author: JjMOORE, J.

text:
    Betty ROAN, Nee Jackson, Plaintiff-Appellee, v. Billy J. ROAN, Defendant-Appellant.
    No. 38,383-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2004.

      Blackwell, Chambliss, Law Firm by Sam O. Henry, III, West Monroe, for Appellant.
    Albert E. Loomis, III, Mason L. Oswalt, Monroe, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   JjMOORE, J.

After receiving medical treatment for two strokes, Betty Roan returned home functionally impaired and unable to resume her previous domestic regimen. Six months later, she moved out of the matrimonial domicile and subsequently petitioned for divorce, ending the six-year marriage. An interim judgment awarded her interim support, possession of the matrimonial domicile and a Suburban truck, and required her husband, Billy Roan, to maintain her insurance. Without considering any evidence, the court provisionally fixed interim support at $1400 per month, plus insurance payments, with the proviso that any future support award based upon the law and evidence would be the appropriate amount for the period of the entire interim award, and any credit or debit would then be applied.

The judgment of divorce was followed by a lengthy trial over the incidental matters. The court rendered judgment with written reasons dividing the community and awarding Ms. Roan permanent spousal support of $750 per month, with the start of permanent support and end of interim support to be set after a contradictory hearing. Both parties moved for a new trial. The court denied the motions, except to amend its judgment as to an IRA, and rendered judgment extending the interim support award of $1400 and insurance payments for a total period of 22 months until the final judgment was rendered. Following this ruling, Mr. Roan filed a supplemental motion for new trial claiming newly discovered evidence relevant to the partition. Ms. Roan also filed another motion for new trial. The court denied both motions. Mr. Roan now appeals. We amend the judgment, and as amended, affirm.

1 .FACTS

Betty and Billy were married on March 17, 1994, his second marriage and her fourth. The couple met while Betty, then age 51, was employed as an RN at Union General Hospital in Farmerville, Louisiana. Mr. Roan, then 64, was the sole proprietor of a heating and air conditioning business.

There was discord early in the marriage. The Roans separated in October of 1994, but reconciled near the end of the following summer after Mr. Roan filed a petition for divorce. Upon reconciliation, they purchased a house at 152 Comanche Trail, West Monroe, Louisiana, and a lot on Lake D’Arbonne located on Wildwood Road in Union Parish.

In July of 1999, Ms. Roan suffered two strokes and remained hospitalized for 13 days. After treatment and therapy, she returned to the matrimonial domicile. The extent of her recovery and functionality was disputed at trial and in this appeal.

Ms. Roan moved out of the house in February of 2000. She alleged she moved out due to stress arising out of pressures from Mr. Roan for sexual intimacy and his verbal cruelty. Mr. Roan alleged she moved out because of anger over his decision to retire and give his air conditioning and heating business to his son who was in the same business.

On August 3, 2000, Ms. Roan filed a petition for divorce pursuant to La. C.C. art.102, alleging that she intended to file a rule for final divorce 180 days after service of the petition. She alleged that she and Mr. Roan had lived separately since early February of 2000, and since that time she 13had resided in the matrimonial domicile located at 152 Comanche Trail. Ms. Roan requested that the court award her exclusive use and occupancy of the home pending partition of the community property, interim and permanent spousal support, and partition of the community property pursuant to La. R.S. 9:2801 et seq.

Mr. Roan answered the petition, denying that Ms. Roan was entitled to or even needed interim spousal support because she had withdrawn all funds from the joint checking account and had charged $7300 against the joint Visa account. Additionally, Mr. Roan alleged that Ms. Roan received social security benefits and owned considerable separate property that enabled her to maintain her standard of living.

Mr. Roan filed a reconventional demand alleging that the couple had lived separate and apart for 180 days and that he was entitled to a divorce pursuant to La. C.C. art. 103. He also alleged that he purchased the matrimonial domicile at 152 Comanche Trail with his separate funds; thus he, and not Ms. Roan, should be granted exclusive use and occupancy of the home. Mr. Roan also requested a partition pursuant to La. R.S. 9:2801 et seq.

The court, Judge John Harrison presiding pro tempore, rendered an interim order on November 16, 2000 awarding Ms. Roan temporary interim spousal support of $1400 per month beginning November 1, 2000.At this hearing, the court stated:

[Tjhis interim support figure is fixed by the Court without any substantial consideration of the evidence and shall be without prejudice to both sides in the fixing or declining to fix of any future awards of spousal support if ... at a future Ltime the Court fixes spousal support, that award shall serve to be the appropriate amount because that’s going to be fixed on the evidence and law and that will be the appropriate amount for the full period of the interim spousal support award and the appropriate party at that time will receive a credit— credits will be made at that time in favor of the party who is entitled to the credits.

The interim judgment also required Mr. Roan to maintain the insurance, and both parties were enjoined against abuse, harassment, alienation and encumbering. Subject to the same stipulation quoted above, the court awarded Ms. Roan occupancy of the home and use of the Suburban.

Trial was held on March 9, 13, 14, 15 of 2001, and on January 7, 8, 9, 10, and 11 of 2002 before Judge Sharon Marchman.

A judgment of divorce was granted in favor of Mr. Roan on March 9, 2001, and the community of acquets and gains was dissolved retroactively to the date of Ms. Roan’s original 102 divorce petition, August 3, 2000. Judgment on the incidental matters, including interim and final spousal support, was withheld pending further proceedings.

After trial, the court rendered judgment with extensive written reasons on the partition of the community and rule for permanent spousal support on September 10, 2002. Judgment was signed on October 15, 2002. The judgment partitioned the community and ordered Mr. Roan to pay $750 per month permanent spousal support. The court did not fix a date to terminate interim support and start permanent support, stating that this issue would be determined after a contradictory hearing.

lfiBoth parties moved for a new trial on several issues. The court denied the motions, except to amend its judgment regarding an IRA, and rendered judgment extending the interim support award of $1400 and husband’s obligation to make home and vehicle insurance payments until September 9, 2002, for a total period of 22 months. Mr. Roan subsequently filed a supplemental motion for new trial, alleging that Ms. Roan withheld evidence of a secret bank account only recently discovered. Ms. Roan also filed another motion for new trial. The court denied both motions.

Mr. Roan now appeals, alleging several assignments of error:

(1) The trial court erred in finding Ms. Roan legally free from fault.

(2) The trial court erred in fixing permanent spousal support at more than one-third of Mr. Roan’s net income.

(3) The court erred in awarding terminated spousal support and disallowing Mr. Roan a credit for overpayment.

(4) The court erred in awarding Ms. Roan one-half of principal payments of Mr. Roan’s business debts incurred before marriage but paid during the community regime.

(5) The court erred in accepting Ms. Roan’s assigned values on an amended descriptive list of household movables without any evidence of their value, while rejecting Mr. Roan’s assigned values.

(6) The court erred in denying a new trial to consider evidence of a savings account belonging to Ms. Roan discovered after trial.

[.DISCUSSION: FAULT

By his first assignment, Mr. Roan contends the trial court erred in finding that Ms. Roan was free from fault. Mr. Roan alleged that Ms. Roan abandoned him in February of 2000 when she moved out of the matrimonial domicile without lawful cause and refused to return. This abandonment, he argued, constituted legal fault and precluded an award of permanent spousal support. The trial court concluded, however, that Ms. Roan’s fears regarding her health if she remained in the matrimonial domicile were justified by her medical condition and Mr. Roan’s actions after the stroke. Accordingly, the court found that Ms. Roan was not at fault for the physical separation leading to dissolution of the marriage. Mr. Roan contends that the trial court’s conclusion that Ms. Roan was free from fault was clearly wrong.

Fault is a threshold issue in a claim for spousal support. In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from, fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay. La.C.C. art. 111. The burden of proof is upon the claimant. Lyons v. Lyons, 33,237 (La.App. 2 Cir.10/10/00), 768 So.2d 853, writ denied, 2000-3089 (La.1/5/01), 778 So.2d 1142.

Revision Comment (c) of 1997 to La. C.C. art. Ill notes that fault continues to mean misconduct that rises to the level of one of the previously existing fault grounds for legal separation or divorce. Jones v. Jones, |735,502 (La.App. 2 Cir. 12/5/01),804 So.2d 161; Allen v. Allen, 94-1090 (La.12/12/94), 648 So.2d 359. Fault that precludes an award of spousal support must have occurred prior to the filing of the action for divorce, in this case, August 3, 2000. Legal fault may include, among other actions, habitual intemperance or excesses, cruel treatment or outrages, and abandonment. Mayes v. Mayes, 98-2228 (La.App. 1 Cir. 11/5/99), 743 So.2d 1257, 1259. A spouse who petitions for permanent support need not be totally blameless in the marital discord. Only misconduct of a serious nature, providing an independent contributory or proximate cause of the breakup, equates to legal fault. Lyons v. Lyons, supra.

The trial court has vast discretion in matters regarding determination of fault for purposes of precluding final periodic support. The trial judge’s finding of fact on the issue of fault will not be disturbed unless manifestly erroneous. Lyons v. Lyons, supra. Even though an appellate court may feel its own evaluations are more reasonable than the factfin-der’s, reasonable evaluations of credibility should not be disturbed where conflict exists in testimony. Carr v. Carr, 33-167 (La.App.2 Cir.4/5/00), 756 So.2d 639.

Mr. Roan contends that Ms. Roan abandoned him when she moved out of the matrimonial domicile, and this abandonment caused the dissolution of the marriage. Abandonment was a ground for separation under former La. C.C. art. 138, and still constitutes legal fault for the purpose of preclusion of a party from permanent spousal support. See Caldwell v. Caldwell, 95-963 (La.App. 5 Cir. 3/13/96), 672 So.2d 944, unit denied 96-1550 (La.9/27/96) 679 So.2d 1351. The elements | ¿necessary to prove abandonment as provided in the former code articles are:

1. the party has withdrawn from the common dwelling;
2. the party left without lawful cause or justification; and
3. the party has constantly refused to return to live with the other.

In this instance, the trial court concluded that Ms. Roan was without fault because she was justified in leaving the matrimonial domicile. This finding was based upon the court’s evaluation of extensive testimony by the parties, Dr. Karen Beene, and several lay witnesses.

Ms. Roan moved out of the matrimonial domicile on February 12, 2000. She testified that she left because Mr. Roan was putting too much pressure on her, and she was depressed in the same way as she was prior to her strokes. She said he expected her to do things she was not capable of doing, which caused stress. Although Mr. Roan did not complain to her about cooking or cleaning, she said he expected their sexual relationship to return to normal. She described Mr. Roan as a man with two personalities, one nice and loving and the other verbally and emotionally cruel. She said he would put her down in front of others, although he did not believe he had done so. She believed that she would die from a recurrence of the stroke if she did not leave him.

Mr. Roan argues that Ms. Roan moved out because of anger over his decision to retire and give his air conditioning business to his son Tim, whom he says she did not like. He testified that she pressured him from the very beginning to make out a will and to make her executrix. He said she 19did not want him to divide his property between his children and her family. Rather, he said she wanted it all for her family. '

Mr. Roan testified that at the time Ms. Roan had the strokes, they were not sleeping in the same bedroom. The house had three bedrooms; Ms. Roan’s daughter, April, and granddaughter, Kelsa, lived with them. He recalled that she had moved to a separate bedroom two or three weeks prior to the stroke.

Contrary to the testimony of Ms. Roan’s daughters, who testified that he came to the hospital only twice during Ms. Roan’s 13 days of treatment, Mr. Roan said he visited the hospital once or twice every day. He admitted that he was not interested in the percentages of brain damage his wife suffered; rather, he stated his only concern was with helping her. He acknowledged that he did not discuss with the treating physician, Dr. Beene, the matter of sexual relations with Ms. Roan, but indicated that Ms. Roan initiated sexual relations on the night she returned home and two or three times thereafter during her first month back home.

After the stroke, Ms. Roan asked Mr. Roan to hire Melissa McQuillan to sit with her five days per week, which he did. That fall, he said he decided to get out of the air conditioning and heating business in order to take care of Ms. Roan, so he planned to turn the business over to his son, Tim, at the beginning of the year. Mr. Roan testified his wife grew more distant toward him after the new year. He did not know why Ms. Roan left him in February the weekend prior to the Super Bowl, but speculated it may have been because of his decision to retire from the heating and air | ineonditioning business.

About six weeks after she left, Mr. Roan was approached by his daughters about letting Ms. Roan stay in the matrimonial domicile without him. He agreed to do so on the condition that he be given a notarized affidavit stating that he was not abandoning her. Mr. Roan admitted that he never asked Ms. Roan to return to the matrimonial domicile.

In its written reasons for judgment, the trial court expressed its belief that both Mr. Roan and Ms. Roan were exaggerating their behavior and treatment toward each another, and concluded that the evidence did not rise to the level of legal fault on the part of either party. However, the court found the testimony of Dr. Beene, a neurologist specializing in strokes, to be very persuasive.

Dr. Beene testified that she treated Ms. Roan for two stroke incidents, one involving the left side and the other the right side of the brain. She said that the first stroke caused damage to 20% of the left occipital portion of the back of her brain. This damage affected Ms. Roan’s ability to recognize objects within the right visual field of both eyes. Although objects are present in the image field or vision field created by her eyes, the brain simply does not register or notice them.

Regarding the second stroke, Dr. Beene stated that a stroke on the right side of the brain can cause some paralysis on the left side of the body, and often patients will fail to recognize their left arm as their own. She also said the right side of the brain is involved in coordinating thought and putting thoughts and plans into motion. She related this type of damage to l^Ms. Roan’s reported short-term memory loss and to the results of an examination she performed in her office shortly before trial.

Dr. Beene examined Ms. Roan one week before trial and tested her ability to perform ordinary RN functions, such as taking blood pressure, measuring pulse, weighing a patient, and administering an intramuscular injection with a syringe. Dr. Beene stated that Ms. Roan could not properly adjust the scales, and weighed her incorrectly. Ms. Roan reported incorrect measurements of blood pressure and pulse. She instructed Ms. Roan to give her a shot of 5 cc’s normal saline. Ms. Roan put the needle in the syringe appropriately and cleaned Dr.Beene’s arm with an alcohol pad, but next attempted to give the injection with an empty syringe. She also left her purse and her glasses when she left the examination room. Although the test was administered shortly before trial, Dr. Beene testified that she did not believe Ms. Roan was fabricating her lack of ability to perform these ordinary nursing duties.

Dr. Beene concluded from these tests that Ms. Roan was functioning at the level of an 8 to 10 year old child, and thus could not be left alone for any length of time. Although Ms. Roan might appear normal socially, when she is asked specific questions or tested, the damage from the stroke becomes apparent, according to Dr. Beene. She opined that Ms. Roan would suffer stress and become upset if her “primary caretaker and live-in partner ... made verbal demand and expressed the ... thought that the sexual life ought to continue as it was before,” or her “performance level ... hgought to remain at or near the same in terms of food preparation, cleaning of the house, assisting in domestic choresDr. Beene also testified that she could recall only two conversations with Mr. Roan while she was in the hospital.

Dr. Beene’s observations were corroborated by other lay witnesses. Melissa McQuillan was hired by Mr. Roan to sit with Ms. Roan during the day. She described Ms. Roan as being very forgetful in that she misplaced things and forgot to turn appliances or water off. She would frequently get lost or not remember where she was going. Patricia Ross, a friend of the Roans for three years, testified that after the stroke Ms. Roan was often confused. She described occasions in which Ms. Roan was upset over verbal abuse from Mr. Roan.

In this case, the trial court concluded that, given Ms. Roan’s condition and impairments described in the testimony of Dr. Beene and others, Ms. Roan’s subjective feelings of pressure and her fears of death from a new stroke were reasonable, and she was justified in leaving the matrimonial domicile. We note also that Mr. Roan did not ask Ms. Roan to return to the matrimonial domicile. Accordingly, we find no error in the trial court’s finding that Ms. Roan was without fault.

AMOUNT OF FINAL PERIODIC SUPPORT

By his second assignment, Mr. Roan contends the court erred in fixing permanent spousal support at more than one-third of his net income.

Once freedom of fault is established, the basic tests for the amount of spousal support are the needs of that spouse and the ability of the other | ^spouse to pay. La. C.C. arts. 111, 112; Carr v. Carr, supra. The award for final periodic spousal support is governed by La. C.C. art. 112, which requires the court to consider all relevant factors. The nine specific factors listed in C.C. art. 112 are not exclusive. Article 112 also limits the amount to not exceed one-third of the obli-gor’s net income. The trial court is vested with great discretion in making post-divorce alimony determinations, and its judgment will not be disturbed absent a manifest abuse of discretion. Carr, supra.

The earning capacities of the parties, their age, and the duration of the marriage are relevant factors listed in La. C.C. art. 112. The relative financial positions of the parties and the standard of living during the marriage are not listed in C.C. art. 112 but can be relevant factors. As stated above, all relevant factors are to be considered and the court is not limited to those specifically listed in the code article. Knowles v. Knowles, 02-331 (La.App. 3 Cir.10/2/02), 827 So.2d 642. The trial court is vested with much discretion in determining awards of spousal support. Such determinations will not be disturbed absent a clear abuse of discretion. McDermott v. McDermott, 32,014 (La.App. 2 Cir.6/16/99), 741 So.2d 186; Broussard v. Broussard, 532 So.2d 281 (La.App. 3 Cir.1988).

Mr. Roan argues that the award of $750 per month in final periodic support is excessive given his age, now 73, and his wish to retire. He contends that this amount exceeds one-third of his net monthly income, as his projected annual after tax net income is approximately $24,000. He arrived at this sum based upon social security income of $1469 per month, h ¿rental income of $725 per month and interest and dividend income from investments totaling $9000 per year. Mr. Roan testified that he is retired and no longer in business, having given his heating and air conditioning business to his son, Tim.

The trial court concluded that, although Mr. Roan was 70 years old at the time of judgment, he was a vigorous man capable of continuing to work. The court believed that he, in fact, had continued to work on heating and air conditioning jobs. The court noted that Judy Hollis, Mr. Roan’s accountant, testified that Mr. Roan received approximately $2600 per month in rental income from buildings and vehicles. This amount appears to be rental payments from Tim Roan to his father for the building and vehicles.

Our review of the record, as also noted by the trial court, reveals that Mr. Roan possesses considerable financial assets and is involved in several business ventures. The trial judge noted that the troubled marriage was not long-lived and she was cognizant of Mr. Roan’s age, but she expressed the view that he was vigorous and healthy compared to the younger Ms. Roan, who was left impaired by the stroke and unable to work. The court observed that Mr. Roan possesses the ability and knowledge to produce considerable income. On this record, we perceive no abuse of discretion and decline to disturb the trial court’s determination.

TERMINATION OF INTERIM SPOUSAL SUPPORT

By his third assignment, Mr. Roan complains that the court erred when it extended interim spousal support one year beyond 180 days after the judgment of divorce rendered on March 9, 2001. The court ordered Mr. |1f;Roan to pay interim spousal support of $1400 per month and continue making the insurance payments, all totaling $1889, for the 22 month period from November 1, 2000 until rendition of judgment awarding permanent periodic spousal support on September 10, 2002.

Louisiana Civil Code article 113 provides:

Upon motion of a party or when a demand for final spousal support is pending, the court may award a party interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage, which aivard of interim spousal support allowance shall terminate upon the rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown. (Emphasis added).

The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of time of adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. Defatta v. Defatta, 32,636, 32,-637 (La.App. 2 Cir.2/1/00), 750 So.2d 503; Reeves v. Reeves, 36,259 (La.App. 2 Cir.7/24/02), 823 So.2d 1023. Under Article 113, a trial court may award an interim support allowance based on the needs of the party claiming it and the other party’s ability to pay, considered in light of the standard of living enjoyed by the parties during marriage. The trial court is afforded much discretion in determining an award of interim spousal support and that award will not be disturbed absent a clear abuse of discretion. Id.

| ifiThe divorce was granted on March 9, 2000. Pursuant to Article 113, interim spousal support terminated by operation of law 180 days after March 9, 2001, or September 9, 2001, unless extended for good cause. Ms. Roan did not file a motion or rule to extend the obligation beyond September 9, 2001. The record does not show that the court made a finding of “good cause” for extending interim support until nearly 18 months after that termination date. After a contradictory hearing held on January 14, 2003 in which it took the matter under advisement, the court, on February 11, 2003, retroactively extended interim support one year until September 10, 2002, the date of final judgment. The court stated that Mr. Roan’s failure to timely provide some financial documents pursuant to legitimate discovery requests had delayed trial and this constituted “good cause” to extend the interim spousal support. By extending the interim support award one year, Mr. Roan thus paid an additional $22,668 in interim support.

We note that the initial court award by Judge Harrison, sitting pro tem by appointment, provisionally fixed the interim support award at $1400 and required Mr. Roan to maintain insurance for Ms. Roan. However, the court stipulated that any future award based on the law and evidence would be the appropriate amount for the full period of the interim award. He specified that any credits would then be given to the party entitled to such credits. Although the ruling appears to mean that the final support award will retroactively apply as the interim award, the record contains a letter from |17Judge Harrison dated January 9, 2003, submitted as a joint exhibit at the January 14, 2003 contradictory hearing to determine the termination date of interim support. See Exhibit NT-2. In that letter, Judge Harrison stated that he did not recall his discussions with counsel regarding the interim support ruling, but he did not believe that he intended to rule on whether any permanent spousal support award would be applied retroactively.

We have reviewed the transcripts of the proceedings in this matter. Trial of this case was originally scheduled for March 9, 13, 14 and 15. On February 27, Mr. Loomis, counsel for Ms. Roan, filed a motion to continue the trial alleging two grounds: (1) that the four days scheduled for trial was not enough time to try all of the case, and (2) that Mr. Roan had not filed his descriptive list and still owed some financial records subpoenaed in connection with an earlier deposition. Mr. Loomis asked the court to re-schedule the trial for at least one month, if not two months.

In turn, Mr. Henry, counsel for Mr. Roan, filed a motion for a protective order, contending that the plaintiff had just served the subpoena for the requested documents on February 28, 2001, which' was beyond the discovery completion deadline of 15 days before trial. He argued that the request was unduly burdensome and expensive and filed for purposes of annoyance or oppression. He also filed a motion to bifurcate the trial to determine the fault issue.

Trial began on March 9, 2001 as scheduled. The issue of fault and permanent spousal support were taken up and tried over March 9, 13, 14, |1Rand 15, but not completed. The issue of the partition of community property was not tried. Near the end of the week of testimony, both sides accused the other of failing to produce certain documents requested in discovery. Mr. Loomis wanted Mr. Roan’s tax return for the year 2000, which, as of that date in March of 2001, he had not completed and filed with the IRS, and he also wanted some recent investment brokerage statements. Mr. Henry asked for additional financial documents from Ms. Roan. The court ordered the parties to comply with the discovery requests and scheduled trial to continue on August 27, 2001, five months later. The court specifically ordered respective counsel to address any discovery issues prior to trial.

When court convened on the morning of August 27, 2001, the court noted that it was again faced with discovery disputes that were not raised by Mr. Loomis until the day of trial. Mr. Loomis sought a continuance because Mr. Roan had not provided the 2000 tax return until that day and other information was allegedly missing. The court admonished Mr. Loomis for bringing this matter up on the day of trial, stating that it did not leave the court any options except to grant his request for a continuance. The court stated that due to its current scheduled docket, it likely could not re-schedule trial again until January of 2002.

Mr. Henry opposed the continuance, stating that he was unaware that there were any documents missing until that morning. He also complained that Ms. Roan had also failed to produce requested bank statements, and he was unable to ascertain the status of her social security claim.

|19The court ordered Mr. Henry to produce all missing documents by 5:00 p.m. that day and to make the matrimonial home available for an appraisal that day. The court ordered both sides to fax a list of deficiencies to each other by 5:00 p.m. that day if anything was missing. In the event of a deficiency, they were instructed to file motions for contempt to be heard that Friday, August 31.

No motions for contempt were filed. Trial was set the following month via telephone status conference for the week beginning January 7, 2002. Trial was held on January 7, 8, 9, 10, and 11. Evidence on the issue of spousal support was finally closed on January 9, and the remaining issue of partition was taken up and tried. Written reasons for judgment were rendered nine months later, on September 10, 2002.

At the outset, we note that the appropriate procedure to deal with delinquent discovery compliance is to file a motion for an order compelling discovery pursuant to La. C.C.P. art. 1469 or 1469.2 (financial records) and, if not complied with, to request sanctions pursuant to La. C.C.P. art. 1471, which provides that the court may award reasonable expenses, including attorney fees, for the failure to comply with an order compelling discovery.

Our review of the record does not support a finding that the delay in trial was caused solely by Mr. Roan. Both parties complained that the other had failed to timely comply with discovery, although Mr. Roan was dilatory concerning more documents. Mr. Loomis certainly raised the issue more. Nevertheless, Mr. Loomis stated at the outset of trial on March 9, 2001 that he could not try the case in the four days scheduled. He asked for a | ¡.ncontinuance on that ground, as well as the alleged discovery deficiencies by Mr. Roan. The court granted a continuance until August 27, 2001. On that date, Mr. Loomis again moved for a continuance alleging that Mr. Roan had failed to provide necessary documents until the day of trial, even though the discovery cut-off was 30 days earlier. Again, the court noted that counsel had not brought the matter to the court’s attention until the day of trial. Mr. Loomis did not file any motions to compel or for sanctions prior to the trial date. Lacking any alternative, the court stated that it had no other choice than to grant the continuance. Importantly, the court noted that the next available trial date was not until January of 2002. We observe, however, that the court’s future docket was a factor over which Mr. Roan had no control, and introduces an element of arbitrariness in the court’s decision to hold him responsible for the length of the delay.

Accordingly, we conclude that the “good cause” stated by the trial court for extending the interim support award is excessively punitive and constitutes an abuse of discretion. We do not think that the legislature intended interim support provisions of Article 113 to be used as a remedy or punishment for dilatory discovery responses. Although the Civil Code and Comments are silent as to what factors constitute “good cause,” the mandatory language of the statute signifies that the “good cause” requirement is not a mere formality, but is a plainly expressed limitation of the interim support authorized by that article.

| ¡n There is thus far in our law scant jurisprudence on what constitutes “good cause” to extend interim spousal support. In Lang v. Lang, 87,779 (La.App. 2 Cir. 10/23/03), 859 So.2d 256, we affirmed the ruling of the trial court that denied the former wife’s motion to extend interim spousal support beyond the judgment of divorce where it found that the wife seeking an extension of spousal support was able to support herself.

In Piccione v. Piccione, 2001-1086 (La.App. 3 Cir. 5/22/02), 824 So.2d 427, the third circuit affirmed a trial court’s ruling that denied Ms. Piccione’s request to extend the award of interim child support until the time the youngest child reaches school age. Ms. Piccione argued that it was the intention of the parties that she not work until both children were in school, and that she was entitled to an extension of interim support for good cause shown under La. C.C. art. 113. The court endorsed the following statement regarding “good cause” by the trial court in its written reasons for ruling: “It is the understanding of this court that ‘good cause’ must constitute, if not a compelling reason, certainly a reason of such significance and gravity that it would be inequitable to deny an extension of such support.” The court of appeal went on to say:

Whether “good cause” exists for the extension of interim support must be determined on a case-by-case basis. The disability of the claimant spouse or a situation where a claimant spouse is prevented from seeking employment due to circumstances beyond his or her control might be “good cause” to extend interim support. We do not find that an alleged agreement that the claimant spouse would stay home until the children entered school satisfies the good cause requirement of Article 113. We find no error in the court’s denial of Ms. Piccione’s request to extend interim support.

| ^Undoubtedly it is difficult to define “good cause” in such a manner that it will provide clear guidelines for the solution in all cases. We therefore agree with the third circuit that “good cause” must be determined on a case-by-case basis and must constitute, if not a compelling reason, certainly a reason of such significance and gravity that “it would be inequitable to deny an extension of such support.” The good cause showing of Article 113 requires an affirmative showing by the party seeking an extension of interim support that the extension is really and genuinely needed, and the purpose for which it is sought is legitimate, not calculated to cause hardship or to obtain as much spousal support as possible for as long as possible.

In this case, there was no showing of “good cause” for extending the interim support award beyond 180 days after the March 9, 2001 judgment of divorce. For these reasons, we hold that interim spousal support terminate 180 days after the March 9, 2001 judgment of divorce. Ms. Roan did not file a motion showing good cause to extend interim spousal support beyond the 180-day period provided by the statute, a requirement of which her counsel should have been aware. Although Ms. Roan contends that the interim award was continued in effect by the trial court’s orders extending Judge Harrison’s interim orders, the trial court is without authority to extend the interim award without the statutorily mandated “good cause” showing.

We further conclude that the trial court abused its discretion in concluding that any delay caused by incomplete discovery constituted “good cause” to retroactively extend interim spousal support for one year. | ¡^Accordingly, we amend the judgment of the trial court that extended interim spousal support one year. Interim support terminated on September 9, 2001.

We further amend that part of the trial court’s judgment that started permanent spousal support on September 10, 2002 to commence one year earlier on September 10, 2001. Thus, Mr. Roan is entitled to a credit or reimbursement of $22,668, off-set by $9000 ($750 X 12 = $9000), for a net credit of $13,668.

REIMBURSEMENT OF COMMUNITY FUNDS

By his fourth assignment, Mr. Roan complains that the trial court erred by reimbursing Ms. Roan $25,326.66, an amount representing one-half of community funds used to pay two specific balance sheet liabilities or debts of Roan Heating and Air Conditioning. The court concluded that these liabilities that existed at the time of the marriage were Mr. Roan’s separate debts satisfied out of community funds. Mr. Roan contends that the liabilities in question constituted debts for equipment and inventory of heating and cooling units that were subsequently used up or sold to customers, e.g, as installed air conditioners and heating units. Hence, he argues, these were not debts pertaining to fixed assets that inured to the benefit of Mr. Roan’s proprietorship for which reimbursement is owed. Instead, these items constituted operating expenditures used to produce community income shared by Ms. Roan, and as such, he owed no debt to the community. Succession of Ratcliff, 209 La. 224, 24 So.2d 456 (1945).

li)4At the time of the marriage, Mr. Roan owned two businesses, Roan Rental Properties and Roan Heating & Air Conditioning. Mr. Roan decided to retire from his air conditioning business effective December 31, 1999, and he sold the business to his son for one dollar, although he continued to work and receive money into the year 2000 and perhaps beyond. Mr. Roan testified that he still owns the building used in the business, and he gave his son the four old trucks and customer list. There was no inventory.

Viewing the financial statements submitted into evidence, the court found that the building and improvements were valued at $108,426.50, and the lot was valued at $12,500, all of which belonged to Mr. Roan at the time of the marriage. The court found that the property was mortgaged at the time of the marriage, and community income was used to pay off the mortgage. Ms. Roan argued that the value of the business including the assets above was $146,000, but the court rejected Ms. Roan’s claim for one-half the value of the business.

As listed liabilities on the balance sheets of Roan Air Conditioning & Heating in 1994, the debts in question totaled $50,653.32. The total balance sheet liabilities at the time, however, totaled over $100,000. The 1994 financial statements listed the company’s net worth or total equity as approximately $45,000. By 1999, when Mr. Roan gave the business to his son, the net worth of the business was approximately $146,000, and the debts in question were paid. The only liabilities of the company were de minimis, including some federal and state taxes and accounts payable.

I^Based upon our review of the record we cannot say that the trial court manifestly erred in concluding that Mrs. Roan is entitled to reimbursement for one-half of these two debts paid by the community. It was Mr. Roan’s burden at trial to show that these liabilities represented operating expenses. Our review of the record by no means demonstrates that these liabilities arose from and were paid as operating expenses. The record is further clouded by the fact that Mr. Roan sold the business for one dollar, giving his son the equipment, while continuing to work and collect accounts receivable. The record is clear, however, that the liabilities in question existed on the balance sheets at the time of the marriage as Mr. Roan’s separate debts and were eliminated when the business shut down on December 31, 1999. La. C.C. art. 2364.

We conclude, therefore, that this assignment is without merit.

VALUES IN DESCRIPTIVE LIST

By his fifth assignment, Mr. Roan contends that the court abused its discretion by accepting an amended and reduced valuation of household items in the descriptive list supplied by Ms. Roan. The change in valuation was from $16,450 to $3,435, reducing the assigned values by more than $13,000. The court stated that it found the values assigned by Ms. Roan to be reasonable. Mr. Roan contends that the court’s acceptance of Ms. Roan’s amended valuation over the previous valuation to which the parties agreed was arbitrary since there was no evidence as to valuation, and noted that it was initially Ms. Roan who filed the higher-valued descriptive list, to which Mr. Roan agreed The result of the change was to increase Mr. | ^Roan’s equalizing payment to Ms. Roan.

In community property partitions, the trial court is granted much discretion in valuing and allocating assets and liabilities and is required to consider the source and nature of each asset or liability, the financial situation of the other spouse, and any other relevant circumstances. La. R.S. 9:2801 et seq.; Bedenbender v. Bedenbender, 28,579 (La.App. 2 Cir. 8/21/96), 679 So.2d 506. Given this great discretion, the trial court is not required to accept at face value a spouse’s valuation of assets or debts, or claims against the community. Bedenbender, supra. An appellate court may not set aside a trial court’s factual findings absent manifest error or unless clearly wrong. Ball v. Ball, 32,851 (La.App. 2 Cir. 3/1/00), 757 So.2d 824; Stobart v. State, 617 So.2d 880 (La.1993).

Ms. Roan argues that the values placed on the original descriptive list were based on the purchase price and did not reflect the current (depreciated) value. Mr. Roan testified that the furniture items were as good as new and based on what they paid for them.

Based on this record and the general lack of evidence to determine the actual value of the items in the descriptive list, we cannot say that the trial court abused its discretion in accepting the reduced valuation of the items because there is no evidence in the record that the values assigned were clearly wrong.

NEWLY DISCOVERED EVIDENCE OF SAVINGS ACCOUNT

In his final assignment, Mr. Roan alleges that after trial he received a quarterly statement of account in Ms. Roan’s name from Hartford Life 127Insurance Company. He alleges that this was an investment account established through her former employer, Union General Hospital, and the account balance of $4,808.92 is community property. Mr. Roan contends that the trial court erred in denying its supplemental motion for new trial as the wrong procedural vehicle to bring this evidence before the court.

La. C.C.P. art.1974 states:
The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.

Judgment was signed on October 14, 2002 and notice of judgment sent on October 15, 2002. Mr. Roan timely filed his first motion for new trial on October 24, 2002. A contradictory hearing to set the date for termination of interim support and other matters was held on January 14, 2003, and on February 11, 2003, the court ruled from the bench. A written judgment was signed on April 1, 2003. Mr. Roan filed a supplemental motion for new trial on March 24, 2003, a week before the April 1 judgment was signed.

Ms. Roan contends the motion is untimely because the delays for filing a motion for new trial had passed when Mr. Roan filed the supplemental motion. Mr. Roan counters that since the court had not signed a judgment on the first motion for new trial, the supplemental motion was timely. We disagree.

The supplemental motion for new trial was untimely as to the original judgment. The delay for filing a motion for new trial runs from the date the [2soriginal judgment is signed. Bodenheimer v. Bodenheimer, 97-1118, 97-1119 (La.App. 5 Cir. 3/11/98), 709 So.2d 306, writ denied, 1998-1015 (La.5/15/98), 719 So.2d 469. The supplemental motion in this case was unrelated to the amended judgment signed a week later. A trial judge possesses no discretion or (equitable) power to extend the delay within which to apply for new trial. Gottsabend v. Aetna Cas. & Sur. Co., 273 So.2d 637 (La.App. 4 Cir.1973).

CONCLUSION

For the foregoing reasons, we amend that part of the judgment of the trial court that extended interim spousal support until September 10, 2002. Interim support ended 180 days after the date of divorce, or September 9, 2001. We further amend the judgment starting permanent spousal support on September 10, 2001. Accordingly, Mr. Roan is entitled to a credit or reimbursement of $13,668 for overpayment of terminated interim spousal support.

In all other respects, the judgment of the trial court is affirmed. Costs are assessed equally to Mr. and Ms. Roan.

AMENDED AND AS AMENDED, AFFIRMED.

      . She subsequently proposed that Mr. Roan allow her to live in the matrimonial domicile and he move out, which Mr. Roan accepted.

      . Ms. Roan filed a petition for divorce under Civil Code article 102 on August 3, 2000 while Mr. Roan filed a reconventional demand for divorce under Civil Code article 103 on September 8, 2000. Civil Code article 102 permits a spouse to file a motion for final divorce after 180 days has elapsed when either spouse filed a petition for divorce under Civil Code 102.

      . On cross examination, Dr. Beene somewhat recanted this characterization of Ms. Roan's functioning, stating that she did not mean mental capacity by this remark.

      . At the end of trial proceedings on March 15, 2001, the court continued trial until August 27, 2001 and stated that Judge Harrison’s previous orders would remain in effect. Trial was continued again on August 27, and the court stated that Judge Harrison's orders would remain in effect, but it did not specifically refer to interim support.

      . The court later learned that the documents were requested at Mr. Roan's deposition some weeks earlier.

      . Cases interpreting other statutes requiring showing of "good cause” hold that the showing is mandatory. E.g., cf. Carner v. Carner, 97-128 (La.App. 3 Cir. 6/18/97), 698 So.2d 34; Dugas v. Continental Cas. Co., 249 La. 843, 191 So.2d 642 (La.1966).

      . The court arrived at this figure by averaging the sum of the two debts on the February and March 1994 balance sheets. (See Exhibits D-9 and D-10).


source: Caselaw Access Project

author: CARLSON, Justice, GRAVES, Justice,

license: Public Domain

text:
    Charles Douglas GULLEY, Jr. v. STATE of Mississippi.
    No. 2002-CA-01301-SCT.
    Supreme Court of Mississippi.
    Feb. 26, 2004.
    R. Charles Robb, Jackson, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. This appeal arises from an Order of the Jackson County Circuit Court Dismissing Post-Conviction Proceedings. Charles Douglas Gulley, Jr., argues that after being sentenced for the same offenses under both the misdemeanor and felony portions of then-existent Miss.Code Ann. § 97-23-19 (Rev.2000), he was unlawfully imprisoned and is now entitled to be released because he has completed the misdemean- or sentence. Finding that the trial court sentenced Gulley under the felony portion of the statute and had additional statutory authority to impose a fine pursuant to Miss.Code Ann. § 99-19-32 (Rev.2000), we affirm the trial court’s dismissal of Gulley’s post-conviction proceedings.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On July 7, 1998, the Jackson County Grand Jury returned a 35-count indictment against Gulley, charging him with the embezzlement of funds by a bailee under Miss.Code Ann. § 97-23-19. By way of this indictment, Gulley was charged with having embezzled $3,144,828.90 between September 1990, and March 1998, while serving as an agent for Minnesota Mutual Life Insurance Company, Inc., a Minnesota corporation. The State elected to put Gulley to trial on seven of the thirty-five counts in the indictment. Gulley’s trial in the Jackson County Circuit Court commenced on May 24, 1999, and concluded on May 29, 1999, with the jury finding Gulley guilty of each of the seven counts. Pursuant to the jury verdicts, Judge James W. Backstrom imposed penitentiary sentences upon Gulley on June 3, 1999. The sentencing order entered that day stated, inter alia:

[Ujpon the Defendant’s conviction on the seven counts of Embezzlement, the Defendant, C. Douglas Gulley, be, and he is hereby, sentenced to serve Ten (10) years in custody of the Mississippi Department of Corrections on each of the above Counts 1 through 6, to run concurrent with each other, and to serve Ten (10) years in custody of the Mississippi Department of Corrections on the above Count 7, consecutive to the sentences in Counts 1 through 6, with the sentence in Count 7 suspended, and the Defendant to be placed on 10 years Post Release Supervision upon release from custody pursuant to and in accordance with the terms and provisions of Section 47-7-34 and Section 47-7-35 of the Mississippi Code as set forth in Exhibit “A” attached hereto, and should the Defendant fail to abide by the terms and provisions of the Post Release Supervision, then such Post Release Supervision shall be revoked, and the Defendant recommitted to the correctional facility from which he was previously released for a period of up to Ten (10) additional years, and the Defendant is assessed the costs of this proceeding and a fine of $1,000.00 on each count for a total fine of $7,000.00.

¶ 3. Aggrieved by the judgment of conviction, Gulley perfected a direct appeal of the trial court’s denial of post-conviction motions for a J.N.O.V. or, in the alternative, a new trial. Gulley remained at liberty on bond pending his appeal to this Court, and he thus paid the court-ordered $7,000 fine on July 27, 2000. We assigned Gulley’s appeal to the Court of Appeals which affirmed the trial court judgment on January 9, 2001. Gulley v. State, 779 So.2d 1140 (Miss.Ct.App.2001). Gulley then filed a motion in this Court for leave to file a post-conviction motion in the Circuit Court of Jackson County. Gulley’s application was granted by this Court and remanded to the Jackson County Circuit Court. Gulley v. State, No.2001-M-00256-SCT (Miss. March 18, 2002).

¶ 4. Upon remand, Judge Backstrom, on June 11, 2002, entered his Order Dismissing Post-Conviction Proceedings. Pursuant to Miss.Code Ann. § 99-39-19 (Rev. 2002), Judge Backstrom found that there was no material fact in dispute and that Gulley was not entitled to an evidentiary hearing on a question of law. Out of an abundance of caution, Judge Backstrom did however delete from the original sentencing order any reference to a fine and ordered the $7,000 fine returned to Gulley; however, Gulley refused to accept the proffered refund.

DISCUSSION

¶ 5. At the time of Gulley’s conviction, Miss.Code Ann. § 97-23-19 (Rev.2000) read as follows:

If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bail-ee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, or employment, either in mass or otherwise, with a value of Five Hundred Dollars ($500.00) or more, he shall be guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the penitentiary not more than ten years, or fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.

(emphasis added). While not applicable here, we note that 2003 Miss. Laws eh. 499 § 7, effective July 1, 2003, amended Miss. Code Ann. § 97-23-19, to revise the values and penalties for embezzlement. The 2003 amendment states:

If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bail-ee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his office, place, or employment, either in mass or otherwise, with a value of Five Hundred Dollars ($500.00) or more, he shall be guilty of felony embezzlement, and, upon conviction thereof, shall be imprisoned in the Penitentiary not more than ten (10) years, or fined not more than Ten Thousand Dollars ($10,000.00), or both. If the value of such goods, rights in action, money or other valuable security, effects, or property of any kind is less than Five Hundred Dollars ($500.00), he shall be guilty of misdemeanor embezzlement, and, upon conviction thereof, shall be imprisoned in the county jail not more than six (6) months, or fined not more than One Thousand Dollars ($1,000.00), or both.

Miss.Code Ann. § 97-23-19 (Supp.2003) (additions indicated by italics).

¶ 6. Gulley was sentenced under the felony portion of the statute, as it then existed, by being ordered to serve ten years per counts one through six, with the sentences to run concurrently, and Gulley was sentenced to serve ten years on count seven consecutive to counts one through six, with the sentence in count seven to be suspended. Gulley was placed on ten years’ post-release supervision upon his release from the custody of MDOC. As part of his “Post Release Terms and Provisions,” Gulley was ordered to pay a fine in the amount of $7,000. These sentences and terms evidence that the trial judge intended Gulley to be sentenced under the felony portion of the embezzlement statute. We also find the provisions of Judge Backstrom’s Order Dismissing Post-Conviction Proceedings to be compelling:

It is clear that the sentence in this case was legal, although it can be argued that the fine was excessive [footnote omitted]. This argument, however, overlooks Section 99-19-32 of the Mississippi Code that allows a fine in felony cases of $10,000 per case where no fine is allowed by the felony sentencing statute. Nevertheless, the Court will proceed arguendo with the proposition that the fine in these cases was excessive and not a sentencing alternative. The small fine in these cases was ancillary to imprisonment, as it was the intention of this Court to send this Petitioner to the penitentiary for the commission of these very serious crimes. This small fine should be treated as surplusage and deleted, and the amount of the fine returned to the Petitioner, [citations omitted]. An excessive sentence can be corrected, and the entire sentence does not have to be discharged. Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). Additionally, even though this Court in the interests of justice will require the fine to be returned to the Petitioner, this Petitioner should have raised this issue that the sentence exceeds the maximum allowed by law pursuant to § 99 — 39—5(l)(d) in the trial court on appeal, but he did not. Since the sentence was not void, or the sentence had not expired, or the prisoner had not been unlawfully held in custody pursuant to § 99 — 39—5(l)(g), he has waived his right to present this issue under the post-conviction act. [citation omitted].

¶ 7. Gulley took offense to some of the language in Judge Backstrom’s order and filed with this Court his Motion to Strike Order Dismissing PosNConviction Proceedings. In this motion, Gulley alleged inter alia that Judge Backstrom, in denying Gulley’s post-conviction (PCR) motion, had “interjected evidence not of record before that Court” such as (1) Gulley’s subsequent guilty pleas to the remaining 28 counts in the indictment, (2) Judge Backstrom’s stated “intention” that the punishment should fit the crimes, (3) Gulley’s misappropriation of funds in excess of $3,000,000, (4) Judge Backstrom’s stated reliance on Miss.Code Ann. § 99-19-32 to undergird his assessment of the fines, and (5) Judge Backstrom’s finding that the fine was “ancillary to imprisonment” and the intention was incarceration of Gulley for a long time.

¶ 8. However, we note that when an inmate files a PCR motion pursuant to statute, the applicable statute places an affirmative duty on the trial judge to review the record of the criminal proceedings under attack via the PCR motion. Miss.Code Ann. § 99-39-11 provides inter alia:

(1) The original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. (2) If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.

Thus, it was proper for Judge Backstrom to consider matters not necessarily “in the record,” based on the applicable statutes and our case law. See Harveston v. State, 597 So.2d 641, 642-43 (Miss.1992); Turner v. State, 590 So.2d 871, 873-75 (Miss.1991); Hentz v. State, 503 So.2d 262, 264 (Miss.1987). In Turner, we stated inter alia:

Miss Code Ann. § 99-39-11 provides that the trial court judge shall examine not only the motion, but also files, records, transcripts, and correspondence relating to the judgment under attack as well as prior proceedings in the case to determine whether movant is entitled to relief.

590 So.2d at 875 (emphasis in the original). In making his findings, Judge Backstrom properly took judicial notice of his own docket and the prior proceedings had and conducted in both the criminal proceedings forming the basis for the attack via the civil PCR motion, as well as all proceedings had and conducted in the civil matter related to the PCR motion. We find that there was nothing inappropriate in Judge Backstrom’s order denying Gulley’s PCR motion, and that Judge Backstrom, in considering Gulley’s PCR motion, diligently performed his responsibilities placed upon him by statute and case law.

¶ 9. Even considering arguendo that the trial court inappropriately sentenced Gulley under both the felony and misdemean- or provisions of the embezzlement statute, Gulley still is entitled to no relief. In Bass v. State, 328 So.2d 665 (Miss.1976), Bass was convicted of embezzlement, and he was sentenced to serve a term of five years in the state penitentiary. The trial court suspended Bass’s sentence and placed him on supervised probation for a term of five years. Id. at 665. As a condition of the suspension, the trial court ordered Bass to pay a fine in the amount of $1,000. Id. This Court found that the trial court “exceeded its statutory authority when it attempted to add a $1,000 fine to the sentence.” Id. at 667. This Court determined that there were two alternative sentencing methods under Miss.Code Ann. § 97-23-25 (Rev.2000), which states:

If any person shall fraudulently appropriate personal property or money which has been delivered to him on deposit, or to be carried or repaired, or on any other contract or trust by which he was bound to deliver or return the thing received or its proceeds, on conviction, he shall be punished by imprisonment in the penitentiary not more than ten years, or be fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.

Id. Because the trial court elected to sentence Bass to a term of imprisonment, “the trial court, under the guise of a condition of the suspension, could not impose the additional sentence of paying a $1,000 fine.” Id. Therefore, this Court affirmed the conviction and the suspended sentence of five years’ imprisonment but this Court reversed the $1,000 fine. Id.

¶ 10. In Salter v. State, 387 So.2d 81 (Miss.1980), Salter was indicted on ten counts of embezzlement. He pled guilty to two of the pending indictments and received a three-year suspended sentence and was ordered to pay a fine of $10,000. Id. at 82. This Court found that this sentence was in error pursuant to Miss. Code Ann. § 97-11-31 which stated:

If any officer, or other person employed in any public office, shall commit any fraud or embezzlement therein, he shall be imprisoned in the penitentiary not more than ten years, or in the county jail not more than one year, or be fined.

Id. at 84. The two methods of sentencing available under this section are alternative methods; therefore, “Salter could be fined in one case and given a penitentiary sentence in the other, but not fined and sentenced in both.” Id. This Court held that Salter’s sentence would be modified such that he would be sentenced to a three-year suspended sentence for the first count and a $10,000 fine for the second count, so that the plea agreement would be left in full effect. Id.

¶ 11. However, Bass and Salter were decided before Miss.Code Ann. § 99-19-32 (Rev.2000) was enacted. Miss.Code Ann. § 99-19-32, states in pertinent part that:

(1) Offenses punishable by imprisonment in the State Penitentiary for more than one (1) year and for which no fine is provided elsewhere by statute may be punishable by a fine not in excess of Ten Thousand Dollars ($10,000.00). Such fine, if imposed, may be in addition to imprisonment or any other punishment or penalty authorized by law.

(emphasis added). This statute unequivocally empowers our trial judges with the authority to impose fines when no fine is provided elsewhere in the statute. Section 99-19-32, which is a “catch-all” for statutes which do not provide for a fine in addition to a sentence of imprisonment, first became effective July 1,1985, and was later amended in 1990. Had the trial judges in Bass and Salter had the benefit of Miss.Code Ann. § 99-19-32, the sentences imposed in those cases would have been within their statutory authority.

¶ 12. In the recent case of Conley v. State, 790 So.2d 773 (Miss.2001), Conley was convicted of capital murder and was sentenced to life imprisonment without the possibility of parole. Conley was also ordered to pay a $10,000 fine. Id. at 805. The statute which provides for the sentencing of a person convicted of capital murder does not contain a provision for a fine. See Miss.Code Ann. § 97-3-21 (Rev. 2000). This Court held that pursuant to Miss.Code Ann. § 99-19-32:

The trial judge has acted within these statutory guidelines with his imposition of the penalties in this case. It is within the trial judge’s discretion to impose these fines. Absent a showing that this discretion was abused, the fines must be upheld by this Court. See Wallace v. State, 607 So.2d 1184, 1187 (Miss.1992). Conley has not shown that the judge abused his discretion.

Conley, 790 So.2d at 805.

¶ 13. Gulley relies on our decision in Lightsey v. State, 493 So.2d 375 (Miss.1986), in an effort to convince us that since he has paid his fine imposed under the misdemeanor portion of the embezzlement statute, he should be released from the penitentiary sentence imposed upon him under the felony portion of the statute. In the direct appeal of Lightsey’s burglary conviction, this Court offered certain background information on Light-sey. We stated that Lightsey had pled guilty to embezzlement and was given a suspended sentence of six years and was ordered to pay a fine of $2,000. Id. at 376. Lightsey paid his fine; however, he was subsequently arrested for burglary which was in violation of his probation. Id. After being incarcerated in the state penitentiary and denied a writ of habeas corpus, Lightsey appealed to this Court. Id. at 376-77. This Court held in an unpublished opinion that “the trial court was without statutory authority to sentence Lightsey to the penitentiary and to impose upon him a fine, since Miss.Code Ann. § 97-23-19 (1972) is written in the disjunctive.” Id. at 377. This Court determined that because Lightsey had already paid his fine, he should be released from prison after serving ten months. Id. In our published opinion,' this Court reversed Lightsey’s conviction for burglary, finding the trial court erred in instructing the jury pertaining to flight. Id. at 380.

¶ 14. However, we again note that § 99-19-32 did not take effect until July 1, 1985. As in Bass and Salter, Lightsey’s conviction of embezzlement occurred before this statute was enacted. Therefore, the trial court did not have the statutory authority to impose both a prison sentence and a fine upon Lightsey. Unlike Bass and Salter, this Court in Lightsey chose to uphold the fine and reverse the imprisonment sentence.

¶ 15. The dissent relies heavily upon the cases of In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943) and United States v. Holmes, 822 F.2d 481 (5th Cir.1987), for the rule that if a statute is written in the disjunctive, only a fine or imprisonment may be imposed. However, as previously stated, the authority here to impose both a prison sentence and a statutory fine was granted by two separate and distinct statutes, not one statute written in the disjunctive. Therefore, these two cases do not apply to the case sub judice.

¶ 16. Finally, we take note that Judge Backstrom afforded Gulley partial relief under his PCR motion by removing the imposition of the fine from Gulley’s sentence and ordering the previously paid fine returned to Gulley — an offer which Gulley refused. However, this action by Judge Backstrom in no way affords Gulley any relief from his penitentiary sentence. In his order dismissing Gulley’s PCR proceedings, Judge Backstrom made an unequivocal finding that he had authority under Miss.Code Ann. § 99-19-32 to impose a fine upon Gulley, but further stated that “[njevertheless, the Court will proceed arguendo with the proposition that the fine in these cases was excessive and not a sentencing alternative.” Judge Backstrom then stated that “[a]n excessive sentence can be corrected, and the entire sentence does not have to be discharged.” In so holding, Judge Backstrom relied on the decision of the United States Supreme Court in Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). In that case, Bozza was convicted of five counts of violating the Internal Revenue laws in connection with the operation of a still producing moonshine whiskey. At the sentencing hearing, the federal district court judge sentenced Bozza to a term of imprisonment but failed to impose certain statutorily mandated fines and penalties. After the initial sentencing, Bozza was detained at the U.S. Marshal’s office and then at a local jail for a total of approximately five hours, when he was brought back before the sentencing judge, who by then had realized that he had failed to impose the statutorily required assessments. Bozza claimed double jeopardy, asserting that he had been sentenced twice for the same offense. In finding no merit to Bozza’s assertions, the Court stated:

If this inadvertent error cannot be corrected in the manner used here by the trial court, no valid and enforceable sentence can be imposed at all (citations omitted). This Court has rejected the ‘doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed an error in passing the sentence.’ (citations omitted). The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner, (citations omitted) ... The sentence as corrected, imposes a valid punishment for an offense instead of an invalid punishment for that offense.

330 U.S. at 166-67, 67 S.Ct. at 649.

¶ 17. Even if Judge Backstrom had erred (which he did not) in imposing a fine when he sentenced Gulley to penitentiary sentences for embezzlement, Judge Back-strom was within his authority to remove the fine via the PCR proceedings. However, for the reasons stated, this “illegal” fine would not vitiate the “legal” portion of the sentence — the penitentiary sentence. However, all of this having been said, Judge Backstrom clearly had statutory authority via § 99-19-32 to impose a fine when he imposed penitentiary sentences under the felony portion of the applicable embezzlement statute which provided no fine when imposing the felony sentence. The then existing statute under which Gulley was sentenced provided for a fine only when being sentenced as a misdemeanant.

¶ 18. In the end, it is clear that the trial judge sentenced Gulley under the felony portion of § 97-23-19. The fine was a condition of his post-release supervision. Pursuant to Miss.Code Ann. § 99-19-32, the trial judge was within his statutory authority to impose such a fine, as one was not provided in the felony portion of § 97-23-19. Therefore, the circuit court did not err in dismissing Gulley’s motion for post-conviction relief.

CONCLUSION

¶ 19. Because the trial judge did not abuse his discretion in sentencing Gulley under the felony portion of § 97-23-19 and in imposing a fine pursuant to § 99-19-32, we affirm the trial court’s dismissal of Gulley’s post-conviction proceedings.

¶ 20. AFFIRMED.

PITTMAN, C. J., SMITH AND WALLER, P.JJ., COBB AND EASLEY, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ AND DICKINSON, JJ., NOT PARTICIPATING.

GRAVES, Justice,

dissenting.

¶ 21. Gulley was sentenced to serve two separate and distinct penalties for the same offenses. He has completed one sentence by paying the full amount of the imposed fine. Because of the double jeopardy clause of the U.S. Constitution, the second sentence is unenforceable. Therefore, Gulley should be released from custody. Accordingly, I respectfully dissent.

¶ 22. Gulley is entitled to post-conviction relief because he has completed the misdemeanor portion of his sentence by paying the $7,000 fine imposed on him by the court. Gulley was sentenced under Miss.Code Ann. § 97-23-19 (Rev.2000), which read as follows:

If any director, agent, clerk, servant, or officer of any incorporated company, or if any trustee or factor, carrier or bailee, or any clerk, agent or servant of any private person, shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money or other valuable security, effects, or property of any kind or description which shall have come or been entrusted to his care or possession by virtue of his office, place, or employment, either in mass or otherwise, he shall be guilty of embezzlement, and, upon conviction thereof, shall be imprisoned in the penitentiary not more than ten years, or fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.

Miss.Code Ann. § 97-23-19 (Rev.2000) (emphasis added).

¶23. Gulley was sentenced under the felony portion of the statute by being ordered to serve more than one year in the penitentiary on each of the seven counts and under the misdemeanor portion of the statute by being ordered to pay a fine of $1,000.00 on each of the same seven counts. He has been sentenced twice for the same crimes. However, as the sen1 tencing statute is written in the disjunctive, he may lawfully be sentenced under the felony portion of the statute or the misdemeanor portion of the statute, but not both.

¶24. The subject statute is clearly in the disjunctive. This Court has consistently found that the statute has alternate methods of sentencing. In re Branan, 419 So.2d 145, 146 (Miss.1982). “The use of the disjunctive ‘or’ denotes a choice between alternatives.” “[WJhere permissible sentences are separated by the disjunctive, only one may be lawfully imposed.” (emphasis added). See also Salter v. State, 387 So.2d 81, 84 (Miss.1980); Bass v. State, 328 So.2d 665, 667 (Miss.1976).

¶ 25. In Lightsey v. State, 493 So.2d 375, 376-77 (Miss.1986), a case very similar to the case at bar, Lightsey pled guilty to embezzlement and was given a suspended sentence of six years in the penitentiary and fined $2,000.00. Lightsey paid the fines levied against him and was subsequently arrested for burglary. A petition charging Lightsey with violating the terms of his parole on the embezzlement charge was filed, and Lightsey was incarcerated in the state penitentiary upon revocation of parole. Lightsey challenged this revocation of parole by habeas corpus.

¶ 26. On appeal from the denial of ha-beas corpus, this Court, in an unpublished opinion, held that “the trial court was without statutory authority to sentence Light-sey to the penitentiary and to impose upon him a fine, since Miss.Code Ann. § 97-23-19 (1972) is written in the disjunctive.” Lightsey, 493 So.2d at 377. Because Lightsey had already paid his fine, he was released from prison after serving ten months. Id.

¶ 27. This Court went so far as to state that “Lightsey was unlawfully imprisoned for embezzlement, and he used habeas corpus proceedings to gain his liberty.” Id. at 378.

A. Sentencing statute only allows for two alternatives

¶ 28. The majority concludes that Gulley has not fully completed either of the two alternatives of the sentencing statute. It relies on the “or either” language found at the end of § 97-23-19. The majority interprets this language as the statute offering only two sentencing alternatives. The portion of the statute relevant to this finding is as follows: “upon conviction thereof, shall be imprisoned in the penitentiary not more than ten years, or fined not more than one thousand dollars and imprisoned in the county jail not more than one year, or either.” The majority finds that the subject statute allows for only two sentencing options: (1) ten years imprisonment; or (2) a year in the county jail and a fine of one thousand dollars.

¶ 29. The sentencing statute contains not two, but four sentencing alternatives: (1) ten years’ imprisonment; (2) a fíne of not more than one thousand dollars and imprisonment in the county jail not more than one year; (3) imprisonment in the county jail not more than one year; and (4) a fine of not more than one thousand dollars. The majority’s interpretation of the statute is inaccurate because it disregards the “or either” at the end of the statute. It is clear that the “or either” at the end of the statute is merely a grammatical shortcut to reference the additional sentences of only county jail imprisonment and only afine.

B. Return of the fine

¶ 30. The majority finds that the return of the fine cured any defect in the sentence. This finding is misplaced. The issues of a sentencing statute being in the disjunctive and of an attempt to return a fine by the clerk of the court have been reviewed and rendered by the United States Supreme Court, In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943), and more thoroughly addressed by the Fifth Circuit, United States v. Holmes, 822 F.2d 481 (5th Cir.1987). Those decisions reached results consistent with this Court’s decision in Lightsey.

¶ 31. Writing for the Court in Bradley, Justice Roberts stated:

The court sentenced the petitioner to six months’ imprisonment, to pay a fine of $500, and to stand committed until he complied with the sentence. The sentence was erroneous; Ex parte Lange, 18 Wall. 163, 176, 21 L.Ed. 872. Under §268 of the Judicial Code, 28 U.S.C. §385, 28 U.S.C.A. §385, the sentence could only be a fine or imprisonment. Ex parte Robinson, 19 Wall. 505, 512, 22 L.Ed. 205; Clark v. United States, 8 Cir., 61 F.2d 695, 709, affirmed 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993.
... On September 28, 1942, the petitioner was taken into custody and committed to prison. On October 1 his attorney paid the fine in cash to the clerk of the court. Later on that day the court, realizing that the sentence was erroneous, delivered to the clerk an order amending it by omitting any fine and retaining only the six months’ imprisonment. The court instructed the clerk, who still held the money, to return it to the petitioner’s attorney. The latter refused to receive it, and the clerk has it.
... [W]e are of opinion that the errors involved in the sentence require that he shall be freed from further imprisonment.
When, on October 1, the fine was paid to the clerk and receipted for by him, the petitioner had complied with a portion of the sentence which could lawfully have been imposed. As the judgement of the court was thus executed so as to be a full satisfaction of one of the alternative penalties of the law, the power of the court was at an end. It is unimportant that the fine had not been covered into the treasury; it had been paid to the clerk, the officer of the United States authorized to receive it, and petitioner’s rights did not depend upon what the officer subsequently did with the money.
It folloivs that the subsequent amendment of the sentence could not avoid the satisfaction of the judgement, and the attempt to accomplish that end was a nullity. Since one valid alternative provision of the original sentence has been satisfied, the petitioner is entitled to be freed of further restraint.

Bradley, 318 U.S. at 51-52, 63 S.Ct. 470 (emphasis added).

¶ 32. The Fifth Circuit reviewed the same issue in United States v. Holmes, 822 F.2d 481, 484-86 (5th Cir.1987), and reached a decision that is consistent with this Court’s decision in Lightsey. Holmes was charged with multiple offenses. He pled guilty under a federal statute involving contempt. The court sentenced him to pay a $10,000.00 fíne and to a one year prison term. However, before his confinement was to begin, Holmes paid the fine and filed a motion to vacate that part of the sentence ordering his imprisonment.

¶ 33. The Fifth Circuit found that the language of the contempt statute included disjunctive language as to sentencing, and that only a fine or imprisonment may be imposed. “[T]he imposition of both is forbidden as to any one offense.” Id. See also United States v. Hilburn, 625 F.2d 1177, 1181 (5th Cir.1980); United States v. DiGirlomo, 548 F.2d 252, 254 (8th Cir. 1977); United States ex rel. Kanawha Coal Operators Ass’n v. Miller, 540 F.2d 1213, 1214 (4th Cir.1976); United States v. Sampogne, 533 F.2d 766, 767 (2d Cir.1976), “[T]he Supreme Court [in] ... In Re Bradley [citation omitted] squarely noted that the statutory language was in the disjunctive, that only one of two punishments was permissible and since the fine there, as here, has been paid, the petitioner had to be discharged from custody.” This holding has been followed in United States v. De Simone, 267 F.2d 741 (2d Cir.) vacated as moot, 361 U.S. 827, 80 S.Ct.74, 4 L.Ed.2d 70 (1959). Accord, Intem’l Bhd. of Teamsters v. United States, 275 F.2d 610 (4th Cir.1960).

¶ 34. In its order, the Jackson County Circuit Court attempted to effect a resen-tencing of Gulley by labeling its actions a “correcting of the sentence” and relying on Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). The circuit court found that “[a]n excessive sentence can be corrected, and the entire sentence does not have to be discharged.” However, the case at bar is not one of an “excessive sentence,” under Bozza, but “two punishments,” as in Bradley.

¶ 35. In Bozza the trial judge, during his morning session, sentenced the petitioner to imprisonment only. Later in the day, it was pointed out to the judge that the statute under which the petitioner was sentenced required a mandatory sentence of fine of $100 and imprisonment. Id. at 165, 67 S.Ct. 645. The judge then called the petitioner back into the courtroom during the afternoon session and imposed upon him the additional $100 fine, as required by the statute.

¶ 36. Here, the sentencing statute under which Gulley was sentenced required imprisonment in the penitentiary or a fine of not more than $1,000 and imprisonment in the county jail for not more than one year, or either. Miss.Code Ann. § 97-23-19. In Bozza, the trial judge simply imposed the required sentence at two different times of the day. In the case at bar, the trial judge’s imposition of two separate and distinct sentences for the same crimes constituted double jeopardy.

¶ 37. The Fifth Circuit found that Boz-za “does not purport to depart from Lange or Bradley ” and referred to Bozza’s finding that Lange and Bradley are “examples of cases in which the trial court could not correct the sentence without causing him to suffer double punishment.” Holmes, 822 F.2d at 498, citing Bozza, 67 S.Ct. at 649 n. 2. The court in Holmes recognized that “the full payment of a fine satisfies one lawful alternative sentence” and “the return of the fine would be wholly ineffective to change the fact that the contemnor has already fully satisfied the fine portion of his sentence.” Holmes, 822 F.2d at 498-500 (emphasis in original).

¶ 38. Here, as was the case in Holmes, the majority finds that the circuit court should be allowed to return the fine to Gulley and impose only the prison sentence. However, the Fifth Circuit, when addressing this argument by the government in Holmes, stated: “As an original proposition, the government’s position might be arguable, but we find once again that Bradley has addressed the situation and compels us to reject this argument. ... [T]he district court in Bradley did offer to return the fine to the contem-nor, and the Supreme Court nonetheless held that Bradley’s entire prison sentence must be set aside and, impliedly, that he was not obligated to accept the money.” Id. at 499-500.

¶ 39. In Holmes, the government was unable to provide any citation of “authority for the proposition that the courts can compel a contemnor to take back a fine and to accept, instead, a term in prison.” Id. at 500. In the case at bar, the circuit court also failed to cite authority in support of its order to the circuit clerk to return the fine payment to Gulley. The Fifth Circuit held in Holmes that “Bradley alone, even without those additional problems, requires us to hold that attempts to return the fine paid by the appellant will not justify the execution of appellant’s prison sentence.” Id.

C. General fine statute

¶ 40. The majority relies on the State’s argument that “there is a general fine statute that would apply when there is no statutory provision for fine under Miss. Code Ann. § 99-19-32, and this may have been the judge’s initial thinking on the imposition of the fine in addition to the serving of time in the penitentiary.” (emphasis added). The trial judge stated, in the Order Dismissing Post-Conviction Proceedings, “[sjection 99-19-32 of the Mississippi Code ... allows a fine in felony cases of $10,000 per case where no fine is allowed by the felony sentencing statute. Nevertheless, the Court will proceed ar-guendo with the proposition that the fine in [this case] was excessive and not a sentencing alternative.” (emphasis added).

¶ 41. There was absolutely no mention of § 99-19-32 during the sentencing phase of this case. In fact, said section was not mentioned until the sentencing error was pointed out to the lower court. The first, and only, mention of this section by the lower court may be found in the Order Dismissing Post-Conviction Proceedings. It is clear that the trial judge did not sentence Gulley under § 99-19-32, but under § 97-23-19. The trial judge stated that Gulley was convicted of “very serious charges” and that the court thought “the punishment should fit the crime.” If the trial judge had intended Gulley to be sentenced under § 99-19-32, it is clear that he would have sentenced him to pay $70,000 ($10,000 per count) the maximum allowed by § 99-19-32. However, Gulley was not sentenced to pay $70,000, he was sentenced to pay $7,000 ($1,000 per count). If the trial judge had intended to sentence Gulley sentenced under § 99-19-32, he would certainly have sentenced him to the maximum allowed under said statute. Instead, he clearly sentenced Gulley under the misdemeanor portion of § 97-23-19, ordering him to pay $1,000 per count, for a total of $7,000.

¶ 42. Moreover, § 99-19-32 states that “[ojffenses punishable by imprisonment in the State Penitentiary for more than one (1) year and for which no fine is provided elsewhere by statute may be punishable by a fine not in excess of Ten Thousand Dollars ($10,000.00).” Miss.Code Ann. § 99-19-32 (emphasis added). In the case at bar, Gulley was sentenced under § 97-23-19 which does provide a fine as an alternative sentence, making § 99-19-32 inapplicable here.

D. Fine is “excess”

¶ 43. The majority further relies on the State’s next argument that the fine is “excess” to the sentencing. This reliance is improper because the majority fails to recognize state, federal district court and United States Supreme Court authority that the felony sentence and misdemeanor sentence are alternate sentencing due to the disjunctive nature of the sentencing statute.

¶ 44. Significantly, the argument that the fine is in “excess” of and “ancillary to imprisonment” and could be deleted by modified sentence of the trial judge after the fine was paid, disregards the disjunctive nature of the four sentences allowed by said statute. One sentence (the fine) was completed by Gulley. Therefore, Gulley can not be subjected to a double sentence for the same offense.

¶ 45. The majority relies on Salter v. State, 387 So.2d 81 (Miss.1980), which held that removing the fine and ordering its return removes the “excessiveness” of the sentence. This reliance is also misplaced. In Salter, the petitioner was sentenced to a term in prison and a fine for embezzlement. This Court held that the petitioner could only be sentenced to a prison term or a fine and thus removed the fine portion of the sentence. However, the majority here fails to recognize what differentiates Salter from the case at bar, the modification of Salter’s alternate sentencing occurred before either was completed. Therefore, Salter could not be subject to double jeopardy.

¶ 46. The majority next relies on Bass v. State, 328 So.2d 665 (Miss.1976). In Bass, the defendant was convicted of embezzlement and sentenced to both a fine and imprisonment with time suspended. In Bass this Court viewed the imposition of the fine as a term of post-release supervision and finding that it was excessive, removed that portion of the sentence. Again, the majority fails to acknowledge the most obvious difference between Bass and the case at bar, in Bass the sentence was reformed before either was completed. Therefore, Bass, unlike Gulley, could not be subject to double jeopardy.

¶ 47. The majority further relies on Bass in the decision, stating that this Court affirmed the conviction [of Bass] and the sentence of five years imprisonment which was suspended, but this Court reversed the $1,000 fine. While it is true that this Court affirmed the prison sentence and reversed the fine portion of Bass’s sentence as “excess,” this argument must fail because of one distinct difference between Bass and Gulley-Bass never paid the fine portion of his sentence. Thus, he never completed any portion of his sentence and therefore could not be subject to double jeopardy. Gulley, on the other hand, did complete one lawful portion of his sentence. To enforce the prison term of his sentence violates his constitutional right against double jeopardy.

E. Jurisdiction

¶ 48. The majority further relies on the State’s jurisdictional assertion that Gulley has presented no claim which is “procedurally alive showing denial of a state or federal right.” The majority finds that Gulley has not shown that he is due relief under the specific provisions of § 99-39-5 because he has not demonstrated that his sentence was illegal or in violation of the Constitutions of the United States or the State of Mississippi.

¶ 49. In Gulley v. State No.2001-M-00256-SCT (Miss. March 18, 2002), this Court, upon the standards set by statute, reviewed Gulley’s application to file his sworn Motion for PosWConviction Relief in the Jackson County Circuit Court. The standard of review is two-fold:

(1) based upon “the face of the application, motion, exhibits and the prior record ... the claims presented by such are not procedurally barred under § 99-89-21 and
(2) [the claims] further present a substantial showing of the denial of a state or federal right....” Miss. Code Ann. § 99-39-27(4)(5). Jordan v. State, 577 So.2d 368, 369 (Miss.1990).

¶ 50. By granting the application, this Court reviewed the record to determine whether the claims raised had been waived by failing to raise them at trial or on direct appeal. Necessarily, if this Court had found that the claims had been waived then it would not have allowed Gulley to bring the instant proceedings. Miss.Code Ann. § 99-39-21(1). Compare Jordan, where this Court denied the application because the above standards were not met. Thus, the findings of this Court that Gulley had not waived these claims and that they are not procedurally barred serve as res judicata on those issues. This issue is procedurally barred and without merit.

¶ 51. The argument that Gulley has not demonstrated that his sentence was illegal or in violation of the Constitutions of the United States or the State of Mississippi is likewise without merit. This argument is based upon the failure to interpret the plain meaning that “or either” is a reference to either county jail imprisonment or a $1,000 fine. By receiving both sentences, Gulley has necessarily been given two separate and distinct sentences for the same crimes in violation of his right against double jeopardy.

¶ 52. The Fifth Circuit spoke frankly in Holmes stating that:

[I]n many respects this case represents a miscarriage of justice. Undoubtedly Holmes deserves to serve some confinement, as the district court plainly intended .... [A] mistake was made by the district judge and the government which is now beyond recall. We imply no criticism of either; when the governing rules are somewhat unusual and technical, their application will inevitably involve some mistakes. That is part of the price. We should not pretend otherwise .... In cases of this sort, where the legal issues are arguable and the equities heavily on one side, the temptation is strong to bend the law itself. Such judicial bending of fixed legal rules, however, tends ultimately to be destructive of the rule of law. Of course, the judicial function requires us not only to conscientiously, even-handedly, and fairly interpret the law, but also similarly apply it to the facts of each case. The latter duty, however, does not permit us to disregard the law in order to achieve a desired result in a particular instance.

Holmes, 822 F.2d at 500.

¶ 53. A similar mistake was made in the sentencing of Gulley who had two separate sentences for the same offense. He completed one. The other is not enforceable under double jeopardy constitutional protections. Though the circuit court may have intended harsher punishment and though Gulley surely deserves harsher punishment, he completed one punishment, though of a lesser degree, and is entitled to be released on the conviction of these seven counts. This case should be reversed and remanded with instructions that the petitioner be released from custody. Accordingly, I dissent.

      . Exhibit “A” attached to the sentencing order set out the specific terms and conditions of Gulley’s post release supervision. Without reciting here verbatim the post-release terms contained in Exhibit "A,” suffice it to state that the terms and provisions for the most part tracked the language of Miss.Code Ann. § 47-7-35 (Rev.2000), with a few added conditions which we deem to be routine in post-release supervision and supervised probation sentencing orders.

      . Gulley's Motion to Strike Order Dismissing Post-Conviction Proceedings was denied by order of this Court dated October 22, 2002.

      . See also Miss. R. Evid. 201(b), which provides:
      A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

      . Laws, 1985, ch. 495, § 1; Laws, 1990, ch. 329, § 14, eff. from and after October 1, 1990.

      . This statute was amended on March 31, 2003. See 2003 Miss. Laws ch. 499 (H.B. 1101).


author: KING, P. J.,

text:
    Valentine MILLER, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-02125-COA.
    Court of Appeals of Mississippi.
    April 13, 2004.
    Valentine Miller, Jr., pro se.
    Office of the Attorney General by Deirdre McCrary, attorney for appellee.
    Before KING, P.J., THOMAS and MYERS, JJ.
   KING, P. J.,

for the Court.

¶ 1. Valentine Miller, pro se, appeals from the dismissal of his request for post-conviction relief by the Winston County Circuit Court. Miller asserts the following issue on appeal:

I. Whether the circuit court erred in denying petitioner’s post-conviction motion without conducting an evi-dentiary hearing to address whether petitioner was expressly informed of his constitutional right against self-incrimination.

Finding no error, this Court affirms.

FACTS

¶ 2. On October 22, 2001, Valentine Miller pled guilty in the Circuit Court of Winston County to two counts of armed robbery and was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections with the last five years to be served on post-release supervision. Miller also pled guilty on the same day to one count of robbery and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections. The sentences were to be served concurrently.

¶ 3. On November 1, 2002, Miller filed a “Motion for Post Conviction Collateral Relief’ in the Circuit Court of Winston County. In his motion Miller claimed that his pleas were involuntary because the court failed to advise him of his constitutional right against self-incrimination. Finding Miller’s motion to be without merit, the circuit judge dismissed it on December 2, 2002, without conducting an evidentiary hearing.

ISSUE AND ANALYSIS

Whether the circuit erred in denying petitioner’s post-conviction motion without conducting an evidentiary hearing to address whether petitioner was expressly informed of his constitutional right against self-incrimination.

¶4. Miller asserts that the trial court erred in failing to conduct an eviden-tiary hearing to determine whether he was expressly informed of his right against self-incrimination.

¶ 5. When a motion for post-conviction relief is filed, the trial judge is obligated to review the motion, all files, records, transcripts and correspondence relating to the judgment. Mississippi Code Annotated Section 99 — 39—11—(1) (Rev.2002); Cole v. State, 608 So.2d 1313, 1325 (Miss.1992). If upon such a review it is clear that there is no entitlement to relief, the judge may enter an order dismissing the action. Miss.Code Ann. § 99-39-11(2); Cole v. State, 608 So.2d at 1324. A review of the plea transcript reveals that the trial judge ascertained Miller’s age, and his educational background, after which the following dialogue transpired:

BY THE COURT: Before I can accept your plea of guilty on any of these charges, there are certain of your constitutional rights which I must advise you of and which you will waive by entering a plea of guilty.
BY THE COURT: Do you understand you have the right to testify but that you also have the right not to?
BY THE DEFENDANT: Yes.
BY THE COURT: Do you understand that if you decide not to testify, I will tell the jury they can’t hold that fact against you?
BY THE DEFENDANT: Yes, sir.
BY THE COURT: Do you understand you waive all those rights by entering pleas of guilty to these charges?
BY THE DEFENDANT: Yes, sir.

¶ 6. The standard of review for a denial of a post-conviction motion is as follows: “this Court reviews a denial of post-conviction relief under an abuse of discretion standard.” Mitchell v. State, 754 So.2d 519, 521(¶ 7) (Miss.Ct.App.1999). The findings of the trial court must be clearly erroneous in order to overturn a lower court’s denial of a post-conviction relief motion. McClinton v. State, 799 So.2d 123, 126(¶ 4) (Miss.Ct.App.2001).

¶ 7. The record is clear that Miller was explicitly informed by the trial judge of his right against self-incrimination. It is also clear from the record that Miller was informed by the trial judge that a guilty plea would constitute a waiver of those rights. An evidentiary hearing is only imperative where the transcript of the plea hearing “does not reflect that [the petitioner] was advised concerning the rights of which he allegedly claims ignorance.” Myers v. State, 767 So.2d 1058,-1061 (¶ 7) (Miss.Ct.App.2000), citing Roland v. State, 666 So.2d 747, 751 (Miss.1995); Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). Miller was not entitled to an evidentiary hearing on this matter and the trial judge properly denied the same.

¶ 8. Accordingly, we find that the trial judge did not abuse his discretion in denying Miller’s motion for post-conviction relief.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNTY DENYING POST-CONVICTION RELIEF IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO WINSTON COUNTY.

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