to address Hatfield’s claim in light of our Supreme Court’s holding that a notice of appeal filed by a pro se litigant who is incarcerated is considered filed when it is handed to a prison official. The circuit court is to make written findings of fact ioith regard to this claim, and, if necessary, to hold an evidentiary hearing on this matter.”

Hatfield, 784 So.2d at 378 (citations omitted and emphasis added).

Likewise, in Thigpen v. State, supra, the Court of Criminal Appeals remanded Thig-pen’s case to the trial court to determine whether Thigpen’s notice of appeal was timely filed:

“The trial court’s order denying the petition was issued on July 17, 2000. The appellant filed a written notice of appeal dated August 25, 2000, accompanied by the following unverified certificate of service:
“ T hereby certify that I have on this 25th day [of] August, 2000, served a copy of the foregoing “Notice of Appeal” upon the Respondents by placing said same in the Holman Institution mail service, first class postage prepaid and addressed as follows.... ’
“Rule 4(a), Ala. R.App. P., requires that a notice of appeal be filed with the clerk of the trial court within 42 days of the date of the entry of the judgment or order from which a defendant appeals. Here, the notice was dated 39 days after the entry of the trial court’s order, but it was not filed until 44 days after the specified date. The appellant was an inmate at the Holman correctional facility when he filed his pro se notice of
appeal....
“Here, the appellant filed only an un-sworn certificate of service as evidence that he delivered his petition to prison authorities for mailing on August 25. See Holland v. State, [supra ] (in which this court stated that an unsworn certificate of service was insufficient as verification of delivery of the appellant’s Rule 32 petition but had to be accepted as true in that case because the allegation was not challenged in the circuit court).
“Because the evidence indicating the date of delivery is insufficient, this cause must be remanded for the trial court to determine whether the appellant’s notice of appeal was timely filed. On remand, the trial court may conduct such proceedings and take such evidence as it deems necessary to make its determination.”

Thigpen, 825 So.2d at 243-44. On return from remand, the Court of Criminal Appeals stated that “the parties stipulated that the notice was delivered to the Holman Prison mail facility in a timely manner.” Thigpen v. State, 825 So.2d 241, 244 (Ala.Crim.App.2001), opinion on return to remand. Accordingly, Thigpen’s appeal was reinstated. Id.

While Rule 4(c), Ala. R.App. P., includes a provision that “[tjimely filing may be shown by a notarized statement that sets forth the date the filing was deposited in the institution’s mail system” (emphasis added), this rule does not mandate such a notarized statement as the only way to establish the timeliness of a filing. Such a mandate would create still further issues about the availability and expense of a notary public that the rule is not drawn to resolve. The nonmandatory nature of the provision for the notarized statement is connoted by the use of the word may in contradistinction to the use of the word must elsewhere in the very same rule to connote a measure that is mandatory — the inmate’s use of the “legal” mail system, if one is available in the institution, instead of the general mail system there.

The issue before us is not the timeliness of Wright’s Rule 32 petition. The issue is, rather, the timeliness of his appeal from the denial of his Rule 32 petition. Because the filing of his notice of appeal in the trial court required no judicial action, as distinguished from ministerial action, by the trial court, the State did not interpose or waive any objection to the timeliness there, and the parties did not make any record of any contest of the timeliness there.

Rather, the first consideration of, and ruling on, the timeliness of Wright’s appeal necessarily occurred in the Court of Criminal Appeals. No evidence before the Court of Criminal Appeals contradicted Wright’s “Declaration of Mailing,” which, if true, establishes that his notice of appeal was “filed” within the 42 days allowed by law. We can deduce that his notice of appeal must have been mailed on February 19, 2001 (the 42nd day), or February 20, 2001 (the 43rd day), for the notice of appeal to have been received and date-stamped by the trial court clerk’s office on February 21, 2001 (the 44th day). Wright’s case is like those of the appellants in Hatfield and Thigpen, supra, and he is due like relief.

Therefore, this cause must be remanded for the trial court to determine whether Wright, in fact, deposited his notice of appeal in the appropriate internal mail system of the prison institution or handed the notice to an appropriate officer of that institution for such deposit on or before February 19, 2001. On remand, the trial court may conduct such proceedings and take such evidence as it deems necessary to make its fact-findings and shall return its fact-findings in writing to the Court of Criminal Appeals.

Accordingly, we reverse the judgment of the Court of Criminal Appeals dismissing Wright’s appeal. We remand this cause to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MOORE, C.J., and SEE, LYONS, HARWOOD, and WOODALL, JJ., concur.

HOUSTON, BROWN, and STUART, JJ., concur in the result.


author: PER CURIAM.

text:
    Motis Franklin WRIGHT v. STATE of Alabama.
    CR-00-1073.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Motis Franklin Wright, pro se.
    Submitted on appellant’s brief only.
   After Remand from the Alabama Supreme Court

PER CURIAM.

The appellant, Motis Franklin Wright, appealed the denial of his petition for post-conviction relief attacking his robbery conviction and his subsequent sentence of life imprisonment without the possibility of parole. We dismissed Wright’s appeal because the notice of appeal was not filed within 42 days from the date that the order denying the Rule 32 petition was filed in the circuit clerk’s office. Wright v. State, 821 So.2d 1047 (Ala.Crim.App.2001) (table). In April 2001, Wright filed a petition for a writ of certiorari in the Alabama Supreme Court. On May 3, 2002, the Supreme Court reversed this Court’s ruling dismissing the appeal and remanded the case for further proceedings consistent with its opinion. Ex parte Wright, 860 So.2d 1253 (Ala.2002). The Supreme Court noted that Wright’s notice of appeal was accompanied by a “Declaration of Mailing” and that Wright certified that he had mailed the notice of appeal on the forty-second day after the order disposing of his Rule 32 petition was filed in the circuit clerk’s office. The opinion also noted that the circuit clerk date-stamped Wright’s notice of appeal on the forty-third day — one day after the time for filing a notice of appeal had expired.

The Supreme Court remanded the case to this Court with instructions that we direct the circuit court to “determine whether Wright, in fact, deposited, his notice of appeal in the appropriate internal mail system of the prison institution or handed the notice to an appropriate officer of that institution for such deposit on or before February 19, 2001 [the last day to file a notice of appeal].” 860 So.2d at 1257. We remand this case to the Circuit Court of Tallapoosa County for proceedings consistent with the Supreme Court’s opinion. The circuit court is directed to file its return with this Court within 28 days of the date of this opinion.

This case is an excellent example of why Rule 4(c), Ala.R.App.P., should be amended to more specifically address the problems generated by inmate filings. We note that the Standing Committee for the Rules of Appellate Procedure has tentatively approved an amendment to Rule 4 that, we believe, will resolve this problem. We urge the Supreme Court to approve the proposed amendments to this Rule.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ„ concur.

       Note from the reporter of decisions: On October 1, 2002, on return to remand, the appeal was reinstated. On January 7, 2003, the Court of Criminal Appeals affirmed, without opinion. On February 21, 2003, that court denied rehearing, without opinion. On April 18, 2003, the Supreme Court denied certiora-ri review, without opinion (1021000).


author: HOUSTON, Justice.

text:
    Ex parte Clifford Larry COLLINS. (In re Larry Collins v. Julie Collins).
    1020115.
    Supreme Court of Alabama.
    Feb. 14, 2003.
    Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham; and C. Blake West and Richard L. Collins, Cull-man, for petitioner.
    Kevin D. Teague, Decatur, for respondent.
   HOUSTON, Justice.

Clifford Larry Collins appealed from a divorce judgment (Alabama Court of Civil Appeals case no. 2010283) and a subsequent conviction for criminal contempt resulting from a violation of the divorce judgment (Alabama Court of Civil Appeals case no. 2010611). The Alabama Court of Civil Appeals consolidated both appeals and affirmed the judgments without opinion. Collins v. Collins, (Nos. 2010283 and 2010611, Oct. 4, 2002)-So.2d-(Ala. Civ.App.2002) (table). We granted Collins’s petition for a writ of certiorari to review the criminal-contempt conviction and the trial court’s award of attorney fees to Julie Collins, Larry Collins’s ex-wife, arising out of the criminal-contempt proceeding. Julie Collins moved this Court to sever the appeals consolidated in the Court of Civil Appeals and to remand case no. 2010283 because certiorari review was sought only in the contempt case. We granted her motion. Only case no. 2010611 is before us on this review.

As to the criminal-contempt conviction, upon review of the briefs and record, we find no error; therefore, we affirm the judgment of the Court of Civil Appeals insofar as it relates to that conviction. However, we reverse the Court of Civil Appeals’ judgment insofar as it relates to the award of attorney fees.

After Larry Collins allegedly violated the trial court’s divorce judgment, Julie Collins filed a verified petition for contempt. The trial court adjudged Larry Collins in criminal contempt of court and, as part of its judgment, the cotrrt awarded Julie an attorney fee of $1,350. This award of attorney fees directly conflicts with our opinion in In re State ex rel. Payne v. Empire Life Insurance Co. of America, 351 So.2d 538, 545 (Ala.1977), wherein we stated that, in a criminal-contempt action, “the award of attorney’s fees is not proper” and that part of the trial court’s order purporting to award an attorney fee “must be considered as mere sur-plusage and severed from the judgment decree.” See also Ex parte J.R.W., 667 So.2d 88, 91 (Ala.1995) (noting that “while awarding an attorney fee in a criminal contempt proceeding is improper, it does not void the judgment”). Therefore, the Court of Civil Appeals erred in affirming the trial court’s award of an attorney fee in the criminal-contempt proceeding.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: YATES, Presiding Judge.

text:
    Larry COLLINS v. Julie COLLINS.
    2010611.
    Court of Civil Appeals of Alabama.
    April 18, 2003.
    C. Blake West and Richard L. Collins, Cullman, for appellant.
    Kevin D. Teague, Decatur, for appellee.
   On Remand from the Alabama Supreme Court

YATES, Presiding Judge.

This court, on October 4, 2002, affirmed the trial court’s judgment, without an opinion. Collins v. Collins, (No. 2010611, October 4, 2002) - So.2d - (Ala.Civ.App. 2002) (table). The Alabama Supreme Court has reversed this court’s judgment insofar as it affirmed the trial court’s award of an attorney fee in the criminal-contempt proceeding and has remanded the case to this court. Ex parte Collins, 860 So.2d 1259 (Ala.2003). The trial court’s judgment insofar as it affirmed the award of an attorney fee in the criminal-contempt proceeding is reversed, in compliance with the supreme court’s opinion, and the case is remanded for further proceedings.

REVERSED IN PART AND REMANDED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.


author: SEE, Justice.

text:
    Ex parte CLARKSVILLE REFRIGERATED LINES I, LTD., a Texas limited partnership. (In re Kenny Ford v. Clarksville Refrigerated Lines I, Ltd., a Texas limited partnership).
    1011543.
    Supreme Court of Alabama.
    April 18, 2003.

      Charles A. Stewart III and George R. Parker of Bradley Arant Rose & White, L.L.P., Montgomery, for petitioner.
    W. Banks Herndon, Opelika; and Sam E. Loftin of Loftin, Loftin & Hall, Phenix City, for respondent.
   SEE, Justice.

Clarksville Refrigerated Lines I, Ltd. (“Clarksville”), the defendant in an action pending in the Russell Circuit Court, petitions this Court for a writ of mandamus directing the Russell Circuit Court to vacate its order denying Clarksville’s motion for a change of venue to the Lee Circuit Court pursuant to § 6-3-21.1(a), Ala.Code 1975, the forum non conveniens statute. Because Clarksville clearly demonstrates that it is entitled to the relief requested, we grant the petition.

Clarksville, a trucking company headquartered in Texas, hires independent owner/operators to transport cargo. Kenny Ford is an independent-contract truck driver. On April 4, 2001, Ford, a resident of Lee County, entered into an “Independent Contractor Agreement” with Clarks-ville at Clarksville’s Opelika terminal in Lee County. Ford worked out of Clarks-ville’s Opelika terminal — he picked up deliveries there, returned trailers there, and received job assignments there. Clarks-ville kept all of its records concerning Ford in Opelika. Clarksville operates no terminals in Russell County. Ford terminated his contract with Clarksville after a pay dispute arose between Clarksville and Ford at Clarksville’s Opelika terminal.

On January 29, 2002, Ford sued Clarksville in the Russell Circuit Court, alleging breach of contract. Clarksville moved to dismiss the action, or in the alternative, to transfer the case to the Lee Circuit Court. The trial court denied Clarksville’s motion. Clarksville moved the trial court to reconsider its order, and the trial court denied that motion. Clarks-ville now petitions this Court for the writ of mandamus directing the trial court to vacate its order denying a change of venue, and to transfer the case to Lee County.

“ ‘The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1999)(citing Lawler Mobile Homes, Inc. v. Tarver; 492 So.2d 297, 302 (Ala.1986)).

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”
‘Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).’ ”

Ex parte Jim Walter Homes, Inc., 830 So.2d 733, 735 (Ala.2002)(quoting Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000)).

In 1987, the Legislature enacted § 6-3-21.1(a), Ala.Code 1975, adopting the doctrine of forum non conveniens. Section 6-3-21.1(a), Ala.Code 1975, states, in pertinent part:

“(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

“A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice.” Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).

Clarksville argues, based on this Court’s decisions in Ex parte Jim Walter Homes, Ex parte First Family Financial Services, Inc., 718 So.2d 658 (Ala.1998), Ex parte National Security Insurance, and Ex parte Independent Life & Accident Insurance Co., 725 So.2d 955 (Ala.1998), that this action should be transferred from Russell County to Lee County for the convenience of the parties and in the interest of justice.

In National Security Insurance this Court stated:

“It is undisputed that at the time of filing National Security [the defendant] maintained no office, and kept no documents, in Lowndes County. Smoke [the plaintiff] did not live in Lowndes County. No meetings between National Security and Smoke occurred in Lowndes County. In fact, all meetings between Smoke and employees of National Security occurred in Elmore County, where National Security seeks to have the case transferred. Further, Smoke was treated in Elmore County for her alleged mental anguish arising from her dealings with National Security. All of Smoke’s witnesses reside in Elmore County, and no witness for either party resides in Lowndes County.”

727 So.2d at 790. Under those circumstances, this Court held that the “ ‘interest of justice’ require[d] the transfer of the action from a county with little, if any, connection to the action ... to a county with a strong connection to the action.” 727 So.2d at 790.

It is undisputed that Clarksville maintained no office and kept no documents in Russell County. Ford did not live in Russell County. No meetings between Clarksville and Ford took place in Russell County. In fact, all meetings between Ford and Clarksville took place in Lee County, where Clarksville seeks to have the case transferred. Further, two of Clarksville’s employees who will be important witnesses in this case live in Lee County.

Ford argues that a trial judge has great discretion in choosing whether to transfer an action based on the doctrine of forum non conveniens. Ford argues that, based on this Court’s holding in Ex parte Jim Burke Automotive, Inc., 776 So.2d 118 (Ala.2000), the trial court did not exceed its discretion when it denied Clarksville’s motion for a change of venue. In Jim Burke, a customer sued Jim Burke Automotive, a car dealership located in Jefferson County, in Perry County. Jim Burke moved for a change of venue, arguing that venue was proper in Jefferson County because all of the contracts and agreements had been prepared and performed in Jefferson County and because it did not do business in Perry County. The trial court denied Jim Burke’s motion, and this Court affirmed the trial court’s order.

Jim Burke, however, is factually distinguishable from the present case. The plaintiff in Jim Burke lived in Perry County, where he brought the action, while Ford, the plaintiff in this case, does not live in the county in which he brought the action — Russell County. The only connections Ford asserts with Russell County are that he delivered freight to Russell County for Clarksville, that he shops in Russell County, and that his attorneys live in Russell County. Under those circumstances, the interest of justice requires the transfer of the action to Lee County.

Ford also argues that the acts that give rise to his action took place in Russell County because he made 12 deliveries to a Wal-Mart discount department store in Phenix City, and he asserts that those deliveries are the basis for his breach-of-contract action. Ford states, “if [I] had never made the contracted trips (events) into Russell County to the Wal-Mart Su-perCenter, then [I] would have been due no contract compensation for them and they (the non-existent trips or ‘events’) could not have given rise to the breach of contract claim.” (Ford’s brief at 7-8.) Ford cites Ex parte Adamson, 408 So,2d 151 (Ala.Civ.App.1981), in support of the proposition that venue is proper in Russell County. Clarksville argues that Ford’s trips are not the acts giving rise to this action. Clarksville argues that the alleged breach of contract and the alleged failure to pay took place at Clarksville’s Opelika terminal in Lee County. Assuming, without deciding, that Ford could properly bring his action in Russell County, the application of the doctrine of forum non conveniens would therefore be proper under § 6-3-21.1, Ala.Code 1975, because § 6-3-21.1 operates “[w]ith respect to civil actions filed in an appropriate venue.”

Finally, Ford argues that his family shops in Russell County and that he finds it just as convenient to travel to the courthouse in Russell County as to the courthouse in Lee County. In National Security Insurance Co., this Court explained why such concerns are immaterial:

“In [Ex parte] Independent Life [& Accident Insurance Co., 725 So.2d 955, 957 (Ala.1998) ], this Court required the transfer from Lowndes County to Montgomery County of an action involving breach-of-contract and fraud allegations against an insurer. Although Lowndes County and Montgomery County are contiguous, this Court noted that the plaintiffs lived in Montgomery County, that all relevant transactions took place in Montgomery County, and that most of the witnesses lived in Montgomery County. This Court concluded that the action had ‘no nexus with Lowndes County that would justify burdening that county with the trial of [that] case.’ ”

727 So.2d at 790.

Similarly in this case, there is no witness, no document, or no transaction that would justify burdening Russell County with the trial of this case. Therefore, we hold that the trial court exceeded its discretion when it denied Clarksville’s change-of-venue motion. Consequently, we grant Clarksville’s mandamus petition and order the trial court to vacate its order denying Clarksville’s motion and to transfer the pending action to the Lee Circuit Court.

PETITION GRANTED; WRIT ISSUED.

HOUSTON,jj LYONS, BROWN, WOODALL, and STUART, JJ„ concur.

MOORE, C.J., and HARWOOD, J., dissent.

      . The parties blur the distinction between what constitutes the proper venue in which to bring an action and the application of the doctrine of forum non conveniens. The first paragraph of Clarksville’s petition states that it seeks relief under Rule 21, Ala. R.App. P.; Rule 82(d)(1), Ala. R. Civ. P.; and §§ 6-3-7 and 6-3-21.1, Ala.Code 1975. Clarksville argues that if venue is improper in Russell County, then this Court should apply the forum non conveniens statute, § 6-3-21.1, Ala. Code 1975, to transfer the case to Lee County. Clarksville argues, without citation to authority, that venue is improper in Russell County because "[n]othing in this case occurred in Russell County except the plaintiff’s occasional delivery of goods to a Wal-Mart store ... [and that] occasional act by an independent contractor does not confer venue.” (Clarks-ville’s brief at 7.) Ford, citing Ex parte Adamson, 408 So.2d 151 (Ala.Civ.App.1981), argues that under § 6-3-7, Ala.Code 1975, venue is proper in any county in which he performed work for Clarksville and that he performed work in Russell County. Adamson, however, describes the application of the venue provisions of § 6-3-3, Ala.Code 1975, not the venue provision at issue in this case— § 6-3-7, Ala.Code 1975. Ford’s argument is not dis-positive; however, Clarksville bears the burden of proving that venue in Russell County is not proper. Because Clarksville does not clearly demonstrate that venue would be improper in a county where Ford performed work on its behalf, we do not decide the case on the issue of whether venue in Russell County was proper initially, but consider only the application of the doctrine of forum non conveniens.

      . Adamson is inapposite on that point. Adamson held that in an action for work and labor under § 6-3-3, Ala.Code 1975, venue was proper in any county in which the work was performed. Ford, however, does not assert that venue is proper under § 6-3-3, Ala. Code 1975; instead, Ford argues in this case that venue is proper under the general venue provisions of § 6 — 3—7(a)(1), Ala.Code 1975, because, he says, the acts or omissions that give rise to his claim took place in Russell County.