author: BRIDGES, J.,

text:
    Anthony BROWN a/k/a Anthony Trenell Brown, a/k/a Anthony T. McGoo, a/k/a “McGoo”, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00702-COA.
    Court of Appeals of Mississippi.
    Aug. 19, 2003.

      Howard Q. Davis, Indianola, for appellant.
    Office of the Attorney General by W, Glenn Watts, attorney for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   BRIDGES, J.,

for the court.

¶ 1. On April 2, 2002, Anthony Brown was tried for possession of cocaine before a jury in Washington County Circuit Court. The presiding judge was Honorable Ashley Hines. Brown was found guilty and was given a sixteen year sentence. He was additionally fined $5,000 because he was a repeat drug offender. From this conviction and sentence, Brown appeals to this Court.

STATEMENT OF THE ISSUES

I. DID BROWN RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

II. DID THE TRIAL COURT ERR IN TRYING BROWN AFTER A HOSPITAL STAY?

III. DID THE TRIAL COURT ERR IN DENYING A FULL SUPPRESSION HEARING ON A MOTION TO SUPPRESS?

IV. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

V. DID THE TRIAL COURT ERR IN GRANTING AN ENHANCED SENTENCE?

VI. WERE THERE CUMULATIVE ERRORS REQUIRING REVERSAL?

FACTS

¶ 2. Anthony Brown was arrested on November 21, 2000. Dondi Gibbs and James Whitfield, officers from the Green-ville Police Department, were patrolling the city in a marked police car looking for individuals with outstanding warrants. One of the officers saw an individual duck behind a tree when he saw the police car. Officer Gibbs used his spotlight in order to look at the person behind the tree. He recognized the person behind the tree as Anthony Brown. Officer Gibbs had previous experiences with Anthony Brown. He knew that Brown had an outstanding warrant.

¶ 3. Brown was placed in the police car. On the way to the police station, the officers noticed that Brown was having difficulty speaking. Officer Gibbs thought that Brown had something in his mouth. The officers took Brown out of the police car and grabbed his throat to prevent Brown from swallowing. Brown spit out a clear plastic bag containing what appeared to be crack cocaine. A videotape was made of the entire incident. Both officers testified at trial.

¶4. On the day of trial, Brown was brought to court by the Washington County Sheriffs Department. Judge Hines had issued a warrant for Brown since he did not appear in court. The record states that Brown was picked up by sheriffs deputies at his home after he had been released from the hospital earlier that day.

¶ 5. At trial, Officer Xavier Redmond testified that he received the bag taken from Brown from Sergeant Prine. After it tested positive for cocaine, Redmond sealed the bag and returned it to a locked container. Later, Redmond took this same evidence to the crime laboratory for scientific testing. Brandy Goodmen, with the state crime laboratory in Meridian, tested the substance and found it to be crack cocaine. She testified to this at trial. After the jury heard the evidence and deliberated, Brown was found guilty.

¶ 6. At sentencing, Mr. Melvin Edwards, a jailor with the Washington County Sheriffs Office, testified that Anthony Brown was the same man who had served a prior sentence for the sale of cocaine. The trial court found that Brown qualified for enhanced punishment since he had a 1994 conviction for the sale of cocaine. His sentence was doubled from eight years to sixteen years. He was also given a $5,000 fine.

ANALYSIS

I. DID BROWN RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 7. Brown claims that he received ineffective assistance of counsel. Brown was arrested on November 21, 2000. He was held in prison from his arrest until his indictment on August 23, 2000. While the record does not reveal the details behind holding Brown in jail during this time, it is clear from the record that Brown had previously escaped from prison. Therefore, it is assumed that Brown was held because he was considered to be an escape risk. Brown waived his arraignment on September 25, 2001. On November 26, 2001, the State filed and was granted a motion for continuance because a material witness was unavailable to testify. On January 18, 2002, the State filed a second motion for continuance because the analyst from the Mississippi Crime Lab, an essential witness, was unavailable to testify. The trial was held on April 2, 2002. Brown claims that this was in violation of his right to a speedy trial. Brown never raised the issue of his right to speedy trial. He himself even requested that the trial be delayed on the day that it started. He argues that since this delay violated his right, his counsel should have filed a motion to dismiss. Since his lawyer did not do this, he claims that he received ineffective assistance of counsel.

¶ 8. The State argues that no motion to dismiss for violation of a right to speedy trial was filed and that this issue was not raised with the trial court. Furthermore, delays in trial are not plain error:

Because delays in bringing a matter to trial may work to the defendant’s advantage, we do not consider a claim that the defendant was denied a speedy trial to be a matter of plain error or fundamental error that may be raised for the first time on appeal.

Bell v. State, 733 So.2d 372, 876(111) (Miss.1999).

¶ 9. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), four factors were established to evaluate possible speedy trial violations. These factors are length of delay, reasons for delay, assertion of the right to a speedy trial, and prejudice to the defendant. Id. In this case, Brown was tried within 270 days of arraignment as is required by statute. Miss. Code Ann. § 99-17-1 (Rev. 2000). This was not an unreasonable amount of time. Until there is a delay that is presumptively prejudicial, it is not necessary to evaluate the other factors. Barker, 407 U.S. at 530, 92 S.Ct. 2182. However, in this case, the reason for the delays was that the State was missing material witnesses. This can be seen as a good cause for a continuance since a missing witness is a valid reason for delay. Id. In Sharp v. State, 786 So.2d 372, 380(¶ 13) (Miss.2001), the Court found that the trial court correctly found “good cause” for a continuance where a material witness for the state was ill and could not testify on the date set for trial. Since the trial in this case was continued because the State was missing a witness, there was a good reason for the delay.

¶ 10. The next factor is whether there was an assertion of the right to a speedy trial. In this case, Brown never requested a speedy trial. In fact, on the day that the trial was held, Brown attempted to postpone the trial himself. Brown never asserted a right to speedy trial. Finally, prejudice to the defendant is the last factor in this Barker evaluation. Brown has not claimed any prejudice to his defense as a result of this delay. Since Brown’s right to speedy trial was not violated, it was not ineffective assistance of counsel when his lawyer did not raise the issue of violation of speedy trial.

¶ 11. Brown has further allegations of ineffective assistance of counsel. His additional claims include failure to receive adequate discovery in preparation for trial, failure to request a full evidentiary hearing on a motion to suppress, failure to show the videotape taken the night of his arrest, and failure to request a continuance for Brown’s illness on the day of the trial. Brown must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order to be successful in his ineffective assistance of counsel claim. Brown must prove first that his counsel’s performance was deficient and second that this deficient performance prejudiced his defense. Brown has the burden of proving each of these prongs. Brown must show that there is a reasonable probability that but for the supposed errors of his counsel, the sentence of the trial court would have been different. Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992); Fisher v. State, 532 So.2d 992, 997 (Miss.1988).

¶ 12. Brown does not meet the standard set forth in Strickland. While Brown claims that his counsel was inadequate, he has not produced any evidence other than his own statement to support his claim of ineffective assistance of counsel. An ineffective assistance of counsel claim must be proved affirmatively, not merely alleged. Strickland, 466 U.S. at 693, 104 S.Ct. 2052; Johnston v. State, 730 So.2d 534, 538(¶ 19) (Miss.1997). Brown must produce evidence to show that his sentence would have been different if the actions of his counsel had been different. Brown produced no evidence to indicate that a jury would have come to a different conclusion if for example the videotape of his arrest had been shown to the jury. Even if his lawyer had handled the case in an alternative way, the State produced strong evidence in this case. It had the two eyewitness officers testify and also had two witnesses testify that the substance taken from Brown’s mouth was cocaine. None of the allegations Brown makes is evidence that the jury would have returned a verdict in his favor if his counsel had done anything differently. Since Brown has no other evidence to support that his counsel’s performance was deficient, he cannot prove that his lawyer was ineffective.

II. DID THE TRIAL COURT ERR IN TRYING BROWN AFTER A HOSPITAL STAY?

III. DID THE TRIAL COURT ERR IN DENYING A FULL SUPPRESSION HEARING ON A MOTION TO SUPPRESS?

V. DID THE TRIAL COURT ERR IN GRANTING AN ENHANCED SENTENCE?

¶ 13. An assignment of error that is unsupported by any legal authority need not be considered by the Court. Jones v. State, 481 So.2d 798, 804 (Miss.1985). When a defendant does not object on the same grounds being raised in an argument on appeal, the issue is waived. Duplantis v. State, 708 So.2d 1327, 1346-47(¶ 96) (Miss.1998).

¶ 14. In Issue II, Brown complains that the Court erred in requiring Brown to go to trial on a day that he claimed he was not feeling well and had just been released from the hospital earlier that day. Brown does not cite any authority to support his claim that the court erred in continuing with the trial following his release from the hospital. Since Brown does not cite any authority supporting his claim, this issue is also waived.

¶ 15. In Issue III, Brown argues that the trial court erred when it did not hold an evidentiary hearing on the chain of custody for the cocaine that came from Brown’s mouth on the night of his arrest. This issue was not raised with the trial court or in Brown’s motion for JNOV or new trial. Since Brown did not raise this issue at trial, this issue is waived.

¶ 16. In Issue V, Brown alleges that his sentence should not have been enhanced from eight to sixteen years. This issue was also not raised at trial or his in JNOV motion. Since these issues were not preserved for appeal, the Court need not consider his argument. Also, as is supported by Jones, Brown provides no authority for his argument on this issue, so this Court need not consider his claim.

IV.WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 17. Brown argues that there was a lack of evidence to support his conviction for possession of cocaine. Both officers who were present when Brown was arrested and who were eyewitnesses to the package being taken from Brown’s mouth testified. The state crime lab analyst also testified that the substance found in Brown’s mouth was cocaine. When the sufficiency of evidence is challenged, the prosecution is entitled to have the evidence in support of its case taken as true together with all reasonable inferences. McClain v. State, 625 So.2d 774, 778 (Miss.1993). Issues related to the credibility or the weight of the evidence are for the jury to decide. Id. Once the jury has returned a verdict of guilty in a criminal case, the decision should not be reversed unless this Court decides that based on the evidence presented, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Jones, 481 So.2d at 804. The testimony of the State’s witnesses was convincing to the jury. Since the jury evaluated this evidence and found for the State, this Court should uphold its decision.

VI. WERE THERE CUMULATIVE ERRORS REQUIRING REVERSAL?

¶ 18. Brown finally claims that there were cumulative errors or near errors that occurred during his trial that denied him a fair trial. Since Brown fails to prove issues one through five, there were no cumulative errors denying his right to fair trial. He had adequate assistance of counsel, and there was sufficient evidence produced at trial that corroborated evidence of guilt. Where there is no reversible error in any part, there is no reversible error to the whole. McFee v. State, 511 So.2d 130, 136 (Miss.1987). Brown does not establish that there was reversible error in this case.

CONCLUSION

¶ 19. For the foregoing reasons, we affirm.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF POSSESSION OF COCAINE, SECOND AND SUBSEQUENT OFFENSE, AND SENTENCE OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $5,000 IS AFFIRMED. COSTS ARE ASSESSED TO WASHINGTON COUNTY.

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


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Carl V. CLARK, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00801-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2003.

      Carl V. Clark, Pro Se.
    Office of the Attorney General, by John R. Henry, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. Carl V. Clark challenges the denial of his motion for post-conviction relief by the Circuit Court of Rankin County. Although he sets forth several issues within his brief, all of his issues may be crystal-ized into one: whether the trial court erred in denying his motion without an evidentiary hearing.

¶ 2. Discerning no error, we affirm.

FACTS

¶ 3. On or about October 28, 2000, Marjorie Gonzales entered a Jitney Jungle grocery store in Rankin County, Mississippi. A man followed Gonzales into the women’s restroom, and while Gonzales was inside the stall, the man abruptly entered it, took her purse from her presence, and ran out of the restroom.

¶ 4. On November 14, 2000, a grand jury of Rankin County indicted Clark for the robbery of Gonzales which occurred in the restroom of the Jitney Jungle store. He subsequently entered a plea of guilty to the charge and was sentenced by the trial court on February 23, 2002, to a term of eleven years in the custody of the Mississippi Department of Corrections. Clark was initially charged under the habitual offender statute; however, upon his guilty plea this option was not pursued by the State.

¶ 5. Clark later filed a motion for post-conviction relief to vacate and set aside his conviction and sentence. The trial judge reviewed the post-conviction relief motion and found that Clark’s motion was frivolous and without merit. The trial judge also sanctioned Clark with loss of earned time under section 47-5-138 of the Mississippi Code of 1972 as annotated and amended.

¶ 6. Clark, proceeding pro se, has perfected this appeal.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. When reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999) (citing Bank of Mississippi v. Southern Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)). However, where questions of law are raised, the applicable standard of review is de novo. Id.

¶ 8. As we have already stated, the trial court determined that Clark’s motion was frivolous and without merit. That is a factual finding because such a finding necessarily involves a finding that the factual allegations contained in the motion are false. Thus, our task is to determine if this finding by the trial court is clearly erroneous.

¶ 9. Clark first contends that he was denied due process of law because the trial court permitted him to enter a plea of guilty to simple robbery but found him guilty of, and imposed a sentence for, strong arm robbery. According to Clark, the trial court erred by imposing a sentence for strong arm robbery because he did not plead guilty to this offense. This contention is without merit. “Simple robbery” and “strong arm robbery” are one and the same. See McKee v. State, 791 So.2d 804 (Miss.2001); Rowe v. State, 562 So.2d 121 (Miss.1990).

¶ 10. Clark next contends that the trial court erred when it accepted his plea of guilty to robbery since the facts related during the plea colloquy support an offense no greater than grand larceny. According to Clark, the trial court’s acceptance of his plea and its sentencing of him for strong arm robbery, under the factual submission of this case, constituted a violation of his right of due process. Moreover, in conjunction with his lack of factual basis argument, Clark asserts an ineffective assistance of counsel argument because his attorney failed to take corrective action when it became apparent that Clark’s admission of facts at the plea proceedings did not amount to the elements of robbery.

¶ 11. The transcript of the plea hearing reflects the following dialogue concerning the factual basis for Clark’s charge and plea:

THE COURT: What facts would the State prove at trial Mr. Lemon?
MR. LEMON: Your Honor, should this case go to trial, the State would show that on or about October 28th of 2000, this defendant came to Rankin County from Jackson, Mississippi, he came to the Jitney parking lot across the spillway, on Spillway Road, entered that Jitney, followed Sister Marjorie Gonzales, who is better known as Sister Terez, into the women’s bathroom at Jitney Jungle Grocery Store, and while she was in the stall this defendant entered the stall and took her purse from her presence. Of course, this occurred in Rankin County.
THE COURT: Do you wish to challenge or correct any of the facts stated by Mr. Lemon, the Assistant District Attorney?
DEFENDANT: I didn’t understand, sir.
THE COURT: Do you wish to challenge or correct any of the facts that Mr. Lemon has stated?
DEFENDANT: No, sir. The only thing I have to say on my behalf is it was picked up off the floor. I didn’t just take it from her personally or commit any bodily harm to her. I admit to the crime, sir.
THE COURT: Did you open the door?
DEFENDANT: The door was already cracked open. The strap of the purse was in the door.
THE COURT: Okay. Well, did you push the door open to get to the purse?
DEFENDANT: Not all the way, sir. Just cracked the door and picked it off the floor.
THE COURT: So you did open the door somewhat; is that right?
DEFENDANT: Yes, sir.
THE COURT: And this lady was sitting somewhat defenseless?
DEFENDANT: Well, the door to the stall was closed, sir.
THE COURT: Okay. Did you see her when you picked up the purse?
DEFENDANT: No, sir. It happened so fast, I wasn’t looking at her.
THE COURT: Did she see you?
DEFENDANT: I guess so, sir.
THE COURT: Was she holding on to the purse?
DEFENDANT: No, sir.
THE COURT: Did she try to grab the purse?
DEFENDANT: No, sir.
THE COURT: Okay. Well, let me ask you this, Mr. Clark. In entering your guilty plea today, are you entering this plea because you feel that based on the evidence that the State of Mississippi would present at your trial or offer at your trial that your chance or possibility of conviction is more likely or greater than acquittal and that you wish to enter a plea because you feel like you’re going to get convicted if you go to trial?
DEFENDANT: Yes, sir.
THE COURT: And you probably figure that if you plead guilty you won’t get as much time as you do if you go to trial; is that right?
DEFENDANT: Yes, sir.

¶ 12. “A factual showing does not fail merely because it does not flesh out the details which might be brought forth at trial. Fair inference favorable to guilt may facilitate the finding.” Corley v. State, 585 So.2d 765, 767 (Miss.1991). A “factual basis for a guilty plea may be established by the actual admission by the defendant.” Templeton v. State, 725 So.2d 764, 766 (¶ 2) (Miss.1998). Here, Clark admitted his guilt and advised the trial court that he weighed his chances and decided that a plea of guilty to the charges as made was in his best interest because he thought there was a substantial chance that he would have been found guilty by a jury had he risked going to trial.

¶ 13. Robbery occurs when one felo-niously takes the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person. Miss.Code Ann. § 97-3-73 (Rev.2000). We find that the factual submission by the State, along with Clark’s admission of guilt, provided a sufficient factual basis for the trial court’s acceptance of Clark’s guilty plea to strong arm robbery. It necessarily follows that Clark’s assertion, that his attorney was ineffective for failing to recognize that the factual submission was only strong enough to undergird a plea of guilty, is without merit and need not be addressed.

¶ 14. Finally, Clark argues that the trial court abused its discretion when it found that his post-conviction relief motion was frivolous and that sanctions upon him were appropriate. Clark argues that the trial judge erred because the judge granted him partial relief. Apparently, Clark’s reasoning is that the motion could not be deemed frivolous if any relief was granted as a result of the motion.

¶ 15. A trial court’s conclusion that a motion is frivolous is reviewed for abuse of discretion. Dock v. State, 802 So.2d 1051, 1056 (¶ 11) (Miss.2001). Clark’s motion alleged (1) that he was sentenced for strong arm robbery while pleading to simple robbery, (2) that no factual basis existed for his plea, and (3) that his attorney was ineffective for failing to recognize the insufficiency of the factual basis to support Clark’s guilty plea. As discussed earlier in this opinion, none of his issues possess any merit. Consequently, it is fair to say that Clark’s motion had no realistic chance of success or any arguable basis in fact or law. Therefore, the trial court did not abuse its discretion in denying Clark’s petition as frivolous and ordering sanctions.

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

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

      . Apparently, Clark had concluded that he was granted some relief because in the order denying relief, the trial judge stated:
      The Court further finds that the Judgement of Conviction dated February 1, 2001, reflects the Movant was convicted of the crime of simple robbery and the Order of Sentence ... reflects the Movant was sentenced for the crime of strong arm robbery, which is for all practical purposes the same crime; however, in an effort to avoid further confusion, the Court will enter a Corrected Order of Sentence reflecting the imposition of sentence for the crime of simple robbery.
      The record does not reveal the entry of any such order.


author: KING, P.J.,

text:
    James MAZE, Appellant, v. MISSISSIPPI DEPARTMENT OF CORRECTIONS and Florence Jones, Appellees.
    No. 2002-CP-00276-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2003.

      James Maze, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, Attorney for Appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the court.

¶ 1. The Circuit Court of Greene County dismissed as untimely the complaint filed by state inmate James Maze, who sought judicial review of an adverse. decision of the Administrative Remedies Program (ARP) of the Mississippi Department of Corrections (MDOC). On appeal Maze argues that “the court erred when it declined to address the merits of the case as being outside the time for judicial review.”

¶ 2. Maze, an inmate with MDOC, had filed a grievance through ARP complaining that he had not been upgraded to B-custody. On June 7, 2001, Maze acknowledged receipt of the Third Step Response Form and notification that he had thirty days to seek judicial review. Maze signed his “Motion to Show Cause” on July 5, 2001, two days prior to the thirty day deadline. The complaint was not “received” by the Greene County Circuit Clerk’s Office until July 11, 2001. Because Maze did not include the required civil case filing form, the clerk’s office returned the complaint to Maze without it being filed. Maze then completed the required form and returned it and the complaint to the circuit clerk’s office where it was filed on July 27, 2001.

¶ 3. The circuit court dismissed Maze’s complaint as untimely filed, finding that “[sjince the request for judicial review was filed outside the proscribed period, this Court is precluded from reviewing the underlying decision.” Maze appeals to this Court from the order of dismissal.

¶ 4. Maze has been incarcerated in the MDOC since December 1989 and has been in “C” custody the entire time. Maze states that he was transferred to the Wilkinson County Correctional Facility (WCCF) in 1998. He contends that he meets the criteria for “B” custody and should be upgraded. In the First Step Response under ARP, Maze was told that he was recommended for “B” custody, but “[t]he paperwork was not signed off by state classification or approved by MDOC.” According to the complaint filed by Maze, neither he nor his sister have been given adequate explanation why he has not been approved for “B” custody. The Second Step Response stated that only MDOC can change classification. The Third Step Response provided the factors for consideration in changing classification but gave no indication why Maze was not reclassified.

¶ 5. In his pro se appeal, Maze argues that he mailed his complaint on July 5, 2001, within the thirty day period in compliance with Mississippi Code Annotated Section 47-5-807 (Rev.2000) and that the “mailbox rule” should apply. Maze also argues that his failure to include Civil Case Filing Form ACO/01 with his complaint was due to excusable neglect.

. ¶ 6. In Sykes v. State, 757 So.2d 997 (Miss.2000), our supreme court adopted the “mailbox rule” for purposes of finding that a pro se motion for post-conviction relief was timely “filed” when mailed by the inmate. The court stated:

This Court has long viewed statutes of repose with disfavor, and, in the event of any ambiguity, we place upon such statutes a reasonable construction which will favor the preservation of the action. Gentry v. Wallace, 606 So.2d 1117, 1122 (Miss.1992).
There is nothing in the UPCCRA which necessitates that we interpret the act’s time limitation to require that a pro se prisoner must have his motion stamped “filed” in court within three years. If it were so, pro se prisoners would be subject to more disadvantages than are reasonably necessary in the administration of the criminal justice system. Unlike others, the pro se prisoner cannot personally deliver his papers to the court. He will likewise be without access to a fax machine and other means of rapid delivery to our “always open” courts. These impediments, and the other obstacles which face the pro se prisoner, influence our decision. Such concerns, however, do not compel the result reached here. Instead, our decision is based upon what we believe to be the overriding intent and purpose of the Mississippi Uniform PosNConviction Collateral Relief Act. The act is clearly intended to guide and assist the judiciary in its duty to provide an orderly means of administering the post-conviction claims of a growing prison population. That duty is incumbent upon the judiciary of this state. The duty also falls upon the judiciary of the federal courts, as the courts of last resort in the system for post-conviction relief. To that end, our UPCCRA and the federal Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §§ 2241 et seq. (Supp. Ill 1997) (“AEDPA”), have each put time limitations on the exercise of post-conviction remedies.
In 1988, the United States Supreme Court adopted a “prison mailbox rule” for appeals within the federal system. Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2879, 101 L.Ed.2d 245 (1988). The Houston decision was subsequently incorporated into Rule 5 of the Federal Rules of Appellate Procedure and has since been applied by the federal courts to various types of pleadings. Under the prison mailbox rule, a pleading is deemed timely if it is deposited in the prison mail system within the time required. The Fifth Circuit has adopted the prison mailbox rule for filings under the AEDPA. Spotville v. Cain, 149 F.3d 374, 378 (5th Cir.1998).

Sykes, 757 So.2d at 1000 (¶¶ 9-12).

¶ 7. In Gaston v. State, 817 So.2d 613, 615 (¶¶ 4-5) (Miss.Ct.App.2002), this Court reviewed the prison mail box rule and found that it extended to all actions under post-conviction relief and appeals in those actions. This clarified the decision in Sykes and brought Mississippi law “into conformity with those jurisdictions that have adopted the prison mailbox rule after Houston.” Id.

¶ 8. Contrary to the argument by the State, while the mail box rule has only been applied in cases under post-conviction relief, there is no reason why the rule should not apply in the context of this case, a civil filing by a pro se prisoner seeking judicial review. As previously stated by the supreme court, “pro se prisoners would be subject to more disadvantages than are reasonably necessary in the administration of the criminal justice system” if such a rule is not applied. Id.

¶ 9. Mississippi Code Annotated Section 47-5-807 (Rev.2000), the applicable statute in this case, provides:

Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure under Section 47-5-801 through 47-5-807 may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.

By contrast, Mississippi Code Annotated Section 99-39-7 (Rev.2002) requires that the post-conviction relief motion be “filed” in the trial court. The time line in this case, accepted by the State, clearly evinces that Maze did “seek judicial review” within thirty days.

¶ 10. The State has provided no authority for the proposition that the failure to include the civil case filing form is a jurisdictional defect. We likewise find no such authority and adopt “a reasonable construction which will favor the preservation of the action.” Sykes, 757 So.2d at 999 (¶¶ 4-5).

¶ 11. Because we find that the circuit court erred in dismissing Maze’s complaint as untimely, we reverse and remand for a full hearing on the merits of his complaint.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF GREENE COUNTY IS REVERSED AND REMANDED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLEES.

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


author: GRIFFIS, J., IRVING, J.,

text:
    Sandra and Andrew BREAUX, Appellants, v. GRAND CASINOS OF MISSISSIPPI, INC.-GULFPORT, Appellee.
    No. 2002-CA-01066-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2003.

      John B. Perry, Booneville, attorney for appellant.
    Steven Alfred Kohnke, and Fred Manni-no, Biloxi, attorneys for appellee.
    Before KING, P.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Sandra Breaux was injured when she tripped over an expansion joint in the parking garage of the Grand Casino in Gulfport. She claimed to have sustained permanent injuries to her arm and, together with her husband, filed suit for damages against the casino. The jury returned a verdict in favor of the casino. Finding no error, we affirm.

FACTS

¶ 2. On June 19, 1999, Sandra Breaux accompanied a friend to the Grand Casino in Gulfport. They parked in the casino parking garage on the third level. They were walking toward the casino when Mrs. Breaux tripped over an expansion joint in the garage. She fell forward and landed on her right arm. After the fall, Mrs. Breaux and her friend reported the incident to the appropriate casino personnel. An incident report was completed, which included a voluntary statement by Mrs. Breaux. The incident report documented a “minor abrasion to right elbow” and stated that Mrs. Breaux’s injury was cleaned and gauze was applied. No ambulance was called, and Mrs. Breaux decided to stay at the casino and gamble with her friend.

¶ 3. Approximately three days later, Mrs. Breaux went to see her physician, Dr. Sharp, who referred her to Dr. Butler, a board certified orthopaedic surgeon. Mrs. Breaux complained of pain. In the summer of 2000, Mrs. Breaux underwent surgery to her shoulder. Thereafter, she had rotator cuff surgery in September of 2001.

¶ 4. On October 2, 2000, Mr. and Mrs. Breaux filed a complaint in the Circuit Court of Harrison County alleging that the casino was liable and responsible for her fall and injury to her shoulder. In March of 2002, this case was heard by a jury, and the jury returned a verdict in favor of the casino.

¶ 5. Mr. and Mrs. Breaux have appealed asserting that the trial court erred in granting the casino’s jury instructions D-1A and D-2 and that the jury verdict was clearly erroneous or against the overwhelming weight of the evidence.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE CASINO JURY INSTRUCTIONS D-1A AND D-2.

¶ 6. Mr. and Mrs. Breaux argue the trial court erred by granting jury instructions D-1A and D-2 offered by the casino. They contend that these instructions were a misstatement of applicable law. Jury instruction D-1A read:

The court instructs the jury that the burden of proof rests upon the Plaintiffs, SANDRA BREAUX and ANDREW BREAUX, to prove their cases by a ■preponderance of the evidence. Before you may return a verdict in favor of the Plaintiffs against Defendant, GRAND CASINOS OF MISSISSIPPI, INC.-GULFPORT, you must believe by a preponderance of the evidence:
(1) that an expansion joint constituted a part of the third level of the upramp of the Grand Casino parking garage; and
(2) that the expansion joint constituted a dangerous or hazardous condition on the third level upramp of the garage; and
(3) that such condition constituted an unreasonable risk of harm to a person walking on the third level of the driving portion of the upramp while exercising ordinary and reasonable care for her own safety; and
(4) that such condition, if any, was one that Defendant, GRAND CASINOS, in the exercise of ordinary and reasonable care, could reasonably have foreseen would result in injury to a person walking upon the third level of the driving portion of the upramp of the parking garage of the Casino while exercising ordinary and reasonable care for her own safety; and
(5) that such failure on the part of Defendant, GRAND CASINOS, if any, was the proximate cause or a contributing proximate cause of the fall and injuries, if any, sustained by Plaintiff, SANDRA BREAUX; and
if Plaintiffs have failed to prove any one of the above elements by a preponderance of the evidence, then it is your duty to return a verdict for Defendant, GRAND CASINOS OF MISSISSIPPI, INC.-GULFPORT.

Jury instruction D-2 read:

The owner or operator of business premises owes a duty to his customers to exercise ordinary care to keep the premises in a reasonably safe condition, and if the owner or operator is aware of a dangerous condition which is not readily apparent to his customers, he is under a duty to warn the customers of such condition. However, the owner or operator of the premises does not guarantee the safety of the customers, and he is not required to keep his premises in an absolutely safe condition or in a condition in which no accident could possible[possibly] happen.
If you find from a preponderance of the evidence in this case
(1) that the presence of the expansion joint on the third level of the parking garage was not a hazard and that Defendant, GRAND CASINOS, provided a reasonably safe place for its patrons, such as the Plaintiff, or
(2) that the presence of the expansion joint was a hazard but that it was a usual, expected, and necessary structure in a multistory parking garage, that it was readily apparent and open and obvious under the conditions then existing, and was not a hazard to one exercising reasonable care for her own safety while walking upon the premises, then it shall be your duty to return a verdict for Defendant, GRAND CASINOS OF MISSISSIPPI, INC.-GULFPORT, even though you find that the accident happened and that the Plaintiff, SANDRA BREAUX, was injured.

¶ 7. Mr. and Mrs. Breaux argue that these instructions were improper on two grounds. First, the instructions, especially D-1A, discuss how “foreseeable” it was for someone to have been injured by the expansion joint, rather than if the casino knew or should have known about its unsafe nature. Second, with regard to D-2, they contend that it was improper because it specifically addresses the open and obvious defense, which they argue is no longer a viable defense in Mississippi.

¶ 8. On appeal, we do not review jury instructions in isolation; rather, they are read as a whole to determine if the jury was properly instructed. Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 40 (Miss.1989). Defects in specific instructions do not require reversal “where all instructions taken as a whole fairly — although not perfectly — announce the applicable primary rules of law.” Id. However, if those instructions do not fairly or adequately instruct the jury, reversal is appropriate. Id.

¶ 9. Keeping this standard in mind, we review the applicable legal principles to determine if the jury instructions contained a misstatement of law. This case is, of course, one sounding in negligence. The law regarding negligence in this State is well settled. Mr. and Mrs. Breaux had the burden to show, by a preponderance of the evidence, (a) a definable duty on the casino’s part, (b) a breach of that duty, (c) an injury to Mrs. Breaux proximately caused by that breach, and (d) actual loss or damage arising out of the injury. Carpenter v. Nobile, 620 So.2d 961, 964 (Miss.1993).

¶ 10. The duty owed by the casino to Mrs. Breaux is found in this State’s laws relating to premises liability. As a casino patron, Ms. Breaux occupied the position of a business invitee. Payne, 540 So.2d at 37. The casino’s duty, as the entity in control of the premises, was to maintain the premises, which would reasonably extend to the parking lot intended for the use of invitees such as Mrs. Breaux, in a reasonably safe condition. Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss.1992). “The owner of a business is not an insurer of the customers ... and is not liable for injuries caused by conditions which are not dangerous or which are or should be known or obvious to the customer. He is not required to keep the premises absolutely safe, or in such a condition that no accident could possibly happen to a customer.” Ball v. Dominion Ins. Corp., 794 So.2d 271, 273 (¶ 13) (Miss.Ct.App.2001) (citations omitted).

¶ 11. We must also review the principles of comparative negligence. Our supreme court has set forth the premise that there may be more than one proximate cause to a negligent act. King v. Dudley, 286 So.2d 814, 817 (Miss.1973). The defendant may be negligent, but so too may be the plaintiff. Id. When this is the case, our comparative negligence law applies. Bradford v. Barnett, 615 So.2d 580, 582 (Miss.1993). Under comparative negligence, a percentage of fault is allocated between the plaintiff and the defendant. Id. This law is not applicable if the negligence of the injured party is the sole cause of the injuries or where the sole cause is the defendant’s negligence. Id. If both the plaintiff and defendant are negligent, then the jury must be instructed on the law of comparative negligence. Id. at 583.

¶ 12. In considering the jury instructions as a whole, we note the following instructions were also given:

Jury Instruction C2-A read:

You are instructed that Mississippi law provides for comparative negligence; that is, more than one party may be responsible for causing a person’s injury. In this case the defendant, Grand Casinos of Mississippi, Inc,-Gulfport, has pled that Sandra Breaux was negligent in contributing to cause her injury. Just as the plaintiff has the civil burden of proof of proving her case by a preponderance of the evidence, so too must the defendant prove negligence on the part of the Plaintiff, Sandra Breaux by preponderance of the evidence and that such negligence contributed to the cause of her injury.

Jury Instruction P-10 read:

The owner, occupant, or person in charge of premises owes to invitees or business visitors thereon the duty of exercising reasonable care to keep the premises in a reasonably safe and suitable condition, or of warning invitees or business visitors of hidden or concealed perils of which it knows or should know in the exercise of reasonable care.

¶ 13. Considering the applicable law in this case and the jury instructions as a whole, we cannot say the trial judge erred in granting instructions D-1A and D-2. Both parties have the right to embody their theories of the case in the jury instructions, provided there is testimony to support it. Murphy v. Burney, 27 So.2d 773, 774 (Miss.1946). In this instance, the evidence supported the contested instructions. Additionally, the jury was given other instructions which fairly instructed them on all applicable elements of liability and damages to be considered. The instructions as a whole, while we may have preferred different language, properly announced the law in Mississippi with regard to premises liability as well as comparative negligence. We find no error and affirm on this assignment of error.

II. WHETHER THE JURY’S VERDICT WAS CLEARLY ERRONEOUS AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 14. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Herrington v. Spell, 692 So.2d 93, 103 (Miss.1997). The jury is the ultimate judge of the weight of the evidence and the credibility of the witnesses. Jackson v. Griffin, 390 So.2d 287, 289 (Miss.1980). “Because of the jury verdict in favor of the appellee, this Court will resolve all eviden-tiary conflicts in the appellee’s favor and will draw all reasonable inferences which flow from the testimony given in favor of the appellee.” Southwest Miss. Reg’l Medical Ctr. v. Lawrence, 684 So.2d 1257, 1267 (Miss.1996) (quoting Bobby Kitchens, Inc. v. Mississippi Ins. Guar. Assoc., 560 So.2d 129, 131 (Miss.1989)). We will not set aside the jury’s verdict unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herrington, 692 So.2d at 104.

¶ 15. The crux of Mr. and Mrs. Breaux’s argument rests on a note sent by the jury to the judge during deliberations. Prior to the conclusion of jury deliberations, the jury sent a note to the judge which said: “[I]f we find for the Grand— can we assess the Grand — to paint markings at the expansion joints?” Mr. and Mrs. Breaux argue this note proves that a hazardous condition was established and appreciated by the jury. They claim this note is proof the jury instructions misled the jury into concluding that the casino was not liable since the condition was open and obvious to Mrs. Breaux. This interpretation of the jury’s note is speculative. In truth, we do not know the meaning of the note or the intention behind it. We can only review the unambiguous verdict in favor of the casino.

¶ 16. Furthermore, ample evidence was presented by the casino to rebut the claims of Mr. and Mrs. Breaux. The casino called Mrs. Breaux’s credibility into question when she admitted to staying at the casino until the morning after her fall. The casino conducted an extensive cross-examination of Mr. and Mrs. Breaux’s safety expert and refuted significant portions of his testimony. The casino offered two witnesses to rebut Mrs. Breaux’s claim that the parking garage was poorly lit. The casino offered a medical expert who testified that Mrs. Breaux’s injury was a degenerative problem, not the result of the fall at the casino.

¶ 17. As discussed above, the jury was entitled to weigh the evidence and credibility of the witnesses. The casino presented credible proof to challenge the theory that Mrs. Breaux’s fall was due to the negligence of the casino or that it was the proximate cause of her injury. We find that there was sufficient evidence to support the jury’s verdict. Accordingly, we find that this issue is without merit, and we affirm the jury’s verdict.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANTS.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS AND CHANDLER, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES, J.

IRVING, J.,

DISSENTING.

¶ 19. With respect for the majority, I must dissent to its finding that the granting of instruction D-2 was proper and does not warrant a reversal of this ease.

¶ 20. I agree with the Breauxes that instruction D-2 resurrected the “open and obvious” defense and allowed the jury to exonerate Grand Casinos even if it found that Grand Casinos knowingly permitted a hazardous condition to exist on its premises. The giving of other proper instructions was not sufficient, in my view, to cure the problem and confusion caused by this instruction. D-2 is a very convoluted instruction which masterfully camouflages its mission: to stealthily and subliminally embed the “open and obvious” defense in the consciousness of the jury.

¶ 21. I further agree with the Breauxes that the jury’s note is irrefutable proof that instruction D-2, in all probability, robbed them of a verdict. It may be that such a verdict would have been coupled with a finding of comparative negligence, but a verdict nevertheless. I cannot fathom the majority’s view that attempting to interpret the meaning of the jury’s note amounts to nothing less than a speculative foray into the unknowable minds- of the jury. The note speaks more eloquently than anything I can say: “If we find for the Grand — can we assess the Grand — to paint markings at the expansion joints?” There would be no reason to paint markings at the expansion joints except to warn a would-be passerby that he is approaching a dangerous area that might not be readily detectable during his course of travel. Likewise, there would be no desire to “assess the Grand [Casinos]” unless the jury believed that the Grand Casinos had failed to do something that it should have done and that its failure had caused injury to Mrs. Breaux. The message of the jury’s note indicates to me that the jury-believed that, while Mrs. Breaux might have been negligent, Grand Casinos was also negligent.

¶ 22. For the reasons presented, I respectfully dissent. I would reverse and remand this case for a new trial with proper jury instructions.

BRIDGES, J., JOINS THIS SEPARATE WRITTEN OPINION.'


author: HARWOOD, Justice.

text:
    Ex parte Pat CHAREST. (Re Pat Charest v. State of Alabama).
    1992221.
    Supreme Court of Alabama.
    July 6, 2001.
    Roger C. Appell, Birmingham, for petitioner.
    William H. Pryor, Jr., atty. gen., and Kristi Deason, asst. atty. gen., for respondent.

       Justice Stuart was the trial judge in this case.

   On Application for Rehearing

HARWOOD, Justice.

The opinion of April 13, 2001, is withdrawn and the following is substituted therefor.

After Pat Charest had petitioned this Court for certiorari review and we had granted that petition on November 16, 2000, Judge James L. Reid, Jr., Presiding Judge of the Baldwin Circuit Court, entered an order (dated March 16, 2001) correcting the record in various respects. We have reviewed the record as corrected. We find in that record sufficient evidence to establish that the Baldwin Circuit Court had jurisdiction over the criminal charge against the defendant Pat Charest.

The Court of Criminal Appeals, on July 24, 2000, with an unpublished memorandum, dismissed Charest’s appeal on the basis that the circuit court had not acquired subject matter jurisdiction because Charest had not paid the requisite filing fee or filed an approved in forma pauperis petition pursuant to Goldsmith v. State, 709 So.2d 1352 (Ala.Crim.App.1997). Charest v. State (No. CR-99-1663), 814 So.2d 1020 (Ala.Crim.App.2000). The judgment of the Court of Criminal Appeals is reversed, and this case is remanded for that court to consider the merits of the appeal.

APPLICATION • OVERRULED; OPINION OF APRIL 13, 2001, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

STUART, J., recuses herself.


text:
    Ex parte Pat CHAREST. (In re Pat Charest v. State of Alabama).
    1010929.
    Supreme Court of Alabama.
    April 19, 2002.

      Roger C. Appell, Birmingham, for petitioner.
    William H. Pryor, Jr., atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent.

       Justice Stuart was the trial judge in this case.

   HARWOOD, Justice.

The petition for the writ of certiorari is denied because it has been prematurely filed. The petitioner will have the opportunity to file another petition for the writ of certiorari, if necessary, after the Court of Criminal Appeals has made a final decision on return from remand. See Ex parte Pierce, 576 So.2d 258 (Ala.1991); Rule 39, Ala. R.App. P.

WRIT DENIED.

MOORE, C.J., and SEE, BROWN, and WOODALL, JJ., concur.

STUART, J., recuses herself.


author: COBB, Judge.

text:
    Pat CHAREST v. STATE of Alabama.
    CR-99-1663.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.

      Roger C. Appell, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.
   On Rehearing Ex Mero Motu

COBB, Judge.

The opinion of December 21, 2001, is withdrawn, and the following is substituted therefor.

On March 14, 1995, Pat Charest was convicted of first-degree rape, first-degree sodomy, and causing the delinquency, or dependency of a child, or causing a child to be in need of supervision. On May 26, 1995, the trial court sentenced Charest to two consecutive life sentences on the rape and sodomy convictions and to one year in jail on the charge of causing the delinquency of a child. The trial court also fined Charest $10,000. Charest appealed, and this Court affirmed his convictions and sentences, in an unpublished memorandum. Charest v. State, (No. CR-94-1727) 682 So.2d 528 (Ala.Crim.App.1995) (table). This Court issued a certificate of judgment on February 6,1996.

On February 6, 1998, Charest, through his attorney, filed a Rule 32, Ala. R.Crim. P., petition. Four days later, Charest filed a pro se Rule 32 petition and exhibits in support of his petition. The State responded on June 25, 1998. On June 28, 1998, Charest’s new counsel for the Rule 32 proceedings filed a notice of appearance. On July 20, 1998, the circuit court entered an order on the case action summary. That order stated, “The Petitioner has legal counsel. All future pleadings, briefs, motions, etc. shall be filed by counsel ONLY. Any pro se filings shall be returned to the Petitioner.” (C. 2.)

On March 11, 1999, counsel filed a motion to supplement the petition previously filed, although she did not specify which petition she was seeking to supplement. On March 19, 1999, the circuit court held a hearing, and, on April 2, 1999, it entered an order on the case action summary, ordering new counsel to file an amended petition within 30 days. The circuit court also ordered that “[a]ll pleadings, etc. filed before March 19, 1999, are ordered stricken. The Court will proceed on the amended petition and filings after March 19, 1999.” (C. 4.) On April 19, 1999, counsel filed a “consolidated” Rule 32 petition. On April 29, 1999, the circuit court held a second hearing. The State responded to the “consolidated” petition on June 22, 1999. On July 8, 1999, the circuit court conducted a hearing on Charest’s claims in the “consolidated” petition. On March 10, 2000, the circuit court issued a detailed order denying Charest’s petition. On March 22, 2000, Charest filed a pro se “Motion for Re-consideration,” which the circuit court apparently never ruled on. This appeal followed.

We note initially that the trial judge did not have the authority to strike the timely filed petition of February 6, 1998, and any legitimate amendments thereto; the trial judge did not have the authority to enlarge the two-year limitations period established by Rule 32.2(c); and the trial judge did not have the authority to accept the “consolidated” petition filed on April 19, 1999, as timely. See State v. Hutcherson, 847 So.2d 378, 385 (Ala.Crim.App.2001) (“Rule 32.2(c) is a mandatory, substantive, and jurisdictional provision that a trial court cannot excuse or waive. Thus, [the trial judge] has no authority or jurisdiction to enlarge the time for filing [the petitioner’s] postconviction petition.”).

Therefore, the circuit court should have addressed only those claims raised in the first petition, which was timely filed on February 6, 1998, and any subsequently filed legitimate amendments to that amendment that relate back to the original petition. See Rodopoulos v. Sam Piki Enters., Inc., 570 So.2d 661, 664 (Ala.1990) (“ ‘ “[W]here the amendment is merely a more definite statement, or refinement, of a cause of action set out in the original complaint, the amendment relates back to the original complaint in accordance with [Ala.]R.Civ.P. 15(c).”’”) (quoting McCollough v. Warfield, 523 So.2d 374 (Ala.1988), and quoted with approval in Garrett v. State, 644 So.2d 977, 980 (Ala.Crim.App.1994)).

In his February 6, 1998, petition, Char-est raised the following claims:

1. That the prosecutor failed to disclose to the defendant evidence favorable to the defendant.
2. That his constitutional guarantee against being placed in double jeopardy was violated.
3. That the petit jury was unconstitutionally selected and impaneled.
4. That he was denied the effective assistance of counsel
a. because trial counsel failed to adequately object to and preserve the issue of whether the prosecution unconstitutionally used its peremptory strikes;
b. because trial counsel failed to adequately object to and preserve the issue of whether his constitutional guarantee against double jeopardy had been violated;
c. because trial counsel failed to adequately object to and preserve the issue of whether the trial court had jurisdiction to hear the case because the incidents allegedly had occurred in Florida;
d. because trial counsel failed to object to testimony that the victim was mentally retarded;
e. because trial counsel failed to object to expert testimony that the victim’s hymenal opening was greater in size following the incident in question;
f. because trial counsel failed to adequately object to the State’s withholding of evidence regarding records of the Alabama Department of Human Resources;
g. because trial counsel failed to “adequately raise and preserve the issue of the victim’s age at the time of the offense” (C. 262);
h. because trial counsel failed to adequately prepare for trial;
i. because trial counsel failed to object to the prosecution’s comment regarding Charest’s decision not to testify;
j. because trial counsel failed to object to the prosecution’s inappropriate use of leading questions when the victim testified;
k. because appellate counsel “failed to raise the issues in the trial transcript which do appear in the record” (C. 262);
l. because appellate counsel failed to “adequately raise and preserve the issue of the victim’s age at the time of the offense” (C. 262);
m. because appellate counsel “failed to consult the defendant in any way about preparing his appeal in the matter” (C. 263); and
n. because appellate counsel failed to notify Charest of his right to petition the Alabama Supreme Court and the United States Supreme Court for cer-tiorari review.
5. That the trial court did not have jurisdiction to render judgment or impose sentence on him.
6. That his sentence exceeds the maximum authorized by law.
7.That newly discovered facts require the conviction or sentence to be vacated.

On appeal, Charest addresses some of the claims raised in his petition, and he asserts some new claims that were not raised in the circuit court. Those claims that were not timely raised in his petition to the circuit court cannot now be raised on appeal. Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997). Those claims that Charest raised in his petition, but did not assert on appeal, have been abandoned. Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995) (holding that “[w]e will not review issues not listed and argued in brief’). The only claims properly before us are those claims Char-est raised in his petition and on appeal and those claims that, although not originally raised in the petition, have been asserted on appeal and appear to be jurisdictional.

On appeal, Charest argues the merits of his claims and asserts that his conviction should be reversed. However, we do not reach the merits of his claims because the circuit court has not yet ruled on the claims before us. We remand this cause in order for the circuit court to address the following claims argued by Charest in his brief:

1. That trial counsel rendered ineffective assistance because he should have objected to Charest’s being placed in double jeopardy for being indicted for sexual misconduct in addition to rape and sodomy when the sexual-misconduct charge was based on the same conduct as the rape and sodomy charges.
2. That trial counsel rendered ineffective assistance because he should have objected to Charest’s being given two consecutive life sentences for his convictions for first-degree rape and sodomy.
3. That appellate counsel rendered ineffective assistance by failing to inform him that he could have petitioned the Alabama Supreme Court for certiorari review of our affirmance of his convictions and sentence.

We remand this cause for the circuit court to allow the State to respond to these claims and for the circuit court to take evidence, if necessary. Due return shall be made to this Court within 90 days of the release date of this opinion.

ON REHEARING EX MERO MOTU: OPINION OF DECEMBER 21, 2001, WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and WISE, J., concur. SHAW, J., concurs in the result. BASCHAB, J., recuses herself.

      . The hearing concerned the petitioner’s allegation that the assistant district attorney should recuse himself.

      .The following claims were not preserved for appellate review because they were not first properly presented to the circuit court:
      1. That trial counsel rendered ineffective assistance for failing to move for a judgment of acquittal.
      2. That the circuit court erroneously refused to consider the sufficiency of the evidence based on its belief that the issue of the sufficiency of the evidence had been addressed on appeal.
      3. That trial counsel rendered ineffective assistance for failing to request jury charges "as to lesser included offenses of the offenses charged.”
      4. That trial counsel rendered ineffective assistance because he failed to file a motion for a new trial challenging the sufficiency of the evidence.
      5. That appellate counsel rendered ineffective assistance because he failed to argue the sufficiency of the evidence on appeal.
      None of these claims were presented in the petition timely filed on February 6, 1998. However, to some extent, all of these claims have been addressed in petitions or supplements filed in the circuit court beyond the expiration of the two-year limitations period on February 6, 1998. However, these claims do not relate back to the original petition because, rather than simply refining the claims in the original petition, they are novel claims and were not asserted in the original petition. Therefore, these claims were not properly before the circuit court and are not properly before this Court.

      .Charest raised the following claims in his petition, but did not raise them on appeal:
      1. That the prosecutor failed to disclose evidence favorable to the defendant.
      2. That his constitutional guarantee against double jeopardy was violated.
      3. That the petit jury was unconstitutionally selected and impaneled in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
      4. That the trial court did not have jurisdiction to render judgment or to impose sentence on him because the offense, if any, actually occurred in Florida, rather than in Alabama.
      5. That trial counsel failed to adequately object to and preserve the following issues at trial:
      a. the prosecutor’s alleged discriminatory use of peremptory strikes to exclude men from the petit jury;
      b. the trial court’s alleged lack of jurisdiction over the case because the incidents occurred in Florida;
      c. the introduction of what Charest says was clearly prejudicial and irrelevant evidence, including evidence that the victim was retarded and testimony by the victim’s doctor that the victim’s hymenal opening was larger after the incident than prior to the incident; d. the State’s withholding Alabama DHR records; "the issue of the victim’s age at the time of the offense” (C. 262);
      e. the prosecutor's improper comments regarding Charest's decision not to testify in his own defense; and
      f. the prosecutor's use of allegedly leading questions during the testimony of the victim.
      6. That trial counsel failed to adequately prepare for trial.
      7. That appellate counsel "failed to raise the issues in the trial transcript which do appear in the record.” (C. 262.)
      8. That appellate counsel erroneously failed to raise on appeal "the issue of the victim's age.” (C. 262.)
      9. That "appellate counsel failed to consult the defendant in any way about preparing his appeal in this matter.” (C. 263.)


author: LYONS, Justice. MOORE, Chief Justice

text:
    Ex parte Curtis WILSON, as administrator and personal representative of the estate of Julia Wilson, deceased. (In re Curtis Wilson, as administrator and personal representative of the estate of Julia Wilson, deceased v. Anesthesiology of Selma, P.A., et al.)
    1011505.
    Supreme Court of Alabama.
    Dec. 20, 2002.
    Rehearing Denied Feb. 28, 2003.

      Gregory B. Breedlove and David G. Wirtes, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, L.L.C., Mobile; and John M. Gibbs of Gibbs & Sellers, Demopolis, for petitioner.
    Jasper P. Juliano and J. Alex Wyatt of Parsons, Lee & Juliano, P.C., Birmingham, for respondents Calvin Richard Stewart, M.D., and Anesthesiology of Selma, P.A.
    Tabor Novak, Jr., and Allison L. Alford of Ball, Ball, Matthews & Novak, P.A., Montgomery, for respondent Samer Fah-oum, M.D.

      Michael D. McKibben, Phillip H. Butler, and Richard L. Sharff of Bradley Arant Rose & White, LLP, Birmingham, for respondents William C. Kitchens, M.D., and Robert J. Cerfolio, M.D.
   LYONS, Justice.

The plaintiff, Curtis Wilson, acting as administrator of the estate of his deceased wife, Julia Wilson, petitions this Court for a writ of mandamus ordering the trial court to vacate its order transferring this case from Wilcox County to Dallas County. We grant the petition.

I.Factual Background

On July 12, 1999, Julia Wilson, who at the time of her death was a resident of Wilcox County, received medical treatment at Selma Baptist Hospital in Dallas County. At some point during a surgical procedure, her esophagus was perforated. Mrs. Wilson remained hospitalized in Selma until July 15,1999, when she was transferred to the University of Alabama Medical Center in Jefferson County, where she died on August 1,1999.

II.Course of Proceedings

On May 16, 2001, Curtis Wilson, as administrator of his wife’s estate, filed a medical-malpractice action in the Wilcox Circuit Court. He alleges that the Dallas County defendants (the doctors and nurse-anesthetists involved in the decedent’s medical care in Dallas County and other fictitiously named defendants) negligently perforated Mrs. Wilson’s esophagus and negligently failed to adequately assess, monitor, diagnose, and treat Mrs. Wilson, who remained at Selma Baptist Hospital until July 15, 1999. Wilson also alleges that the Jefferson County defendants (the doctors involved in the decedent’s medical care in Jefferson County and other fictitiously named defendants) were negligent in their care of Mrs. Wilson by failing to properly diagnose and treat her esophageal perforation.

Several defendants filed a motion to transfer the case to the Dallas Circuit Court on the basis of forum non conve-niens. Wilson opposed that motion. All of the acts of negligence alleged by Wilson occurred in either Dallas County or Jefferson County. All of the named defendants work in either Dallas County or Jefferson County, 11 rendering medical care exclusively in Dallas County and 3 rendering medical care exclusively in Jefferson County. The medical records relating to the decedent’s care in Dallas County are located exclusively in Dallas County, and the support personnel who cared for the decedent there work and/or reside in Dallas County. Selma Baptist Hospital provided evidence after the motion for a change of venue was filed indicating that approximately 20 of its employees had participated in the decedent’s treatment and are potential witnesses in the case and that the majority of those 20 reside in Dallas County. The trial court granted the motion for a change of venue on March 25, 2002, and entered an order transferring the case to the Dallas Circuit Court. Wilson filed this petition for a writ of mandamus on May 3, 2002.

III.Standard of Review

The standard for obtaining mandamus review before this Court is a high one.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998).

“However, ‘a petition for a writ of mandamus is the proper means by which to challenge an order by a trial court transferring an action to another county.’ Ex parte Bruner, 749 So.2d 437, 439 (Ala.1999) (citing Ex parte AU Hotel, Ltd., 677 So.2d 1160 (Ala.1996); and Ex parte Neely, 653 So.2d 945 (Ala.1995)).”

Ex parte Boshell, 805 So.2d 675, 676 (Ala.2001).

TV. Venue Under the Alabama Medical Liability Act of 1987

The proper venue for a medical-malpractice action brought pursuant to the Alabama Medical Liability Act of 1987, § 6-5-540 et seq., Ala.Code 1975 (“the Act”), is set forth at § 6-5-546, which provides:

“In any action for injury or damages or wrongful death whether in contract or in tort against a health care provider based on a breach of the standard of care, the action must be brought in the county wherein the act or omission constituting the alleged breach of the standard of care by the defendant actually occurred. If plaintiff alleges that plaintiff’s injuries or plaintiff’s decedent’s death resulted from acts or omissions which took place in more than one county within the State of Alabama, the action must be brought in the county wherein the plaintiff resided at the time of the act or omission, if the action is one for personal injuries, or wherein the plaintiffs decedent resided at the time of the act or omission if the action is one for wrongful death. If at any time prior to the commencement of the trial of the action it is shown that the plaintiffs injuries or plaintiffs decedent’s death did not result from acts or omissions which took place in more than one county, on motion of any defendant the court shall transfer the action to such county wherein the alleged acts or omissions actually occurred. For the convenience of parties and witnesses, in the interest of justice, a court may transfer any action to any other county where it might have been brought hereunder and/or may order a separate trial as to any claim or party.”

(Emphasis added.) The Act “applies to all actions against health care providers based on acts or omissions accruing after June 11, 1987, and as to such causes of action, shall supersede any inconsistent provision of law.” § 6-5-552, Ala.Code 1975.

The text of § 6-5-546 clearly requires that in a wrongful-death action where the malpractice is alleged to have occurred in more than one county, “the action must be brought” in the county wherein the plaintiffs decedent resided at the time of the act or omission. (Emphasis added.) It is undisputed that this action involves alleged breaches of the standard of care occurring in more than one county. Venue for this action at the time it was filed was therefore proper only in Wilcox County, where the decedent resided at the time of her death.

Section 6-5-546 provides for the transfer of actions for the convenience of parties and witnesses, in the interest of justice, “to any other county where it might have been brought hereunder.” The trial court, on the motion of the defendants seeking a transfer of the case to a different venue on grounds of convenience, transferred the action to Dallas County, one of the two counties where the acts of medical malpractice were alleged to have occurred.

Wilson asserts that the trial court could not transfer the action to Dallas County without violating the plain meaning of the last sentence of § 6-5-546 permitting transfers for convenience only to a county “where it [the action] might have been brought hereunder.” The trial court in its order rejected this construction of § 6-5-546:

“Under that argument, the forum non conveniens language [in] 6-5-546 has no effect. The forum non conveniens language is placed in that statute for a reason. Under [Wilson’s] analysis a medical malpractice case could never be transferred if it was initially filed in a county where the venue was proper. The Court does not agree with this analysis.”

The defendants argue that if Wilson is correct, the forum non conveniens language in the last sentence of the statute has no meaning because in cases involving acts alleged to have occurred in more than one county, venue would always be in the decedent’s county of residence, regardless of the convenience of parties and witnesses and the interest of justice.

Section 6-3-21.1, Ala.Code 1975, the general provision governing a change of venue for the convenience of parties and witnesses or in the interest of justice, permits transfer to “any court of general jurisdiction in which the action might have been properly filed.” As previously noted, the last sentence of § 6-5-546 permits transfers for convenience only to a county “where it [the action] might have been brought hereunder” i.e., under the Act. (Emphasis added.) This limitation sets the test for venue in § 6-5-546 apart from the test as to where the action might have been brought under the general principles of venue under § 6-3-21.1. Any inconsistency in a provision of the Act with a general provision of law must be resolved in favor of the provision of the Act. § 6-5-552.

We reiterate the clear language of the second sentence of § 6-5-546:

“If plaintiff alleges that plaintiffs injuries or plaintiffs decedent’s death resulted from acts or omissions which took place in more than one county within the State of Alabama, the action must be brought in the county wherein the plaintiff resided at the time of the act or omission, if the action is one for personal injuries, or wherein the plaintiffs decedent resided at the time of the act or omission if the action is one for wrongful death.”

(Emphasis added.) The defendants would have us ignore this limitation on transfers for convenience only to a county where the action “might have been brought” under the Act and leave in place the trial court’s transfer of the case to Dallas County.

We must take acts of the Legislature as we find them, unless an obvious error in drafting has occurred. In Ex parte Welch, 519 So.2d 517 (Ala.1987), this Court held:

“ ‘A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.’ ”

519 So.2d at 519 (quoting 2A Norman J. Singer, Sutherland Statutes and Statutory Construction § 46.06 (4th ed.1984)). See also Guy H. James Constr. Co. v. Boswell, 366 So.2d 271, 273 (Ala.1979) (“An obvious error in the language of a statute is self-correcting. State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974). In such an instance, the Court may substitute the correct word when it can be ascertained from the context of the act. C. Sands, 2A Sutherland Statutes and Statutory Construction § 47.36 (1973).”).

Before considering whether to apply the rule permitting us to substitute the correct language, we would first have to be persuaded that the provision in § 6-5-546 for transfers for convenience has absolutely no field of operation. Wilson suggests that in the event the Jefferson County defendants were dismissed in a pro tanto settlement, then the trial court, applying the provision in § 6-5-546 for transfers for convenience, could transfer the remaining action to Dallas County because that is a county where the action against only the Dallas County defendants might have been brought. We agree.

This Court has already applied the last sentence of § 6-5-546 so as to justify a transfer for convenience based upon activities occurring subsequent to the filing of the action. See Ex parte Boshell, 805 So.2d at 679. In the event of the pro tanto settlement postulated by Wilson, venue would no longer be appropriate in Wilcox County because the dismissal of the settling Jefferson County defendants would result in a pending claim against only the Dallas County defendants. However, without a transfer for convenience authorized by the last sentence of § 6-5-546, the Dallas County defendants would have no right to a transfer based upon improper venue.

Rule 82(d)(2)(A), Ala. R. Civ. P., dealing with improper venue arising after the commencement of the action, provides that “[w]hen a defendant whose presence made venue proper as to the entire action at the time of the commencement of the action is subsequently dismissed on notice or motion of the plaintiff,” the trial court “on motion of all remaining defendants, shall transfer the action to a court in which the action might have been properly filed had it been initially brought against the remaining defendants alone.” However, Rule 82(d)(2)(A) excepts the situation where a pro tanto settlement between the plaintiff and a defendant is the basis for the plaintiffs voluntary dismissal of that defendant. In such event, “the action shall not be transferred unless the court, in its discretion, has determined that the primary purpose of the pro tanto settlement was an attempt to defeat the right to transfer that would have otherwise existed had there been a dismissal of that defendant without such settlement.” Id. (emphasis added).

In those instances where the trial court could not determine that the primary purpose of the potential settlement was an attempt to defeat the right to transfer that would have otherwise existed upon the dismissal of that defendant, the provision in § 6-5-546 for transfers for convenience would have a field of operation, notwithstanding the limitation in Rule 82(d)(2)(A). The question as to the sufficiency of a showing that would be required to justify such a transfer in this hypothetical situation, particularly where the settlement takes place close to the time the trial is scheduled to begin, is not before us. Nevertheless, as Wilson suggests, upon a pro tanto settlement causing dismissal of the Jefferson County defendants from the action pending in Wilcox County, the remnant of the original action could be transferred to Dallas County pursuant to the last sentence of § 6-5-546. Upon a dismissal of the Jefferson County defendants, Dallas County would become not simply a county where the action “might have been brought,” but the county where the action would have to be brought. Pursuant to the first sentence of § 6-5-546, requiring actions against a health-care provider for breach of the standard of care involving acts or omissions in a single county to be brought in the county where those acts or omissions occurred, Dallas County would become a county to which transfer is appropriate under § 6-5-546. The defendants’ argument that this result is required by the third sentence of § 6-5-546, independently of the last sentence of § 6-5-546, lacks merit. The third sentence provides:

“If at any time prior to the commencement of the trial of the action it is shown that the plaintiffs injuries or plaintiffs decedent’s death did not result from acts or omissions which took place in more than one county, on motion of any defendant the court shall transfer the action to such county wherein the alleged acts or omissions actually occurred.”

A pro tanto settlement does not constitute a situation where “it is shown that the plaintiffs injuries or plaintiffs decedent’s death did not result from acts or omissions which took place in more than one county.”

Because the provision in § 6-5-546 for transfers for convenience has a field of operation, this Court has no authority to recognize “[a]n obvious error in the language of a statute [that] is self-correcting.” Guy H. James Constr. Co., supra, 366 So.2d at 273. For this reason, we decline to rewrite the last sentence of § 6-5-546 authorizing transfers for convenience by deleting the phrase that limits such transfers to “any other county where [the action] might have been brought.” We recognize that vacating the trial court’s order will require the defendants to travel to a forum they might not have reasonably anticipated when they rendered medical care in Dallas County or Jefferson County. However, if we were to agree with the defendants, we would effectively have amended the last sentence of § 6-5-546 from “a court may transfer any action to any other county where it might have been brought hereunder” (emphasis added) to “a court may transfer any action to any other county where it might have been brought but for the venue provided for herein.” ■

The Chief Justice’s dissent urges us to give “the broadest interpretation” to that portion of the fourth sentence of § 6-5-546 providing, “[f]or the convenience of parties and witnesses, in the interest of justice, a court may transfer any action to any other county where it might have been brought hereunder.... ” The dissenting opinion reads “hereunder” in that sentence to refer to all of § 6-5-546, and, thus, any county listed in § 6-5-546 is a county where an action might have been brought. However, the fourth sentence refers to a transfer of “any action,” and then speaks of transfer “to any county where it [obviously, the action in which the motion is made] might have been brought hereunder.” (Emphasis added.) To reach the dissenting opinion’s “broadest interpretation,” the reference to “it” must be treated as referring to any action that could have been filed in any county permitted under any circumstance described in § 6-5-546. Such construction is not possible without rewriting the relevant portion of the fourth sentence so as to provide that “a court may transfer any action to any county where [any medical-malpractice action] might have been brought hereunder.” The dissenting opinion attempts to justify the reasonableness of its resort to “a broader interpretation” by pointing in a footnote to the use of the word “might” as opposed to “must” in the fourth sentence of § 6-5-546. However, “must” could not have been used without condemning the venue at the time of filing as improper, thereby violating the fundamental premise of all transfers for convenience — i.e., that venue is good at the time of filing, but that a transfer to a better venue is, or has become, appropriate.

The dissenting opinion urges attention to the beneficent purpose of transfers for convenience as justification for its strained reading of the word “hereunder.” However, the attainment of a desirable result does not give this Court a license to amend a statute. See Johnson v. Price, 743 So.2d 436, 438 (Ala.1999) (“All questions of propriety, wisdom, necessity, utility, and expediency of legislation are exclusively for the Legislature and are questions with which this Court has no concern”).

V. Conclusion

We grant Wilson’s petition for the writ of mandamus and direct the trial court to vacate its order transferring the case from Wilcox County to Dallas County.

PETITION GRANTED; WRIT ISSUED.

HOUSTON, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

I respectfully dissent. Section 6-6-546, Ala.Code 1975, provides:

“If plaintiff alleges that plaintiffs injuries or plaintiffs decedent’s death resulted from acts or omissions which took place in more than one county within the State of Alabama, the action must be brought in the county wherein the plaintiff resided at the time of the act or omission, if the action is one for personal injuries, or wherein the plaintiffs decedent resided at the time of the act or omission if the action is one for wrongful death.”

The plaintiff, Mr. Wilson, brought this action in Wilcox County, the county of residence of the decedent in this case — his wife. The trial court granted that motion, and Mr. Wilson filed a petition for a writ of mandamus with this Court. The majority has granted that petition, stating that the last sentence of § 6-5-546 has such a limited field of operation that this action cannot be transferred, given the circumstances of this case.

Contrary to the premise of the majority opinion, there is no conflict in the statute, the last sentence of which provides:

“For the convenience of parties and witnesses, in the interest of justice, a court may transfer any action to any other county where it might, have been brought hereunder and/or may order a separate trial as to any claim or party.”

§ 6-5-546, Ala.Code 1975. The most logical explanation for the application of the above two sentences is the plain reading of the statute. A plaintiff “must” bring an action against a health-care provider in the county where the plaintiffs decedent resided, but, “[f]or the convenience of parties and witnesses, in the interest of justice, a court may transfer any action to any other county where it might have been brought hereunder.” The words “might have been brought hereunder” should be read broadly in order to give full meaning to the purpose intended by the Legislature. In the broadest interpretation, those words refer to § 6-5-546 in its entirety and should include any county listed in the statute wherein an action “might have been brought” under any scenario found in the statute. Otherwise, the fourth sentence is meaningless.

The interpretation I find much more reasonable is based on the Legislature’s purpose in passing the statutes dealing with medical malpractice as part of the tort reform package of the 1980’s. The Legislature stated its purpose in § 6-5-540:

“This legislature finds and declares that the increasing threat of legal actions for alleged medical injury causes and contributes to an increase in health care costs and places a heavy burden upon those who can least afford such increases, and that the threat of such actions contributes to expensive medical procedures to be performed by physicians and other health care providers which otherwise would not be considered necessary, and that the spiraling costs and decreasing availability of essential medical services caused by the threat of such litigation constitutes a danger to the health and safety of the citizens of this state, and that this article should be given effect immediately to help control the spiraling cost of health care and to insure its continued availability. Additionally, the legislature finds that the increasing threat of legal actions for alleged medical injury has resulted in a limitation on the number of physicians providing specialized health care in this state.”

Section 6-5-540, “Legislative intent,” is part of Article 29, Medical Liability Act of 1987, which includes § 6-5-546 dealing with venue of medical-liability actions.

Under the majority’s interpretation, the statutes that governed venue for medical-care providers before the enactment of the first Medical Liability Act — both the venue statute relating to individuals, § 6-3-2, Ala.Code 1975, and the venue statute relating to corporations, § 6-3-7, Ala.Code 1975 — create greater choice with regard to forums in a medical-malpractice action than we have after the passage of the original Medical Liability Act. Considering the Legislature’s purpose in enacting this legislation, such a result is not logical and does not comport with legislative intent. Those older statutes allowed venue in personal-injury actions in either the county in which the plaintiff resided or the county in which the acts complained of occurred. Yet the majority’s interpretation now, after the passage of the Act, is that there are even fewer choices of forums when the choice is for the convenience of the parties.

Moreover, such an interpretation could easily result in impractical — if not unjust— situations for health-care providers. For example, if a plaintiff who is a resident of Mobile County filed an action against medical providers for acts allegedly committed in two north Alabama counties, the trial court would be unable to transfer the case from Mobile County, no matter how inconvenient that forum may be for witnesses and the medical defendants. Such an interpretation would remove from the trial judge all discretion as to the appropriate venue for an action.

The purpose of the doctrine of forum non conveniens is to prevent a waste of time, energy, and money, and to protect witnesses, the litigants, and the public against unnecessary expense and inconvenience. Ex parte Pearson Mgmt. Co., 667 So.2d 48 (Ala.1995). The statutes that formerly governed venue with respect to medical-malpractice actions, §§ 6-3-2 and 6-3-7, allowed the trial court to choose more than one county as an appropriate venue. The majority’s interpretation would limit the choice, in this type of case, to one county only — the county of the decedent’s residence. In my opinion, such an interpretation is not faithful to the intent of the Legislature in enacting § 6-5-546.

The conflict alleged to exist within this statute is easily resolved by interpreting it in light of the Legislature’s intent in enacting this legislation and recognizing that the word “hereunder” refers to the whole of § 6-5-546 and every possible scenario covered by that statute. Therefore, I respectfully dissent.

      . The use of the word "might'’ as opposed to the word "must” indicates that a broader interpretation of the last sentence is reasonable.