author: SMITH, Presiding Justice, for the Court. COBB, Justice,

text:
    Henry PUNZO v. JACKSON COUNTY, Mississippi.
    No. 2002-CA-01196-SCT.
    Supreme Court of Mississippi.
    Dec. 4, 2003.

      Russell S. Gill, Bradley Wade Rath, Biloxi, attorneys for appellant.
    Gary S. Evans, attorney for appellee.
   SMITH, Presiding Justice, for the Court.

¶ 1. This case, arising from property damage, arises under the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002 & Supp.2003). The landowner seeks an award of.monetary damages and a mandatory injunction against a county. The issues before us are whether the trial court erred in granting summary judgment, finding the claim to be time barred as to money damages, and whether the trial court erred in refusing to grant a mandatory injunction. We find the trial court’s summary judgment dismissing the money damage claims was not proper because the discovery of a latent injury rule applied to toll the statute of limitations. On the issues concerning in-junctive relief, we find the trial court erred in not applying the current legal standard for mandatory injunctions. Therefore, we reverse and remand.

FACTS

¶ 2. Since 1986, Henry Punzo (Punzo) has resided at 15600 Green Thumb Drive in Jackson County, Mississippi; his home was built at approximately eighteen feet above sea level. On Punzo’s property is a creek which crosses about three acres of the property. Approximately three-fourths of a mile to one mile from Punzo’s home downstream is the Daisy Vestry Road two-lane bridge (bridge), spanning the creek with a steep approach on each side. This low area serves as a relief mechanism for the watershed upstream of the bridge.

¶ 3. In late 1991 or early 1992, the Jackson County Road Department filled in the north approach to the bridge. This operation encompassed a length of about four hundred fifty feet to an average height of about two feet. The fill was calculated to have provided an extra two thousand seven hundred cubic feet per second of water flow capacity to the flow allowed by the bridge.

¶ 4. Sometime after the approach was raised or filled, Jackson County added two polyethylene culverts immediately north of the bridge. These culverts were calculated to have about one hundred sixty cubic feet per second of water flow capacity. This is about six percent of the approach’s capacity prior to the fill.

¶ 5. On May 5,1995, Punzo’s home flooded for the first time. On March 7, 1998, the house flooded a second time. Punzo’s house flooded three more times on September 12, 1998, September 27, 1998, and June 11, 2001. The home flooded at least once more since the trial of this matter. As a result of the floods, Punzo has incurred approximately $129,973.98 in damages to date.

¶ 6. The following tropical storms and/or hurricanes coincided with episodes of flooding: September 12, 1998, was Tropical Storm Frances with a total of 8.07 inches of rainfall, September 27, 1998, was Hurricane Georges with 15.67 inches of rainfall, and June 11, 2001, was Tropical Storm Allison with 9.90 inches of rainfall.

¶ 7. On September 9, 1999, Henry Punzo presented a notice of claim to the Jackson County Board of Supervisors (Board), pursuant to the MTCA. On December 8, 1999, Punzo filed a complaint against Jackson County, Mississippi (County) in the Circuit Court of Jackson County. The lawsuit sought a claim for money damages and a mandatory injunction.

¶ 8. After the County filed a motion to dismiss or in the alternative, for summary judgment, Punzo filed an amended complaint. The trial court disposed of the claim for money damages under the MTCA by partial summary judgment on January 11, 2002, finding the claim was barred by the one-year statute of limitations. The court held that the statute began to run at the time of the alleged wrongful conduct the raising of the road on the north side of the bridge. Punzo claimed the discovery of a latent injury rule applied, tolling the statute of limitations until his discovery of the alterations to the bridge in 1998.

¶ 9. After a full trial on the merits concerning the remainder of Punzo’s complaint, the trial court denied Punzo’s request for a mandatory permanent injunction. The trial court found that Pun-zo did not prove beyond a reasonable doubt that he was entitled to a mandatory injunction and that Punzo did not show that an injunction is the only effective remedy. The trial court issued final judgment on July 2, 2002. Punzo appealed to this Court the trial court’s partial summary judgment and denial of mandatory injunctive relief.

STANDARD OF REVIEW

¶ 10. The County filed a motion to dismiss, or in the alternative for summary judgment. This Court has said before a motion to dismiss raises issues of law. Reid v. Am. Premier Ins. Co., 814 So.2d 141, 144 (Miss.2002) (citing Sennett v. United States Fid. & Guar. Co., 757 So.2d 206, 209 (Miss.2000)). This Court reviews de novo a grant of summary judgment. Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996). Only if the plaintiff is unable to prove any facts to support his claim will summary judgment be granted. Smith v. Braden, 765 So.2d 546, 549 (Miss.2000) (citing Delahoussaye v. Mary Mahoney’s, Inc., 696 So.2d 689, 690 (Miss.1997)). In order for this Court to reverse a summary judgment, there must exist a triable issue of fact after the facts are viewed in the light most favorable to the nonmoving party. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (Miss.1999) (citing Box v. State Farm Mwt. Auto. Ins. Co., 692 So.2d 54, 56 (Miss.1997)).

¶ 11. Additionally, on appeal is the trial court’s judgment denying injunctive relief. The review of a trial judge’s findings of fact and law requires a finding that the trial court was manifestly wrong before this Court will disturb its ruling. USPCI of Miss., Inc. v. State ex rel. McGowan, 688 So.2d 783, 786 (Miss.1997) (citing RC Constr. Co., Inc. v. Nat’l Office Sys., Inc., 622 So.2d 1253, 1255 (Miss.1993)).

LAW AND ANALYSIS

¶ 12. There are four issues on appeal. The first concerns the order dismissing the claims as to money damages; the order is styled as one granting summary judgment as to the money damages. The remaining three concern the final judgment denying a mandatory injunction, and these three will be addressed together.

I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE COUNTY’S MOTION FOR SUMMARY JUDGMENT AS TO PUN-ZO’S CLAIM FOR MONEY DAMAGES.

¶ 13. The trial court’s basis for dismissing the money claims by partial summary judgment was that the claim was time barred by the statute of limitations provision that applies to government entities:

All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95) days from the date the chief executive officer of the state agency receives the notice of claim, or for one hundred twenty (120) days from the date the chief executive officer or other statutorily designated official of a municipality, county or other political subdivision receives the notice of claim, during which time no action may be maintained by the claimant unless the claimant has received a notice of denial of claim.

Miss.Code Ann. § 11^46-11(3). The County claims that the discovery rule does not apply to toll the statute. Punzo claims the discovery rule does apply.

¶ 14. Punzo argues that if the one-year statute of limitations in § 11-46-11(3) applies, then his claim was promptly filed since he filed his complaint within one year of his discovery of the County’s negligent rebuilding of the bridge. Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 204 (Miss.1999). Punzo asserts that he had no way of knowing that the County was liable until September 12, 1998, when his neighbor, Mark Holland, and former Jackson County supervisor Tommy Brodnax advised him of the modification to the bridge. As a result, he maintains that his notice to the County, filed on September 9, 1999, was timely filed within one year of his discovery of the County’s negligent conduct. His complaint filed on December 8, 1999, was also timely filed.

¶ 15. The County argues that the statutory language used, “the tortious, wrongful or otherwise actionable conduct,” requires the statute to run from the date the bridge construction was completed, which would have been late 1991 or early 1992. The County also argues that for the discovery rule to apply, there must be a latent injury. Looking at the flood as the injury, the County states there is nothing latent, or concealed, about floodwaters in a house. Punzo contends that this Court should look to the discovery of the cause of the injury in this instance, not the date, because the cause was not readily apparent or obvious. The trial court held that Punzo’s injury was “immediate rather than latent,” explaining, “[t]he cause of the injury may have been unknown at the time, but [Punzo] certainly knew that he had been injured in May of 1995.”

¶ 16. The trial court’s findings are not consistent with this Court’s prior holdings as in Barnes, 733 So.2d 199, and Sweeney v. Preston, 642 So.2d 332 (Miss.1994). In Barnes, this Court repeated Sweeney’s summary of the rationale supporting the application of the discovery rule to latent injury cases:

Thus, where an injury or disease is latent, a determination of when the statute of limitation begins to run focuses not on the time of the negligent act or omission, but on when the plaintiff discovers the injury or disease. Moreover, knowledge that there exists a casual relationship between the negligent act and the injury or disease complained of is essential because “it is well-established that prescription does not run against one who has neither actual nor constructive notice of facts that would entitle him to bring an action.”

733 So.2d at 204 (quoting Sweeney, 642 So.2d at 334 (quoting Williams v. Kilgore, 618 So.2d 51, 55 (Miss.1992))). Also, Swee ney references Gentry v. Wallace, 606 So.2d 1117 (Miss.1992), in which this Court held that wrongful death and medical negligence were two separate causes of action, following the logic that “[prescription does not begin to run against one who is ignorant of facts that would entitle him to bring an action.” Sweeney, 642 So.2d at 385 (quoting Ayo v. Johns-Manville Sales Corp., 771 F.2d 902 (5th Cir.1985)).

¶ 17. The County concedes that in Barnes, this Court held that the absence of specific discovery language in § 11-46-11(3) did not preclude the application of the discovery rule; however, the County argues that the injury to Punzo’s property was not latent. 733 So.2d at 204. Further discussion in Sweeney examined the history of discovery rule application in medical malpractice actions involving latent injuries. Prior to the enactment of § 15-1-36 and the three-year statute of limitations with a discovery rule provision for latent injuries, the six-year general statute of limitations applied to medical malpractice claims without a discovery rule provision. Barnes, 733 So.2d at 204 (citing Sweeney, 642 So.2d at 333). By adopting § 15-1-36,

the Legislature shortened the time period for bringing a medical malpractice suit, but adopted a discovery standard for triggering the running of the statute .... Similarly, when the Legislature amended § 15 — 1—49 (the general statute of limitations), shortening the limitations period from six years to three years, it included a discovery provision for latent injuries as a trade-off.

733 So.2d at 204. Barnes clearly decided that where the one-year statute of limitations applied, the claim was filed properly when it was filed within one year of the discovery of the defendant’s negligent conduct. Id. In Barnes, 733 So.2d at 205, this Court thoroughly described the history of the discovery rule at common law and its application to a variety of case types, reviewing cases such as Schiro v. Am.Tobacco Co., 611 So.2d 962, 965 (Miss.1992) (discovery rule as a common law exception), Owens-Ill., Inc. v. Edwards, 573 So.2d 704 (Miss.1990) (discovery rule exists in case of negligence or products liability cause of action involving latent disease), Evans v. Boyle Flying Serv., Inc., 680 So.2d 821 (Miss.1996) (holding that a notice of claim period did not begin to run until discovery of the injury), Smith v. Sneed, 638 So.2d 1252 (Miss.1994) (discovery rule applied in legal malpractice actions), Tabor Motor Co. v. Garrard, 233 So.2d 811, 814 (Miss.1970) (discovery rule in statutes of limitations applied to workers’ compensation case), and Staheli v. Smith, 548 So.2d 1299 (Miss.1989) (statute of limitations in suit for defamatory material does not begin to run until reasonable discovery of the material). Remaining consistent with the above cases, this Court incorporated a discovery rule in actions brought under the MTCA involving latent injuries. Barnes, 733 So.2d at 205.

¶ 18. In Smith v. Braden, 765 So.2d 546, this Court reiterated its earlier holding in Barnes incorporating the discovery rule into actions brought under the MTCA. Given the relatively short one-year statute of limitations, it is particularly important. Id. When a question of fact exists as to when the statute of limitations begins run, the issue should be considered by the trial court. Id. (citing Barnes, 733 So.2d at 203-06.)

¶ 19. In Evans, 680 So.2d at 827, this Court held it was not reasonable to bar a person’s cause of action when that person initially had no knowledge that time was running on the statute. The Evans court found it to be an injustice to prevent a person’s recovery “on a claim, i.e. an injury for which redress is guaranteed by our Constitution and statutory law, by being barred by a limitation period, in actuality a statute of repose if it were so construed, when they should not have reasonably known that damage had occurred.” The Evans holding is similar to and consistent with this Court’s earlier statement in Smith v. Sanders, 485 So.2d 1051, 1052-53 (Miss.1986):

There may be rare cases where the patient is aware of his injury prior to the [expiration of the limitations period], but does not discover and could not have discovered with reasonable diligence the act or omission which caused the injury. In such cases, the action does not accrue until the latter discovery is made.

¶ 20. The County also contends that if the injury was latent, Punzo did not use the required reasonable diligence to determine the cause of the flood because three years passed between the first flood and the time Punzo learned from á neighbor of the bridge’s alterations. This Court maintains that one flood does not create enough notice of an actionable claim’s existence or of someone’s fault. The second flood was just six months before Punzo’s third flood and his learning of the bridge alterations. The record indicates that Punzo had completed the clean up and repair of his house from the damage of the second flood in March of 1998 just a month or so prior to the third flood in September of 1998. Within six months of that flood he learned of the alleged cause. We find that six months is a reasonable time period to discover the alleged cause of the harm.

¶ 21. Within one year of his discovery of the potential'cause of the floods, he instigated proceedings against the County in compliance with § 11-46-11. Additionally, Punzo testified that he had written letters to the County’s attorney as early as February 1999, asking for help with the flooding conditions. In Sarris v. Smith, 782 So.2d 721, 724 (Miss.2001), this Court examined the application of the discovery rule to a wrongful death suit, stating: ■

Sweeney stands squarely for the proposition that the statute of limitations can be tolled until a plaintiff gains actual knowledge of the defendant’s negligent conduct even if that knowledge is not gained until years after the death that is the basis for the suit.... The discovery rule should have been applied to toll the statute of limitations, because while Sar-ris knew that her husband was dead, under the facts of this case, she could not reasonably have known that the death was the result of negligence.

We have recognized that some instances of discovery require knowledge beyond that of a layman. Water flow and flood currents are subjects requiring expert knowledge to fully comprehend. In Donald v. Amoco Production Co., 735 So.2d 161, 168 (Miss.1999), we examined the proposition that a layperson may have limited knowledge, stating, “the discovery exception may be applied when it is unrealistic to expect a layman to perceive the injury at the time of the' wrongful act.” (citing Smith, 638 So.2d at 1257).

¶ 22. In granting summary judgment dismissing the money damages claims, the trial court stated that the injury to Punzo was “immediate rather than latent,” so the discovery rule would not apply; however, the court did not hold a hearing ■ before making that finding of fact. According to Schiro, genuine disputes as to the ability to discover a latent injury are questions of fact to be decided by the fact finder, not on summary judgment. 611 So.2d at 962.

¶ 23. In another property damage case, this Court found that when a plaintiff missed the three-year limitation period by less than two years, then the claim could not be considered “stale,” especially since all witnesses were most likely still alive and still had fresh memories. Barnes, 733 So.2d at 207. The situation is similar in Punzo’s case because the witnesses testified at trial in the injunction phase of the case and appeared to have impaired memory due to the passage of time.

¶ 24. We find the trial court erred in dismissing the money damages portion of Punzo’s complaint as time barred. We reverse and remand the matter for a full trial on the merits.

II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT PUNZO FAILED TO PROVE THAT AN INJUNCTION WAS THE ONLY EFFECTIVE REMEDY TO SOLVE PUNZO’S FLOODING PROBLEMS.

III. WHETHER THE TRIAL COURT ERRED IN FINDING THAT PUNZO DID NOT SHOW BEYOND A REASONABLE DOUBT THAT THE RIGHT TO A MANDATORY INJUNCTION WAS NECESSARY AND THAT IRREPARABLE INJURY WOULD RESULT UNLESS THE MANDATORY INJUNCTION WAS ISSUED.

IV. WHETHER THE TRIAL COURT ERRED IN DENYING PUNZO’S REQUEST FOR A MANDATORY PERMANENT INJUNCTION.

¶ 25. This Court will not disturb a judge’s findings of fact unless they are manifestly wrong. USPCI of Miss., Inc., 688 So.2d at 786 (citing RC Constr. Co., 622 So.2d at 1255). The trial court made detailed findings of fact after a trial on the merits and concluded that Punzo did not sustain the burden of proof required to justify the court’s establishment of a mandatory injunction against the County. However, the trial court did not rely on recent case law handed down by this Court on the subject of mandatory injunctions.

¶ 26. The trial court cites accurately to three cases, dating 1934, 1971, and 1978. The main case relied on by the trial court appears to be Thomas v. Miss. Power & Light Co., 170 Miss. 811, 152 So. 269, 271 (1934), in which we held

Nothing is better settled in this state, and nothing is or ought to be better understood, than the rule that a mandatory injunction should never issue unless the right to it is so clearly and certainly shown that there can be no reasonable doubt of its propriety, no probability that the defendant can make any valid objection to it and no possibility that its justice can be controverted.

This standard requires more of a showing by the plaintiff than is required by the standard followed in more recent cases. In Reynolds v. Amerada Hess Corp., 778 So.2d 759, 765 (Miss.2000), we stated, “To obtain a permanent injunction, a party must show an imminent threat of irreparable harm for which there is no adequate remedy at law.” (citing City of Water Valley v. Trusty, 343 So.2d 471, 472 (Miss.1977)). In Reynolds, this Court made no mention of a requirement of proof beyond a reasonable doubt, which the trial court stated is the proof required.

¶ 27. In Hall v. Wood, 443 So.2d 834, 841 (Miss.1983), though this Court suggested use of extreme caution in granting a mandatory injunction, we did not require a showing of proof beyond a reasonable doubt. We stated, “A mandatory injunction should be ordered where such is ‘the only effective remedy.’ ” Id. (quoting Warrior, Inc. v. Easterly, 360 So.2d 700, 704 (Miss.1978); citing Homes, Inc. v. Anderson, 235 So.2d 680, 683 (Miss.1970)). For further clarification, we explained,

Mandatory injunctions should be granted only where that which they demand is reasonably practicable. A mandatory injunction requiring “a practical impossibility” should never issue. Homes, Inc. v. Anderson, 235 So.2d 680, 683 (Miss.1970). The expense and hardship to the party enjoined should also be considered. That these may be substantial counsels caution and restraint.

Hall, 443 So.2d at 841. This decision does require that the remedy be practicable.

¶ 28. In Pattillo v. Bridges, 247 So.2d 811 (Miss.1971), this Court did cite Thomas but not to the requirement of proof beyond a reasonable doubt. Pattillo declared,

Thomas v. Miss. Power & Light Co., 1934, 170 Miss. 811, 152 So. 269; Miss. Power & Light Co. v. McCoglan Hotel, Miss.1934,152 So. 271, 28 Am.Jur., Secs. 17-22, states that a mandatory injunction is a rather harsh remedial process and is not favored by the courts. It is not regarded with judicial favor and is used only with caution and in cases of great necessity. The case must be one clearly disclosing irreparable injury to the complainant. (233 Miss, at 176, 101 So.2d at 506).

247 So.2d at 812.

¶ 29. The trial court erred in not applying the correct legal standard. We reverse and remand this case with instructions to the trial court to apply the legal standard as stated in Reynolds, requiring the requesting party to show an imminent threat of irreparable harm for which there is no adequate remedy at law, and in keeping with Homes, Inc., a mandatory injunction should be granted only if reasonably practicable.

CONCLUSION

¶ 30. We find the trial court erred in dismissing the money damage claims because the discovery of a latent injury rule applied to toll the statute of limitations. On the issues concerning injunctive relief, we find the trial court erred in not applying the current legal standard for mandatory injunctions. Therefore, we reverse the circuit court’s judgment, and we remand this case for further proceedings consistent with this opinion.

¶ 31. REVERSED AND REMANDED.

McRAE, P.J., WALLER, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. PITTMAN, C.J., CONCURS IN RESULT ONLY. COBB, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

COBB, Justice,

dissenting.

¶ 32. In my view, the majority errs on two issues. First, the majority expands and improperly applies the discovery rule in this MTCA case. Even if the set of facts and circumstances before us warrant application of the discovery rule, the point in time which the majority finds to be the proper date from which to calculate the running of the statute of limitations is illogical on its face. Second, although I agree with the majority’s conclusion that the circuit court applied the incorrect standard as to Punzo’s injunction claim, in my view it was harmless error. For the reasons set forth below, I respectfully dissent.

I. The Discovery Rule Issue

¶ 33. In 1986, Punzo built a house approximately one mile from a bridge. In 1991, Jackson County modified that bridge, so that the new approach was higher than the old bridge approach. In 1993, the county placed two culverts in the bridge’s approach to prevent flooding. In 1995, Punzo’s house flooded for the first time. On March 7, 1998, Punzo’s house flooded for the second time. On September 12, 1998, during a tropical storm, Pun-zo’s house flooded for the third time. Also, on this date, Punzo’s neighbor told him the county had modified the bridge. On September 27, 1998, during a hurricane, Punzo’s house flooded for the fourth time. Finally, on September 9, 1999, 8 years after the county modified the bridge, 4 years after his house flooded for the first time, and 1 \ years after his house flooded for the second time, Punzo notified the county of his claim that the new bridge caused his flooding. On June 11, 2001, during a tropical storm, Punzo’s house flooded for the fifth time.

¶ 34. A plaintiff must bring his claim against a county “within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after.” Miss.Code Ann. § 11-46-11(3) (Rev.2002). “Generally, mere ignorance of the existence of a cause of action ... does not prevent the running of the statute of limitations.” 54 C.J.S. Limitations of Actions § 87 (1987). However, in special circumstances, the “discovery rule” tolls the statute of limitations until the plaintiff knows or reasonably should know of his claim. Boyles v. Schlumberger Tech. Corp., 832 So.2d 503, 506 (Miss.2002). “Application of the discovery rule is a fact-intensive process.” Sams v. Smith, 782 So.2d 721, 725 (Miss.2001).

¶ 35. In my view, the discovery rule does not apply under the law and facts in this case. This Court does not generally apply the “discovery rule” in property damage actions. For example, in McCain v. Memphis Hardwood Flooring Co., 725 So.2d 788, 789 (Miss.1998), a corporation cut an individual’s timber without his consent. The individual did not realize his timber had been cut until a few years later. Id. at 795. The individual urged this Court to apply the discovery rule and toll the statute of limitations so that he could bring his claim. Id. at 794. This Court refused to apply the discovery rule, stating:

This Court has applied the discovery rule where the plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscov-erable nature of the wrongdoing in question. Or ... the discovery rule may be applied when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act. An owner of trees requires no unique expertise to realize when his trees have been taken without his permission. Neither is the taking of such trees without consent of an owner a secretive or inherently un-discoverable act which justifies the discovery rule. Thus, the application of a judge-made discovery rule would be inappropriate in the instant case.

Id.

¶ 36. This case is similar to McCain. First, both McCain and this case involve damage to property; McCain involved timber cutting and this case involves house flooding. Second, both McCain and this case involve a one-year statute of limitations; McCain involved Miss.Code Ann. § 15-1-33, and this case involves Miss. Code Ann. § 11-46-11(3). Third, neither McCain nor this case involve concealed injuries; timber cutting and house flooding are readily visible. Finally, neither McCain nor this case involve the need for specialized knowledge to perceive the injury; a layman can deduce that timber once present is now gone and that a house previously dry is now flooded. Therefore, as in McCain, the discovery rule should not apply.

¶ 37. To claim benefit of the discovery rule, a plaintiff must be reasonably diligent in investigating the circumstances surrounding the injury. ■ The focus is upon the time that a person discovers, or should have discovered by the exercise of reasonable diligence, that he probably has an actionable injury. Smith v. Sanders, 485 So.2d 1051 (Miss.1986). There is no indication that Punzo took any investigative action whatsoever, and his discovery that there may have been an actionable injury was the result of a conversation with his neighbor. The intent of the discovery rule is to protect potential plaintiffs who cannot, through reasonable diligence, discover injuries done to them. In this case, the injury, flooding, was quite apparent, and there is no indication Punzo used reasonable diligence to investigate the flooding.

¶ 38. This Court should not apply the discovery rule in actions where the plaintiff does not investigate his claim until a third-person notifies him of his claim. However, assuming for the sake of argument that the discovery rule does apply, Punzo reasonably should have discovered his claim no later than the time of the second flood, months before his neighbor notified him of a possible claim.

II. The Injunction Issue

¶ 39. The majority holds that the circuit court applied the incorrect injunction standard and reverses and remands with instructions as to Punzo’s injunction claim. I agree that the circuit court applied the incorrect legal standard. However, I believe the circuit court’s error was harmless error in this case.

¶ 40. The circuit court found that Pun-zo’s house had flooded five times since the county modified the bridge; however, the circuit court also 'found that Punzo’s expert testified that the modified bridge had sufficient flow for a 100-year storm; that the flooding was probably caused by the intersection of two rivers further downstream and/or another bridge; and that “even if the bridge was extended and the fill removed, under similar weather conditions, Punzo’s land may well flood again.” Also, the circuit court found that the new bridge was safer for vehicles than the old bridge.

¶ 41. This Court reviews a circuit court’s decision to deny an injunction for abuse of discretion — that is, we defer to the circuit court’s decision and will not reverse the decision unless it was unreasonable and unduly prejudicial. Electronic Data Sys. Corp. v. Mississippi Div. Medicaid, 853 So.2d 1192, 1208 (Miss.2003).

¶ 42. A circuit court should issue an injunction if the plaintiff proves by a preponderance of the evidence that:

(1) the plaintiff will be irreparably harmed if the injunction does not issue;
(2) the plaintiffs harm outweighs the defendant’s harm if the injunction does issue;
(3) the public interest, i.e. the rights of third persons will be served by the injunction; and
(4) the plaintiff is likely to prevail on the merits.

Electronic Data Sys. Corp., 853 So.2d at 1207-08; State v. Myers, 244 Miss. 778, 146 So.2d 334 (1962).

¶ 43. In this case, the circuit court’s application of a “beyond a reasonable doubt” standard, while incorrect, is harmless because Punzo did not even prove by a preponderance of the evidence that he would be irreparably harmed if the injunction did not issue. Punzo’s own expert testified that even if the bridge was extended and the fill removed, under similar weather conditions, Punzo’s land may well flood again. Further, Punzo did not prove that the public interest would be served by the injunction: to the contrary, there was testimony that the new bridge is safer for vehicles than the old bridge. Finally, Pun-zo did not show that he would likely prevail on the merits; in fact, the circuit court found that Punzo’s tort claim was barred by the statute of limitations. Therefore, it was not reversible error for the circuit court to deny Punzo’s request for an injunction.

¶ 44. Because I would affirm the circuit court’s grant of summary judgment, I respectfully dissent.


source: Caselaw Access Project

author: LEE, J., for the Court.

license: Public Domain

text:
    Clarice Woolbright BAKER, Appellant, v. Norman Kenneth BAKER, Appellee.
    No. 2002-CA-01747-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2003.
    Rehearing Denied Dec. 16, 2003.

      Michael J. Malouf, Jackson, Melissa Ann Malouf, Attorneys for Appellant.
    John W. Chapman, Brandon, Attorney for Appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   LEE, J., for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. Clarice Baker and Norman Baker were divorced by the Rankin County Chancery Court in 1998 after thirty-two years of marriage. For the first fourteen years of the marriage, Clarice was the homemaker, staying at home to raise the children, who are now emancipated. Clarice later became employed as a school teacher, although Norman was the primary breadwinner during their marriage. Norman retired from IBM in 1993, receiving a lump sum separation payment, and began drawing periodic retirement benefits commencing in February 1998.

¶ 2. The chancellor granted the Bakers a divorce on the grounds of irreconcilable differences, divided their assets, and awarded lump sum alimony to Clarice. Clarice was awarded part of the marital estate, but denied periodic alimony. Clarice then appealed the chancellor’s decision to this Court, arguing primarily that the chancellor erred in failing to consider Norman’s IBM retirement benefits. This Court reversed and remanded for the chancellor to either treat Norman’s IBM retirement benefit as a marital asset subject to a revised equitable distribution or to leave the retirement account with Norman but award periodic alimony to Clarice. See Baker v. Baker, 807 So.2d 476 (Miss.Ct.App.2001). On remand the chancellor awarded Clarice periodic alimony.

¶ 3. Clarice now appeals again to this Court, asserting the following issues: (1) the chancellor erred in failing to allow Clarice fifty percent of Norman’s IBM retirement benefit; (2) the chancellor erred in withholding twenty-eight percent for taxes on the IBM retirement benefit when making a distribution of the marital assets; (3) the chancellor erred in considering Clarice’s PERS retirement account when evaluating the percentage of Norman’s retirement benefit to be assessed to her; and (4) the chancellor erred in failing to award a higher amount of periodic alimony to her. Finding these issues to be without merit, we affirm.

STANDARD OF REVIEW

¶ 4. When reviewing the decisions of a chancellor, this Court applies a limited abuse of discretion standard of review. McNeil v. Hester, 753 So.2d 1057(¶ 21) (Miss.2000). The findings of the chancellor will not be disturbed “unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Id.

DISCUSSION OF ISSUES

I. DID THE CHANCELLOR ERR IN FAILING TO ALLOT CLARICE FIFTY PERCENT OF NORMAN’S IBM RETIREMENT BENEFIT?

¶ 5. In her first issue, Clarice argues that the chancellor should have given her an equitable share of Norman’s IBM retirement benefits. Clarice states that rather than allowing her thirty percent of the retirement benefit the chancellor should have divided the retirement benefit on a fifty-fifty basis as were the other assets. Clarice also contends that the retirement benefits were marital property accumulated during the marriage and that, because she also made significant alternative contributions to the home, she had a right to receive half of the benefits.

¶ 6. In Baker I, this Court remanded the cause to the chancellor with instructions to either adjust the equitable division of marital assets or to determine an amount of periodic alimony to be payed to Clarice. The chancellor chose not to assess any portion of the retirement benefits, but instead used the monthly amount of the benefits to determine an appropriate award of periodic alimony. According to the findings of fact and conclusions of law, the chancellor .chose the specific amount of periodic alimony based on the monthly retirement benefit for two reasons: first, the retirement benefit figures were based on money Norman paid into the account from his personal salary; and second, Clarice will receive a retirement income from PERS, none of which was distributed to Norman.

¶7. As it was within the chancellor’s discretion to make a division of the retirement benefit or to award periodic alimony to bring a measure of fairness to the situation, we cannot find that the chancellor abused his discretion in awarding Clarice periodic alimony. This issue is without merit.

II.DID THE CHANCELLOR ERR IN WITHHOLDING TWENTY-EIGHT PERCENT OF THE RETIREMENT BENEFIT FOR TAXES WHEN MAKING A DISTRIBUTION OF THE MARITAL ASSETS?

¶ 8. In her next issue, Clarice argues that the chancellor erred in discounting the monthly retirement benefits by twenty-eight percent for taxes and then granting her thirty percent of that amount for periodic alimony. However, the chancellor used only the monthly retirement amounts in determining an appropriate amount of periodic alimony. This was not a distribution of marital assets, and we fail to see how the chancellor abused his discretion in using the after tax value of the benefit to determine an appropriate amount for periodic alimony.

III. DID THE CHANCELLOR ERR IN CONSIDERING CLARICE’S PERS RETIREMENT ACCOUNT WHEN EVALUATING THE PERCENTAGE OF NORMAN’S RETIREMENT BENEFIT TO BE ASSESSED TO HER?

¶ 9. In her third issue, Clarice states that because the chancellor had previously taken her retirement account into consideration he erred in reducing her share of the IBM retirement benefits by the value of her retirement account. However, the chancellor stated that he took into account Clarice’s retirement account in order to determine an appropriate amount of periodic alimony not as a basis for distributing the IBM retirement benefit as a marital asset. As we fail to see how the chancellor abused his discretion, we find this issue to be without merit.

IV. DID THE CHANCELLOR ERR IN FAILING TO AWARD A HÍGHER AMOUNT OF PERIODIC ALIMONY TO CLARICE?

¶ 10. In her last issue, Clarice contends that the amount granted to her as periodic alimony, $379.94, was in error due to the discrepancy in the incomes of Norman and Clarice. Mimony awards are within the discretion of the chancellor and this Court will not reverse an award on appeal absent manifest error or abuse of discretion. McEachern v. McEachern, 605 So.2d 809, 815 (Miss.1992). “In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993); Smith v. Smith, 607 So.2d 122, 126 (Miss.1992). According to Baker I, Norman’s monthly income was cited as $5,217 (this figure includes his monthly IBM retirement benefit) and Clarice’s was $2,478. Clarice also received half of the marital assets, including a payment of $25,704.62 by Norman to make the distribution equal. Considering this, Clarice’s present employment, and her retirement, we cannot find that the amount of periodic alimony was so oppressive, unjust, or grossly inadequate as to evidence an abuse of discretion by the chancellor. We find this issue to be without merit.

¶11. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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


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

text:
    Demario D. WALKER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00105-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2003.

      Demario D. Walker, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   McMILLIN, C.J., for the Court.

¶ 1. After being indicted on four separate counts of attempting to utter a forgery, Demario Walker pled guilty to one count. The State agreed not to pursue the remaining three counts and a writ of nolle prosequi was entered as to thém. The indictment grew out of Walker’s unsuccessful efforts to cash several cheeks drawn on another person’s account without that person’s knowledge or authority. Walker was sentenced to ten years, but was permitted to attempt to earn his early release by participation in the RID program administered by the Mississippi Department of Corrections. Walker was removed from the RID program prior to completing the requirements but was still granted an early release on probation. That probationary release was later revoked when Walker was found to have violated the terms of his probation.

¶ 2. Walker filed a post-conviction relief motion in the circuit court in which he raised five separate contentions as to why he was entitled to relief. The circuit court denied the motion without a hearing and Walker has now appealed that decision to this Court. We find that Walker has abandoned certain claims raised in his motion before the trial court by failing to raise them as issues in his appeal. We further find that the only issue properly raised in this appeal is without merit. Finally, we observe that Walker attempts to raise certain additional issues for the first time on appeal and, in keeping with established case law, we decline to consider them.

I.

Improprieties in the Indictment

¶ 3. Walker contended before the circuit court that his sentence exceeded the statutory maximum. The contention was based on the following facts. Count I of the indictment contained a plain and concise statement of the underlying facts constituting the alleged crime and then concluded with the words “in violation of Sections 97-21-53 and 97-1-7 of the Mississippi Code of 1972.... ” There is no question that the reference to Section 97-21-53 is in error. That code section primarily deals with forging or counterfeiting registered trademarks and related business proprietary materials and carries a maximum penalty of a five hundred dollar fine and imprisonment of not more than one year. Miss.Code Ann. § 97-21-53 (Rev.2000). In actuality, the offense defined in the narrative charging portion of Count I of the indictment is found at Section 97-21-59, which renders illegal the act of uttering “as true, and with intent to defraud, any forged, altered, or counterfeit instrument....” Miss.Code Ann. § 97-21-59 (Rev.2000). The court found the error in the statutory reference to be one that was waived by Walker by entering his guilty plea.

¶ 4. Now, on appeal, Walker makes two assertions based on this same error in the indictment. He renews his claim that the sentence exceeded that permitted under Section 97-21-53. He also claims that the court lacked jurisdiction because Section 97-21-53 is a misdemeanor and the circuit court lacks jurisdiction to punish misdemeanor offenses.

¶ 5. We agree with the circuit court that this error is a non-jurisdictional defect in the indictment that was waived by the entry of Walker’s plea of guilty. E.g., Gibson v. State, 818 So.2d 372(¶ 5) (Miss.Ct.App.2002). We have reviewed the transcript of the plea acceptance hearing and are satisfied that the essential elements of the actual crime charged in Count I were gone over in some detail and the court obtained assurance from Walker that he both knew the nature of the charge and freely admitted that he committed the acts that constituted the crime. Walker acknowledged his understanding of the sentencing range available to the court that was explained to him based on the harsher punishment for a violation of Section 97-21-59 rather than the misdemeanor provisions of Section 97-21-53.

¶ 6. There is, in the first place, no requirement that the indictment cite to a particular section of the Code so long as the charging portion contains “a plain, concise and definite written statement of the essential facts constituting the offense charged.... ” URCCC 7.06; Ishee v. State, 799 So.2d 70 (¶ 17) (Miss.2001). Walker was fully informed as to the maximum available sentence for the crime charged and there is no evidence that the incorrect reference to Section 97-21-53 misled or prejudiced Walker in any way during the plea acceptance proceeding or at any time leading up to that proceeding.

¶ 7. Walker’s remaining issues presented on appeal are contained in a single paragraph consisting of a recitation of various grievances regarding the conduct of the criminal proceeding brought against him and the lack of effectiveness of his attorney. None of these issues were raised before the trial court in Walker’s motion filed to commence this proceeding. Subject to certain exceptions related primarily to jurisdictional issues, alleged errors committed at the trial court cannot be raised for the first time on appeal. Copeland v. State, 423 So.2d 1333, 1335 (Miss.1982). We have reviewed Walker’s various contentions and conclude that none of them fall within any recognized exception to the general rule. We additionally note that none of the assertions are accompanied by legal argument or citation to authority demonstrating the merit of the contention. The failure to support a bare contention of error with appropriate citations to authority or persuasive logical argument is, of itself, grounds to deny relief. Peterson v. State, 671 So.2d 647, 659 (Miss. 1996). For the foregoing reasons, either of which is sufficient in itself, we decline to consider the various matters raised in Walker’s brief before this Court.

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

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


author: IRVING, J., for the court.

text:
    Melvis MINOR, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01310-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.

      Mark G. Williamson, Starkville, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   IRVING, J., for the court.

¶ 1. An Oktibbeha County jury found Melvis Minor guilty of the sale of cocaine. Minor filed a post-trial motion for a JNOV or, in the alternative, for a new trial. That motion was denied, and this appeal ensued. Minor’s sole appellate contention is that the verdict is not supported by the evidence. He challenges both the sufficiency and weight of the evidence.

¶ 2. Discerning no reversible error, this Court affirms the judgment of the trial court.

FACTS

¶ 3. Stacey James, a narcotics investigator from Arkansas, was engaged by agents of the Tri-County Narcotics Task Force in Starkville to make undercover street level drug purchases in Oktibbeha County.

¶ 4. To prepare for the undercover work, James was briefed about the operation by members of the Tri-County Narcotics Task Force. An undercover vehicle was wired for video and audio surveillance. James also was supplied with an evidence bag and money. He was instructed to drive to the community known as Blackjack in Oktibbeha County and make contact with any suspected drug dealers and purchase controlled substances from them.

¶ 5. James drove to Blackjack and made contact with Minor. Minor sat in the vehicle with James, and James negotiated a crack cocaine purchase. James gave Minor forty dollars, and Minor left the vehicle. Within a few minutes, Minor returned to the vehicle and gave James a small rock-like substance suspected of being crack cocaine.

¶ 6. After Minor handed James the crack cocaine, he asked James for some of it. James refused and instead gave Minor five dollars in an effort to placate him since Minor wanted some of the cocaine for going to get it. James turned the substance over to Agent Dave Holley of the Tri-County Narcotics Task Force who submitted it to the State Crime Laboratory for testing. Brandi Goodman of the crime lab testified that she tested the substance and found it to be cocaine.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. Minor argues that the evidence is insufficient to support the verdict and that the verdict is against the overwhelming weight of the evidence. Minor fleshes out his argument with the assertion that James sent him to buy the crack cocaine, and that James paid him five dollars for getting it. According to Minor, this made him James’s employee, and, since James was acting as an agent of the Tri-County Narcotics Task Force, he too became an agent. Therefore, he was not violating the law when he participated in the drug transaction.

¶ 8. “In determining whether a jury verdict is against the overwhelming weight of the evidence, [appellate courts] must accept as true the evidence which supports the verdict and will reverse only when convinced that the [trial] court has abused its discretion in failing to grant a new trial.” Herring v. State, 691 So.2d 948, 957 (Miss.1997) (citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). “Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will [an appellate court] disturb it on appeal.” Id. (citing Benson v. State, 551 So.2d 188, 193 (Miss. 1989)). “Thus, the scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict.” Id. (citing Mitchell v. State, 572 So.2d 865, 867 (Miss.1990)).

¶ 9. Our standard of review in a challenge to the sufficiency of the evidence is different, yet well established. We may reverse only where all credible evidence, along with all reasonable inferences, consistent with guilt and viewed in the light most favorable to the prosecution is such that a fair and reasonable jury could not find the defendant guilty. Gibby v. State, 744 So.2d 244, 245(¶ 6) (Miss.1999).

¶ 10. Minor makes an ingenious argument. However, the jury did not buy it, and neither do we. In following the prescribed standard of review, we find that the trial court did not err in denying Minor’s motion for a JNOV or for a new trial. There was more than ample physical as well as testimonial evidence to support the finding that Minor illegally sold and transferred crack cocaine to James. Minor offered no evidence that he was acting in an agency capacity with the Tri-County Narcotics Task Force when the sales transaction occurred.

¶ 11. We find no merit in Minor’s sole suggestion of error. Therefore, we affirm the judgment of the trial court.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS’ POST-RELEASE SUPERVISION AND FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

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

      . Apparently, Minor obtained the cocaine from another unidentified individual.


author: LEE, J.,

text:
    Jettie McCARY, Lillie Fulwiley, and John Isonhood, Appellants, v. Chris WADE and Wade Land Management, Inc., Appellees.
    No. 2002-CA-01147-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.

      H. Gregory Johnson, Hazlehurst, Ross Barnett, Jr., Jackson, Christopher D. Hemphill, Columbus, John G. Holaday, Jackson, George McDowell Yoder III, attorneys for appellants.
    Aafram Y. Sellers, Edward J. Currie, Jackson, Michael V. Cory, attorneys for appellees.
    Before SOUTHWICK, P.J., LEE, MYERS and CHANDLER, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. This case concerns an August 1999 car accident involving the appellants and Dexter Myrick, who was employed by the appellees. The appellants filed their lawsuit in November 2000 and the appellees responded with a motion for summary judgment, which the trial court granted in April 2002. The appellants now appeal to this Court arguing that summary judgment was improper. We review their argument and find no merit; thus, we affirm.

FACTS

¶ 2. On August 2, 1999, appellants Jettie McCary and Lillie Fulwiley were riding in a van on their way home from work and were traveling north on Highway 25. The van was being driven by John Isonhood who was employed by Choctaw Maid Farms, the appellants’ employer, to transport the workers from the facility to their homes. As Isonhood approached the intersection of Highway 25 and County Road, Grace Mills pulled out from County Road onto Highway 25 traveling south. However, Mills pulled out in front of another driver, Dexter Myriek, who was driving a logging truck. Myriek was forced to hit his breaks to avoid a collision with Mills, and this forced him into the opposite lane of traffic where he collided with the appellants’ northbound van.

¶ 3. McCary incurred approximately $110,000 in related medical expenses and approximately $45,000 in past and future lost wages as a result of her injuries from the collision. She is totally disabled and has significant disfigurement to her lower body. Fulwiley incurred approximately $20,000 in related medical expenses, an estimated $20,000 in future medical expenses and approximately $100,000 in past and future lost wages.

¶ 4. McCary and Fulwiley filed suit against Myriek, Georgia Pacific Corporation, which was Myrick’s employer, Mills, John Isonhood, Choctaw Maid Farms, Inc. which provided the van transportation, Chris Wade who had contracted with Georgia Pacific for sale of timber, and Wade Land Management which was Chris Wade’s company.

¶ 5. A question arose concerning whether or not Myriek was acting as an employee of Wade at the time of the accident and, if so, whether Wade could be held vicariously liable for Myrick’s actions. Details of the employment relationship are addressed in more depth in the following discussion.

DISCUSSION

I. DID THE TRIAL COURT ERR IN GRANTING SUMMARY JUDGMENT?

¶ 6. On appeal, the appellants primarily argue that the trial court erred in granting the appellees’ motion for summary judgment. The appellants contend that sufficient evidence was presented to create genuine issues of material fact concerning whether Myriek was acting as an employee of Wade Land Management at the time of the accident.

This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.

Leslie v. City of Biloxi, 758 So.2d 430(¶ 5) (Miss.2000). In their motion for summary judgment Chris Wade and Wade Land Management (“WLM”) argued that Myr-ick was an independent hauler for WLM and, therefore, WLM was not liable to the plaintiffs/appellants via respondeat superi- or for Myrick’s negligence in causing the accident.

The general rule is that the employer of an independent contractor has no vicarious liability for the torts of the independent contractor or for the torts of the independent contractor’s employees in the performance of the contract. In determining whether a employer-employee or independent contractor relationship existed, especially where third parties are affected, courts are not confined to the terms of the contract, but may look as well to the conduct of the parties.

Owens v. Thomae, 759 So.2d 1117(¶ 22) (Miss.1999) (citations omitted). In addition to the general rule described in Oiv-ens, we have recognized many “tests” or aspects of a relationship to examine in determining whether a person is an employee or an independent contractor:

[Wjhether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the working during the course of the employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the sub employees and to fix their compensation; and whether he is obliged to pay the wages of said employees.

Miller v. Shell Oil Co., 783 So.2d 724(¶ 11) (Miss.Ct.App.2000). We look to the facts of this case de novo and apply the principles enunciated in Owens and Miller to determine whether Myrick was an independent contractor or an employee of WLM, such that summary judgment was or was not proper in this case.

¶ 7. WLM purchases timber and sells it to wood yards. In 1996, WLM contracted with Georgia Pacific to provide timber, and WLM in turn hired haulers to move the timber, one of whom was Myrick. Myrick and WLM entered into a contract in 1996 whereby Myrick would cut and haul lumber to Georgia Pacific for WLM. Myrick was not subject to any quotas set by WLM concerning delivery amounts, and Georgia Pacific would accept any amount of the specified lumber that Myrick chose to deliver.

¶ 8. In his deposition, which is included in the record, Chris Wade explained that Myrick bought his own timber, cut it, and hauled it all himself, and Wade never knew where or when Myrick was producing any wood until Myrick called him alerting that he had a load of logs to sell. Wade affirmed that “he didn’t have to pay a cent” for Myrick’s cutting operation and that he only used independent contractors because otherwise he would have to pay for the haulers’ trucks and operation costs. Wade explained that to his knowledge Myrick had other contracts with companies to deliver wood, just the same as he had a contract with WLM.

¶ 9. Myrick testified in his deposition that he decided his own work hours, which days he would work, and where he would work. He exclusively made decisions concerning harvest, sorting, loading and transportation of the timber. Myrick stated that he owned all of the equipment needed for his operation, including his two-ton truck which he and his brother exclusively purchased, repaired and maintained, and he had never gotten a loan for his logging business. Myrick testified that on the day of the accident he had left Georgia Pacific and was en route to his home at the time of the collision. Under the previously described test for determining independent contractor status, we find Myrick’s relationship with WLM to be that of an independent contractor and not employee/employer. Having so found, we next direct out attention to Richardson v. APAC-Mississippi, Inc., 631 So.2d 143 (Miss.1994), which the appellants cite in support of their argument.

¶ 10. In that case, Richardson’s vehicle was hit in the left side by Berg McCandless as he ran a red light. Richardson, 631 So.2d at 144. Richardson sued APAC on the basis of respondeat superior claiming that McCandless was acting as an APAC employee at the time of the accident. Id. APAC filed a motion for summary judgment claiming that APAC was not McCandless’s employer at the time of the accident, and the circuit court granted the motion. Id. at 146. Similar to facts in the present case, in Richardson, McCandless provided all of his own equipment, was responsible for maintenance and upkeep on the equipment, paid his own operating expenses, set his own hours and quotas, and was not under the control of APAC for any related decision-making. Id. at 144. The supreme court affirmed the trial court’s finding that the relationship between McCandless and APAC was clearly that of independent contractor. Id. at 152.

¶ 11. Looking further to Richardson, the appellants direct our attention to Richardson’s addition of a “public policy” test to determine liability. Id. at 150. The supreme court defined this new test as follows:

Today we explicitly add another factor in the balancing test, heretofore implicit. When a contract is made between two parties that as between themselves creates an independent contractor relationship and involves employment generally performed under a simple master/servant or employer/employee relationship, it will be upheld as between the parties. When, however, third parties are adversely affected, this Court will carefully scrutinize the contract to see if public policy should permit the transformation of an ordinarily employer/employee relationship into that of an independent contractor. A necessary condition precedent for the application of this factor, however, is that the party challenging the claimed relationship will be adversely affected, and denied an adequate legal remedy. In the absence of this, the right of parties to contract as they please is a constitutionally-protected right. Conversely, neither of the parties should be permitted to dispute a contractually-created independent contractor relationship between them when to do so adversely affects an injured third party.

Id. (citations omitted). The Richardson court found insufficient evidence was presented to show that McCandless was unable to pay or had insufficient insurance coverage to pay for Richardson’s injuries; thus, the court failed to address the possible extension of liability to APAC. Id. at 151. In the present case, Myrick was shown to be bankrupt and without insurance coverage. Thus, the appellants claim that since Myrick was not insured and had no money to compensate them for their injuries, WLM should be made to pay in the interests of public policy.

¶ 12. The Fifth Circuit addressed the Richardson case in McKee v. Brimmer, 39 F.3d 94 (5th Cir.1994). In McKee, the district court granted a summary judgment, finding the injured’s relationship with the responsible party was that of independent contractor, and the Fifth Circuit affirmed. Id. at 98. The court cited the public policy rule from Richardson and surmised the following:

The public policy factor from Richardson becomes an issue when the relationship between the alleged employer and the alleged employee would “ordinarily” be characterized as that of an employer/employee, but they have a contract which defines their relationship as that of independent contractors. In that case, the court will scrutinize the contract to see if the parties should be allowed to transform an employer/employee relationship into that of an independent contractor. In essence, an employer will not be allowed to escape liability by drafting a contract which labels its employee an independent contractor, but retains employer-like control over him.

Id. (citations omitted). WLM’s brief interprets McKee to say that the Richardson public policy exception does not serve as a “trump card” to hold in the hand to play when the facts do not create vicarious liability when the requisite relationship is not supported by the facts. Consequently, since the evidence presented shows Myrick was an independent contractor and there is no evidence of any attempt by WLM to control Myrick through written contracts or otherwise, the appellants’s public policy argument fails.

¶ 13. The Richardson court cited to other cases in which the public policy test had, in fact, already been used. See Hobbs v. Int’l Paper Co., 203 So.2d 488 (Miss.1967); Gulf Ref. Co. v. Nations, 167 Miss. 315, 145 So. 327 (1933) (Richardson court disagreed with); Kisner v. Jackson, 159 Miss. 424, 132 So. 90 (1931). In those three cases, however, the persons causing the accident were labeled as independent contractors when the work they were doing actually fell into the relationship of employee/employer. Hobbs, 203 So.2d at 490; Gulf Ref. Co., 167 Miss, at 330-31, 145 So. at 333; Kisner, 159 Miss, at 429, 132 So. at 91. In the present case, the Richardson public policy test is not applicable because Myrick undeniably was an independent contractor in his work with WLM. Unlike Hobbs, Gulf Refining Co., and Kisner, we find no confusion as to Myrick’s role as working independently of WLM as employer.

¶ 14. In an alternative argument, the appellants argue that Myrick and WLM were involved either in a relationship of principal/agent or involved in a joint venture together. We find neither of these arguments persuasive. Having conducted a de novo review of this matter, we find the court did not err in granting summary judgment, and we affirm.

¶ 15. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANTS.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS AND MYERS, JJ., CONCUR. KING, P.J., IRVING AND CHANDLER, JJ., CONCUR IN RESULT ONLY. GRIFFIS, J., NOT PARTICIPATING.

        . The summary judgment was granted concerning defendants Chris Wade and Wade Land Management; however, they were not the sole defendants in this matter. Pursuant to Mississippi Rules of Civil Procedure 54(b), "when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” The April 2002 judgment did not dismiss Chris Wade and Wade Land Management pursuant to the rule, but in June 2002, the court did enter final judgment pursuant to the rule, thereby giving this Court jurisdiction to review this matter on appeal.


author: THOMAS, J., for the court.

text:
    William D. BATTAYA, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01574-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.
    William D. Battaya, Appellant, pro se.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   THOMAS, J., for the court.

¶ 1. In July 2001, William D. Battaya entered guilty pleas to five charges, four for burglary and one for grand larceny. Battaya filed a petition for post-conviction relief in early 2003, which was denied by the Circuit Court of Alcorn County. Bat-taya appeals that decision and presses the same issues as presented to the circuit court, to wit:

I. WHETHER THE LOWER COURT ERRED IN DENYING APPELLANT’S POST-CONVICTION RELIEF WHERE HIS ARREST WAS ILLEGAL AND UNLAWFUL, IN VIOLATION OF HIS FOURTH AMENDMENT AND ARTICLE 3, SECTION 23 OF MISSISSIPPI CONSTITUTION.
II. WHETHER THE LOWER COURT [ERRED] IN NOT ADDRESSING APPELLANT’S INITIAL APPEARANCE HEARING AND HIS PRELIMINARY HEARING ALLEGATIONS; WHETHER SAID DENIAL OF HEARINGS WAS IN VIOLATION OF APPELLANT DUE PROCESS AND EQUAL PROTECTION RIGHTS.
III. WHETHER APPELLANT’S INDICTMENTS IN CAUSE NOS. CR 98-339, CR 98-340, CR98-341 AND CR98-342 WERE FACIALLY AND FATALLY DEFECTIVE, WHICH VIOLATED APPELLANT’S FIFTH AMENDMENT AND ARTICLE 3, SECTION 27 OF MISSISSIPPI CONSTITUTION.
IV. WHETHER APPELLANT WAS DENIED HIS RIGHT TO A FAST AND SPEEDY TRIAL, WHICH VIOLATED HIS SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 3, SECTION 26 OF MISSISSIPPI CONSTITUTION.
V. WHETHER APPELLANT’S CONVICTION AND SENTENCE IN CAUSE NUMBER CR-99-133 WERE ILLEGAL AND UNLAWFUL, WHICH VIOLATED HIS FIFTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND MISSISSIPPI CONSTITUTION, ARTICLE 3, SECTION 27.
VI.WHETHER APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, WHICH IN FACT, VIOLATED HIS SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND MISSISSIPPI CONSTITUTION, ARTICLE 3, SECTION 23.

¶ 2. All claims but that of ineffective assistance of counsel are barred from review through various mechanisms. However, for the sake of thoroughness each will be addressed briefly below.

1. Illegal arrest

¶ 3. Battaya claims his initial arrest was illegal for lack of a warrant or probable cause. We do not have the details of that arrest in the record other than Batta-ya’s bald assertion that it was illegal, and we could make no determination upon its validity even were it properly before us for such a decision.

¶ 4. A statute provides that failure of a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial whether based upon the laws and constitution of the State of Mississippi or the United States shall constitute a waiver thereof and shall be procedurally barred. • Miss.Code Ann. § 99-39-21(1) (Rev.2000). The court may elect to suspend this waiver upon a showing of cause and actual prejudice. Id. The failure of a warrant or lack of probable cause to support a warrant would have been a defense within the contemplation of this statute. Battaya had the opportunity to press this defense prior to entering his plea but he did not, nor does he offer any cause why the waiver should be suspended.

¶ 5. From a constitutional rather than statutory perspective, the issue is still waived by the entry of a guilty plea. A valid plea waives the defendant’s right to make certain constitutional challenges, including those under the Fourth Amendment. King v. State, 738 So.2d 240, 241 (¶¶ 4-5) (Miss.1999). As the United States Supreme Court explained,

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he many not thereafter raise independent claims relating to the deprivation of his constitutional rights that occurred prior to the entry of the guilty plea.

Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

¶ 6. This point of error is denied.

2. Preliminary hearing and initial appearance

¶ 7. Battaya argues he was denied an initial appearance or preliminary hearing for a determination of the probable cause underlying his arrest. He states he was forced to spend six days in jail before being released on bail which violated his Fourteenth Amendment rights to due process and equal protection under the law as well as Mississippi Uniform Circuit and County Court Rules 6.03 and 6.04. These rules require that a criminal defendant make an initial appearance within forty-eight hours of arrest before a judicial officer or other authorized person for a determination of probable cause when an arrest is made without a warrant.

¶ 8. Any claim of violation of his constitutional rights under this heading are barred for the same reason the claim of a Fourth Amendment violation as discussed above. Battaya waived those rights. However, we also direct Battaya’s attention to Uniform Rule of Circuit and County Court Practice 6.05 which provides that an initial appearance and preliminary hearing are waived where the defendant is released on bond, as he was.

S. Defective indictments

¶ 9. Next, Battaya contends the indictments for his four burglary charges were defective in a variety of ways, including failure to cite the applicable criminal statute, failure to contain a recitation of the factual allegations underlying the charge, failure to attach an affidavit of the grand jury foreman, and failure to contain “a stamped ‘filed’ certified ‘seal’ of Alcorn County Circuit clerk.” He alleges there never was an indictment for the grand larceny charge and believes the existing indictments were manufactured by the State because the sentencing order and transcript state “defendant being before this court of a charge of burglary and larceny on indictment against him and there is no single crime of ‘burglary and larceny,’ but rather these are two separate charges.”

¶ 10. Whatever verbal shorthand may have been used on the sentencing order, each burglary was certified by the circuit clerk’s office, signed by the grand jury foreman, contained the factual basis of each charge as well as the legal elements of the crime. They do not contain the statute number under which Battaya was indicted. This, however, is a technical, non-jurisdictional flaw, which Battaya waived with his guilty plea. Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990). The purpose of an indictment is to adequately advise a defendant of the charges against him so as to allow him the opportunity to prepare an effective defense. Moses v. State, 795 So.2d 569, 572 (¶13) (Miss.Ct.App.2001). Here, the lack of a statute reference did nothing to frustrate that purpose. That the indictment did not state “in violation of Mississippi Code Section 97-17-23” in no way hindered his understanding of the charges against him.

¶ 11. As to the grand larceny charge, no indictment was returned on that charge. It was a separate offense with which Battaya was charged after the burglary indictments were returned and the grand jury had apparently not yet reconvened. The record contains a written waiver of indictment on this charge signed by Battaya and the transcript of the plea hearing shows Battaya was twice informed by the court that no indictment had yet been returned on the charge and he had the right to wait for one before proceeding. On both occasions, Battaya waived that right. There is no error.

4.Speedy trial

¶ 12. Battaya fourth argues his right to a speedy trial was violated by the State’s failure to bring him to trial for 334 days. He argues his guilty plea did not waive this right because the violation occurred prior to the date the plea was entered.

¶ 13. As noted above, a guilty plea waives several constitutional rights. That includes the right to a speedy trial, whether based upon constitutional or statutory authority. Anderson v. State, 577 So.2d 390, 392 (Miss.1991). This claim is without merit.

5. Illegal sentence

¶ 14. Next, Battaya claims the sentence imposed upon him for grand larceny was illegal because the court lacked jurisdiction as an indictment was never returned on that charge and he did not waive the indictment.

¶ 15. As discussed above, Battaya waived the indictment on the grand larceny charge both in writing and in court. The court had valid jurisdiction and this claim also is also groundless.

6. :Ineffective assistance of counsel

¶ 16. Within this final assignment of error, Battaya alleges his counsel was ineffective in several ways, including failure to request and file complete discovery; failure-to inform him his arrest was illegal; failure to inform of the right to a preliminary hearing and initial appearance; failure to investigate and inform of defective indictments and file motion to quash; failure to inform of right to speedy trial and to file for a dismissal; failure to meet with defendant more than once and provide meaningful communication; and failure to inform the court the grand larceny charge had not been presented to a grand jury or obtain a valid waiver of indictment.

¶ 17. All but two of these claims are discussed above and will not be addressed again. The claim that counsel failed to request and file complete discovery is belied by the record or unsupported by Battaya. The record includes copies of counsel’s request for discovery from the prosecution. Battaya does not include any description of evidence that counsel should have supplied the State or in what manner his defense suffered as a result. In order to substantiate a claim of ineffective assistance of counsel, Battaya must show both deficient performance by counsel and prejudice to the defendant due to counsel’s deficiencies. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Batta-ya does not present any evidence or even argue his defense was prejudiced in any fashion other than a bald assertion that it was.

¶ 18. Nor does Battaya explain how he was prejudiced by a limited number of meetings with counsel. One may have been sufficient to meaningfully communicate to Battaya the case against him and his options. What further meetings would have accomplished Battaya does not explain.

¶ 19. THE JUDGMENT OF THE AL-CORN COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO ALCORN COUNTY.

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


text:
    Craig ROBY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-00469-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.

      Craig Roby, Appellant, pro se.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellant.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   THOMAS, J., for the court.

¶ 1. Craig Roby, pro se, appeals an order of the Circuit Court of Attala County, Mississippi denying his petition for post-eon-vietion relief. Aggrieved, Roby asserts the following issues on appeal:

I. THE GUILTY PLEA WAS, MADE INVOLUNTARILY AS DEFENDANT WAS COMPELLED AND THREATENED INTO ENTERING THE PLEA.

II. THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

III. THE WARRANT AND GENERAL AFFIDAVIT WERE NOT SIGNED AND WERE THEREFORE INVALID AND THE INDICTMENT UNDER WHICH THE DEFENDANT WAS CHARGED DID NOT HAVE A •CERTIFIED CAUSE NUMBER.

Finding no error, we affirm.

PROCEDURAL HISTORY AND FACTS

¶ 2. Craig Roby pled guilty to felony sale of cocaine in violation of Mississippi Code Annotated § 41-29-139(a)(l)(b)(l)(Rev.2001). The trial court sentenced Roby to twelve years with four years suspended and five years of probation after release. The trial court also ordered Roby to pay a fine of $5,000 with $4,000 suspended for a period of five years with $1,000 to pay along with a lab fee in the amount of $125. Roby filed a motion for post-conviction relief which the trial court summarily denied. Roby then perfected an appeal to this Court.

I. WAS THE GUILTY PLEA MADE INVOLUNTARILY AND WAS DEFENDANT COMPELLED AND THREATENED INTO ENTERING THE PLEA?

¶ 3. Roby asserts that the trial court erred in accepting his guilty plea because it was not voluntarily made. According to Roby, his counsel, Rosalind Jordan, intimidated him and coerced him into pleading guilty, stating that if he did not follow her directions the court would sentence him to the maximum of thirty years.

¶ 4. The standard of review pertaining to voluntariness of guilty pleas is well settled: “this Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” Weatherspoon v. State, 736 So.2d 419, 421(¶ 5) (Miss.Ct.App.1999). The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence. Id. at 422(¶ 8) (superceded by Miss.Code Ann. § 99-39-23 (Rev.2000)); Terry v. State, 839 So.2d 543, 545(¶ 7) (Miss.Ct.App.2002). A plea is considered “voluntary and intelligent” if the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).

¶ 5. The trial court questioned Roby thoroughly regarding his understanding of the charges against him, his constitutional rights, those that he was waiving by pleading guilty, and the effects of pleading guilty to the charges. Roby also signed a petition to plead guilty. Roby now asserts that his counsel intimidated and coerced him into pleading guilty, although he provides no evidence to support these assertions besides his own statements. The trial judge asked Roby specifically if he had been coerced or threatened into pleading guilty, and Roby responded in the negative. “Great weight is given to statements made under oath and in open court during sentencing.” Gable v. State, 748 So.2d 703, 706(¶11) (Miss.1999) (quoting Young v. State, 731 So.2d 1120, 1123(¶ 12) (Miss.1994)).

¶ 6. The trial court found that Roby had knowledge of the charges against him and the consequences and that he pled guilty knowingly and voluntarily. Roby has failed to show by the preponderance of the evidence the trial court’s decision was clearly erroneous. This issue is without merit.

II. DID THE DEFENDANT RECEIVE ■ INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 7. Roby asserts that he received ineffective assistance of counsel because his counsel, Rosalind Jordan, made intimidating comments and threatened him with receiving the maximum thirty year sentence if he did not plead guilty.' Roby asserts that Jordan’s remarks placed him under duress. There is no indication in the record other than the allegations made by Roby in his brief that Jordan’s performance was ineffective. . The trial judge asked Roby specifically if he had been coerced or threatened into pleading guilty, and Roby answered in the negative.

¶ 8. In order to be successful in a claim of ineffective assistance of counsel, the defendant is required to make both a showing of deficient performance and that, but for the deficient performance, a different result would likely have resulted. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Donnelly v. State, 841 So.2d 207, 211(¶ 8) (Miss.Ct.App.2003). In order for Roby to prove the ineffective assistance of counsel claim, under Mississippi Code Annotated Section 99-39-11(2) (Rev.2000), the allegation must be alleged with specificity. “[H]e must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different.” Smith v. State, 434 So.2d 212, 219 (Miss.1983). See also Miss.Code Ann. § 99-39-9(1)(c) (Rev.2000); Terry v. State, 839 So.2d 543, 546(¶14) (Miss.Ct.App. 2002). “On review, we look with deference upon counsel’s performance, considering the totality of the circumstances to determine whether it was both deficient and prejudicial.” Conner v. State, 684 So.2d 608, 610 (Miss.1996).

¶ 9. We hold that Roby has failed to meet his statutory burden of proof required to establish a prima facie showing. Roby is required to show that counsel’s performance was deficient and that the defendant was prejudiced by counsel’s mistakes. Strickland, 466 U.S. at 686-87, 104 S.Ct. 2052. His own sworn testimony shows otherwise. Having failed to show deficient performance, this issue is without merit.

III. WERE THE WARRANT, GENERAL AFFIDAVIT, AND INDICTMENT INVALID FOR LACK OF SIGNATURES AND CAUSE NUMBER?

¶ 10. Roby asserts that he was apprehended under a spurious warrant and general affidavit because they lacked signatures of a judge or magistrate and that the indictment under which he was charged did not have a proper cause number. Roby asserts that this information is newly discovered evidence and that he should be granted a new trial.

¶ 11. “A valid guilty plea ... admits all elements of a formal criminal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment against a defendant.” Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990). The question of a petitioner’s guilt will not be litigated on appeal. Taylor v. State, 682 So.2d 359, 362 (Miss.1996). As in Brooks, the deficiencies asserted by Roby are non-jurisdictional defects at best. Brooks, 573 So.2d at 1353. They must be timely asserted or they are waived. “Clearly they may not be raised for the very first time in an application for post-conviction relief or, for that matter, on direct appeal, absent ... ’ a showing of cause and actual prejudice.’ ” Id (quoting Miss.Code Ann. § 99-39-21(1) (Supp.1990)). Roby has failed to show either.

¶ 12. This issue is without merit.

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

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


text:
    Randy THOMAS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00331-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.

      Randy Thomas, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, áttorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   LEE, J., for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. In February 2000, Randy Thomas and Tim Smith were at a nightclub in Fayette. While outside the club, Thomas and Smith fired handguns into the crowd, and one of the bullets hit and killed Christopher Dewayne Jackson.

¶ 2. A Jefferson County grand jury indicted Thomas for murder, and in June 2000, Thomas pled guilty to manslaughter. He was sentenced to twenty years in prison, with fifteen years to serve and five years of post-release supervision. He was also ordered to pay court costs and jury costs. His motion for post-conviction relief was denied, and he now appeals to this Court arguing that his counsel was ineffective, his plea was not knowingly and voluntarily entered, the evidence was insufficient, he was denied due process, he was entitled to an evidentiary hearing, and his sentence was illegal. He asks that we either reverse and vacate his sentence or afford him an evidentiary hearing. Having reviewed these issues, we find no merit; thus, we affirm the denial of his petition for post-conviction relief.

DISCUSSION OF THE ISSUES

¶ 3. Thomas lists several issues, but essentially only argues three: his counsel was ineffective, his plea was not knowingly, intelligently and voluntarily entered, and he was improperly denied an eviden-tiary hearing.

I. WAS THE APPELLANT DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 4. Concerning the right to effective counsel, we look to the standard of review enunciated in Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires that Thomas show, first, that his counsel’s performance was deficient, and, second, that the deficient performance prejudiced Thomas’s defense so as to deprive him of a fair trial. However, “[a] strong but rebut-table presumption exists that ‘counsel’s conduct falls within a broad range of reasonable professional assistance.’ ” Ross v. State, 802 So.2d 171(¶ 6) (Miss.Ct.App.2001).

¶ 5. Thomas cites several examples of how his counsel’s performance was deficient. He claims that his counsel coerced him into pleading guilty by telling him, “he didn’t have much of a choice,” and that he must either plead guilty or face life in prison for the murder charge. Thomas further claims his attorney took advantage of Thomas’s mental illness in coercing him to plead guilty while, at the same time, withholding from him the fact that his co-defendant, Timothy Smith, had already actually confessed to the crime.

¶ 6. Looking to the record which contains the transcript from Thomas’s plea hearing, we find no indication that Thomas’s attorney performed in a deficient manner. Thomas told the judge he was guilty of manslaughter, affirmed that his attorney explained everything in his petition to plead guilty and that he understood everything in the petition, affirmed that his attorney had explained what constitutional rights Thomas was giving up by pleading guilty, affirmed that his attorney had explained all of the law concerning murder and manslaughter to him including possible sentences, affirmed that he told his attorney all the facts and circumstances surrounding his case, affirmed that he was satisfied with the advice and help his attorney gave him and that he had no problem with his lawyer, affirmed that no one had influenced him or promised him anything as a reward for pleading guilty, and affirmed that no one used any threats or force to compel his plea. The judge even asked Thomas specifically about the effectiveness of his counsel:

THE COURT: Sometimes after a person pleads guilty, I receive petitions and letters and so forth from them that tell me their lawyer made them plead guilty or their family members did or the DA did or the sheriffs office did or somebody, and I want to make sure that’s not the case with you. This is your decision and yours alone; is that right?
THE DEFENDANT: Yes, sir.

¶ 7. Having reviewed the transcript from the plea hearing, we find no evidence that Thomas’s attorney performed in a deficient manner or that any supposed deficiency in any way prejudiced Thomas. We find no merit to this issue.

¶ 8. Under the heading of “ineffective assistance of counsel,” Thomas also contends that his sentence of twenty years’ imprisonment with fifteen years to serve and five years suspended was illegal, and his attorney was ineffective in allowing Thomas to plead to such. In the transcript from Thomas’s plea hearing, the court asked and Thomas affirmed that he had previously been convicted of a felony. Thus, he was not entitled to receive a suspended sentence, but would have to serve up to twenty years in prison, as mandated by statute.

¶ 9. In Pruitt v. State, 846 So.2d 271(¶ 8) (Miss.Ct.App.2002), the defendant argued his sentence was illegal because he was a convicted felon yet received a suspended sentence in contradiction to statute. This Court stated that Pruitt was correct that his sentence was not in conformity with statute, but we explained the following:

Mississippi Code Annotated § 47-7-33 (Rev.2000) prevents a trial court from suspending the sentence of a defendant who has been convicted of a felony on a previous occasion. Pruitt alleges that the offer of this illegal sentence induced him to plead guilty.
The right of freedom from an illegal sentence is a fundamental right. A defendant’s fundamental right of freedom from an illegal sentence is violated when the sentence imposes an undue burden on the defendant, such as when the offer induces a plea and the State later seeks to rescind the suspension solely because it was statutorily barred. In this case, Pruitt benefitted from the illegal sentence since it was a more lenient sentence than he was actually entitled to receive. Therefore, Pruitt suffered no fundamental unfairness from the illegal sentence, and his fundamental rights were not violated.

Pruitt, 846 So.2d at (¶¶ 8-9) (citations omitted). This Court further noted that, “A convicted felon may not quietly enjoy the benefits of an illegally lenient sentence, and later attack the sentence when suddenly it is in his interest to do so.” Id. at (¶ 10). As occurred in Pruitt, here, Thomas actually benefitted from the illegal sentence; thus, he was not denied his fundamental right from an illegal sentence, and we find no ineffective assistance of counsel or other error here.

II. WAS APPELLANT’S PLEA KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED?

¶ 10. Along with arguing that his counsel was ineffective, Thomas claims that his guilty plea was not entered knowingly, intelligently and voluntarily as a result of his attorney’s failure to completely inform him of other circumstances in his ease. Specifically, Thomas claims his attorney failed to inform him that his co-defendant, Timothy Smith, had already confessed to the crime at the time Thomas was negotiating his plea agreement and that his attorney told him he did not have “much of a choice in the matter” from his professional point of view. Thomas also claims that his eighth grade education and state of mental retardation left him “at the mercy of the legal forces.”

¶ 11. In Barnes v. State, 803 So.2d 1271 (Miss.Ct.App.2002), this Court addressed the issue of guilty pleas, citing to Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and enunciated the standard for determining whether a guilty plea is knowingly, voluntarily and intelligently made by a defendant.

The privileges and rights waived by a guilty plea include the right against compulsory self-incrimination, the right to a trial by jury and the right to cross-examine witnesses. Where the record is silent as to evidence showing that these rights were known and understood by the defendant, there can be no presumption of a waiver of such rights by him.

Barnes, 803 So.2d at (¶ 8) (citations omitted). Additionally, Barnes stated that vol-untariness would be evaluated by examining whether the defendant, “was advised of the nature of the charges against him, the rights which he would be waiving by pleading guilty, the maximum sentences that he could receive for the crimes with which he was charged and whether he was satisfied with the advice and counsel of his attorney.” Id. at (¶ 9). The defendant has the burden of proving his plea was not voluntary. Id.

¶ 12. As explained in Issue I, the transcript from Thomas’s plea hearing clearly shows that he was apprized of his constitutional rights and those he was waiving by pleading guilty. Also, the transcript shows that Thomas was told the maximum sentences that he could receive for the crimes with which he was charged. Thomas affirmed to the judge that he was satisfied with the advice and counsel of his attorney. Thomas has not met his burden of proof; therefore, we find no merit to this issue.

III. WAS APPELLANT IMPROPERLY DENIED AN EVIDENTIARY HEARING?

¶ 13. Concerning Thomas’s right to an evidentiary hearing, we look to Young v. State, 797 So.2d 239(¶ 11) (Miss.Ct.App.2001), which holds that an eviden-tiary hearing regarding voluntariness of a guilty plea becomes necessary if the plea hearing fails to show that the petitioner was advised of the rights of which he allegedly asserts ignorance.

¶ 14. As explained herein, Thomas was adequately and thoroughly questioned concerning his understanding of the proceedings and effect of his pleading guilty. We find no merit to this issue.

¶ 15. Thomas’s other claims that he was not informed of his constitutional rights and that the evidence did not support his conviction are all clearly rebutted by the transcript of Thomas’s hearing. Having found no merit to any of Thomas’s issues raised on appeal, we affirm the denial of his petition for post-conviction relief.

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

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