author: IRVING, J.,

text:
    Ricky KING, Appellant, v. AMERICAN RV CENTERS, INC. (American RV Mississippi, Inc.), Spartan Motor Chassis, Inc. and Forest River, Inc. Appellees.
    No. 2002-CA-01462-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.

      B. Sean Akins, Ripley, attorney for appellant.
    William Albert Brown, Hernando, Wendell H. Trapp, Corinth, Arthur D. Spratlin, Richard M. Dye, Jackson, attorneys for appellees.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. Ricky King appeals from a judgment of the Circuit Court of Alcorn County which dismissed his complaint against American R.V. Centers, Inc. (American), Spartan Motor Chassis, Inc., and Forest River, Inc. for failure to serve process on the defendants within 120 days. In his appeal, King states the issues, which we quote verbatim, as follows:

1. Whether or not filing an amended complaint before expiration of a statute of limitation is sufficient to prevent a cause of action from being dismissed under Rule 4(h) of the Mississippi Rules of Civil Procedure.
2. Whether Ricky complied with the requirement of Holmes to refile the complaint before the statute of limitation expired.
3. The Court should overrule Watters v. Stripling to provide that a statute of limitation is tolled from the time a defendant is served until the affirmative defense is ruled on by the trial court.

¶ 2. We find that the trial court erred in dismissing King’s lawsuit; therefore, we reinstate the lawsuit and remand for further proceedings.

FACTS

¶ 3. Ricky King purchased a '2000 motor home from American and accepted delivery on March 16, 2000. The motor home was manufactured by Forest River, and the chassis was manufactured by Spartan. The sale included a one-year warranty.

¶ 4. Soon after the purchase of the motor home, King began having problems with it. Throughout the summer and fall of 2000, he repeatedly delivered the motor home to American for repairs. In December of 2000, American sent the vehicle to Forest River for repair work. Forest River returned the motor home to American on March 14, 2001. The motor home was delivered to King a few days later.

¶ 5. Fearing that the one-year warranty would expire, King hired an attorney to file a lawsuit in the Circuit Court of Alcorn County, Mississippi. The complaint was filed on March 16, 2001.

¶ 6. Thereafter, King experienced another problem with the motor home and reported it to Forest River which shipped the repair part to him overnight. King continued to use the coach until another problem occurred in August. In early September 2001,. he hired another attorney to file an amended complaint, with said complaint being filed on September 20, 2001. The amended complaint was served on Forest River on September 28, 2001, with Spartan and American being served shortly thereafter.

¶ 7. All of the defendants filed answers to the amended complaint. Forest River averred in the second defense of its answer and defenses that King had failed to comply with Rule 4 of the Mississippi Rules of Civil Procedure. American alleged in its answer that it was not properly and timely served with process. Thereafter, on December 17, 2001, and January 7, 2002, Forest River and American, respectively, answered discovery propounded to them by King. Then on March 19, 2002, Forest River filed a motion to dismiss claiming that the original complaint filed by King was not served within 120- days and that, pursuant to Rules 12(b) and 4 of the Mississippi Rules of Civil Procedure, the case should be dismissed' American and Spartan joined in the motion.

¶ 8. King filed a response claiming that his negotiations with Forest River constituted good cause and that his amended complaint met the requirement to refile the complaint within the statute of limitations to comply with Rule 4(h) of the Mississippi Rules of Civil Procedure. The trial court rejected King’s arguments and on July 23, 2002, pursuant to Forest Rivers’s motion, dismissed the case without prejudice.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 9. For the sake of brevity, and because Forest River was the movant in the motion to dismiss, we hereafter refer to all of the appellees collectively as Forest River.

¶ 10. Our task is to determine whether the filing of the amended complaint was sufficient to prevent the dismissal of King’s action against Forest River. The trial court noted that King’s cause of action was instituted on or about March 16, 2001. It found that the defendants were not served with a summons and the complaint during the 120-day period immediately following the filing of the complaint and that King did not seek or obtain an extension of time within which to obtain service of process. Moreover, the trial court opined that King had not demonstrated good cause as to why service was not made within the 120-day period provided by Rule 4(h). It therefore dismissed the complaint without prejudice.

¶ 11. In dismissing King’s action, the trial court made no mention of the amended complaint. Presumably, the trial court considered the filing of the amended complaint to be irrelevant since the original complaint had not been served within 120 days.

¶ 12. Filing a complaint tolls the applicable statute of limitation for 120 days, but if the plaintiff fails to serve process on the defendant within that 120-day period, the statute of limitation automatically begins to run again after the expiration of the 120-day period. Holmes v. Coast Transit Authority, 815 So.2d 1183, 1185(¶ 7) (Miss.2002) (citing Watters v. Stripling, 675 So.2d 1242, 1244 (Miss. 1996)). In order to continue to seek legal redress against a defendant, a plaintiff who files a complaint against a defendant but does not serve the complaint on the defendant within a 120 day period must either re-file a complaint before the statute of limitation runs or show good cause for failing to serve process on the defendant within that 120 day period; otherwise, dismissal is proper. Id. at 1185 (citing Watters, 675 So.2d at 1244). The plaintiff bears the burden of establishing, good cause. Id.

¶ 13. In the instant case, King filed a complaint on March 16, 2001, against Forest River pursuant to the Motor Vehicle Warranty Enforcement Act (Mississippi Code Annotated sections 63-17-151 through 63-17-165). He had 120 days from that date in which to serve process on Forest River. M.R.C.P. 4(h). It is uncontradicted that King failed to comply with this requirement. Therefore, the statute of limitation began to run again on July 16, 2001.

¶ 14. As mentioned in our recitation of facts, King filed an amended complaint against Forest River on September 20, 2001. Actions brought pursuant to the Motor Vehicle Warranty Enforcement Act must be brought .within one year following the expiration of the warranty or within eighteen months from the date of delivery of the motor vehicle to the consumer, whichever is earlier. Miss.Code . Ann. § 63-17-159(6) (Rev.1996)., Since King took delivery of the motor vehicle on March 16, 2000, the statute of limitation would run on September 16, 2001, barring any tolling of the statute.

¶ 15. When the statute of limitation began running again on July 16, 2001, six months remained before its expiration. Therefore, the statute would expire on January 16, 2002. Any new lawsuit would necessarily need to be refiled before that date should that become necessary as a result of the original lawsuit’s being dismissed. Instead of refiling a complaint, King filed an amended complaint. This filing occurred almost two months after the expiration of the 120-day tolling period but almost four months prior to the running of the statute of limitation.

¶ 16. Relying on Watters and its proge-nies which includes Holmes, Forest River argues strenuously that the trial court was correct in dismissing King’s action because he did not serve process on Forest River within 120 days of the filing of the original complaint. Forest River also argues that the filing of the amended complaint was of no legal consequence. Forest River points out that in Watters, the plaintiff also filed an amendéd complaint, yet that filing was insufficient to keep the plaintiffs lawsuit from being dismissed. On the other hand, King argues that the filing of the amended complaint essentially complies with the refiling requirement enunciated in Holmes and Watters. King further argues that no Mississippi court has addressed the precise situation we face in the case-at-bar because in' neither Watters nor Holmes was an amended complaint filed prior to the expiration of the statute of limitation. Forest River counters that the statute of limitation is not an issue.

¶ 17. We agree with King that no Mississippi case has addressed the effect, if any, of the filing of an amended complaint on the propriety of a dismissal of a case under Rule 4(h)' — for want of service of the initial complaint within 120 days of filing— when an amended complaint has been filed prior to the running of the statute of limitation. For this reason, we do not believe Watters or Holmes is absolutely disposi-tive of the issue before us. At first blush, the broad pronouncement in both Watters and Holmes — that when the 120 days have run the plaintiff has only two options, refile the complaint prior to the expiration of the statute of limitation or show good cause for not filing the original complaint within the 120-day period — appears to doom King’s chances of prevailing.

¶ 18. However, we believe that the timely filing of an amended complaint is an important fact that should not be ignored. It is true, as Forest River points out, that in Watters an amended complaint was filed to no avail, but there is one major difference. There, the amended complaint was filed well beyond the running of -the statute of limitation. In the case before us, when King filed his amended complaint, approximately four months remained on the statute of limitation.

¶ 19. It is also true, as Forest River further points out, that the Watters court held that “[t]he fact that dismissal may work to preclude [an] action because of the running of the statute of limitation is of no consequence.” Watters, 675 So.2d at 1242. While Watters framed the issue being considered as “whether an action is properly dismissed if service is not effectuated within 120 days after filing,” we read the word “action” in the context of the facts of that case, to mean the “original complaint” because that is what was not served and no pleading remained that arguably could be considered as preserving the appellants’ cause of action. It just so happened that the dismissal of the complaint in Watters was tantamount to the dismissal of the cause of action because no other timely-filed pleading existed. Although Watters noted the tardy filing of the amended complaint, it said nothing about dismissing it. That omission is understandable because there was no need to consider whether it might have been sufficient to keep the appellants in court, and if so, on what basis. No need existed because the statute of limitation had run at the time the amended complaint was filed.

¶ 20. In the case-at-bar, as previously noted, an amended complaint was filed pri- or to the running of the statute of limitation. We set forth both the complaint and amended complaint as appendix I and appendix II, respectively, to this opinion. As can be readily observed, the amended complaint makes no reference to the original complaint. It is not dependant in any way for completeness on the original complaint. Had King taken a voluntary dismissal pursuant to Rule 41(a)(l)(i) of the Mississippi Rules of Civil Procedure and commenced a new action in which he filed an identical pleading titled as a “complaint” instead of filing it as an “amended complaint” in the same proceeding, we would not have this issue before us. King’s amended complaint, for all practical purposes, was a complaint in and of itself. To dismiss his cause of action under these facts would amount to exhorting form over substance. We decline to do so.

¶ 21. We want to be clear that we are not finding that the 120 days to serve the original complaint were extended by the filing of the amended complaint in this case. When the original complaint was not served within 120 days, it was rendered legally comatose, robbed of all its latent powers to command action. It could be aroused from its comatose state by an order upon a showing of good cause for its not being served with the 120 days, or it could be pushed toward death by a motion to dismiss. Here, the push occurred, and the complaint finally was pronounced dead by the order of dismissal which was entered approximately ten months after the filing of the amended complaint. In the interim, however, while the original complaint languished in its comatose state, King filed another complaint, labeled “amended complaint.” However, at that time, because of procedural and technical reasons, he could not then file an amended complaint, although he was not precluded from filing a new complaint. We next explain the procedural and technical reasons.

¶ 22. Our rules of civil procedure contemplate the filing of an amended complaint in only two instances: when a complaint has been timely served but not answered, and when a complaint has been timely served and answered. M.R.C.P. 15. In the former situation, the amended complaint may be filed as a matter of course without the consent of either the court or the opposing party. In the latter, consent of the court must be acquired. In both of these instances, the complaint necessarily would have been served within either the initial 120 days permitted by Rule 4(h) or within an extension granted by the court upon a showing of good cause for not having effectuated service within the initial 120-day period.

¶ 23. In our case, King did not serve or attempt to serve the initial complaint. Having failed to do so, he could have, and should have, taken a voluntary dismissal pursuant to Rule 41(a)(l)(i) of the Mississippi Rules of Civil Procedure and then filed a new complaint instead of the amended complaint. Since he could not file an amended complaint but could file a new complaint, should his filing of a new complaint labeled amended complaint be tossed? We think not.

¶ 24. Consequently, we hold that on the special facts of this case, the trial judge erred in dismissing King’s lawsuit or cause of action. Therefore, we reinstate the lawsuit and the cause of action as set forth in the amended complaint which we deem nothing less than a complaint using the wrong nomenclature.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF ALCORN COUNTY IS REVERSED, THE APPELLANT’S LAWSUIT REINSTATED, AND THE CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

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

APPENDIX I

COMPLAINT

COMES NOW the Plaintiff, RICKY KING, and files this, his Complaint against the Defendants herein, and in support hereof would show unto the Court the following facts, to-wit:

1. That the Plaintiff is an adult resident citizen of Acorn County, Mississippi

2. That the Defendant American RV Centers, Inc. is a corporation engaged in the business of selling RV’s and other motor home products, located and domiciled in Olive Branch, Mississippi.

3. That the Defendants Spartan Motor Chassis, Inc. and Forest River, Inc., are the makers of chassises and coaches, respectively, and are located in Charlotte, Michigan and Goshen, Indiana, respectively-

4. The Plaintiff would further show that on or about the 21st day of March, 2001 he did purchase one (1) 2000 Reflection RV from American RV Centers, Inc., VIN # 4VZ12M1295YC035262. This unit was new at the time of its purchase, and carried with it a three (3) year, 30,000 mile warranty. The CHASSIS was manufactured by Spartan, while the coach was manufactured by Forrest River.

5. The Plaintiff would further show that since the time of its purchase, the unit has been a non-conforming vehicle with respect to the express warranty. The Plaintiff would further show that since the time of its purchase, the vehicle has been in a state of disrepair for substantial length of time, including four (4) consecutive months in the shop for repairs, beginning with November of 2000 and lasting through the current time.

6. The Plaintiff would show that based on this, American RV Centers, Inc., Spartan Motor Chassis, Inc., and Forest River, Inc. have failed to correct the malfunctions in said vehicle, and that as a result of this the Defendants are in violation of Miss. Code Ann. Sec. 63-17-151, et. seq.

7. The Plaintiff would show that since the Defendants have violated these provisions, he is entitled to either a new unit of [sic] a refund of his purchase price, along with all appendant costs and assessments, less a reasonable deduction for use of the vehicle.

8. The Plaintiff would submit that he paid approximately $117,000.00 for the unit, along with $18,000.00 in interest accrued on said loan, $600.00 for insurance on the unit, and $600.00 for the tag. In addition, the Plaintiff would submit that he has had virtually no use of the unit.

WHEREFORE, PREMISES CONSIDERED, the Plaintiff would ask that this Court, after a hearing and proper notice to the Defendants, give him a judgment in the amount of $175,000.00, representing a refund of his purchase price, all appendant costs, and damages for loss of use, along with a reasonable attorney’s fee and Court costs. In the alternative, the Plaintiff would ask for a new unit comparable to the one he has purchased from the Defendant.

If the Plaintiff has not asked for proper relief, then he now asks for such relief as the Court deems necessary, proper and just.

Respectfully, submitted, this the 9th day of March, 2001.

/s/ Ricky King Plaintiff

/s/ Clay S. Nails Attorney for Plaintiff

OF COUNSEL:

CLAY S. NAILS

ATTORNEY AT LAW

511 FRANKLIN ST.

P.O. BOX 834

CORINTH, MS 38835-0834

662-284-9701

MSB# 9993

APPENDIX II

AMENDED COMPLAINT

COMES NOW, the Plaintiff, Ricky King, by and through his attorney of record and files, this his Amended Complaint and in support thereof would respectfully show unto this honorable Court as follows:

1. That the Plaintiff is an adult resident citizen of Alcorn County, Mississippi.
That the Defendant, American RV Mississippi, Inc. is the successor corporation to American RV Centers, Inc. and is a Mississippi corporation which may be served with process through its agent for service of process which is CT Corporation Systems, 631 Lakeland East Drive, Flowood, MS 39208-8815.
That the Defendant, Spartan Motors Chassis, Inc. is a Michigan corporation doing business in the State of Mississippi who may be served with process through its agent for service of process who is Richard J. Schlater, 1000 Reynolds Road, Charlotte, Michigan 48813. That the Defendant, Forest River, Inc. is a foreign corporation doing business in the State of Mississippi which may be served with process through its agent for service of process who is Peter Liegl, 3010 East College Avenue, Goshen, Indian 46526.
2. The Plaintiff would show that on or about the 20th day of March, 2000, he purchased one (1) 2000 Reflection RV from American RV Centers, Inc., VIN 4VZ12M1295YC035262. This unit was new at the time of its purchase and carried a one year, 10,000 mile warranty. The Plaintiff would show that the chassis was manufactured by Defendant Spartan and that the coach was manufactured by Defendant Forest River.
3. The Plaintiff would show that the Defendants have been unable to conform the motor vehicle to the provisions of the express warranty and that the inability of the Defendants to repair or correct the defects in the vehicle impair the vehicle’s use, market value and safety.
4. The Plaintiff would further show that he has provided the Defendants with numerous opportunities to repair the motor vehicle that resulted in more than six (6) months of lost use within the first year of the ownership by the Plaintiff while the Defendants were attempting to make repairs.
5. The Plaintiff would further show that he has fully complied with his duties as outlined in the express warranty and in Mississippi Code Ann. § 63-17-151 et seq.
6. The Plaintiff would further show that the Defendants have failed to comply with their respective responsibilities as required by the express warranty and Mississippi Code Ann. § 63-17-159 and that the Plaintiff is entitled to the remedies outlined therein.
7. The Plaintiff would show that he is entitled to a refund of the purchase price of the vehicle together with the incidental costs, interest, insurance, taxes and tag.
8. The Plaintiff would further show that the Defendants have breached the implied and express warranties of merchantability and that the Plaintiffs have suffered damage as a result of that breach.
WHEREFORE, PREMISES CONSIDERED, the Plaintiff prays that the Court will award the Plaintiff a judgment against the Defendants for the sum of $17,000.00 which represents the original purchase price of the motor vehicle together with all collateral costs, including, but not limited to taxes, interest, tag. Additionally, the Plaintiff prays that the Court will award him damages for loss of use of the vehicle, costs, expenses and attorney’s fees as provided by Mississippi Code Ann. § 63-17-159.
Plaintiff prays for general relief.

THIS, the 20th day of September, 2001.

Respectfully submitted,

FORTIER & AKINS, P.A.

By: /s/ B. Sean Akins B. Sean Akins Attorney for Plaintiff

FORTIER & AKINS, P.A.

108 E. JEFFERSON STREET

RIPLEY, MISSISSIPPI 38663 (662)837-9976


source: Caselaw Access Project

author: SOUTHWICK, P.J.,

license: Public Domain

text:
    Thurmon STRINGER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01892-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.
    Anthony J. Buckley, Laurel, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.

      Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. A circuit court jury convicted Thur-mon Stringer of attempted aggravated assault on a police officer. Stringer appeals arguing that a portion of an officer’s testimony should have been excluded and that the evidence was insufficient to support his conviction. We find no error and that there was evidence to support a conviction. Consequently, we affirm.

¶ 2. On September 2, 2001, officers Kevin Buckley and Jason Stricklin were dispatched to the Stringer residence in response to a domestic disturbance call. Officer David Grasha was riding with Officer Stricklin. Arriving to the scene in separate vehicles, the officers approached the house and Stringer came out on the porch. Stringer pointed a pistol at Officer Stricklin and the officers ran for cover. Stringer continued pointing the gun at the officers and rejected commands to drop the weapon. Eventually, Stringer ran around one side of the house and Officer Stricklin pursued him by going around the other. The two met as they were rounding a corner. Officer Stricklin was at the northeast and Stringer at the northwest side of the house. Officer Stricklin testified that Stringer’s arm was outstretched, that the muzzle of the gun flashed, and he heard a gunshot. Strick-lin then fired back and hit Stringer in the stomach.

¶ 3. Officer Buckley heard the gunshots and then saw Stringer come around the side of the house with blood on his shirt. When Stringer saw Officer Buckley, he dropped the gun on the ground. Officer Grasha testified that he saw Stringer aim his gun both at him and at Officer Strick-lin. He also heard gunshots being fired.

¶ 4. Eric Johnson, an investigator with the Mississippi Highway Patrol, testified that based on his investigation, the bullets from Stringer’s gun traveled from the northwest corner to the northeast corner of the house. A projectile from Stringer’s gun was recovered from the wall of the house on the northwest corner, and another projectile had grazed the wood, but it had not entered.

¶ 5. This is Stringer’s appeal from his conviction of attempted aggravated assault.

DISCUSSION

1. Officer Buckley’s testimony

¶ 6. Aggravated assault is described by statute:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm

Miss.Code Ann. § 97-3-7(2) (Rev.2000). The crime of aggravated assault includes attempt as one of the elements of the crime. Stringer was convicted of “attempted aggravated assault,” which is a redundancy. The additional word “attempted” is merely surplusage to the statutory crime. Morris v. State, 748 So.2d 143, 145 (Miss.1999).

¶ 7. Stringer argues that Officer Buckley improperly testified as to what Stringer’s intent was when he fired his weapon. Buckley testified that Stringer was behaving “like he was getting behind to take cover. Like he wanted to have a shoot out with us.” He further stated about Stringer and the gun: “Like he was aiming it. He couldn’t decide if he wanted to aim it at Jason [Stricklin] or me.” Stringer objected to these statements during trial and his objections were overruled.

¶ 8. Statements of opinion may be admissible under this Rule of Evidence:

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue.

M.R.E. 701. “The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” Parker v. State, 606 So.2d 1132, 1136 (Miss.1992).

¶ 9. The trial court admitted these statements into evidence. Officer Buckley was an eyewitness to Stringer’s actions on the porch. He also heard the gunshots after Stringer and Officer Stricklin were out of his sight. The statements that Buckley made at trial were rationally based on what he had observed that night. In Buckley’s opinion as a lay witness, Stringer appeared to be aiming at the officers and seemed unsure of which one he wanted to shoot. This statement is allowed under Mississippi Rules of Evidence 701.

2. Weight of the evidence

¶ 10. Stringer next claims that there was insufficient evidence to convict him of attempted aggravated assault. His argument is that he did not shoot at Officer Stricklin but shot at the house wall. Stringer argues that the evidence presented by the investigator, Eric Johnson, as to the direction in which the bullet traveled is evidence supporting a simple assault and not an aggravated assault. The jury was given instructions as to both simple and attempted aggravated assault.

¶ 11. On appeal, the evidence is viewed in the light most favorable to the State, which also receives the benefit of any favorable inferences which may be reasonably drawn from the evidence. Johnson v. State, 642 So.2d 924, 927 (Miss.1994). The jury found that the State’s theory that Stringer intended to cause harm to Officer Stricklin was correct. Jurors could consider the testimony of three officers present at the scene who stated that Stringer pointed the gun at them and refused demands to drop it. Officer Stricklin testified that he saw the gun as it was fired and that Stringer was the first one to shoot. There was also the testimony of the investigator, Johnson, who concluded that the bullets fired from Stringer’s gun were shot in Officer Stricklin’s direction. There was sufficient evidence to support Stringer’s conviction of attempted aggravated assault.

¶ 12. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF ATTEMPTED AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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


author: CHANDLER, J.,

text:
    THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Appellant v. Ruby FINKLEA, Appellee.
    No. 2002-CC-01427-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.

      Office of the Attorney General by Mary Margaret Bowers, attorney for appellant.
    Henry Bernard Zuber, Ocean Springs, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The Circuit Court of the First Judicial District of Hinds County reversed the decision of the Board of Trustees of the Public Employees’ Retirement System (PERS) denying disability benefits to Ruby Finklea. PERS appeals. We find no error and, therefore, affirm the decision of the circuit court.

FACTS

¶ 2. Ruby Finklea has 6.5 years of creditable service as a school custodian. The Pascagoula School District terminated Finklea on March 5, 1999, the date that Finklea was hospitalized due to a heart attack. At the time of her termination, Finklea was the leader of her school’s custodial crew, a position she had held for approximately two years. As crew leader, Finklea was the senior custodian in charge of keeping the school and grounds clean.

¶ 3. On March 5, Finklea presented to Singing River Hospital with acute myocardial infarction. Physicians determined that Finklea urgently needed coronary artery bypass surgery, and performed a cardiac catheterization and a right coronary artery angioplasty in order to stabilize Finklea in preparation for the surgery. Finklea was transferred to Mobile Infirmary where Dr. Terry C. Stelly performed quadruple coronary artery bypass surgery. Post-operatively, Finklea exhibited poor left ventricular function. Finklea had several follow-up appointments with Dr. Stelly and then began seeing a cardiologist, Dr. Jaswinder Kandola. Finklea also received treatment from Dr. Robert Donald for diabetes mellitus, a condition she was diagnosed with in 1992.

¶ 4. Finklea applied for and was approved for Social Security disability benefits. Finklea filed an application for disability retirement with PERS on September 1, 1999. On February 3, 2000, the PERS Medical Board requested medical records from Dr. Kandola in order to obtain the results of a June 1999 echocardiogram. On February 24, 2000, the Medical Board denied Finklea’s claim. Finklea appealed, and a hearing was held before the PERS Disability Appeals Committee. The Committee found that the record contained no objective medical evidence to support Finklea’s claim that she is unable to perform her job. The Committee recommended that the PERS Board of Trustees affirm the denial of Finklea’s claim. On August 22, 2000, the Board of Trustees approved and adopted the recommendation of the Committee that Finklea’s claim be denied. The Circuit Court of the First Judicial District of Hinds County reversed the decision of the Board, finding that it was not supported by substantial evidence and was arbitrary and capricious. PERS has appealed.

LAW AND ANALYSIS

¶ 5. PERS is a state entity which provides disability and retirement income to state employees. Miss.Code Ann. § 25-11-3 (Rev.1999). Mississippi Code Annotated section 25-ll-113(l)(a) (Rev.2003) contains the criteria for disability retirement:

Upon the application of a member or his employer, any active member in state service who has at least four (4) years of membership service credit may be retired by the board of trustees .provided that the medical board, after an evaluation of medical evidence that may or may not include an actual physical examination by the medical board, shall certify that the member is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that the member should be retired....

In making its disability determination, the Medical Board must apply the following statutory definition of disability:

the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation, or the incapacity to perform the duties of any employment covered by [PERS] that is actually offered and is within the same general territorial work area, without material reduction in compensation.

Id. In lieu of a certification from the Medical Board, the PERS Board of Trustees “may accept a disability medical determination from the Social Security Administration.” Id. The applicant for disability retirement has the burden of proving that he or she is actually disabled. Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 893 (¶ 15) (Miss.2001).

¶ 6. This Court adheres to a limited standard of review of PERS decisions. Pub. Employees’ Ret. Sys. v. Ross, 829 So.2d 1238, 1240 (¶ 11) (Miss.2002). We may only review the record before PERS to determine whether its decision was (1) supported by substantial evidence; (2) arbitrary and capricious; (3) beyond the power of the Board to make, or (4) violated the applicant’s statutory or constitutional rights. Id. In our review of the record, this Court may not substitute its judgment for that of PERS and may not reweigh the evidence. Id. Further, there is a rebutta-ble presumption in favor of the PERS decision. This standard of review is identical to that employed by the circuit court. Dishmon, 797 So.2d at 890(¶ 9).

¶ 7. On appeal, PERS argues that: (1) the circuit court erred in reweighing the facts and substituting its judgment for that of the administrative agency in finding that Finklea is entitled to the receipt of disability benefits, and (2) the circuit court erred in determining that Finklea presented substantial evidence of disability and that the decision of PERS is arbitrary and capricious. These arguments attack the circuit court’s adherence to the proper standard of review of a PERS decision and will be addressed together. Finklea argues that she presented substantial evidence to PERS that she was disabled and, therefore, the circuit court correctly held that the PERS decision was arbitrary and capricious.

¶ 8. “Substantial evidence” has been defined as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 13) (Miss.2000). “Substantial evidence has been defined as that which provides an adequate basis of fact from which the fact in issue can be reasonably inferred.” Dishmon, 797 So.2d at 892 (¶ 13). “If an administrative agency’s decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious.” Marquez, 774 So.2d at 430 (¶ 35). “An administrative agency’s decision is arbitrary if not done according to reason or judgment, but dependent on the will alone. An action is capricious if done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles.” Miss. State Dept. of Health v. Natchez, 743 So.2d 973, 977 (¶ 13) (Miss. 1999). A PERS decision may be found arbitrary and capricious if PERS fails to make adequate findings and explain how it evaluated and balanced certain interests such that a reviewing court is able to understand why it rendered the decision. Ross, 829 So.2d at 1243 (¶ 26).

¶ 9. The Pascagoula School District submitted PERS Form 6B with an attached description of Finklea’s duties as custodial crew leader. Among other duties, the job required sweeping, mopping, scrubbing and waxing all floors, washing walls, windows and woodwork, cleaning and disinfecting restrooms, arranging and moving furniture and equipment, assisting in setting up assembly areas, cleaning chalkboards, keeping the school grounds free from rubbish, storing and disposing of trash, and supervising the other custodial personnel. The job required that Finklea frequently lift objects weighing between ten and thirty pounds, occasionally lift objects between thirty and forty pounds, and rarely lift objects between forty and one hundred pounds. The job involved frequent squatting, standing, climbing, and bending, with occasional sitting. The job included frequent simple grasping, pushing and pulling, and fine manipulation. Job activities frequently involved unprotected heights, being around moving machinery, and exposure to chemicals and temperature changes. The school district required that the custodial crew leader be “physically sound” and capable of passing a complete physical examination in order to continue in the job.

¶ 10. The school district stated that Finklea’s duties were impaired by her disability because she could not bend or lift without experiencing chest pains and could not stay on her feet for a long period of time. The school district stated that Fink-lea appeared to be motivated toward realizing further employment, but that it did not have any lighter duty employment available for Finklea. The school district did not offer her any other job. No other job covered by PERS was offered to Fink-lea. Therefore, the question before the Board was whether Finklea presented substantial evidence that she was unable to perform the usual duties of her employment as custodial crew leader, that she was likely permanently mentally or physically incapacitated from further performance of duty, and that she should be retired. Miss.Code Ann. § 25-ll-113(l)(a) (Rev.2003).

¶ 11. Finklea was fifty-one years old at the time of her March 1999 myocardial infarction and quadruple bypass surgery. Finklea had several follow-up visits with Dr. Stelly, and began seeing Dr. Kandola on June 24, 1999. An echocardiogram ordered by Dr. Kandola and performed on June 29, 1999, revealed that Finklea had a slightly enlarged left ventricle and an ejection fraction of 40%. On July 2, 1999, Dr. Stelly stated in a letter to PERS that Finklea “had a very difficult recuperation because of poor left ventricular function.” He further stated that, as of that date, he considered Finklea “totally disabled from returning to vigorous activity, although light duty might be a possibility.”

¶ 12. In another letter, dated August 31, 1999, Dr. Stelly described Finklea’s progress to date. He stated that she had continuing problems with chest soreness and malaise and was treated with Ibuprofen and Darvoeet. Dr. Stelly stated that, in his estimation, Finklea was disabled as a result of a large myocardial infarction and resulting poor left ventricular function, but that he was unable to “know for sure” unless a repeat echocardiogram was performed to provide objective evidence of left ventricular systolic function. He stated that because Dr. Kandola was “more in a position to obtain this information,” he would defer any final recommendation regarding Finklea’s disability to Dr. Kando-la.

¶ 13. Dr. Kandola’s notes reveal that he saw Finklea three times. On June 24, 1999, Dr. Kandola stated that Finklea was having problems with “cough with severe chest pain” and was feeling depressed at times. He stated that she was afraid to go out and do anything for herself and was not attending cardiac rehabilitation. He stated that she had not recovered well from her bypass surgery, and opined that her “problem” was psychological and emotional rather than physical. Dr. Kandola stated that he assured Finklea that the “possibility of pain and depression is very common” after surgery. He stated that Finklea seemed “very reluctant” and “happy and contended with her disability attitude.”

¶ 14. On July 27, 1999, Dr. Kandola stated that Finklea was still experiencing chest pains, that the pains were not worse with exercise, and that Finklea felt that exercise was beneficial. He stated that these pains were musculoskeletal, not coronary, and that he advised her to take pain medication and try to ignore them. He noted that she had begun cardiac rehabilitation.

¶ 15. On January 27, 2000, Dr. Kandola stated that Finklea was attending cardiac rehabilitation, and that she denied any chest tightness or shortness of breath. Finklea stated she felt weak and fatigued all the time. Finklea also-stated that she was unable to work and that her work was lifting heavy things. Dr. Kandola stated that he explained to Finklea that she had done very well “as far as cardiac things are concerned” and that she “should car-ryon [sic] her daily activities.” He then stated:

Patient has repeatedly states [sic] that she is unable to carryon [sic] her daily duties at work. I certainly have sympathy with her. I think she may change her job to something lighter if she is unable to do it. At this point I do not see any contra-indication from cardiac point of view to do any kind of reasonable job for this lady’s age and sex.

¶ 16. On April 4, 2000, cardiologist Dr. David Shaw examined Finklea. Dr. Shaw stated that Finklea was negative for chest pain and shortness of breath. Dr. Shaw ordered an echocardiogram to reassess left ventricular function. The echocardiogram was performed on May 3, 2000, and concluded that Finklea had “upper normal left ventricular size with mild to moderate an-teroseptal hypokinesis” and “mild global dysfunction with ejection fraction of 0.40.” In a letter to Finklea’s attorney on May 19, 2000, Dr. Stelly noted that Finklea’s job required that she pass a physical examination, and opined that Finklea would not be able to complete a “physical examination without having to be physically sound.” He then stated that Finklea “does indeed, have decreased cardiac function following her heart attack and subsequent heart surgery and is not expected to improve more than where she is at this point in time.”

¶ 17. At the hearing on July 14, 2000, Finklea testified that she was able to do light housework at home, such as cooking and washing, but was limited by chest pain, which she described as “heaviness.” She stated that she still experienced numbness in her chest and leg, at the location where veins were surgically removed for the arterial graft. She testified that foot pain and numbness caused by diabetes had gotten worse since her surgery, and that she had to elevate her feet in order to prevent swelling and pain. She stated that her ongoing cardiac rehabilitation consisted of exercises such as walking on a treadmill or riding a bicycle while wearing a heart monitor. She stated that recently she had been placed on medication for a problem with rapid heart beat.

¶ 18. Finklea testified that she thought she could perform the lighter tasks required by her job as head custodian, but that she could no longer do tasks such as picking up heavy things, rearranging furniture, carrying desks across the school yard, dumping large trash cans, operating the floor buffing machine, walking constantly, and working outside in the summer heat. She stated that she would be able to clean the bathrooms and scrub floors and walls, but would have to be allowed to stop when limited by chest pain and shortness of breath. Finklea testified that, at the time of her heart attack, she and another female were the only custodians at the school. She stated that she had enjoyed her job and would return to work if she could.

¶ 19. Finklea’s daughter, Kimberly Finklea, stated that she sees her mother almost every weekend. She stated that her mother performed light household tasks such as placing clothes in the washing machine, cooking, mopping, wiping and sweeping, but that Kim and her siblings had to perform any work involving heavy lifting, such as taking the garbage out, opening windows, throwing the mop water away, moving furniture and lifting baskets of clothes.

¶ 20. In its recommendation that was adopted by the Board of Trustees, the Disability Appeals Committee cited Dr. Kandola’s statement that Finklea felt she benefitted from exercise but that she still experienced pain, weakness and fatigue. The Committee cited Dr. Kandola’s opinion that, from a medical standpoint, there was no reason that Finklea could not carry on her daily activities. The Committee stated that the June 1999 echocardiogram showed an ejection fraction of 40%, and that the May 2000 echocardiogram indicated that there had been no change. The Committee then stated that it found “no objective medical evidence which supports Mrs. Finklea’s claim that she is unable to perform her duties as a Custodian. Mrs. Finklea has not attempted to return to work since her surgery and her treating cardiologist, Dr. Kandola, finds no contraindications from a cardiac point of view to Mrs. Finklea returning to work. The medical records do not support Ruby Finklea’s claim that she is permanently disabled.” The rest of the Committee’s recommendation recited facts, procedural history, and the applicable law.

¶ 21. The circuit court found that Fink-lea had presented substantial evidence that her medical condition precluded her from performing the usual duties of her employment and that the Board’s finding that she was not disabled was arbitrary and capricious. We agree. The Committee’s recommendation stated that there was no objective medical evidence that Finklea is disabled. We observe that information contained within medical records is considered objective, not subjective, evidence of disability. Marquez, 774, So.2d at 427 (¶22). In contrast to the Committee’s finding, Finklea did present objective evidence that her heart condition was disabling. Finklea’s June 1999 echocardiogram indicated an ejection fraction of 40%. Finklea’s heart surgeon, Dr. Stelly, opined that, as of July 2, 1999, Finklea was totally disabled from vigorous activity because of poor left ventricular function. On August 31,1999, Dr. Stelly again opined that Fink-lea’s heart condition rendered her disabled, but conditioned the accuracy of his opinion on whether or not a repeat echo-cardiogram indicated improvement. Fink-lea’s May 2000 echocardiogram showed an ejection fraction of 40%, and the Committee recognized that this indicated “no change.” Dr. Stelly’s letter of May 2000 stated that Finklea had decreased cardiac function and was not expected to improve further.

¶ 22. The Committee’s recommendation did not refer to Dr. Stelly’s opinions, and relied solely upon the medical records of Dr. Kandola. The Committee found that Dr. Kandola had opined that Finklea “could return to work.” This finding is unsupported by the record. Dr. Kandola never stated that Finklea could return to her job as custodial crew leader, rather, he stated that she “could perform any reasonable job for [her] age and sex.” Dr. Kan-dola did not define what constituted a “reasonable job” for someone of Finklea’s age and sex, nor did he state whether a “reasonable job” would include the vigorous activity required of Finklea as a lead custodian. Dr. Kandola did state that if Finklea was unable to perform her former job, she might do something lighter. From this statement it may be reasonably inferred that Dr. Kandola thought Fink-lea’s ability to perform her job might be limited by her condition, depending upon how Finklea assessed the situation. Therefore, Dr. Kandola’s statement does not support the proposition that Dr. Kan-dola unconditionally believed that Finklea could return to work as a custodial crew leader. Further, Dr. Kandola’s statement that Finklea could carry on her daily activities is not substantial support for the conclusion that he thought she could return to her former job. This is because, at the time of her visit to Dr. Kandola, Finklea had not worked for approximately ten months, and her “daily activities” did not include the litany of heavy tasks that she had performed at her job.

¶ 23. The record was uncontradicted that Finklea had decreased cardiac function after her quadruple bypass surgery, and that her condition was not expected to improve. The Committee did not reasonably explain why it found that Finklea’s condition did not preclude her performance of the tasks required by the lead custodian position. Neither did the Committee explain why it rejected the objective medical evidence provided by Dr. Stelly. Instead, the Committee relied upon statements by Dr. Kandola that provided insubstantial support for the conclusion that Finklea could return to her former job. While PERS may choose between contradictory medical evidence and may reject evidence it finds deficient, PERS may not, without explanation, deny disability benefits when faced with apparently substantial, objective evidence of disability. As Finklea presented substantial evidence that she could no longer perform the usual duties of her employment due to permanent decreased cardiac function, we find that the decision of PERS was arbitrary and capricious. Therefore, we affirm the decision of the circuit court.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: McMILLIN, C.J.,

text:
    Timothy R. SHARP, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00310-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.

      Kelly Lee Mims, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, and THOMAS, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. Timothy Sharp was convicted on both counts of an indictment charging him with sexual crimes against his female relative, who was ten years old at the time of trial. Sharp, through counsel, has appealed that conviction and raises three issues. Additionally, Sharp has filed a supplemental pro se brief in which he makes an extended number of allegations regarding the ineffectiveness of his appointed defense counsel at trial as well as certain other complaints regarding the conduct of the trial that were not raised by his attorney. We find none of the issues properly raised before this Court in either brief to have merit and affirm Sharp’s convictions.

I.

Facts

¶2. After receiving an anonymous tip that A.S., Sharp’s ten-year-old relative, had been the victim of sexual abuse, a Department of Human Services social worker interviewed the child as part of the investigatory process. During that interview, the child reported one incident where she contended Sharp had penetrated her vagina with his penis. She further reported an incident in which she had awoken to discover that Sharp was rubbing his penis against her buttocks area. The child was subsequently examined by Dr. Linda Chi-dester, who testified that her examination revealed a torn hymen and physical abnormalities in the child’s anal region that were consistent with sexual activities inappropriate for a child of that age.

¶ 3. Sharp was indicted for one count of sexual battery and one count of fondling. At trial, the social worker was permitted to testify as to the child’s extra-judicial statements made about the abuse, Dr. Chi-dester testified concerning her professional examination of the child, and the child testified before the jury.

¶ 4. The jury convicted Sharp on both counts and this appeal ensued. We will discuss the issues in the same order presented in Sharp’s brief and supplemental brief and will expand on the facts of the case when appropriate for a full understanding of our discussion.

II.

The Quality of the State’s Proof of Guilt

¶ 5. Sharp raises two distinct challenges to the evidence in a single issue. First, he contends that the evidence was insufficient as a matter of law to support a guilty verdict and that, for that reason, his conviction should be reversed and rendered. Alternatively, he argues that the guilty verdicts were so against the weight of the credible evidence that a manifest injustice will occur if the present convictions are not set aside and the case remanded to the circuit court for a new trial.

¶ 6. The basis of Sharp’s contentions regarding his perception of the inadequacy of the State’s proof of guilt consists entirely of suggestions that there were discrepancies between the versions of events related by the child victim to the social worker and others, and the child’s in-court testimony. There can be no doubt that the child testified at trial to the occurrence of two episodes of sexual contact with Sharp: one of which contained all of the necessary elements of the crime of sexual battery and the other of which contained all the necessary elements of a charge of fondling or gratification of lust. We need not recite those separate elements here nor delve further into the child’s testimony to demonstrate the point since Sharp’s challenge to the State’s proof does not involve such analysis. Rather, he makes the broad contention that, because the child’s prior statements were inconsistent with her in-court testimony, the version of events related at trial was so lacking in probative value as to be unworthy of belief.

¶ 7. The jury sits as finders-of-fact and, under our system of criminal justice, is assigned the often difficult task of listening to the evidence and making assessments regarding the credibility of witnesses and what weight and worth any particular part of the evidence should play in determining the proper outcome of the proceeding. Hicks v. State, 812 So.2d 179(¶ 40) (Miss.2002). There are a number of ways by which the credibility of a witness may be tested before the jury. One of the long-recognized means of doing so is by presenting evidence that, at another time and place, the witness has related a different version of events. M.R.E. 613, e.g., Everett v. State, 835 So.2d 118(¶ 7) (Miss.Ct.App.2003). Impeaching the credibility of a witness in this manner does not necessarily destroy any probative value of the witness’s in-court testimony, however. It is merely an appropriate factor for the jury to consider in arriving at its view of the truthfulness of the evidence that witness gives at trial. In this instance, Dr. Chidester testified, based on her professional experience, that it was not uncommon for a child sexual abuse victim to give different versions of events when talking to different people because, among other considerations, a child in that situation is often inclined to conceal or even deny matters if the child is made uncomfortable or fearful of the person making inquiry. The jury, having heard of the child’s prior statements, nevertheless listened to her testimony in open court and collectively came to the conclusion that the child had truthfully related the events of the two encounters with Sharp that led to the charges in the indictment. We do not think that any discrepancies in the child’s prior statements were so damaging to the child’s credibility as to compel the conclusion the jury abused its discretion in so finding.

¶ 8. In this appeal, our obligation is to view the entire evidence in the light most favorable to upholding the jury’s verdict. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Having found that the State presented competent evidence relating to the essential elements of both crimes, we are not persuaded that the trial court erred in failing to enter a directed verdict or JNOV in favor of the defendant. Neither can we say that the evidence tending to establish Sharp’s innocence — consisting principally of the previously-discussed attack on the victim’s credibility and Sharp’s own denial of such conduct — was so persuasive that to permit the jury verdict to stand would work a manifest miscarriage of justice. Moran v. State, 822 So.2d 1074(¶ 3) (Miss.Ct.App.2002). For these reasons, we find Sharp’s first issue to be without merit.

III.

Ineffective Assistance of Counsel

¶ 9. Sharp’s appeal was prosecuted by an attorney other than the one who represented him at trial. This second attorney contends that Sharp received ineffective assistance of counsel at trial. He raises the issue in this direct appeal, though not dealt with at the trial level, as is permitted in certain circumstances recognized in such cases as Swington v. State, 742 So.2d 1106 (Miss.1999), and Pittman v. State, 836 So.2d 779 (Miss.Ct.App.2002).

¶ 10. As evidence of the failure of trial counsel to perform up to minimally acceptable levels, Sharp in his brief contends that counsel (a) failed to call another physician as a defense witness who had examined the child and who had reported that the child had denied to her that Sharp had made a sexual penetration of her vagina, and (b) failed to call the child’s mother for the purpose of showing certain additional inconsistent statements allegedly made by the child.

¶ 11. Allegations of ineffective assistance of counsel may properly be raised on direct appeal only in those circumstances where the substandard performance of counsel can be shown from the existing record. Id. at (¶39). In those instances where a full inquiry into the allegations of ineffective assistance of counsel requires further inquiry into matters not appearing in the record, it is not possible to adequately resolve such contentions in a direct appeal because, among other considerations, the appellate court is not properly situated to undertake the necessary fact-finding. See Edwards v. State, 797 So.2d 1049(¶ 30) (Miss.Ct.App.2001). In those situations, therefore, where the issue is raised on appeal but the matter cannot be resolved without additional fact-finding, the proper course for the appellate court is to deny relief without prejudice to the defendant to raise the same issues anew in a post-conviction relief proceeding where, if appropriate, the trial court can conduct a full evidentiary hearing. Miss. Code Ann. § 99-39-19 (Rev.2000); Read v. State, 430 So.2d 832, 837 (Miss.1983).

¶ 12. In this case, there is nothing before us in the present record that would permit any meaningful analysis of what these uncalled witnesses might have testified to, nor whether there might have been compelling reasons not to call them even if they were prepared to offer the testimony that Sharp contends they would have in his brief. The decision to call or not to call a particular witness is often a matter of trial strategy that involves assessment of matters that can range substantially beyond that potential witness’s ability to relate a certain fact from the stand. Cole v. State, 666 So.2d 767, 777 (Miss.1995). Such inquiry and analysis would necessarily require a full evidentiary inquiry that could only be accomplished through the vehicle of a post-conviction relief motion.

¶ 13. For that reason, we decline to consider the issues of ineffective assistance of counsel sought to be raised in this direct appeal, but do so without prejudice as to Sharp’s right to raise those same issues in a subsequent post-conviction relief proceeding.

TV.

Inadmissible Hearsay

¶ 14. Sharp contends that the trial court erred in admitting evidence of the victim’s extra-judicial statements regarding the alleged crimes. The court, in response to the defense’s motion in limine, conducted a hearing before trial began and determined that the child’s statements met the criteria for admissibility contained Rule 803(25) of the Mississippi Rules of Evidence. The trial court made its ruling that the statements made to the DHS social worker by the child victim were admissible only after hearing the social worker recite in some detail the circumstances under which the statements were made. These circumstances included the following considerations: (a) the social worker had never met the child before she went to the home in response to an anonymous tip; (b) the child was taken outside the home to be alone with the social worker and related the events only after twice having the social worker ensure that the door was shut; (c) the child related the events without a great deal of prompting or prodding and told what happened in some detail in her own words; (d) the child was ten years old at the time.

¶ 15. Sharp’s only argument against admissibility centers on the fact that the child gave conflicting statements at other times and she was a child of tender years, being only ten years old. He also argues that the court erred in not making point-by-point findings on the “substantial indicia of reliability” factors set out in Idaho v. Wright, 497 U.S. 805, 821-22, 110 S.Ct. 3139, 3150, 111 L.Ed.2d 638 (1990). It is our view that the trial court had more than sufficient evidence before it, none of which was contradicted or even impeached during the hearing on the motion in limine, to conclude that this child’s statements were given under circumstances where they had sufficient indicia of reliability to overcome a hearsay objection and be admitted under Mississippi Rule of Evidence 803(25).

V.

Pro Se Supplemental Brief

¶ 16. Sharp has filed a supplemental brief in which he raises a number of additional issues relating to perceived errors in the conduct of his trial. A large part of his brief consists of numerous complaints regarding the performance of his trial attorney. These complaints are classed generally under an assertion of ineffective assistance of counsel. For reasons we have already discussed, we conclude that any effort to determine the legitimacy of Sharp’s various complaints would necessarily involve an evidentiary hearing to determine both the factual accuracy of Sharp’s contentions and the impact of the alleged failings on the fundamental fairness of the trial. In that situation, we treat these additional claims in the same manner that we did those raised in Sharp’s original brief. We deny any relief in this direct appeal but without prejudice to Sharp’s right to raise the same issues in a post-conviction relief proceeding. Read, 430 So.2d at 837.

¶ 17. In addition to his complaints regarding his attorney’s performance, Sharp raises a number of other issues that we will address.

A.

Prosecutorial Misconduct

¶ 18. Sharp contends that the prosecution knowingly presented perjured testimony but offers no evidence to support that assertion. Instead, he focuses on the discrepancies appearing in the various versions of events related by the victim at different times. There is no merit to that assertion.

¶ 19. Additionally, Sharp cites U.S. v. Morris, 568 F.2d 396 (5th Cir.1978) as authority for the proposition that a prosecutor may not offer his own opinion as to the believability of any particular witness and claims that the State violated this stricture in closing argument. Sharp points to the following statement by the prosecuting attorney: “It’s not reasonable to believe what he said. He told you he was presumed innocent, but ladies and gentlemen, he is not presumed truthful. That’s for you to decide.” It is plain that, though Sharp may have correctly stated the applicable principle of law, there is no factual foundation to conclude that the principle was violated. The foregoing comments are incapable of being interpreted to suggest that the prosecutor was improperly advancing his own view of the defendant’s veracity.

B.

Evidentiary Rulings

¶ 20. Finally, Sharp complains of a number of problems regarding the improper admission of incriminating evidence. However, in each instance, there was no contemporaneous objection and, for purposes of direct appeal, the failure to timely object proeedurally bars consideration of Sharp’s contentions. Jackson v. State, 766 So.2d 795(¶ 40) (Miss.Ct.App. 2000) (quoting Hall v. State, 691 So.2d 415, 418 (Miss.1997)). Sharp appears to have conceded as much in his brief since he discusses the issues in terms of additional instances where his attorney failed him for not offering an objection. Once again, we conclude that such complaints, if they are to be assessed to determine their merit, can only be properly explored in a post-conviction relief proceeding. As with other similar matters, we deny any relief on these various contentions in this direct appeal without prejudice as to Sharp’s right to raise them in a post-conviction relief proceeding.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF ITAWAMBA COUNTY OF CONVICTION OF COUNT I, SEXUAL BATTERY, AND SENTENCE OF THIRTY YEARS WITH TEN YEARS SUSPENDED, AND COUNT II, FONDLING, AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ITA-WAMBA COUNTY.

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


author: McMILLIN, C. J.,

text:
    James D. LESTER, a/k/a J.W. Lester, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-KA-00217-COA.
    Court of Appeals of Mississippi.
    Jan. 6, 2004.

      Thomas H. Pearson, Clarksdale, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   McMILLIN, C. J.,

for the Court.

¶ 1. James Lester was convicted of murder by a Tunica County Circuit Court jury in the shooting death of his friend, Roger Marple. Lester has appealed the conviction. In his appeal, he raises two issues for consideration. First, he contends that the evidence was insufficient as a matter of law to sustain a murder conviction. Rather, he argues, the only two possible verdicts based on the evidence were acquittal on the basis of self-defense or guilty of manslaughter for using excessive force in the exercise of his right to defend his home against a trespasser. Alternatively, he claims that the trial court committed reversible error in denying two proposed defense instructions the purpose of which were to fully acquaint the jury with the applicable legal principles pertaining to one’s right to defend his home place. We find no reversible error and affirm Lester’s conviction.

I.

Facts

¶ 2. The State presented evidence that would support the following version of events. Lester and Marple and Marple’s wife drove into the parking lot of a beer tavern when they were accosted by Lester’s wife and grown daughter who pulled into the parking lot behind them. After an exchange of unpleasantries, Lester drove to his home, followed by his wife and daughter, and went to bed. Shortly thereafter, Marple arrived at the home and was admitted by Lester’s wife. Marple’s purpose was to apologize to Mrs. Lester. Lester was awakened and went into the room armed with a pistol. He became agitated and threatened to kill the people in the room, including his daughter, as well as himself. Marple then began attempts to calm Lester down from his agitated state but Lester would not be calmed and began ordering Marple to leave the premises. At that point, Lester’s daughter left the home after Marple stood between her and her father as Lester pointed the pistol at his daughter. As the daughter left the home, she continued to hear Lester order Marple, in profane terms, to leave the home. Then she heard the report of two pistol shots, after which Lester walked from the house with the pistol in his hand and said, “I killed the s.o.b.”

¶ 3. Lester, in his defense, testified that Marple had physically attacked him, knocking him to the floor, and threatened to “cut his g.d. guts out.” He said Marple refused his repeated demands to remove himself from the premises, and it was at that point that Lester shot Marple to protect himself from further anticipated physical assault from Marple.

¶ 4. The jury was instructed on the crimes of murder and heat of passion manslaughter. The jury was further instructed on the applicable law regarding self-defense and the right of an individual to protect his home from unauthorized trespassers. After deliberation, the jury returned a verdict of guilty of murder.

II.

Sufficiency of the Evidence

¶ 5. Lester claims that the proof is uncontradicted that, prior to firing the fatal shots into Marple’s body, Lester had repeatedly ordered Marple to leave the premises. Thus, at worst, he contends, he could only have been guilty of manslaughter based on the theory that he used excessive force to repel an unwanted trespasser.

¶ 6. In assessing the merits of Lester’s argument, we are, by long-established precedent, obligated to view the evidence in the light most favorable to upholding the jury’s verdict. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). Viewed in that light, the evidence discloses a situation where Marple arrived at Lester’s home and was voluntarily admitted as a guest by Lester’s wife. Lester’s subsequent behavior, that included verbal threats to kill his family members, to kill Marple, and then to kill himself, accompanied by the brandishing of a firearm, commenced immediately upon Lester’s entering the room with Marple. Marple’s subsequent efforts to calm his agitated friend and even to stand between Lester and Lester’s own daughter to protect her from her father’s threats would not appear to place him in the class of an unauthorized trespasser despite Lester’s repeated demands that he leave the property.

¶ 7. Generally, it is for the jury— after having heard the evidence and received the appropriate instructions on the law — to make the determination as to the grade of homicide. Jackson v. State, 740 So.2d 832(¶ 8) (Miss.1999). The jury was instructed both as to the crime of manslaughter and murder and apparently concluded that Lester’s behavior, including coming into the room armed with a deadly weapon, together with the absence of any evidence of a sudden provocation of sufficient impact to invoke considerations of an act done in the heat of passion, demonstrated that Lester acted with deliberate design in firing not one, but two, fatal shots into the body of his unarmed victim. We find that, viewing the evidence in the light most favorable to upholding the conviction, there is enough proof to uphold that determination by the jury.

III.

Jury Instructions

¶ 8. Lester complains that the trial court erred in denying his requested instructions numbered D-l and D-5. However, the record shows that defense counsel consented to the withdrawal of D-5 when it was agreed that the elements of that instruction had been adequately covered in other instructions already marked to be given to the jury. That leaves us with only the refused instruction D-l to consider.

¶ 9. Lester’s argument regarding refused instructions, in its entirety, consists of the assertion that, “[t]he lower Court failed to adequately protect or submit to the jury defendant’s rights of self-defense and defense of habitation.” Instruction D-1 as proposed by the defense read as follows:

Every occupant of a house is justified in taking the life of another in defense of his habitation where it is actually or apparently necessary to do so in order to repel an assault or attempted personal violence on his person from such other.
In order that a homicide may be justifiable as in defense of habitation, it is not essential that there be a peril of death or great bodily harm, as any violent attempt to assault or offer personal violence to a homeowner justifies defense of his habitation.

¶ 10. The trial court refused that instruction upon reaching the conclusion that the pertinent issues raised in the instruction had been adequately covered in other instructions, specifically Instructions D-2 and D-4. We quote the two instructions in full:

D-2
When a person is in his own home, where he has a right to be, then he has a right to exclude outsiders therefrom and to use reasonable force necessary to eject him or them therefrom.
D^l
Where a visitor is ordered by the occupant of a house to leave said house, but he fails or refuses so to do, then the occupant may deal with him as a wilful trespasser. No visitor is authorized to remain on the premises after being ordered by the occupant to leave.

¶ 11. The law regarding defense of habitation is not such that a mere trespasser, having been once warned to vacate the premises, may thereafter be killed by the premises’ owner with impunity if he fails to leave the property soon enough to satisfy the desires of the owner. The law contemplates, rather, that deadly force may only be employed to repel a trespasser who demonstrates the apparent purpose of assaulting or offering violence to an occupant or committing some other crime on the premises. Bowen v. State, 164 Miss. 225, 227, 144 So. 230, 232 (1932). Insofar as the defense contemplates the prospect of physical violence against the premises owner or some other occupant, the defense invokes many of the same considerations as that of pure self-defense, the principal distinction apparently being that the threat of serious bodily injury need not be as imminent in defense of habitation as in a case of individual self-defense. Thus, if it appears reasonable for the occupant to conclude that the ultimate purpose of the trespasser is to inflict such harm, then, because of the law’s recognition of the sanctity of one’s own residence, deadly force may be employed to end the potential danger at a stage before the actual threat becomes immediate. Id.

¶ 12. The defense is entitled to an instruction covering its theory of the case so long as there is evidence in the record that would support that theory without regard to the probative value of that evidence so long as it is more than a mere scintilla of proof. E.g., McGee v. State, 820 So.2d 700(¶ 9) (Miss.Ct.App. 2000). However, in this case, the only evidence dealing with Lester’s use of force against Marple came from Lester’s own testimony. In that testimony, he related that Marple had already assaulted him by knocking him to the floor with what Lester described as a football tackle, and that Marple was advancing toward Lester lying on the floor, voicing the threat that, “I’m going to cut your g.d. guts out, you s.o.b.” According to Lester, it was only at that point that, as he tried to rise from the floor, he first fired a warning shot into the floor and, when that failed to halt Marple’s advance, fired two more shots, both of which struck Marple and led to his death.

¶ 13. In addition to the instructions regarding the right of an individual to repel trespassers from his home, Lester was given a standard self-defense instruction. In view of Lester’s testimony — the only evidence tending to show any justification for his act of shooting. Marple twice with a deadly weapon — we are of the opinion that the alleged assault by Marple against Lester had, by the defendant’s own testimony, advanced to a stage where the distinction between using deadly force in defense of habitation and using deadly force in self-defense no longer had any particular relevance to the jury’s understanding of the law.

¶ 14. Had the jury chosen to believe Lester’s version of events, it is evident that an acquittal would have been a proper verdict for a jury following the instructions given by the court. There is.a presumption that the jury follows the court’s instructions. Edwards v. State, 413 So.2d 1007, 1010 (Miss.1982). By returning a verdict of guilty, it seems evident that the jury chose not to believe Lester’s version and, instead, decided that Lester had purposely shot Marple to death under circumstances where Marple had neither threatened nor otherwise indicated that he was bent on assaulting Lester or committing any other crime within the confines of Lester’s residence, but where Marple was, instead, merely attempting to calm Lester and end Lester’s threats to kill himself and others. In that circumstance, we do not think that the law relating to defense of habitation offered a less restrictive means than self-defense for Lester to justify his actions in ending Marple’s life, since the jury was adequately instructed on self-defense, we do not conclude that the trial court erred in refusing requested instruction numbered D-l.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, SAID SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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


author: HARWOOD, Justice.

text:
    Ex parte Gregory BOYKINS. (In re Gregory Boykins v. State of Alabama).
    1011152.
    Supreme Court of Alabama.
    Dec. 20, 2002.
    Gregory Boykins, pro se.
    Andrew W. Redd, gen. counsel, for respondent Department of Corrections.
   HARWOOD, Justice.

On September 17, 2001, Gregory Boy-kins, an inmate at the Bullock County Correctional Facility, filed a petition for a writ of certiorari with the Bullock County Circuit Court challenging the denial by the Department of Corrections (“the DOC”) of his request to receive incentive good time (“IGT”). On October 26, 2001, the district attorney’s office filed a motion to dismiss the petition, which Boykins opposed. In an order issued on November 1, 2001, the trial court characterized Boykins’s petition as a petition for a writ of habeas corpus and granted the motion to dismiss. On December 19, 2001, Boykins filed a notice of appeal to the Alabama Court of Criminal Appeals. That court affirmed the trial court’s order of dismissal in an unpublished memorandum, Boykins v. State, (No. CR-01-0659, February 22, 2002) 854 So.2d 1228 (Ala.Crim.App.2002) (table).

Boykins petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals’ affirmance of the trial court’s order. We granted Boykins’s petition on May 28, 2002, to address the question whether the Court of Criminal Appeals properly affirmed the trial court’s order of dismissal where the basis of the dismissal was the trial court’s treatment of Boy-kins’s petition for a writ of certiorari as a petition for a writ of habeas corpus.

The record reveals that in March 1973 Boykins was convicted of first-degree murder and was sentenced to 60 years’ imprisonment. In September 1974, while working on a “road camp,” Boykins escaped. He remained a fugitive from 1974 until April 1995, when he was returned to the custody of the DOC. While on escape, Boy-kins pleaded guilty to another murder in Illinois. Subsequent to his return to the custody of the DOC, Boykins requested eligibility to earn IGT. His requests were denied by the DOC because of its determination that Boykins failed to meet the criteria for receipt of IGT.

In affirming the trial court’s dismissal of Boykins’s petition as a petition for a writ of habeas corpus, the Court of Criminal Appeals stated in its unpublished memorandum:

“Boykins argues that in light of the grounds raised in his petition, the circuit court erred in summarily dismissing his petition. We disagree.
“A petition for writ of habeas corpus is the proper method by which to test whether the State has correctly calculated the time an inmate must serve in prison. Breach v. State, 687 So.2d 1257 (Ala.Crim.App.1996); Swicegood v. State, 646 So.2d 158 (Ala.Crim.App. 1993). Therefore, the circuit court correctly treated Boykins’s petition for writ of certiorari as a petition for writ of habeas corpus. However, Boykins’s contention that he has a liberty interest in receiving IGT credit against his sentence is without merit. The State of Alabama gives inmates an opportunity to reduce their prison sentence through IGT deductions. See § 14-9^11, Ala. Code 1975. That statute provides, in pertinent part, that an inmate who has ‘faithfully observed the rules for a period of time ... may be entitled to earn a deduction’ from his sentence. § 14-9-41(a). Accordingly, inmates are not entitled to receive, and thus do not have a liberty interest in receiving, IGT. See Coslett v. State, 697 So.2d 61 (Ala.Crim. App.1997); Parker v. State, 648 So.2d 653 (Ala.Crim.App.1994); Gullett v. State, 613 So.2d 400 (Ala.Crim.App. 1992).2 As we explained in Coslett:
“ ‘The opportunity to earn “good time” is a privilege, not a right, in Alabama. Prisoners may earn higher classifications, and thus more “good time,” through good behavior. A higher classification is based on a prisoner’s trustworthiness, willingness and ability to work, and behavior while in prison. Accordingly, a favorable evaluation of a prisoner’s conduct may result in a move to a higher classification so that he can earn more “good time” for each day served. Because Alabama’s system is an incentive system, prison officials must have the authority to place prisoners who do not follow the rules or who fail to meet the requirements of a higher classification in lower classifications.’

697 So.2d at 64.

“Because Boykins had no liberty interest in earning IGT, the circuit court correctly denied his petition for writ of habeas corpus. That court’s judgment is therefore affirmed.

Boykins asserts that the conclusion by the Court of Criminal Appeals that the circuit court correctly treated his petition for a writ of certiorari as a petition for habeas corpus was incorrect. The basis for that conclusion was the Court of Criminal Appeals’ recognition that a petition for habeas corpus is the proper means for testing whether the State has correctly calculated the duration of an inmate’s incarceration. Breach v. State, 687 So.2d 1257 (Ala.Crim.App.1996); Swicegood v. State, 646 So.2d 158 (Ala.Crim.App.1993). However, Boykins argues that his petition does not question whether the State correctly calculated his sentence; instead, he argues that his petition sought to review an administrative determination by the DOC as to whether he was entitled to earn IGT. Boykins argues that because his petition sought review of an administrative decision rather than the vindication of a “liberty interest,” the Court of Criminal Appeals erred in determining that his petition was properly dismissed as a petition for a writ of habeas corpus.

In his brief to this Court, Boykins relies on Cox v. State, 628 So.2d 1075 (Ala.Crim. App.1993), as authority supporting his argument that the trial court wrongfully treated his petition for a writ of certiorari as a petition for a writ of habeas corpus. In Cox, an inmate incarcerated in the El-more Correctional Center challenged a trial court’s dismissal of his petition for a writ of certiorari, which the court had treated as a petition for a writ of habeas corpus. The appellant, like Boykins, alleged that he was entitled to IGT and that the denial of IGT was contrary to the Legislature’s intent in enacting Ala.Code 1975, §§ 14-9-20 through 14-9-25. The Court of Criminal Appeals determined that the trial court had erred in treating a petition for a writ of certiorari as a petition for a writ of habeas corpus. The court stated:

“In Cox’s response to the state’s motion to dismiss, Cox asserted that his petition is not a petition for writ of habeas corpus, but a petition [for a] writ of certiorari. As support, he cites Sellers v. State, 586 So.2d 994 (Ala.Cr.App. 1991), wherein the court affirmed the .circuit court’s denial of Seller’s petition for writ of habeas corpus contesting the revocation of his parole by the Alabama Board of Pardons and Paroles. In so holding, the Sellers court stated the following:
“ ‘While the trial court gave no reason for denying the petition other than the fact that it did so on the pleadings, its denial was proper, because review of an action by the Board is not by a habeas corpus proceeding. Generally, habeas corpus is inappropriate as a remedy to review the actions of an administrative board or commission, such as the Board. The appropriate remedy is an appeal pursuant to the Alabama Administrative Procedure Act, §41-22-1 et seq., Code of Alabama 1975 (hereinafter “the Act”), if the administrative agency from which the appeal is taken comes within the purview of that Act. However, if the agency is exempted from the judicial review provisions of the Act and there is no other provision for statutory review, review is by petition for writ of certiorari. See Ellard v. State, 474 So.2d 743 (Ala.Cr.App.1984), aff'd, 474 So.2d 758 (Ala.1985)(in the absence of a right to appeal or other adequate remedy, the writ of certiorari lies to review the rulings of an administrative board or commission). See also Ex parte Baldwin County Comm’n, 526 So.2d 564 (Ala.1988)(an extraordinary writ will not lie if there is a right of appeal).’
586 So.2d at 994-95;
“After a brief hearing, the circuit court dismissed the ‘Petition for Writ of Habeas Corpus,’ specifically finding that ‘the denial of incentive good time does not raise a proper issue’ because ‘inmates have no constitutional right to incentive good time.’ By way of a ‘Motion for New Trial,’ Cox objected to the circuit court’s treatment of his petition as a habeas corpus petition, arguing that he ‘does not claim a constitutional right to incentive good time, but rather a procedur[al] right to have the statutory intent of the legislature applied to him as they intended it to.’ The motion was denied.
“Cox’s arguments on appeal are that the circuit court improperly considered his petition to be a habeas corpus petition and consequently failed to address the issue of whether the amendment to Admin. Reg. 420 contravenes the legislature’s intent. The state has failed to respond to these arguments. Based upon the considerations before us, we hold that the circuit court erred in treating Cox’s petition for writ of certiorari as a petition for writ of habeas corpus, particularly because the court had no jurisdiction to entertain a habeas corpus petition filed by Cox. See § i5-21-6[, Ala.Code 1975] (which requires that when the petitioner is confined in the penitentiary, the petition must be addressed to the nearest circuit court).”

628 So.2d at 1076-77 (emphasis added). The court in Cox concluded its opinion with the following statement in a footnote: “We note that the Alabama Administrative Procedure Act, § 41-22-1 et seq., Code of Alabama 1975, offers no appropriate remedy in the instant case. See § 41-22-3(9)(g)(l)(which excludes from the definition of ‘rule’ ‘[a]ny rules or actions relating to ... [t]he conduct of inmates of public institutions’).” 628 So.2d at 1077 n. 2.

The court in Cox determined that the treatment of Cox’s petition for a writ of certiorari as a petition for a writ of habeas corpus was an error, particularly because the trial court, not being the circuit court nearest the penitentiary in which Cox was confined, did not have jurisdiction over a petition for habeas corpus. Ala.Code 1975, § 15-21-6. In Cox, the Court of Criminal Appeals, as in the instant case, never addressed the issue whether the DOC’s ruling on a request for IGT is a proper subject for a petition for a writ of habeas corpus, as opposed to a petition for a writ of certiorari, in instances in which the trial court does have jurisdiction to entertain a petition for habeas corpus under § 15-21-6.

The writ of habeas corpus is also known as the “Great Writ,” and its purpose has been discussed at length by the United States Supreme Court. In Heflin v. United States, 358 U.S. 415, 421, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959), a case considering the petition for a writ of habeas corpus of a petitioner who was convicted in Alabama under the Federal Bank Robbery Act, 18 U.S.C. § 2113 et seq., the Court described the only function of the writ:

“The very office of the Great Writ, its only function, is to inquire into the legality of the detention of one in custody. It is unnecessary to paraphrase here Mr. Justice Stone’s penetrating discussion in McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 [(1934), overruled in part on other grounds, Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968)], or to incorporate the thorough review of legal history there contained. It will suffice to note only the Court’s conclusion: ‘Without restraint of liberty, the writ will not issue. * * * Equally, without restraint which is unlawful, the writ may not be used. A sentence which the prisoner has not begun to serve cannot be the cause of restraint which the statute makes the subject of inquiry.’ (Citations omitted.) 293 U.S. at page 138, 55 S.Ct. at page 27.”

358 U.S. at 421, 79 S.Ct. 451 (emphasis added). See also Parker v. Ellis, 362 U.S. 574, 575, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960)(“ ‘Without restraint of liberty, the writ will not issue.’ ” (quoting McNally v. Hill, 293 U.S. 131, 138, 55 S.Ct. 24, 79 L.Ed. 238 (1934)), reversed on other grounds, Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)).

The courts of this State have long recognized that the only purpose of the writ of habeas corpus is to afford relief against actual restraints upon liberty. State v. Speake, 187 Ala. 426, 427, 65 So. 840, 841 (1914)(“The writ of habeas corpus has been defined, or rather described, as ‘that legal process which is employed for the summary vindication of the right of personal liberty when illegally restrained.’ ”); Powell v. State, 726 So.2d 735, 737 (Ala.Crim. App.1997)(“The sole function of habeas corpus relief is to provide relief from unlawful imprisonment or custody, and it cannot be used for any other purpose.”); Stinson v. State, 43 Ala.App. 257, 258, 188 So.2d 287, 288 (1966) (“The writ of habeas corpus is concerned solely with the lawfulness of the present holding of the petitioner.” (citing Adams v. State, 30 Ala.App. 487, 8 So.2d 219 (1942))); Williams v. State, 42 Ala.App. 140, 140, 155 So.2d 322, 323 (1963)(“ ‘It should always be borne in mind that the applicant for the writ of habeas corpus is not entitled to the writ unless he is actually restrained of his liberty.... Mere moral restraint (such as a military arrest, confinement to quarters, or parole, for example), as distinguished from actual confinement, is generally insufficient to warrant issuance of the writ.’ ” (quoting Walter B. Jones, Habeas Corpus, State and Federal, Ala. Law., Oct. 1952, at 384)).

In this case, Boykins is not challenging the duration of his sentence. Neither is he asserting that he is unlawfully imprisoned because he has completed all of the time he was sentenced to serve. The facts in this case do not raise the question whether a sentence has been correctly calculated, as did Breach and Swicegood, supra, and those cases, relied upon by the Court of Criminal Appeals, are not applicable to this case. Rather, in this case, Boykins is challenging the propriety of the DOC’s ruling on his request for IGT. We agree with the determination of the Court of Criminal Appeals, relying on Ala.Code 1975, § 14-9-41, Coslett v. State, 697 So.2d 61 (Ala.Crim.App.1997), Parker v. State, 648 So.2d 653 (Ala.Crim.App.1994), and Gullett v. State, 613 So.2d 400 (Ala.Crim. App.1992), that Boykins does not have a liberty interest in the DOC’s ruling on his request to qualify for IGT. Boykins is not asserting that the DOC deprived him of IGT he had previously earned, as to which he would have a liberty interest. Just as a writ of habeas corpus has no application to a sentence a prisoner has not begun to serve, Heflin, supra, neither does the writ have application to IGT Boykins has not begun to earn. Because Boykins does not have liberty interest in the DOC’s ruling on his application for IGT, the Court of Criminal Appeals erred in concluding that the circuit court correctly treated his petition for a writ of certiorari as a petition for a writ of habeas corpus.

We distinguish this case from Ex parte Deramus, [Ms. 1010923, June 7, 2002] — So.2d -- (Ala.2002), in which the petitioner, an inmate at the Kilby Correctional Facility, challenged his custody classification by the DOC. While serving a 45-year sentence, Deramus qualified for, and successfully participated in for approximately 5 years, a “work-release” program. The DOC subsequently reclassified him as a “heinous offender”; that reclassification rendered him ineligible to participate further in the work-release program. Thus, Deramus’s reclassification required him to remain incarcerated at the penitentiary rather than leaving that facility for the purpose of the work-release program. Deramus sought review of the reclassification and styled his petition to the Limestone County Circuit Court as a petition for a writ of certiorari; the petition should have been styled as a petition for a writ of habeas corpus. Nevertheless, the trial court treated his petition for a writ of certiorari as a petition for a writ of habeas corpus and denied it.

The Court of Criminal Appeals did not address the merits of Deramus’s argument; it simply affirmed the trial court’s judgment because Deramus had mislabeled his petition. We noted in Deramus that the Court of Criminal Appeals has held that a petition for a writ of habeas corpus is the proper means for an inmate to challenge the DOC’s change of custody classification. See Drayton v. State, 600 So.2d 1088, 1090 (Ala.Crim.App.1992), overruled on other grounds, Maddox v. State, 662 So.2d 915 (Ala.1995). The application of that rule to Deramus’s situation was perfectly appropriate because by being physically restrained from participating in the work-release program Deramus had plainly lost a liberty interest. However, the only issue before this Court was the effect of a mislabeled motion. We concluded that as a result of the language presented in the petitioner’s petition, it was clear that he was seeking relief from a change in his custody classification. Accordingly, we held that merely mislabeling a motion would not render it unreviewable, and we reversed the judgment of the Court of Criminal Appeals and remanded the cause for that court to treat Deramus’s petition as a petition for a writ of habeas corpus and to consider the merits of the petition. Thus, Deramus is distinguishable from the case at hand because Dera-mus addressed only the effect of mislabeling a petition as a petition for certiorari when in fact that petition sought relief from a restraint against liberty and was therefore correctly viewed as a petition for a writ of habeas corpus. However, Dera-mus is consistent with the settled law that the purpose of a petition for a writ of habeas corpus is to obtain relief from an unlawful restraint on liberty. In this case, Boykins’s petition was correctly labeled as a petition for a writ of certiorari, but incorrectly reviewed as a petition for a writ of habeas corpus. It cannot be reviewed as a petition for a writ of habeas corpus because it does not seek relief from a restraint on any liberty Boykins has at present.

Moreover, we note that the DOC, as stated in Ala.Code 1975, § 14-1-1.2, is an “administrative department responsible for administering and exercising direct and effective control over penal and corrections institutions throughout this state.” (Emphasis added.) Ala.Code 1975, § 41-22-3(1), defines “agency” as “[ejvery board, bureau, commission, department, officer, or other administrative office or unit of the state.” (Emphasis added.) Accordingly, the DOC is an administrative agency that is within the scope of the Alabama Administrative Procedure Act, AIa.Code 1975, § 41-22-1 et seq. (“the Act”). The appropriate remedy to review the actions of administrative agencies is an appeal made in accordance with § 41-22-20(a) of the Act. However, pursuant to § 41-22-3(9)(g)(l), as noted in Cox, Boy-kins has no right to avail himself of such judicial review.

Thus, we conclude that Sellers v. State, 586 So.2d 994 (Ala.Crim.App.1991), cited in Cox, supra, is more analogous to this case. In Sellers, the petitioner appealed the trial court’s denial of his petition for a writ of habeas corpus, pursuant to which he sought review of the revocation of his parole by the Alabama Board of Pardons and Paroles (“the Board”). The Court of Criminal Appeals held that the actions of the Board could not be reviewed under the Act because Ala.Code 1975, § 41-22-3(3) exempts the Board from review. Thus, the court determined that the appropriate means for the petitioner to seek review of the Board’s action was by petition for a writ of certiorari.

Here, Boykins, an inmate in a public institution, has sought review of the action of an administrative department, i.e., the DOC, regarding its denial of his request to receive IGT. Like the petitioner in Sellers, Boykins does not enjoy the statutory right of judicial review provided by § 41-22-20(a), a part of the Act, because he is excluded under § 41 — 22—3(9)(g)(l).

“Alabama law is clear that, in the absence of a right of appeal, a party seeking review of a ruling by an administrative agency may petition the circuit court for a common law writ of certiorari.” State Personnel Bd. v. State Dep’t of Mental Health & Retardation, 694 So.2d 1367, 1371 (Ala. Civ.App.1997), citing Ellard v. State, 474 So.2d 743 (Ala.Crim.App.1984), affirmed, 474 So.2d 758 (Ala.1985). See also Alabama Dep’t of Mental Health & Mental Retardation v. Kirby, 579 So.2d 675 (Ala. Civ.App.1991). “Certiorari will not issue, however, if a right of appeal is available.” State Personnel Board, 694 So.2d at 1371. “[Wjhere an applicable statute provides no right of appeal and no statutory certiorari review, the only means of review is the common law writ of certiorari.” Hardy v. Birmingham Bd. of Educ., 634 So.2d 574, 576 (Ala.Civ.App.1994). Hence, Boykins’s only means to seek review of the actions of the DOC is by a petition for a writ of certiorari. Consequently, the Court of Criminal Appeals erred in affirming the trial court’s treatment of Boykins’s petition for a writ of certiorari as a petition for a writ of habeas corpus and its denial of that petition. Accordingly, the judgment of the Court of Criminal Appeals is reversed and the cause remanded for the Court of Criminal Appeals to reverse the judgment of the trial court and remand the cause for the trial court to review Boykins’s petition for a writ of certiorari reviewing the DOC’s denial of his request to be allowed to earn IGT.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, and WOODALL, JJ., concur.

      . The record does not show the specific date on which Boykins was convicted or the court of conviction.

      . Sections 14-9-20 through 14-9-25, Ala. Code 1975, were repealed effective May 19, 1980. The Alabama Correctional Incentive Time Act, effective May 19, 1980, and codified at §§ 14-9-41 through -44 replaced those provisions. See Act No. 80-446, Ala. Acts 1980.

       We note, however, that once an inmate actually earns IGT, it may not be taken away without due process. See, e.g., Ex parte Hawkins, 475 So.2d 489 (Ala.1985); Gowers v. State, 766 So.2d 986 (Ala.Crim.App.2000); Summerford v. State, 466 So.2d 182 (Ala.Crim.App. 1985). Therefore, while an inmate does not have a liberty interest in earning IGT, he does enjoy a liberty interest in retaining what IGT he has accrued.”