author: SMITH, P.J.,

text:
    In re Kevin M. CHISOLM.
    No. 2001-CA-00964-SCT.
    Supreme Court of Mississippi.
    Feb. 6, 2003.
    ■Sorie S. Tarawally, S. Malcolm O. Harrison, Jackson, attorneys for appellant.
    Kevin Dale Camp, Jackson, attorney for appellee.
   SMITH, P.J.,

for the court.

¶ 1. Kevin M. Chisolm was tried and convicted in absentia in the Hinds County Justice Court on a charge of DUI, first offense, and assessed fines of $500.00 plus costs for a total of $828.50. The justice court did not impose any jail term. Aggrieved by the actions of the justice court, Chisolm filed an application for a temporary restraining order and a writ of mandamus with the Hinds County Circuit Court to prohibit the imposition of the sentence and to order a new trial in justice court. Chisolm’s position is that there was not an adequate remedy at law to get him back to justice court except through a writ of mandamus because he was denied his day in justice court. He further argues that he should not be required to appeal and incur expense or costs unless he is found guilty at a trial on the merits. Chi-solm also urges that mandamus is justified because of delay since it would be almost a year before he could get a trial on appeal to the Hinds County Court. The circuit court granted the writ of mandamus.

¶ 2. Hinds County Justice Court Judge Clyde Chapman, appeals and raises the following issues. First, Chapman urges that the circuit court erred in issuing a writ of mandamus because the proper remedy is appeal to the county court as provided for by Rule 12.02 of the Uniform Rules of Circuit and County Court Practice and Miss.Code Ann. § 99-35-1 (2002). Chapman’s second contention is that it was error to issue a writ of mandamus when there was an adequate remedy at law. Third, Chapman contends that the circuit court erred in disqualifying the Hinds County Attorney from defending the justice court proceedings and from opposing the application for the writ of mandamus. Fourth, Chapman states that it was error for the circuit court to apply M.R.A.P. 21 in the proceedings. Last, Chapman argues that trial judges are accorded great discretion in control of their dockets.

FACTS

¶ 3. Kevin M. Chisolm was arrested on November 20, 1999, on a first offense DUI charge after his blood alcohol content registered .12 on an intoxilyzer machine. He posted $1,000 bond and was released. On December 15, 1999, Chisolm appeared and entered a not guilty plea in justice court. The trial was set for March 7, 2000, at 2:30 p.m. before Hinds County Justice Court Judge Clyde Chapman.

¶ 4. The Hinds County Justice Court sits as a criminal court the first week of every month. The court consists of five divisions with five judges, each assigned a different day of the week. Cases are randomly assigned to each division and are non transferable except in cases of judicial re-cusal. For each division or judge, once set, a case retains the same time slot for each successive setting except by the express request of the parties. Attorneys who maintain an active practice before the court are aware of the court’s calendar and scheduling practices.

¶ 5. State of Mississippi v. Kevin Chisolm was first set for trial on March 7, 2000 at 2:30 p.m. before Judge Chapman. Through a motion filed on March 1, 2000, Chisolm’s attorney requested a continuance because of “prior scheduled court settings in the Municipal Court of the City of Pearl.” That continuance was granted. The case was reset for Judge Chapman’s next scheduled trial date, April 4, 2000.

¶ 6. Again, the case was not heard, and the trial was again rescheduled for July 11, 2000. On May 27, 2000, Chisolm filed another motion for a continuance, again citing a prior setting in the Municipal Court of the City of Pearl. As the result of this motion, the case was reset for trial on September 12, 2000.

¶ 7. The facts become confusing here as Chisolm alleges that a notice was received by Chisolm and his attorney that set the case for September 5, 2000. Chisolm and his counsel allege that they were prepared to go to court on September 5, 2000. Further, it is alleged by Chisolm and counsel that the next notice was postmarked August 23 and set the trial date for September 12, 2000. Chisolm and his attorney urge that they were not solely to blame for the continuances. Chisolm and his attorney allege that they were prepared to go forward on September 5 and that date was changed by the court. Chisolm states that during the time his attorney thought Chi-solm’s court date was September 5, his attorney set a date for another of his clients in Hinds County Court on September 12. Hind County Judge DeLaughter’s office called the justice court, and a continuance was granted to Chisolm again.

¶ 8. Once again, a motion for continuance was filed on August 28, 2000. At that time, an objection was interposed by the Hinds County Attorney’s office. However, the case was continued. Chisolm’s attorney received a “Notice of Trial” dated September 14, 2000, that he claims was postmarked September 19, 2000 (and which he oddly states in his brief was received on September 14).

¶ 9. On September 15, 2000, Chisolm’s attorney sent an assistant to the justice court to try to set a new date. At that time, Chisolm claims the assistant was advised that the case had been reset for October 3, 2000. Chisolm alleges in his brief that the assistant told Ms. Bobby Welborn, an employee of the justice court, that Chisolm’s attorney would not be available. Welborn advised Chisolm’s attorney to file another motion for continuance.

¶ 10. On September 21, Chisolm’s counsel filed yet another continuance due to cases he claimed were pending in Hinds County Court and in the Municipal Court of the City of Ridgeland. Chapman alleges that a check of Ridgeland court records revealed that the pending cases against those defendants, Smith and Sims, were based on DUI charges from July 2000, long after Chisolm’s DUI charge in November of 1999. Chisolm’s counsel alleges that the trial dates had been set in July and August of 2000, one month before receipt of notice from the Hinds County Justice Court of the October 3, 2000, date. Chisolm points out that the October 3 date had been set by the justice court on September 14, 2000.

¶ 11. On September 22, Judge Chapman denied the motion for continuance. Chisolm’s attorney received this denial on September 29, 2000. At the bottom of the first page of the Motion for Continuance which had been filed by Chisolm’s counsel was a handwritten notation which read denied along with Chapman’s signature.

¶ 12. The trial was held October 3, 2000, at 2:30 p.m. Chisolm and counsel did not appear nor did they appeal the denial of the motion for a continuance. The case was tried, and upon proof, Chi-solm was found guilty. The statutory penalty of a $500 fine plus court costs was imposed. Chisolm was ordered to attend Mississippi Alcohol Safety Education Program. Judge Chapman issued a bench warrant for Chisolm’s arrest to show cause why he should not be held in contempt for his failure to answer the summons, a procedure which Judge Chapman states is the usual and customary procedure when a defendant does not appear for trial. Judge Chapman states that, consistent with this Court’s prior opinions and constitutional dictates, the judge did not impose the jail term provided for under the statute.

¶ 13. Chisolm states that his counsel was aware he could not be in two places at once and attended his prior scheduled appearances. Later that day Chisolm states that, his attorney was told by someone who had been present at the proceedings that Chisolm had been found guilty and a warrant- issued for his arrest. Chisolm’s attorney immediately filed an application for a temporary restraining order in the Hinds County Circuit Court requesting that the arrest warrant be set aside. He also filed a petition for a writ of mandamus in the circuit court requesting that his client’s constitutional rights be protected.

¶ 14. The justice court judgment was stayed for 10 days. Chapman contends that Chisolm was given his appeal period after the judgment was issued.

¶ 15. In the pleadings addressed to the circuit court, Chisolm argued that his constitutional rights were denied since he did not have an attorney present at the October 3 trial. He also argued that the justice court judge erred in denying his motion for a continuance. Chisolm stated that a continuance should be granted when an attorney has other cases pending at the same time in different courts. Chisolm argued that upon a clear abuse of judicial discretion, a judge’s actions concerning docket settings are subject to control by mandamus.

¶ 16. The Hinds County Circuit Court, First District, found that Chisolm was denied his constitutional rights under Article 3, Section 26 of the Mississippi Constitution and the Sixth Amendment of the United States Constitution. The circuit court also found that Judge Chapman abused his discretion in failing to follow applicable law in denying Chisolm’s Motion for Continuance since Chisolm’s attorney had previously scheduled trials set for the same date. Further, the circuit court found that where there is a clear abuse of discretion, the actions of a judge concerning docket settings are subject to control by mandamus. The circuit court also found that Judge Chapman abused his discretion when he found Chisolm guilty in his absence without his attorney present.

¶ 17. Sorie S. Tarawally, attorney for Judge Clyde Chapman, filed a Motion for a New Trial or to Stay Judgment or Order with the Hinds County Circuit Court. In this motion, Judge Chapman argued that the cases said to have been in conflict with the October 3, 2000, trial date were not tried on that day in Ridgeland and were also subject to numerous continuances by Chisolm in the Pearl court. Chapman also argued in his motion that Chisolm’s counsel was briefly present in the Hinds County Circuit Court on October 3, 2000, at 9:00 a.m. and that both of those cases were dismissed.

¶ 18. Judge Chapman argued that municipal courts and justice courts are not courts of records and appeals are de novo to county courts. Chapman argues that Chisolm had this right but opted not to exercise it. Chapman states that it was error for the Hinds County Circuit Court to issue an injunction and writ of mandamus.

¶ 19. Chapman urges that the Uniform Rules of Circuit and County Court Rules, Rule 12.02, is applicable and controlling. He stated that this rule provides the method for appeal from justice court. Chapman further argued that he denied the continuance because he found a pattern of delay and avoidance in the requests by Chisolm’s counsel.

¶ 20. Also found in his motion to the circuit court, is Chapman’s insistence that a writ of mandamus is not the proper remedy as a substitute for appeal. Chapman urged that Chisolm will not suffer any injury in appeal as provided by law. He also argued that it is ironic that Chisolm complains about a speedy remedy when he spent the greater part of a year postponing his trial by asking for continuances.

¶ 21. Chapman further argued that he is accorded great discretion in the control of his docket. He urged that when a judge believes an attorney is orchestrating court calendars to avoid a trial on the merits, a denial of a continuance is not an abuse of discretion. Chapman encouraged the circuit court to acknowledge that a trial judge has control of his docket.

¶ 22. The circuit court denied Chapman’s motion, and this appeal ensued. We need only address two of the issues raised.

DISCUSSION
I. WHETHER JUDGE CHAPMAN ABUSED HIS DISCRETION IN DENYING A CONTINUANCE AND PROCEEDING TO TRIAL ON CHISOLM’S CASE IN HIS ABSENCE.

¶23. In Jackson v. State, 254 So.2d 876, 878 (Miss.1971), this Court noted that a trial judge has broad discretion in granting and refusing continuances and stated:

As the trial court has broad discretion as to whether or not a continuance should be granted in the trial of a case and, unless this Court can say from facts shown in the trial that the trial court abused its discretion, or that injustice has been done, the Supreme Court of Mississippi will not disturb the holding of the trial court denying such a motion.

See also Boydstun v. Perry, 249 So.2d 661 (Miss.1971); Barnes v. State, 249 So.2d 383 (Miss.1971); Cummings v. State, 219 So.2d 673 (Miss.1969); Bennett v. State, 197 So.2d 886 (Miss.1967).

¶ 24. Further, Miss.Code Ann. § 99-17-9 (Rev.2000) states that:

In criminal cases, the presence of the prisoner may be waived, and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto. If the defendant, in cases less than felony, be on recognizance or bail or have been arrested and escaped, or have been notified by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or be in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment final and sentence be awarded as though such defendant were personally present in court.

Id. This statute clearly provides an exception for misdemeanors such as Chisolm’s DUI, first offense. This allows a trial judge to proceed with trial.

¶ 25. Chisolm clearly had notice of the pending trial against him. He and his attorney were aware that the continuance had been denied. Judge Chapman, in his discretion, proceeded with the trial in Chi-solm’s absence, and upon proof, found him guilty and gave him the statutory fine plus costs. Chisolm was not given jail time. As a result, we find that he was not denied his constitutional rights.

¶ 26. We also find that the circuit court erred in ordering Judge Chapman to set aside Chisolm’s conviction. This Court has ruled that a denial of continuance by a trial judge will only be set aside if it is shown from the facts of the trial that an injustice has occurred. In this case, no injustice has occurred. Judge Chapman did not abuse his discretion in denying such a continuance nor did he err in proceeding to trial on a misdemeanor charge in the absence of the defendant.

II. WHETHER THE CIRCUIT COURT ERRED IN ISSUING A WRIT OF MANDAMUS TO THE JUSTICE COURT ON BEHALF OF CHISOLM.

¶ 27. Miss.Code Ann. § 11^41-1 (Rev. 2002) gives the remedy of mandamus and provides:

On the complaint of ... any private person who is interested, the judgment shall be issued by the circuit court, commanding any inferior tribunal ... to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office ... where there is not a plain, adequate, and speedy remedy in the ordinary course of law....

Id.

¶ 28. In re Corr-Williams Tobacco Co., 691 So.2d 424 (Miss.1997), involved a request by defendants under M.R.A.P. 21, that this Court grant interlocutory relief by reversing certain interlocutory decisions of the chancery court. Id. This Court dismissed the petition as having no sufficient legal reason for intervention. Id. at 425. The Court found that the argument that there was no adequate remedy on appeal was without merit. Id. at 427. The argument that intervention would simplify, shorten or eliminate proceedings in the chancery court was also rejected. Id. This Court found that judicial efficiency and economy would best be achieved by an orderly procession of the matter through the chancery court and the appellate process. Id. The Court ruled that the petitioners had an adequate remedy through the trial court. Id. (quoting Bd. of Supervisors v. Miss. State Highway Comm’n, 207 Miss. 839, 847, 42 So.2d 802, 805 (1949), which held for the clear holding that the “writ of mandamus is a discretionary writ and even in a case where an absolute legal right is shown, the writ will be withheld whenever the public interest would be adversely affected.”)

¶29. State v. Maples, 402 So.2d 350, 352 (Miss.1981), held that a “writ of prohibition may issue as an aid to the appellate process by superior courts to inferior courts to prevent action by an inferior court or judge which cannot be remedied on appeal.” Id. In Maples, this Court held that a circuit court judge’s refusal to re-cuse himself in a criminal case upon motion of the State presented a unique situation where the State would be without an adequate remedy on appeal. Id. (If the circuit judge had rendered a directed verdict for the defendants, they could not be tried again). This Court specifically held that “if the trial judge has erroneously refused to vacate the bench and there is a verdict of acquittal or a directed verdict, the defendant in the criminal case cannot be tried again because of the double jeopardy provisions of the Constitution of the United States and the State of Mississippi.” Id. at 353. This was the first time this Court ever issued such a writ. This Court stated that:

The rule announced in this case will not apply to plaintiffs of defendants in civil cases, or defendants in criminal cases, where the judge is requested to recuse himself, because such parties may have the ruling of the trial judge reviewed on appeal.

Id. This Court noted that it has original jurisdiction to entertain a writ of mandamus to compel a trial judge to act in a matter pending before him. Id. at 352.

¶ 30. In re Moffett, 556 So.2d 723 (Miss.1990), granted a writ of mandamus where a judge refused to recuse himself because of close kinship with an attorney for the defendant. Citing Canon 3(C)(1)(d) of the Code of Judicial Conduct and Miss. Const, art. 6, § 165 this Court found the judge in violation of the provision requiring recusal absent the consent of the parties. 556 So.2d at 724. This Court granted the writ because of the appearance of impropriety by the judge. Id. The writ was the proper remedy because of the “distasteful” nature of the case to an appellate court. Id. at 726. The case was remanded in the interest of justice. Id.

¶ 31. In Boydstun v. Perry, 249 So.2d 661 (Miss.1971), the petitioner appealed from a refusal of a circuit judge to issue a writ of mandamus directing a circuit judge in another district to try two civil cases. Id. This Court held that the circuit judge had correctly ruled that he had no jurisdiction to issue the writ. Id. This Court then held that “original jurisdiction of the proceedings must necessarily rest with this Court, although factual questions might be heard by a specially designated trial judge appointed by this court to hear the facts.” Boydstun further states that only in a case of the clearest abuse of judicial discretion would a circuit court judge’s actions with respect to the docket settings in his court be subjected to control by mandamus. Id. at 664.

¶ 32. This Court has also held that a statute requiring trial judges to render opinions and issue judgments in matters taken under advisement so that litigation can be finally terminated impinges upon the Constitution. Glenn v. Herring, 415 So.2d 695 (Miss.1982). A Supreme Court Rule was adopted authorizing any party in a case to apply for a writ of mandamus to issue to inferior court to require the court to render a decision on matters taken under advisement. Id. In Glenn, this Court stated that Article 6, § 146 of the Mississippi Constitution confers upon this Court appellate jurisdiction. Id. at 698. Appellate jurisdiction, of necessity, includes issuance of such incidental procedural orders or writs necessary to enable this Court to fully exercise its appellate jurisdiction. Id. at 698. The Court has jurisdiction to issue writs of mandamus and writs of prohibition to inferior courts as an aid to the appellate process. Id. at 698 (citing State v. Maples, 402 So.2d 350 (Miss.1981); Woods v. Lee, 390 So.2d 1010 (Miss.1980); Boydstun v. Perry, 249 So.2d 661 (Miss.1971)). The writ of mandamus is an aid to the appellate process, because it directs an inferior tribunal to take some action so its judicial decision can be reviewed on appeal. Id. at 698.

¶ 33. Woods v. Lee, 390 So.2d 1010 (Miss.1980), held that the remedy available to a litigant when a trial judge failed to act on a motion for a new trial, or would not decide a case taken under advisement was to petition this Court for a writ of mandamus. Id. Both Woods and Glenn recognize the narrow function of mandamus, to compel the judge of an inferior court to perform a non-discretionary act he was required by law to perform.

¶ 34. Even in cases where there has been no question of the authority of a court to issue the writ in proper cases, the Court have consistently held that mandamus would not lie to compel an inferior tribunal to act in a certain way in refer-

ence to a discretionary matter. Ill. Cent. R.R. v. Moore, 215 So.2d 419 (Miss.1968); Powell v. State Tax Comm’n, 233 Miss. 185, 101 So.2d 350 (1958); City of Clarksdale v. Harris, 188 Miss. 806, 196 So. 647 (1940); Thomas v. Price, 171 Miss. 450, 158 So. 206 (1934); Bd. of Supervisors of Rankin County v. Lee, 147 Miss. 99, 113 So. 194 (1927).

¶ 35. Cowan v. Gulf City Fisheries, Inc., 344 So.2d 724 (Miss.1977), held that the circuit court erred in granting a writ of mandamus. The Court stated that the writ is “an extraordinary writ, available only where there is not a plain, adequate and speedy legal or administrative remedy.” Id. at 725.

¶ 36. The proper function of mandamus is to supply a remedy for inaction on the part of an official or commission to whom it is directed and it is not a substitute for nor intended to serve the purposes of other modes of review. Hinds County Democratic Executive Comm. v. Muirhead, 259 So.2d 692, 694-95 (Miss.1972). It can direct an official or commission to perform its official duty or to perform a ministerial act, but it cannot project itself into the discretionary function of the official or the commission. Id. at 695. It can direct action to be taken, but it cannot direct the outcome of the mandated function. Id. In City of Jackson v. McPher son, 158 Miss. 152, 155, 130 So. 287, 288 (1930), this Court commanded that:

It is not within the purposes of a writ of mandamus to direct an inferior tribunal to decide an issue of fact in a particular way, when the law has invested that tribunal with original jurisdiction to decide the question for itself. If this were not the rule, the determination of issues of fact, although committed to many different offices and board in the first instance, would be only advisory to the courts, and local government of all grades would or could be absorbed by, and transferred to the courts' — a proposition contrary to the frame and structure of civil government in this country, and impolitic and impracticable to the last degree. In such cases, where as to the facts there exists any admissible doubt, or in respect to which reasonable men might conscientiously differ, the courts have, with a practical unanimity, declined to interfere with mandamus.

Id.

¶ 37. Here, the circuit court erred in issuing the writ of mandamus. Judge Chapman’s decisions to deny any further continuance and to proceed to trial in Chi-solm’s absence were discretionary. The writ of mandamus was the improper procedural tool to remedy Chisolm’s grievances. Hinds County has a county court system and appeals from a justice court are to the county court and the trial is de novo. See Miss.Code Ann. § 99-35-1; URCCC 12.02. Chisolm and his attorney improperly attempted to circumvent the orderly system of appellate review by asking the circuit court to issue an injunction or a writ of mandamus to give him a new trial in justice court. The writ of mandamus is an extraordinary remedy which is not a substitute for appeal. Chisolm will suffer no injury in a proper appeal as provided for by law. Under the law, cases before justice court and municipal judges are appeal-able and are tried de novo before a county judge. The law provides an adequate remedy for Chisolm. The grant of the writ of mandamus was in error. There is no reason that any erroneous actions by the justice court cannot be remedied on appeal.

CONCLUSION

¶ 38. The process by which Chisolm has sought to remedy his grievances, through a writ of mandamus, is not the proper remedy. The justice court judge is given wide discretion in granting or denying continuances. Chisolm was not improperly tried in absentia, as the statute contains an exception for a trial in the absence of a defendant who has been charged with a misdemeanor offense and is properly notified of the setting and chooses not to appear. The circuit court erred in granting the temporary restraining order and the writ of mandamus. This Court will not allow a defendant, such as Chisolm, to circumvent the appellate process and seek such an extraordinary remedy when there is an adequate remedy at law. Therefore, we reverse the circuit court’s temporary restraining order and writ of mandamus, and we render judgment denying Kevin M. Chisolm’s application for a temporary restraining order and writ of mandamus, and dismissing this civil action.

¶ 39. REVERSED AND RENDERED.

PITTMAN, C.J., WALLER, COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ„ CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: CARLSON, J., PITTMAN, C.J.,

license: Public Domain

text:
    O.C. RUSH and Eloise Moffite v. WALLACE RENTALS, LLC.
    No. 2002-CA-00193-SCT.
    Supreme Court of Mississippi.
    Feb. 6, 2003.
    Walter T. Rogers, Meridian, attorney for appellants.
    John E. Howell, Meridian, attorney for appellee.
   CARLSON, J.,

for the Court.

¶ 1. This case is on appeal from the judgment of the Lauderdale County Chancery Court finding a disputed tax sale to be valid. Following the expiration for the date of redemption, Wallace Rentals, LLC, the tax sale purchasers of the property, recorded a tax deed in the chancery clerk’s office. Wallace Rentals filed suit to confirm the tax sale and cancel cloud on the title. Eloise Moffite, the previous owner, disputed the validity of the sale, reasoning that: (1) the failure of the tax collector to advertise the land subject to tax sale in the name of the owner and title holder rather than the name appearing on the tax rolls rendered the sale void, and (2) the failure of the chancery clerk to diligently search and give notice to the land owner in order to redeem rendered the tax sale void. Finding that the chancellor was eminently correct, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The conveyance giving rise to this action occurred on June 23, 1997, when O.C. Rush (Rush) conveyed to Eloise Mof-fite (Moffite) via quitclaim deed the following described real property:

Lot 10, Block 2, of and according to Slaughter’s Survey in Section 8, Township 6, Range 16 East, Lauderdale County, Mississippi.

¶ 3. The physical address of this property was 2130 9th Avenue, Meridian, Mississippi 39301, the property was valued at $14,650.00, and the 1997 taxes which were due on January 1, 1998, were not paid. Rush’s name appeared on the 1997 tax bill for this property, and Rush’s address was listed as 1801 18th Avenue, Meridian, Mississippi 39301. Moffite’s address was listed on the deed as 10159 Morgan Road, Meridian, Mississippi 39307.

¶ 4. The Lauderdale County Tax Collector caused notices for non-payment of property taxes to be published in the Meridian Star, the local newspaper, on August 17, 1998, and August 24, 1998. Inasmuch as this subject property was still assessed to Rush at the time of publication of the tax sale, the appropriate notice appeared in Rush’s name. On August 31, 1998, this property was sold to Oliver Limerick (Limerick) for the outstanding taxes due. Since the property was never redeemed, Limerick eventually received a tax deed from the Lauderdale County Tax Collector, which tax deed was dated October 2, 2000, and appears of record in Book 1703, at page 72, in the office of the Chancery Clerk of Lauderdale County. Limerick then later conveyed the property to Wallace Rentals, LLC (Wallace) via quitclaim deed dated December 5, 2000, which quitclaim deed appears of record in Book 1703, at page 109, in the office of the Chancery Clerk of Lauderdale County.

¶ 5. On June 27, 2000, the Lauderdale County Chancery Clerk tried to notify Moffite by certified mail of her right to redeem her property. The notice was sent to the address of 10159 Morgan Road, Meridian, Mississippi, 39307, but was returned, “attempted, not known.” In late June or early July of 2000, the chancery clerk tried to notify Moffite of the tax delinquency via process served by the Sheriffs Department. The sheriffs return on the process (indicating a physical location at 10159 Morgan Road, Meridian, Mississippi 39307) revealed “attempted, not found.” On July 11, 2000, the chancery clerk published in the Meridian Star a notice of “maturation to purchaser of the 1998 tax sale for the 1997 taxes unless redeemed prior to maturity date of August 31, 2000.” This notice contained the name of Eloise Moffite, 10159 Morgan Road, Meridian, Mississippi, 39307.

¶ 6. On October 2, 2000, the chancery clerk signed a form affidavit which read:

Affiant made diligent search and inquiry to determining the street and post office address of Eloise Moffite (New Owner), Rush O.C., the reputed owner of said property and issued notice to the sheriff of Lauderdale County, Mississippi, the county of the residence of the said reputed owner, and mailed a copy of such notice to said reputed owner at his usual street address by certified mail, all in the form and in the manner required by Section 27-43-3, Mississippi Code of 1972; that the notice by mail was returned undeliverable and the personal notice required to be served by the sheriff was returned not found; that affiant then made further search and inquiry to ascertain the reputed owner’s street and post office address.
That the acts of search and inquiry made by affiant in an effort to ascertain the reputed owner’s street and post office address are specified as follows:
Telephone directory, R.L. Polk City Directories for several years, telephone contact (probable relatives), records in Tax Collector’s office, Tax Assessor’s office, and Circuit Clerk’s office voter registration file, also the deed which requires name and address of Grantee and Grantor when filed for record.
Affiant was still unable to ascertain the reputed owner’s street or post office address after making such search and inquiry for the second time, and no additional notice was issued.

¶ 7. On December 5, 2000, the chancery clerk recorded a tax deed on the subject real estate to Limerick for the 1997 taxes. The property was then conveyed by Limerick to Wallace via quitclaim deed on December 6, 2000, which quitclaim deed was likewise recorded in the office of the Lauderdale County Chancery Clerk.

¶ 8. On January 17, 2001, Wallace filed in the Chancery Court of Lauderdale County a Complaint for Confirmation of Tax Sale, to Cancel Cloud and for Related Relief. Moffite answered the complaint on March 2, 2001, alleging, inter alia, that the tax sale was void because the chancery clerk failed to give proper notice as required by law. On that same day Moffite filed a Motion for Temporary Relief, requesting that the rental income generated from the land be deposited in the registry of the court, awaiting final disposition of the litigation. On March 13, 2001, Wallace filed a Motion to Remove Defendant Mof-fite’s Counsel asserting that her attorney’s law firm had various conflicts of interest regarding the subject property. An agreed order depositing the rental money in the registry of the chancery court was entered on March 20, 2001. Wallace’s motion to remove Moffite’s counsel was overruled by order of the chancellor on April 6, 2001. Inasmuch as Rush failed to plead, answer or otherwise defend this action, a clerk’s default was entered on May 4, 2001, followed by the chancellor’s entry of a default judgment on May 14, 2001. The practical effect of the entry of this default judgment was that, as so adjudicated by the chancellor, Rush no longer had an interest in the subject real estate. By order of the chancellor, Wallace was allowed to file an amended complaint which, inter alia, contained a deraignment of title on the subject property. In due course, Moffite filed an answer to the amended complaint, and by way of a counterclaim, asserted that the tax deed and quitclaim deed should be canceled and held for naught.

¶ 9. After a hearing on December 5, 2001, Chancellor Sarah P. Springer entered a detailed 20-page memorandum opinion on December 12, 2001, wherein she made thorough findings of fact and conclusions of law, which included, inter alia the following:

This Court must consider not only actions of the Chancery Clerk’s office, but also actions or lack of actions on the part of the record landowner. In this instance, the address on the 1997 quitclaim (sic) which conveyed the land to Eloise Moffite listed Eloise Moffite’s daughter’s residence address (10159 Morgan Road, Meridian, Mississippi 39307), and not Eloise Moffite’s address (2113 Martin Luther King Memorial Drive, Meridian, Mississippi 39301).
This discrepancy occurred due to the fact that Eloise Moffite’s cousin actually purchased the land from O.C. Rush in the name of Eloise Moffite with Eloise Moffite’s permission. In fact, Eloise Moffite was not present at the closing, did not provide any financial assistance for the purchase, and never met with O.C. Rush. Eloise Moffite even testified that she did not consider the property to be her own, but considered the property to belong to her cousin, Alexia Rushing. Eloise Moffite also testified that she was not concerned with the assessment of taxes on the property and did not feel accountable for those assessed property taxes.
Eloise Moffite testified that she had resided at 2113(sic) Martin Luther King Drive, Meridian, Mississippi 39301 for thirty-five years and had only stayed at 10159 Morgan Road, Meridian, MS 39307, her daughter’s home, for short periods of time to help with her grandchildren. Mrs. Moffite also testified that she used both 2113(sic) Martin Luther King Drive, Meridian, Mississippi 39301, and 10159 Morgan Road, Meridian, MS 39307, to receive mail.
When Mrs. Moffite’s daughter moved from 10159 Morgan Road, Meridian, MS 39307 in June of 1999, Mrs. Moffite never informed the Lauderdale County Tax Collector of any change of address. The Morgan Road address was never Mrs. Moffite’s actual residence address. Thus, Eloise Moffite’s actions and lack of actions have also directly led to the situation at hand. Mrs. Moffite made no attempt to correct the confusion caused by the improper address being placed on the quitclaim deed and even stated she did not consider the land at issue to be hers.

In the end, the chancellor concluded in her memorandum opinion:

This Court finds that the Lauderdale [County] Chancery clerk’s office made a diligent search and inquiry to ascertain the (sic) Eloise Moffite’s street and post office address. This Court further finds that Eloise Moffite has exerted no effort to correct the incorrect information in the quitclaim deed or to otherwise supply her address so the taxing authorities could notify her of her right of redemption. This Court further finds that Eloise Moffite has exerted no effort to pay the property taxes owed on the subject property. Thus, this Court finds that the tax sale is valid and that the tax deed vests title in the tax purchaser. This Court confirms the tax sale and cancels any and all clouds against said title.

¶ 10. The chancellor, on December 18, 2001, entered a final order consistent with this memorandum opinion, which prompted Moffite to file her motion for new trial and/or relief from judgment. Moffite’s post-hearing motions were denied by the chancellor by judgment entered on January 11, 2002, and Moffite timely perfected her appeal to this Court by way of a filing of a notice of appeal with the trial court on February 7, 2002.

STANDARD OF REVIEW

¶ 11. This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990) (collecting authorities).

DISCUSSION
I. WHETHER THE FAILURE OF THE TAX COLLECTOR TO ADVERTISE LAND SUBJECT TO SALE FOR NON PAYMENT OF TAXES IN THE NAME OF THE OWNER AND TITLE HOLDER RENDERS THE TAX SALE VOID AS TO THAT PROPERTY.
II. WHETHER THE CHANCERY CLERK WAS DILIGENT IN HER SEARCH AND INQUIRY TO NOTIFY THE LAND OWNER OF THE OPPORTUNITY : TO REDEEM LAND FROM TAX SALE.

¶ 12. Moffite argues that the failure of the August 17, 1998, and August 24, 1998, legal notice publication to list her as record title holder makes the tax sale void. She argues that she purchased the property on June 28, 1997, and recorded the deed the same day in the chancery clerk’s office. Notice in the Meridian Star appeared in the name of O.C. Rush, who Moffite says deeded her the property on June 23, 1997. She argues that notices mailed to her house were returned “not delivered” or “not found” and that she never received actual notice of the expiration of the redemption period.

¶ 13. Moffite also argues (1) that the clerks failed to perform the statutorily mandated “diligent search and inquiry” to notify her of her opportunity to redeem; (2) that process was served in this lawsuit to her proper address, though the incorrect address was listed on the process; and, (3) that because the process server could find her, the chancery clerk and the tax collector could, have also found her. As these issues are very similar, they are combined for clarity.

¶ 14. Miss.Code Ann. § 27-43-3 (2002) states:

The clerk shall issue the notice to the sheriff of the county of the reputed owner’s residence, if he be a resident of the State of Mississippi, and the sheriff shall be required to serve personal notice as summons issued from the courts are served, and make his return to the chancery clerk issuing same. The clerk shall also mail a copy of same to the reputed owner at his usual street address, if same can be ascertained after diligent search and inquiry, or to his post office address if only that can be ascertained, and he shall note such action on the tax sales record. The clerk shall also be required to publish the name and address of the reputed owner of the property and the legal description of such property in a public newspaper of the county in which the land is located, or if no newspaper is published as such, then in a newspaper having a general circulation in such county. Such publication shall be made at least forty-five (45) days prior to the expiration of the redemption period.
Notice by mail shall be by registered or certified mail. In the event the notice by mail is returned undelivered and the personal notice as hereinabove required to be served by the sheriff is returned not found, then the clerk shall make further search and inquiry to ascertain the reputed owner’s street and post office address. If the reputed owner’s street or post office address is ascertained after the additional search and inquiry, the clerk shall again issue notice as hereinabove set out. If personal notice is again issued and it is again returned not found and if notice by mail is again returned undelivered, then the clerk shall file an affidavit to that effect and shall specify therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sales record. If the clerk is still unable to ascertain the reputed owner’s street or post office address after making search and inquiry for the second time, then it shall not be necessary to issue any additional notice but the clerk shall file an affidavit specifying therein the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sale record ...
... The failure of the landowner to actually receive the notice herein required shall not render the title void, provided the clerk and sheriff have complied with the duties herein prescribed for them.
Should the clerk inadvertently fail to send notice as prescribed in this section, then such sale shall be void and the clerk shall not be liable to the purchaser or owner upon refund of all purchase money paid.

(emphasis added).

¶ 15. Miss.Code Ann. § 27-41-55 (2002) states:

Except as otherwise provided in Section 27-41-2 (provisions for collection of ad valorem taxes), after the fifth day of August in each year hereafter, the tax collector shall advertise all lands in his county on which all the taxes due and in arrears have not been paid, as provided by law, as well as all land which is liable to sale for the other taxes which have matured, as required by law, for sale at the door of the courthouse of his county or any place within the courthouse that the tax collector deems suitable to hold such sale, provided that the place of such sale shall be designated by the tax collector in the advertisement of the notice of tax sale on the last Monday of August. Such advertisement shall be inserted for two (2) weeks in some newspaper published in the county, if there be one, but in counties having two (2) court districts the lands shall be advertised and sold in the district in which such lands are situated and put up at the courthouse door thereof, and shall contain a list of the lands to be sold in alphabetical order by owner or in numerical order as they are contained in the assessment roll, in substance as follows ... or by such other description as it may be assessed. Land in cities and towns shall be described in the advertisement as it is described on the assessment roll. Errors in alphabetical or numerical order in the published or posted list of lands to be sold shall not invalidate any sale made pursuant to such notice.
In addition to the foregoing provisions, and at the option of the tax collector, advertisement for the sale of such county lands may be made after the fifteenth day of February in each year with the sale of such lands to Jbe held on the first Monday of April in each year, and all of the provisions which relate to the tax sale held in August of each year shall apply thereto.

¶ 16. Miss.Code Ann. § 27-35-1(1) (2002) states (in pertinent part):

It shall not be necessary to the validity of any assessment or of a sale of land for taxes that it shall be assessed to its true owner, but the taxes shall be a charge upon the land or personal property taxed and the sale shall be a proceeding against the thing sold and shall vest title in the purchaser without regard to who may own the land or other property when assessed, or when sold, or whether wrongfully assessed either to a person or to the state or any county, city, town, or village, or subdivision of either. Provided, however, that the lien for municipal taxes shall be secondary and subordinate to the lien for state and county taxes.

¶ 17. In DeWeese Nelson Realty, Inc. v. Equity Services Co., 502 So.2d 310 (Miss.1986), this Court held that even though the municipal clerk sent a redemption notice to the wrong address, she was diligent in searching and inquiring to ascertain the address of a corporation for redemption notice and thus the tax sale was not rendered void.

¶ 18. Moffite cites Brown v. Riley, 580 So.2d 1234 (Miss.1991), for the proposition that a landowner may not be deprived of his property as a result of nonpayment of taxes because the pertinent statutes are strictly construed in favor of the landowner. In Brown, this Court held that the chancery clerk had not substantially complied with the statutes in that the clerk had not adequately served either property owner with process by mail, nor was there proper service of process by the deputy sheriff. Additionally, in Brown, the chancery clerk also failed to give public notice of the sale 45 days prior to the actual sale. Finally, the chancery clerk also failed to serve BOTH landowners with SEPARATE summonses, as the statute requires, opting, instead, to serve both landowners with one summons. The clerks in the case sub judice attempted to serve notice properly, while it is obvious that the public officials in Brown were negligent in the performance of their duties.

¶ 19. In Rains v. Teague, 377 So.2d 924 (Miss.1979), this Court held that “when property is properly described ... it may be assessed to an unknown person, or to any person though not the owner, and the assessment will nevertheless be legal ... These legal propositions have been uniformly followed by this Court and form the basis of our land taxing procedures.” citing Wilkinson v. Steele, 207 Miss. 701, 43 So.2d 110 (1949); Carr v. Barton, 173 Miss. 662, 162 So. 172 (1935).

¶ 20. Under our standard of review, we must inquire whether the chancellor was manifestly in error in her assessment that the tax sale was in fact valid. The chancellor found (1) that the tax collector gave notice of a tax sale for delinquent taxes by description of the property on August 17, 1998, and August 24, 1998; (2) that Moffite had been sent notice via certified mail on June 27, 2000 to the address on the quitclaim deed conveying the property to her; (3) that on July 11, 2000, the chancery clerk noticed Mof-fite by publication with a description of the property and a listing of Moffite’s name; and, (4) that on October 2, 2000, the chancery clerk swore to and signed the affidavit required by Miss.Code Ann. § 27-43-3. Additionally, while the chancellor noted that the deputy clerks testified that the signing of the affidavit did not necessarily mean that all the procedures listed therein had been followed, since it was a form affidavit, the chancellor did not find that the deputy clerks’ failure to strictly comply with the affidavit was fatal.

¶ 21. The chancellor found that there was no information for Eloise Moffite listed in the 1998 and 2000 Meridian-Lauder-dale Mississippi Polk County directories, and no information listed in the October 1999-2000 BellSouth directory, though the affidavit from the chancery clerk stated that they had consulted “Telephone directory, R.L. Polk City directories for several years.” The chancellor found that in the 1999 Polk directory, as well as the October 1998-1999 BellSouth directory and the 1998-1999 East Mississippi-West Alabama directory, Eloise Moffite is listed as living on Martin Luther King Memorial Drive. The chancellor noted that one of the clerks admitted the affidavit “in this instance was false;” however, the chancellor declined to find that this fact was dispositive of the case, stating, “the affidavit is not the law the Clerk is required to follow. The Clerk must comply with the requirements of § 27-43-3 which simply seeks a diligent ‘search and inquiry.’ ” The chancellor further opined that, notwithstanding this “search and inquiry” (on the part of the clerk).... “landowners are still held accountable for their property taxes. Landowners are presumed to know ‘that all real property is assessed and taxed annually and bear some obligation to see that taxes on their property are paid each year.’ ”

¶ 22. The chancellor also addressed Moffite’s actions. The address Moffite had placed on the 1997 quitclaim deed listed Moffite’s daughter’s address of 10159 Morgan Road, Meridian and not Eloise Moffite’s own address. The chancellor found that this happened because Mof-fite’s cousin actually purchased the land from Rush in Moffite’s name and with her permission. As the chancellor noted in her memorandum opinion, “Moffite made no attempt to correct the confusion caused by the improper address.” Indeed, the chancellor stated:

To grant Eloise Moffite the relief that she seeks would mean that a property owner can provide erroneous information at the time he or she acquires title to land, totally ignore the fact that real property taxes come due every year, make no effort to provide any correct information to the appropriate authorities, and then expect clerks charged with seeking information on seven hundred to a thousand other delinquent taxpayers to go beyond the current information available in their office to find his or her current address. The fact is that the Chancery Clerk did make diligent search and inquiry to find Eloise Moffite in conformance with the requirements of the law.

¶ 23. Accordingly, the chancellor found the tax sale valid because the failure to advertise the land subject to tax sale in the record title holder’s name did not void the tax sale. She also found the chancery clerk was diligent in her search to locate Moffite. Moffite’s true address was never on the quitclaim deed because she intentionally gave her daughter’s address of 10159 Morgan Road, Meridian, instead of the Martin Luther King Memorial Drive address at which she testified she had lived for 35 years. Moffite was not even present at the closing of the sale of the land. She did not even find out the property was going to be bought in her name until approached and asked if it could be so purchased. Moffite even testified that the property was not hers. She also testified that her cousin (who purchased the property in Moffite’s name) paid the taxes and collected the rent on the property.

¶ 24. To underscore the egregiousness of Moffite’s actions in this case, we discuss here two statutes which have thus far gone unmentioned, as they were not discussed in the briefs of the parties. Miss.Code Ann. § 27-3-51(2) (1999) states, in pertinent part:

The chancery clerk shall require that the current mailing address and current business address or employment telephone number, if any, and current residential telephone number, if any, of each grantor and grantee be included on all deeds as a prerequisite for the deed to be filed for record after July 1, 1987.If the grantee may receive mail at the address of the property transferred, then the address of the transferred property shall be the mailing address of the grantee for the purposes of this section. The information provided by the grantor and the grantee shall be true and correct and complete to the best of his or her knowledge and belief under penalty of perjury under Section 97-9-61.The fact that the information provided by the grantor or grantee may be incorrect, incomplete or false, however, shall not invalidate the deed or the filing thereof for record.

(emphasis added). We are convinced that Moffite has to this point failed to understand and appreciate the seriousness of her actions by allowing her first cousin to purchase the property in her (Moffite’s) name and then by intentionally placing her daughter’s address on the deed as her (Moffite’s) correct mailing address.

¶ 25. We emphasize here that we in no way infer that the burden is totally on the landowner/taxpayer in cases of tax sales and property redemption. Indeed, regardless of the action or inaction of a landowner concerning tax sales and property redemption, certain public officials have statutorily mandated duties regarding notice and due process. In the case before us today, the chancery clerk and her staff strictly complied with the applicable statutes, a partially false clerk’s affidavit notwithstanding. After all, as noted by the chancellor, it is strict compliance with the statute which is mandated. The statute requires, inter alia, the filing of “an affidavit specifying therein the acts of search and inquiry” regarding efforts to ascertain the landowner’s street address and post office address. According to another portion of the statute, the clerk must be “diligent” in his/her search and inquiry. We further emphasize that today’s decision, not unlike other decisions of this Court, is “fact-driven” in that other cases on this issue could cause a different outcome and a public official’s sworn “diligent search and inquiry” affidavit which is at least partially false could have considerably more import in its effect on the outcome of a case. This Court acknowledges that the affidavit in question was a “form” affidavit in an effort to comply with the statutory mandate that an affidavit be filed setting out the clerk’s efforts in locating a delinquent tax-paying landowner; and, that the practical effect of having to “personalize” an affidavit for each of the approximately one thousand delinquent taxpayers as revealed in this record would be mind-boggling, to say the least. On the other hand, the citizens of this State, and certainly this Court, have a right to expect that when any one, but especially a public official, signs an affidavit under oath, the statements and allegations contained in the affidavit will in fact be true. As a matter of suggestion, the chancery clerks could perhaps consider a “check list” form affidavit containing a general list of the description of actions normally taken in a search and inquiry, and then merely “check off’ on the list the action actually taken in any particular search and inquiry.

¶ 26. All of this having been said, based on the record before the Court, and based on the facts and circumstances peculiar to this particular case, we find that the record supports the findings of the chancellor, and we will not disturb her findings absent a showing that the chancellor was “manifestly wrong, clearly erroneous or an erroneous legal standard was applied.”

¶ 27. As found by the chancellor, the clerks were in fact diligent in their search. Though they may have not perused every single phone directory for Moffite’s address, the clerks (1) consulted current phone directories; (2) consulted the tax collector’s office for car tags; (3) reviewed the homestead exemption roll in the tax assessor’s office; (4) checked the quitclaim deed; and (5) sent the notice to the address on the deed.

CONCLUSION

¶ 28. While we in no way lessen the responsibilities of our tax collectors and chancery clerks concerning strict compliance with their statutorily mandated responsibilities so as to protect the due process rights of all citizens of our State in relation to real property tax sales and property redemption, Mississippi law, on the other hand, simply does not permit landowners to be inattentive to their annual property taxes. We have held, and the chancellor correctly cited, “it is incumbent upon a landowner to be knowledgeable about the assessment on his property and to be diligent to make sure that his taxes are paid.” Rains, 377 So.2d at 927 (also citing Carmadelle v. Custin, 208 So.2d 51 (Miss.1968)). The chancellor very attentively considered the evidence presented at trial and entered a thorough, well-reasoned 20-page memorandum opinion containing detailed findings of fact and conclusions of law. Not only can it be stated with certainty that the chancellor was not manifestly wrung, clearly erroneous or applied an erroneous legal standard, it can be clearly stated that the chancellor was eminently correct in finding that the tax sale was valid, that the tax deed properly vested title in the purchaser at the tax sale, that the purchaser’s subsequent quitclaim deed to Wallace was valid, that the tax sale was confirmed, that all clouds upon the title to the property were removed and canceled, and that title to the property was properly vested in Wallace. The judgment of the chancellor is therefore affirmed.

¶ 29. AFFIRMED.

SMITH, P.J., WALLER, COBB AND EASLEY, JJ.; CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. PITTMAN, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., AND DIAZ, J.

PITTMAN, C.J.,

dissenting:

¶ 30. I cannot join the majority today because I find the chancery clerk’s efforts to locate and provide notice to Eloise Mof-fite of the impending sale of her property insufficient under our statutes and case law. The chancellor erred in holding the tax sale valid; thus the majority errs by affirming this judgment. Therefore, I respectfully dissent.

¶ 31. This Court must strictly construe Miss.Code Ann. § 27-43-3 (Rev.2002), and its requirements must be fully satisfied. Hart v. Catoe, 390 So.2d 1001, 1003 (Miss.1980). It is the public policy of this state to favor and protect land owners from loss by its sale for taxes. Id. (citing Carmadelle v. Custin, 208 So.2d 51, 55 (Miss.1968)). When examining this statute in light of the requirements of due process, this Court has stated:

Construing Miss.Code Ann. § 27-41-55 (Supp.1985) and Miss.Code Ann. § 27-43-3 (Supp.1985) together, notice must be given by personal service, mail, and publication before a landowner’s rights are finally extinguished by the maturing of a tax deed.

DeWeese Nelson Realty, Inc. v. Equity Servs. Co., 502 So.2d 310, 314 (Miss.1986). This Court has further stated:

It goes without saying that the most important safeguard involving any person who stands to suffer from some official action is prior notice. This gives the recipient an opportunity to prepare himself and be heard. Notice, therefore, by far is the paramount factor and purpose of all process.

Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991) (citations omitted).

¶32. In Hammett v. Johnson, 624 So.2d 58, 59 (Miss.1993), this Court considered a case where notice of delinquent taxes and impending tax sale was given in the name of the previous owner of a parcel of land. Notice of this sale was also sent to the previous owner, and no attempt was made to contact the present owner of the property. Id. This Court concluded that the chancery clerk’s failure to comply with the statute in providing notice to the present record owner of the property, the lack of due diligence exercised by the chancery clerk in ascertaining the identity of the record owner, and the lack of actual notice to the record owner rendered the tax deed void. Id.

¶ 33. Here, the published notice of the tax sale was given in the name of O.C. Rush, the previous landowner. Notice was also mailed to his address. The chancery clerk’s first attempt to notify Eloise Mof-fite of the tax sale was the notice of the right of redemption mailed in 2000 to the address of the property in question, where Moffite’s daughter had been living since 1999. This notice came back “attempted, not known.” The Sheriffs attempts to provide notice of the expiration of the right of redemption to Moffite at that address also proved futile in 2002, as his return is marked, “not found.” Thus, no actual notice was given to Moffite until the process server for Wallace Rentals served her with process (at her home, no less, in spite of the fact the summons was incorrectly addressed) in this action to remove cloud to title. This, of course, occurred after her right to redemption expired.

¶ 34. While the majority does not contest this, it affirms the chancellor’s conclusion that the chancery clerk was diligent in attempting to ascertain Moffite’s address for service of process. Although service was accomplished easily enough by Wallace Rental’s process server, the chancery clerk filed a form affidavit stating that Moffite could not be found through diligent search of various local phone books spanning several years, the records in the Tax Assessor’s office, the Circuit Clerk’s voter registration files, and the face of the deed itself. It was conceded at the hearing on this issue that had this affidavit been accurate and truthful, Moffite’s address for notice purposes would have been discovered'. This is understandable, as Moffite has been a resident of her Meridian home for over thirty-five years. Instead, contrary to the sworn affidavit, not all of the actions listed in the affidavit were completed.

¶ 35. First, as this is a standard form affidavit, we are provided with insight as to what is considered the bare minimum of due diligence required to properly serve notice on Mississippi-resident property owners of impending tax sales and their rights to redeem their property. We should hold the clerk’s office to this minimum standard. Since the standard -has not been met, as the testimony in the record indicates, the chancellor was manifestly wrong in affirming the tax sale as the clerk’s office, by admission, was not diligent.

¶ 36. Second, the notion that a clerk would file a form affidavit purporting to swear to facts which provide adequate notice to satisfy due process, but later reveal that some or all of those efforts were not in fact undertaken, should be strongly discouraged. This is a shortcut to due process and, therefore, not due process at all. Certainly it is not in keeping with our strict interpretation of § 27-43-3, which contains no room for false affidavits, even if the statutory requirement of an affidavit has technically been satisfied.

¶ 37. I agree with the majority that property owners must be ever diligent to pay the property taxes they owe and remain knowledgeable about the assessments on their properties. However, tax sales are takings by government. The debt owed to the government in taxes is repaid in each tax sale. The damage done to property owners who were not provided with actual notice of the sale and right of redemption of their land, and who did not benefit from the chancery clerk’s diligent efforts to ascertain their identity, outweighs the costs of the time it would take to properly accomplish the tasks outlined in the statute; especially where these costs are small and (at least partially) reimbursed through redemption or purchase. The chancellor and the majority err by placing too great a burden on the taxpayer and not enough of a burden on the government in the proper exercise of its duties.

¶ 38. I would reverse the judgment of the chancellor and remand to allow Eloise Moffite sixty days to redeem her property.

McRAE, P.J., AND DIAZ, J., JOIN THIS OPINION.

      . As will be noted, Moffite was neither left out nor forgotten during this entire process.

      . See Miss. R. Civ. P. 55(a) & 55(b), respectively.

      . The record actually reveals that Moffite’s address was 2112 (not 2113) Martin Luther King Memorial Drive.

      . As so noted in Miss.Code Ann. § 27-43-1, the "clerk” referred to in the statute is the chancery clerk.

      . The current statute is identical to the statute in effect at all times relevant to this case.

      . Again, the current statute is identical to the statute in effect at all times relevant to this case.

      . Though there were 1997 amendments to this statute, the quoted portion here is identical to the language appearing in the statute in effect at all times relevant to this case.

      . There was only forty-three days’ notice.

      .It must also be remembered, as reflected earlier in this opinion, that the chancery clerk also caused process to be issued to the sheriff for service upon Moffite, in order to inform her of the tax delinquency and her right of redemption, but this notice was returned by the sheriff as “attempted, not found.”

      .Miss.Code Ann. § 97-9-61 (Rev.2000), a criminal statute, states:
      Persons convicted of perjury shall be punished by imprisonment in the penitentiary as follows: For perjury committed on the trial of any indictment for a capital offense or for any other felony, for a term of not less than ten years; for perjury committed on any other judicial trial or inquiry, or in any other case, for a term not exceeding ten years.
      Additionally, any person found guilty of perjury "shall not thereafter be received as a witness to be sworn in any matter or cause whatever, until the judgment against him be reversed.” See Miss.Code Ann. § 97-9-59.

      .' The language of this statute is the same as that in effect at all times mentioned herein.

      . Unlike Moffite’s intentional acts, the chancellor found as a fact in her Memorandum Opinion that "the Chancery Clerk testified that she swore and signed the affidavit believing that a diligent search and inquiry had occurred, as she had directed.”


author: LEE, J.,

text:
    James D. POWER, Mary Cox Power and Samuel D. Hensley, Jr., Appellants, v. Leslie SCOTT, Individually, and as Executrix of the Estate of Ellen Marie Power, Deceased, Appellee.
    No. 2001-CA-00341-COA.
    Court of Appeals of Mississippi.
    June 4, 2002.
    Rehearing Denied Aug. 20, 2002.
    Certiorari Denied Jan. 9, 2003.

      Dennis L. Horn, Shirley Payne, Madison, attorneys for appellant.
    Marlane Elizabeth Chill, Jackson, Luke Dove, attorneys for appellee.
    Before McMILLIN, C.J., LEE, and BRANTLEY, JJ.
   LEE, J.,

for the court.

¶ 1. James D. Power, Mary E. Cox Power, and Samuel D. Hensley, Jr., M.D., filed a bill of discovery to contest the last will of their daughter and ex-wife, Ellen Marie Power Hensley. The Powers and Dr. Hensley contested the will on the basis of lack of mental capacity and undue influence. The Powers and Dr. Hensley requested that Leslie Scott, executrix and beneficiary of the estate of Ellen Powers Hensley, produce the medical, financial, and legal records of Ellen to help prove their claims. Leslie Scott filed a motion to dismiss or in the alternative a motion for summary judgment. Concerning the motion for summary judgment, the chancellor held that neither the Powers nor Dr. Hensley had standing and entered an order granting the motion for summary judgment. Feeling aggrieved, the Powers and Dr. Hensley assert the following issues: (1) whether the chancellor erred when he held that the Powers and Dr. Hensley did not have standing to contest the will, (2) whether the chancellor erred when he decided not to remove the executrix, (3) whether the chancellor erred by failing to make findings of fact and conclusions of law, and (4) whether, on remand, this case should be consolidated with proceedings arising from the divorce action between the decedent, Ellen Marie Power, and her former husband, Dr. Hensley. This Court concludes that issue one requires that this case be reversed and remanded.

FACTS

¶ 2. Ellen Marie Power Hensley drafted two wills prior to her death. Her first will reflected the date of May 9, 1997. Her second will showed the date of September 23, 1998. During the time between the execution of her first and second will, Ellen and Dr. Hensley were divorced. A section of the property settlement agreement addressed the estates of Ellen and Dr. Hensley wherein each waived his or her rights to an interest in the other’s estate.

¶ 3. On December 10, 1998, Ellen Marie Power Hensley took her own life. Shortly thereafter, the executrix and primary beneficiary, Leslie Scott, filed the 1998 will for probate. In response, the Powers and Dr. Hensley filed a bill of discovery to obtain the medical, legal, and financial records of Ellen. The Powers and Dr. Hensley asserted that the records were necessary to establish that Ellen was suffering from psychological disturbances at the time she signed her wills. They asserted that Ellen lacked the mental capacity to execute a valid will and that her will was the product of undue influence from Leslie Scott.

¶ 4. Leslie Scott did not produce the documents requested by the Powers and Dr. Hensley. Instead, she filed a motion to dismiss or in the alternative for summary judgment. The motion asserted that none of the parties had standing to contest the second will. The chancellor agreed and granted the motion for summary judgment.

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED WHEN HE HELD THAT THE POWERS AND DR. HENSLEY DID NOT HAVE STANDING TO CONTEST THE WILL.

¶ 5. The Powers and Dr. Hensley assert that they are necessary parties to the will contest. James D. Power and Mary Power assert that as heirs at law they are necessary parties under the terms of Miss. Code Ann. § 91-7-25 (Rev.1994). Dr. Hensley asserts that he is a necessary party to the will contest since he was the former husband of Ellen and since a matter is still pending regarding the sum of alimony, if any, that he must pay into Ellen’s estate. Leslie Scott, in her capacity as an individual, as well as executrix of Ellen’s estate, argues that the Powers and Dr. Hensley have no financial interest to protect; therefore, under Mississippi law they do not have standing and summary judgment was appropriately granted.

¶ 6. The lower court is vested with the discretion to grant a summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Collier v. Trustmark Nat’l Bank, 678 So.2d 693, 695 (Miss.1996); M.R.C.P. 56. The standard of review when a trial judge has granted a summary judgment is de novo. Dees v. Estate of Moore, 562 So.2d 109, 110 (Miss.1990).

¶ 7. “While the question of ‘devisa-vit vel non’ (‘will or no will’) is the primary issue in a will contest, and under Miss. Code Ann. § 91-7-19 (1972), either party to a will contest has an automatic right to a jury trial, where no genuine issues of material fact have been presented in the pleading stage a motion for summary judgment is properly granted.” Matter of Launius, 507 So.2d 27, 29 (Miss.1987). Matter of Launius explains the burden of the contestant of a will facing a motion for summary judgment as follows:

Appellees, as proponents of the will, have the burden of proving the will throughout. They meet this burden by showing the will was duly executed and admitted to probate. When the will is admitted to probate, proponents put on prima facie evidence that the testator had testamentary capacity and further that no undue influence was placed upon him. The burden of going forward then shifts to contestant, who must overcome the presumption raised by proponents that testator had testamentary capacity, (and, therefore, that the testator’s execution of the will was a free and voluntary act).
When the Mississippi Rules of Civil Procedure come into play within a situation involving a contest to will, where mov-ants for summary judgment (appellees) have shown there is no genuine issue of material fact vis-a-vis probate of the will, contestant, as the adverse party, “may not rest upon the mere allegations of denials of his pleadings, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e).

Id. at 29-30 (citations omitted).

¶ 8. With this standard in mind, we must determine if the chancellor correctly concluded that summary judgment was appropriate because the Powers and Dr. Hensley lacked standing. The chancellor concluded that Dr. Hensley did not have standing to contest the 1998 will because he became divorced from Ellen in 1997. As a result of the divorce, Dr. Hensley signed a property settlement agreement in which he waived and relinquished any right or claim to receive a share of Ellen’s estate or to serve as executor. In addition, the chancellor found that the Powers were not “interested parties” under Miss. Code Ann. § 91-7-23 (Rev.1994) because they stood to receive exactly the same bequest whether they took under Ellen’s first or second will. Therefore, the court concluded they were not detrimentally affected by the 1998 will.

¶ 9. The Powers and Dr. Hensley argue that the chancellor reached an erroneous conclusion because, under Miss.Code Ann. § 91-7-25 (Rev.1994) they are interested parties. The Powers and Dr. Hensley have misinterpreted the language of Miss. Code Ann. § 91-7-25 (Rev.1994). While it is true that in all “proceedings to contest the validity of a will, all persons interested in such contest shall be made parties,” this language does not address an individual’s actual standing to contest a will. Instead, Mississippi Code Annotated § 91-7-23 (Rev.1994) starts by stating, “Any person interested may ... by petition or bill contest the validity of the will probated.... ” The Mississippi Supreme Court has addressed the issue of what interested parties actually have standing to contest a will in Ritter v. Johnson, 239 Miss. 427, 433, 123 So.2d 617, 619 (1960). The Mississippi Supreme Court held that a beneficiary under another will of the same testator generally has a sufficient interest to contest the probate of the will in question, except if the other will that is claimed to have been revoked, or the will in question bequeaths or devises him/her the same or larger amount than the other will. Id.

¶ 10. The law as stated in Ritter was relied upon by the chancellor when he held that the Powers did not have standing. In this case, we are not dealing with a contest to only one will, but the Powers intended to contest the validity of both of Ellen’s wills. In the chancellor’s order granting summary judgment, he failed to acknowledge the Powers’s challenge to Ellen’s first will. If the Powers successfully challenged both wills, they would stand to take more under intestate succession than under either will. Therefore, the Powers do have a potential financial interest to protect. Consequently, we determine that the Powers have standing to contest the wills and that the chancellor erred when he concluded that they did not. However, Dr. Hensley’s situation is different than that of the Powers.

¶ 11. Prior to the execution of the second will, Ellen and Dr. Hensley were divorced. In the property settlement agreement, Dr. Hensley waived and relinquished any right or claim to receive a share of Ellen’s estate. Having done so, he does not meet the definition of an “interested party” under Miss.Code Ann. § 91-7-23 (Rev.1994) and lacks standing to contest the wills. Accordingly, summary judgment was properly entered as to Dr. Hensley.

¶ 12. Regarding the Powers, the trial judge abused his discretion and prematurely granted the motion for summary judgment. Accordingly, we reverse and remand this case for discovery. Since we are reversing and remanding this case, it is not necessary to address whether the chancellor made proper findings of fact and conclusions of law in his order for summary judgment.

¶ 13. With the remaining issues, we note that the Powers noticed a hearing for a motion to disqualify the executrix; however, nothing in the record shows that the motion was ever presented or ruled upon by the chancellor. Consequently, we are procedurally barred from reviewing the issue. Gordon v. McDonald, 743 So.2d 1029, 1032(¶ 13) (Miss.Ct.App.1999). Also, concerning the consolidation of Ellen’s estate with the pending proceedings regarding alimony payments from her property settlement with Dr. Hensley, we find that this issue was never presented to the chancellor for a ruling. Therefore, this issue is also procedurally barred from review by this Court. Gordon, 743 So.2d at 1032 (¶ 13).

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY ENTERING SUMMARY JUDGMENT AGAINST DR. HENSLEY IS AFFIRMED AND THE JUDGMENT ENTERED AGAINST THE POWERS IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, MYERS, CHANDLER AND BRANTLEY, JJ„ CONCUR. THOMAS, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. IRVING, J., NOT PARTICIPATING.


author: SOUTHWICK, P.J.,

text:
    Randy Kirk BURTON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01381-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2002.
    Rehearing Denied Feb. 4, 2003.
    Thomas A. Coleman, Ackerman, attorney for appellant.
    Office of the Attorney General by: Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Randy Kirk Burton was convicted of selling methamphetamine. On appeal, he assigns as error the trial court’s failure to grant a directed verdict and failure to grant a mistrial following an improper comment by the prosecution in closing arguments. We find sufficient evidence, agree that the comment was improper, and find that the error was corrected. We affirm.

DISCUSSION

1. Denial of motion for directed verdict

¶ 2. In May 2001, members of the TriCounty Narcotics Task Force sent two informants into the home of Randy Burton in order to purchase methamphetamine. The sale was videotaped by means of a transmitter concealed on one of the informants.

¶ 3. In his first point of error, Burton argues the State failed to establish its prima facie case due to procedural errors committed by the Narcotics Task Force before the drug sale occurred. Specifically, Burton asserts that because members of the Task Force did not make a thorough body search of the informants prior to the transaction, the State could not conclusively establish that the informants did not carry the methamphetamine with them into Burton’s home. The other error is said to be that the Task Force failed to make photocopies of all the bills given to the informants for the purchase, and instead merely logged their serial numbers of the currency. Here too, the conclusiveness of the proof is said to be wanting.

¶ 4. The defense motion for a directed verdict was denied. Such motions challenge the legal sufficiency of the evidence. Ellis v. State, 778 So.2d 114, 117 (Miss.2000). In evaluating a denial of the motion, we accept as true all evidence which supports the verdict without reweighing its credibility. Id. at 117. We will reverse only where reasonable and fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987).

¶ 5. The evidence in support of conviction included a videotape of the transaction. It showed the informants handing money to Burton in exchange for a substance later identified as methamphetamine. The informants testified to the particulars of the transaction and verified the contents of the videotape.

¶ 6. With respect to the cash used in the transaction, there was testimony that recording the serial numbers on the case log is the usual procedure of the Narcotics Task Force for such operations. Burton produced no evidence to refute the truthfulness of this statement. Regardless of compliance with standard procedures, there was also sufficient evidence on which the jury could rely that the money in Burton’s possession when arrested was the money provided by the Task Force.

2. Improper comment by prosecutor in closing argument

¶ 7. Burton argues that a improper comment made by the prosecution during closing argument required the granting of a mistrial. The prosecutor made the statement, “He’s done this before, folks.” The defense immediately objected. The court sustained the objection but denied the motion for mistrial. The trial court directed the jury to disregard the statement. The judge then asked jurors whether they would be able to follow that instruction. All jurors indicated they could do so.

¶ 8. Counsel has considerable leeway in making their closing arguments. Dunaway v. State, 551 So.2d 162, 163 (Miss.1989). Here, though, the prosecutor exceeded those boundaries. A conviction of one crime is not supposed to be caused because of insinuation that there are other crimes that the same person committed. Only the evidence presented and reasonable inferences and deductions from that evidence may be used. Greer v. State, 755 So.2d 511, 517-18 (Miss.App.1999).

¶ 9. The State does not argue that relevant evidence had been introduced that Burton had “done this before.” However, error alone does not require reversal. Improper prosecution comments necessitate reversal only when the court is convinced that the remarks influenced the jury and contributed to the verdict. Id. at 518. Where there is overwhelming proof of guilt, such comments are often deemed harmless error. Ashley v. State, 423 So.2d 1311, 1316 (Miss.1982).

¶ 10. We find substantial and indeed largely uncontested evidence of guilt. The improper statement by the prosecutor did not cause a guilty verdict as even without the statement, there appears no likelihood that jurors would have acquitted.

¶ 11. We cannot approve of such improper remarks. Neither do we find reversible error because they were made in this case.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF CHOCTAW COUNTY OF CONVICTION OF THE SALE OF METHAMPHETAMINE AND SENTENCE OF EIGHTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, $5000 FINE AND SIX-MONTH SUSPENSION OF DRIVING PRIVILEGES IS AFFIRMED. SENTENCE SHALL RUN CONSECUTIVELY TO ANY PREVIOUSLY IMPOSED SENTENCE. COSTS OF THIS APPEAL ARE ASSESSED TO CHOCTAW COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND BRANTLEY, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.


author: CHANDLER, J.,

text:
    Antonio READUS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CA-01182-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2003.

      James D. Minor, Oxford, attorney for appellant.
    Office of the Attorney General by: Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Antonio Readus pled guilty to fourteen charges of burglary and attempted burglary contained in twelve indictments. Readus filed a motion for post-conviction relief (PCR) from the fourteen charges in the Circuit Court of Panola County. The PCR was summarily dismissed. Aggrieved, Readus has appealed to this Court arguing he was entitled to an evidentiary hearing because his motion and affidavits raised questions as to whether the guilty pleas were involuntary, whether counsel was ineffective, and whether the sentence was unconstitutionally disproportionate to the crime. Readus also requests that this Court consider this appeal as to all fourteen convictions.

¶2. Finding error, we reverse and remand for an evidentiary hearing to determine the merits of Readus’ allegations of involuntary plea and ineffective assistance of counsel. We find the issue of proportionality to be without merit.

FACTS

¶ 3. On January 10, 2000, an attorney with the Public Defender’s Office was appointed as counsel for Readus. At some point, the attorney was notified that the State intended to call Readus to testify against his accomplice, Nathaniel Watson. On February 3, 2000, Readus refused the State’s offer of twenty years’ imprisonment, and instead filed a petition to enter open pleas of guilty to all burglary charges. The plea and sentencing hearing was held later the same day. The circuit court carefully questioned Readus to ascertain that the pleas were entered knowingly, intelligently, and voluntarily, and that Readus was satisfied with his counsel’s performance. The court accepted the pleas, and imposed two consecutive twenty-five-year sentences and consecutive ten year suspended sentences on each of the other charges.

¶ 4. Readus hired new counsel for post-conviction proceedings and filed the PCR motion on March 15, 2001. Readus attached affidavits of himself and his mother in support of his issues of involuntary pleas and ineffective assistance of counsel. In pertinent part, Readus’ affidavit averred:

3)That in these cases, I was advised to plead guilty by my lawyer;
4) That I advised him that I only committed two of the actual burglaries. He advised me that it didn’t make a difference that I should plead on all of them and that I would only be sentenced on two;
5) As I understood, I would be sent to the “RID” [Regimented Inmate Discipline program] and ten (10) years on paper;
6) That if I had known the true effects of my plea, I would not have made it;
9) That I never discussed the specifics of any charges against me;
10) That I was not aware of what an open plea was. All I knew was that, I would get RID;
11) That I advised my mother prior to the hearing that I would get six months;
12) That I advised my trial counsel that I did not know what an open plea was;
13) I was advised by my lawyer, that if I went to trial that I would be given the max [maximum sentence];
16) That I did not talk to [the attorney] until the day before my plea, in a call from the county jail;
17) That I tried to call [the attorney’s] office on three-way calls because I could not dial directly from the jail but my calls were not accepted;
18) That the first time I saw [the attorney] in person was February 3, 2000 when I saw him in Court for my plea;
19) That we talked in the holding tank for about ten (10) minutes prior to my plea.

¶ 5. Readus’ mother’s affidavit averred that she first spoke with the attorney the morning of the sentencing hearing in anticipation of her testimony. The affidavit stated that the attorney told her that Rea-dus “would get about six years and he said something about papers after that.”

¶ 6. Pursuant to Miss.Code Ann. § 99-39-9(2) (Rev.2000), which limits PCR review to one judgment, the circuit court considered the motion only as it related to the charge for which Readus is currently serving time. The court dismissed the motion without a hearing or discovery, finding that it plainly appeared from the motion and the contents of the court file that Readus was not entitled to any relief. Miss.Code Ann. § 99-39-11(2) (Rev.2000). The court found that Readus’ affidavit was belied by his sworn testimony at the sentencing hearing and, therefore, the statements in the affidavit were “a sham.” The court stated that “Readus’ mother’s affidavit is no help to the [c]ourt.”

LAW AND ANALYSIS

I. DID THE LOWER COURT ERRONEOUSLY CONSIDER THE PCR AS IT RELATED TO ONLY ONE OF THE FOURTEEN CHARGES?

¶ 7. Readus requests that this Court consider his PCR motion as to all fourteen guilty pleas. The circuit court found that § 99-39-9(2) required that it limit post-conviction review to only one of Readus’ convictions. Mississippi Code Annotated § 99-39-9(2) (Rev.2000) limits PCR review to a single judgment, requiring a defendant to file one PCR motion per each challenged judgment. The circuit court would have properly limited PCR review to only one of the judgments if the fourteen convictions were contained in fourteen separate judgments. Id. However, no copy of any judgment was included in the record, so we are unable to resolve the question of whether the lower court correctly applied the statute. On remand, the lower court should restrict its review to the number of convictions contained within a single judgment.

II. SHOULD THE LOWER COURT HAVE GRANTED AN EVIDEN-TIARY HEARING TO DETERMINE WHETHER READUS’ PLEA WAS INVOLUNTARY AND WHETHER HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 8. The lower court may summarily dismiss a PCR if “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Rev.2000). The procedural posture of an appeal from summary dismissal of a PCR “is analogous to that when a defendant in a civil action moves to dismiss for failure to state a claim.” Young v. State, 731 So.2d 1120, 1122(¶ 6) (Miss.1999) (quoting Myers v. State, 583 So.2d 174, 175-76 (Miss.1991)). “Thus, as in a 12(b)(6) dismissal, this Court reviews the record de novo to determine whether [the movant] has failed to demonstrate ‘a claim procedurally alive substantially] showing denial of a state or federal right....’” Young, 731 So.2d at 1122(¶ 9) (quoting Myers, 583 So.2d at 176). “In other words, has [the movant] alleged facts which require further inquiry in the expanded setting of an evidentiary hearing?” Myers, 583 So.2d at 175 (quoting Billiot v. State, 515 So.2d 1234, 1236 (Miss.1987)).

1. Involuntary plea

¶ 9. A voluntary guilty plea “emanates from the defendant’s informed consent.” Myers v. State, 583 So.2d at 177. An allegation that the defendant pled guilty in response to counsel’s mistaken advice may vitiate the plea, because it indicates the defendant may not have been fully aware of the consequences of the plea. Id. In his affidavit, Readus avers that his attorney told him that, if he pled guilty, he would be sentenced to “six months and ten years on paper” and that he would “get RID.” He also avers his lawyer told him that if he proceeded to trial and was found guilty, he would receive the maximum sentence. Readus’ mother’s affidavit states that the attorney told her Readus would get “six years and then [the attorney] said something about papers after that.” Readus contends the plea was involuntary because he would not have entered the plea had he “known the true effects of the plea” instead of the misinformation provided by his attorney.

¶ 10. The circuit court found that Rea-dus’ affidavit was “a sham” because it was belied by the transcript of the plea hearing. Our review of the transcript reveals a facially correct guilty plea. The trial court thoroughly questioned Readus to ascertain voluntariness, and thoroughly advised Rea-dus about the consequences of the plea, including the maximum sentence Readus could receive on each charge. Readus answered “yes, sir” or “no, sir” to each question, indicating the plea was voluntary.

¶ 11. This Court’s inquiry into this matter continues despite Readus’ facially correct plea. In Baker v. State, 358 So.2d 401, 403 (Miss.1978), our supreme court balanced the defendant’s constitutional rights against the judicial system’s interest in finality of pleas and held that “a per se rule excluding collateral attack on pleas facially correct, is not warranted.” Id. Recognizing the presumption of verity attached to a defendant’s solemn declarations in open court, the court further held that, to survive summary dismissal, a collateral attack on a facially correct plea must include supporting affidavits of other persons. Id.

¶ 12. Though Baker was an appeal from the denial of a writ of error coram nobis, this principle is applied to summary dismissals of motions for post-conviction relief. See Young v. State, 731 So.2d 1120, 1123 (¶ 12) (Miss.1999); Marshall v. State, 680 So.2d 794, 795 (Miss.1996). In the case sub judice, Readus has fulfilled the requirement by attaching his mother’s supporting affidavit. Thus, Readus may avoid summary dismissal if his PCR “has alleged facts which require further inquiry in the expanded setting of an evidentiary hearing.” See Myers, 583 So.2d at 175.

¶ 13. In Myers, Myers appealed the summary dismissal of his PCR. Myers, 583 So.2d at 177. Myers pled guilty to aggravated assault and received sixteen years’ imprisonment. Id. at 175. In his sworn complaint, Myers charged that the plea was involuntary because it was induced by misinformation provided by his attorney. Id. Specifically, Myers alleged that the attorney advised him that if he pled guilty he would receive a sentence of less than twelve years, but if he went to trial he would receive the maximum sentence of twenty-five years. Id. Myers attached affidavits of his mother and sister. Id. The mother’s affidavit averred that she was present during the attorney’s interview with Myers and that the attorney told Myers that if he pled guilty “the judge would give him less than twelve (12) years, but if he insisted on going to trial, he would get twenty-three (23) years.” Id. The sister’s affidavit averred that she was present at the interview and that the attorney told Myers that the plea hearing would result in a sentence of less than twelve years. Id. The court found that the promised sentence of “less than twelve years” was a firm representation of a lesser sentence. The court found that Myers’ PCR sufficiently stated a claim for relief from an involuntary plea and, thus, could not be dismissed on its face. Id. at 178.

¶ 14. Readus’ case parallels Myers. As in Myers, Readus averred that he entered the guilty plea because of the attorney’s representation of a lesser sentence' than what he actually received. As in Myers, Readus submitted his mother’s affidavit supporting the conclusion that the attorney instilled an expectation of a lighter sentence. We find that Readus’ PCR was sufficient to withstand summary dismissal. Additionally, we find that the discrepancy in the affidavits of Readus and his mother regarding the promised length of sentence is troublesome but does not invalidate the entirety of the documents. Readus stated that the lawyer promised “six months” and “that he would be sent to the RID and ten years on paper” and his mother stated that the lawyer said “six years and then said something about papers after that.” Both affidavits aver that Readus’ lawyer instilled an expectation of a far more lenient sentence than Readus actually received.

¶ 15. No other factors erode our conclusion. There is no indication that Readus has pursued post-conviction relief in order to abuse the justice system. See Roland v. State, 666 So.2d 747, 750 (Miss.1995). At the time of the plea hearing, Readus was a twenty-one year old first offender and inexperienced with the system. Id. Also, Readus has promptly filed the PCR motion, which is consistent with an expectation of a more lenient sentence. Patrick v. State, 815 So.2d 1216, 1221 (¶ 12) (Miss.Ct.App.2001).

¶ 16. We express no view on the merits of Readus’ PCR other than to hold that it may not be summarily dismissed. We note that, in challenging the plea, Readus risks the possibility of increased criminal liability from an unfavorable jury verdict if a hearing is granted and the hearing results in a new trial. Taylor v. State, 682 So.2d 359, 361 (Miss.1996). Additionally, Readus could face a separate prosecution for perjury because his contention in the affidavit that his plea was involuntary contradicts his sworn statements in the circuit court. Id.; Myers, 583 So.2d at 178.

2. Ineffective Assistance of Counsel

¶ 17. Claims of ineffective assistance of counsel must be made with specificity. Patrick v. State, 815 So.2d 1216, 1219(¶ 5) (Miss.Ct.App.2001). The two-part test from Strickland v. Washington applies to a claim for reversal of a guilty plea. Harris v. State, 806 So.2d 1127, 1130 (¶ 10) (Miss.2002) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To meet the standard, the defendant must show 1) that counsel’s performance was deficient, and 2) that the deficiency prejudiced the defendant. Id. There is a strong but rebuttable presumption that counsel’s performance was reasonable. Id. To overcome the presumption, the defendant must show that but for counsel’s deficiency, a different result would have occurred. Id. The reviewing court must examine the totality of the circumstances. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶ 18. Readus’ affidavits allege his attorney’s errors with specificity. Patrick, 815 So.2d at (¶ 5). Readus alleges that his lawyer misrepresented the lengths of the sentences that would be imposed for a guilty plea and after trial. This contention is grounds for showing deficient performance under Strickland. See Harris, 806 So.2d at (¶ 11). To show prejudice, Readus must prove that he would never have pled guilty but for the deficient advice. Id. See also Smith v. State, 636 So.2d 1220, 1224 (Miss.1994). This is exactly the allegation Readus makes on PCR. Readus contends that he would not have pled guilty if he had known the actual consequences of his plea rather than the misinformation provided by his attorney. Counsel’s alleged deficiency was not “cured” by the plea colloquy because the erroneous advice was not directly contradicted by the lower court’s questioning. See Harris, 806 So.2d at (¶ 13). Thus, we find that Rea-dus’ PCR states a claim of ineffective assistance of counsel and requires an eviden-tiary hearing.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF DISMISSAL OF POST-CONVICTION RELIEF IS REVERSED AND REMANDED FOR AN EVIDEN-TIARY HEARING ON THE ISSUES OF INVOLUNTARY PLEA AND INEFFECTIVE ASSISTANCE OF COUNSEL. COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

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

      . A PCR is not properly dismissed under Miss.Code Ann. § 99-39-9 solely because the defendant has not submitted supporting affidavits. Ford v. State, 708 So.2d 73, 75 (¶ 11) (Miss.1998). But, a PCR may be dismissed for lack of supporting affidavits when the defendant's affidavit contradicts his earlier sworn statements, that is, when the defendant attempts to impeach the trial transcript with a new sworn statement that he was lying during the earlier testimony. Young v. State, 731 So.2d 1120, 1123 (¶ 12) (Miss.1999).