author: LEE, J., SOUTHWICK, P.J.,

text:
    Curtis David HAWTHORNE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01142-COA.
    Court of Appeals of Mississippi.
    Oct. 21, 2003.
    Rehearing Denied Feb. 10, 2004.

      Lee County Circuit Court, Hon. Richard D. Bowen, J.
    Robert W. Davis, Christi R. McCoy, attorneys for appellant.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, P.J., BRIDGES, J., and LEE, J.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On May 16, 2002, a jury in the Circuit Court of Lee County found Curtis David Hawthorne guilty of manslaughter by culpable negligence. Hawthorne was subsequently sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections with seven years suspended, and he was ordered to make restitution in the amount of $325,000. From his conviction, Hawthorne appeals to this Court asserting the following issues: (1) the evidence at trial was insufficient as a matter of law to support the jury’s verdict; and (2) the court erred in refusing to grant a mistrial after one of the jurors became ill.

FACTS

¶ 2. In November of 2000, Hawthorne, who is a resident of Virginia, was in Tupelo helping his father refurbish a hotel. During the days immediately preceding the accident, Hawthorne and his father began discussing religion for hours on end. Following these religious discussions, Hawthorne began to have feelings and sensations that he and his father interpreted as religious experiences. In reality, Hawthorne was experiencing symptoms of schizophrenia. Hawthorne began to hear what he believed to be the voice of God or the Devil. He also began to believe that he was in Hell, that the day of judgment was at hand, that the television was sending messages to him from God or the Devil, that he was going back in time, and that the presidential election of 2000 was being held specifically for him. Hawthorne was observed walking around in a trance and praying in the rain. After experiencing these feelings, Hawthorne believed that he had to go home to Virginia in order to deliver a cross to his daughter, cure his wife’s cancer, and be home before the world came to an end.

¶ 3. On the morning of November 15, 2000, Hawthorne, still under the impression that he had to get to Virginia, borrowed his father’s truck and proceeded down South Gloster Street at a high rate of speed. In his state, Hawthorne believed that he was in God’s truck, that no matter what direction he drove he would reach Virginia, and that his truck would pass through any obstacles he might encounter. At the intersection of Green Street and Gloster Street, Hawthorne proceeded through the red light and struck the car driven by Jeffrey McGrew, who died at the scene.

¶ 4. After the accident, Hawthorne proceeded to exit his truck and run south on Gloster Street. Hawthorne was quickly apprehended and taken to the sheriffs department. After attempts at interrogation, during which Hawthorne exhibited erratic behavior, Hawthorne was transported to North Mississippi Medical Center where he was examined by the emergency room physicians and a psychiatrist.

DISCUSSION OF ISSUES

I. WAS THE EVIDENCE AT TRIAL INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE JURY’S VERDICT?

¶ 5. In his first issue, Hawthorne claims that no reasonable and fair-minded juror could have found him guilty based on the evidence presented by the State. Hawthorne contends that the State did not meet its burden of proof in establishing sanity beyond a reasonable doubt and, therefore, the judge should have granted Hawthorne’s motion for a directed verdict. After the jury returned a guilty verdict, Hawthorne filed a motion for a judgment notwithstanding the verdict, which was also denied.

¶ 6. We look to our standard of review regarding motions for a directed verdict or a JNOV.

In deciding whether the prosecution has presented sufficient evidence to sustain the verdict, the Court should accept as true all credible evidence consistent with the defendant’s guilt and the State must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. A reviewing court should only reverse where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty.

George v. State, 812 So.2d 1103(¶ 13) (Miss.Ct.App.2001) (citation omitted). If the trial court denies the motions and that denial is raised as an issue on appeal, this Court is charged to review the evidence by the same standard to determine whether the trial court erred in so ruling. McClain v. State, 625 So.2d 774, 781 (Miss.1993).

¶ 7. Mississippi still follows the M’Naghten test for determining a person’s sanity at the time of the crime. Russell v. State, 729 So.2d 781, 784 (Miss.1997). Under the M’Naghten test, it must be proved that at the time of committing the act the accused “was laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing or (2) if he did know it, that he did not know that what he was doing was wrong.” Roundtree v. State, 568 So.2d 1173, 1181 (Miss.1990). More succinctly, the test is whether the accused did not know right from wrong at the time of committing the act. Russell, 729 So.2d at 784.

¶ 8. There is a presumption that an accused is sane and, therefore, the burden is initially on the accused to introduce evidence creating a reasonable doubt as to his sanity at the time of the act. Once the accused has overcome this initial burden, it then becomes the burden of the State to present sufficient evidence to prove the accused’s sanity beyond a reasonable doubt. Davis v. State, 551 So.2d 165, 173 (Miss.1989). The issue of insanity is for the jury to determine. Yarbrough v. State, 528 So.2d 1130, 1130 (Miss.1988). The jury may accept or reject expert and lay testimony in making its determination. Gill v. State¡ 488 So.2d 801, 802 (Miss. 1986). However, if the jury’s determination is not supported by substantial evidence, then this Court will reverse. Gerlach v. State, 466 So.2d 75, 79 (Miss.1985).

¶ 9. According to the record, we find that a reasonable doubt was created as to Hawthorne’s sanity at the time of the accident. Hawthorne’s father testified about their religious conversations in the days preceding the accident. Although his father testified that he thought Hawthorne knew right from wrong at the time he accepted the Lord, he could not be sure if his son retained this thought. The defense called three physicians who were experts in psychiatry and who had seen Hawthorne at some point after the accident. Dr. Mark Webb, who specializes in general and forensic psychiatry, interviewed Hawthorne a few weeks after the accident. After the interview and the review of Hawthorne’s records, Dr. Webb determined that Hawthorne had suffered a brief psychotic episode, generally called a “first break,” and that Hawthorne was manic depressive or bipolar. Dr. Webb also determined that Hawthorne did not know right from wrong at the time of the accident nor did he have the capacity to understand the nature and quality of his actions.

¶ 10. Dr. Harrison Evans, a psychiatrist, saw Hawthorne on the day of the accident in the emergency room. Dr. Evans was called by the emergency room physician to evaluate Hawthorne for possible admission to the behavioral health unit. During the examination, Dr. Evans determined that Hawthorne was experiencing a severe psychotic break. Hawthorne kept repeating that he was in Hell, that he was dead. Dr. Evans felt that he was having hallucinations and, after repeated attempts at getting information from Hawthorne, who was mumbling unintelligibly, the interview ended and Dr. Evans continued with behavioral observations. Dr. Evans also spoke with Hawthorne’s father and the policemen present at the hospital. Hawthorne was diagnosed by Dr. Evans as having a schizophreniform disorder. Dr. Evans also found Hawthorne to be close to catatonic and severely impaired by hallucinations. Over the next few weeks, Dr. Evans was able to see Hawthorne two more times. During his testimony, Dr. Evans opined that Hawthorne’s condition had improved significantly, although he thought Hawthorne still had some residual voices at that time.

¶ 11. Dr. Reb McMichael, the chief of forensic services at Whitfield State Hospital and acknowledged by the State to be an experienced forensic psychiatrist, interviewed Hawthorne pursuant to an order from the lower court on a motion made by the State. After reading various documents associated with the accident, including hospital reports and medical records, and after approximately four hours of interview and psychological testing of Hawthorne, Dr. McMichael determined that Hawthorne did not know the nature and quality of his act and that he did not know the wrongfulness of his act. Dr. McMicha-el further determined that Hawthorne was restored to reason and not a threat to society.

¶ 12. Hawthorne’s current psychiatrist in Virginia, Dr. William Lopez, testified that he felt Hawthorne had suffered a first psychotic episode. Dr. Lopez testified that Hawthorne’s condition had improved over the course of treatment, that he was having no psychotic symptoms or behavior indicating any sign of violence, and that he did not need to be hospitalized.

¶ 13. Once Hawthorne rested it became incumbent upon the State to present sufficient evidence to rebut any testimony by Hawthorne creating a reasonable doubt as to his sanity at the time of the accident. After both sides rested, the defense renewed its earlier motion for a directed verdict, which was ultimately denied. However, during the presentation of this motion, the trial judge asked the State the following question:

[C]an you point the Court to any item of evidence produced by the State at any stage in the trial by any witness or, for that matter, any exhibit which tells the jury that Mr. Hawthorne knew the difference between right and wrong and appreciated the nature and quality of his acts at the time of this wreck on November 15, 2000?

The State’s only response to this inquiry was “No, your honor.” The State’s position was that it did not have to produce any evidence of the defendant’s sanity; rather, it was for the jury to determine. We find that there was sufficient evidence for the jury to find Hawthorne insane at the time of the accident. As the State failed to present sufficient evidence, or any evidence at all, to prove Hawthorne’s sanity beyond a reasonable doubt we cannot find that the jury’s verdict was supported by substantial evidence. The trial judge erred in not granting Hawthorne’s motion for a directed verdict or his motion for a JNOV; thus, we must reverse and render.

II. DID THE LOWER COURT ERR IN REFUSING TO GRANT A MISTRIAL AFTER ONE OF THE JURORS BECAME ILL?

¶ 14. As we reverse and render as to the first issue, we decline to discuss this issue.

¶ 15. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

KING, P.J., BRIDGES, IRVING AND CHANDLER, JJ., CONCUR. ■ SOUTHWICK, P.J, DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY MCMILLIN, C.J., THOMAS AND MYERS, JJ., GRIFFIS, J., NOT PARTICIPATING.

SOUTHWICK, P.J.,

Dissenting.

¶ 16. The majority reverses and orders that the defendant be discharged. I respectfully dissent. The basis for the reversal is that the majority finds that the undisputed evidence was that the defendant was insane. I disagree with that finding. Secondly, even if a defendant is found to be insane, a jury then is to determine whether he is too dangerous to be released into society. No court has the authority to take that decision away from a jury. Finally, since I agree that the testimony was at least exceedingly weak on the issue of insanity, I would reverse because of the weight of evidence. That would cause the defendant to be subject to another trial.

¶ 17. Nature of Evidence. I agree that the only medical evidence was that the accused was insane. Yet the precedents make plain that a jury should consider all the evidence before it on the question of insanity, not just that presented through medical professionals. Lias v. State, 362 So.2d 198, 201 (Miss.1978). There was other evidence.

¶ 18. My first disagreement with the majority on the issue is one of procedure. The framework presented in the court’s opinion is quite orderly. To summarize that view, the State is to put on its case with the presumption of sanity; the defense goes forward with some evidence of insanity. The State must thereafter put on sufficient evidence to prove sanity, or else there is an acquittal. Here, the State never followed up the defense case with a rebuttal. Thus — reverse and render.

¶ 19. That is far too regimented for the precedents that control us. The issue is what does the overall evidence show, both lay and expert? At least one precedent did not require any medical testimony from the State to rebut medical evidence as to sanity. Lias, 362 So.2d at 201.

¶ 20. In Hawthorne’s prosecution, there were circumstances that the State insists could be used to disprove the defense theory that the defendant was oblivious to “barriers” and ran through the red light without having the reckless disregard needed for manslaughter. The evidence indicated that Hawthorne was avoiding many other barriers as he drove a considerable distance before causing this wreck. Earlier in his journey he was weaving around traffic, and managed to make it several miles in city driving. At least in that way, the defense medical explanation for his problem was refuted.

¶ 21. On the issue of insanity, the jurors are to consider all the evidence presented. They are not limited to the defense case.and then prosecution evidence offered in rebuttal. Evidence is relevant whether it was admitted in the State’s case in chief or later. That is the defect in the majority’s articulation of a procedure for presenting evidence of insanity to a jury.

¶ 22. Continuing danger. If a jury determines that a defendant was insane at the time of an offense, it then is to decide whether the person “has since been restored to reason, and whether he be dangerous to the community.” Miss.Code Ann. § 99-13-7 (Rev.2000). Our entering a judgment of acquittal on appeal takes that decision away from the jury. In a criminal trial, only if a jury makes a finding of continuing dangerousness may an accused be indefinitely committed to a mental institution until his dangerousness has been eliminated. Hendrix v. Gammage, 556 So.2d 354, 356 (Miss.1990). Our action creates unknown consequences for Hawthorne’s future commitment. '

¶ 23. Weight of evidence. I have already discussed why the entirety of the State’s evidence should be considered on the question of insanity. It is improper to compartmentalize the presentations, and look only at evidence presented after the defense’s doctors testified about their findings. However, I acknowledge that the evidence of Hawthorne’s sanity was quite weak. The failure to present any medical testimony on sanity is suggestive that none could be obtained.

¶ 24. The question of whether a defendant was insane is peculiarly appropriate for jury resolution. I find that some evidence from which jurors could determine that Hawthorne was aware of the wrongness of his actions was before the jury. Nonetheless, there were seven medical professionals who testified that Hawthorne was unable to appreciate the difference between right and wrong. “A new trial is to be granted if the jury’s verdict so contradicts ‘the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.’ ” Pierre v. State, 607 So.2d 43, 54 (Miss.1992), quoting Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). I find that there was sufficient evidence to prove sanity, but its weight was meager.

¶ 25. Within a broad range, weighing evidence is solely the jury’s function. I am nonetheless left with the firm belief that to allow this conviction to stand based on this evidence is an unconscionable injustice. Therefore I would reverse on the basis of the imbalance in evidentiary weight. Hawthorne therefore could be retried. Tibbs v. Florida, 457 U.S. 31, 46, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). “If the exact evidence and no more is admitted again, the fact that a different jury looking at the same proof reaches the same conclusion means that a second reversal would not necessarily be appropriate in the interests of justice.” Edwards v. State, 736 So.2d 475, 484 (Miss.Ct.App.1999).

Conclusion

¶ 26. Where I differ with the majority is that it would have required the trial judge to grant a judgment notwithstanding the verdict, finding that there was sufficient evidence of the criminal acts but that Hawthorne was conclusively proven to be insane. It would be improper before the jury has deliberated to direct a verdict of not guilty by reason of insanity. That would be a verdict of guilt that is excused because of the defendant’s mental state. A trial judge cannot direct a guilty verdict. A directed verdict of guilt on each element of the crime which is then excused due to the accused’s insanity is also not within the trial court’s power. After the jury has found guilt but rejected insanity, a judge who thought that the evidence on insanity was completely one-sided in favor of the defendant would not be directing a verdict of guilt but finding insufficient evidence of sanity.

¶ 27. However, if the trial judge has to wait until after the jury verdict of guilt to act, there is no reasonable manner in which then to give that same jury which just found the defendant sane and guilty, the obligation to accept that the accused was insane at the time and the discretion to resolve whether he “has since been restored to his reason, and whether he be dangerous to the community.” Miss.Code Ann. § 99-13-7 (Rev.2000). The jury that has convicted could not reasonably then be asked to disregard its own conclusion and resolve this new and inconsistent issue.

¶ 28. The issue of sanity is always a matter of opinion. It simply cannot be proven conclusively. This makes the issue especially appropriate for jury resolution. Therefore I find it difficult to accept that it would ever be proper for a trial judge to inject his own opinion and override the jury with the opposite decision. Even if such a case might exist, I do not find that it is presented here. . However, a judge concerned about an unconscionable injustice may always order a new trial. I am concerned, and would reverse and remand because of the weight of the evidence.

MeMILLIN, C.J., THOMAS AND MYERS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: KING, P.J., GRIFFIS, J.,

license: Public Domain

text:
    HARDAWAY COMPANY and St. Paul Fire and Marine Insurance Company, Appellant, v. Harvey BRADLEY, Appellee.
    No. 2002-WC-01025-COA.
    Court of Appeals of Mississippi.
    Oct. 21, 2003.
    Rehearing Denied Jan. 13, 2004.

      Andrew D. Sweat, Jackson, Brenda Cur-rie Jones, attorneys for appellant.
    Jessie L. Evans, Dana Helene Evans, attorneys for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the Court.

¶ 1. This cause arises from a workers’ compensation claim filed by Harvey Bradley who sustained a compensable injury on November 1, 1996, while working as a carpenter/finisher for The Hardaway Company. Bradley was injured when wet concrete was accidently poured onto his head and/or neck causing injury to his neck, back and arms. Hardaway and its workers’ compensation insurance carrier, St. Paul Fire and Marine Insurance Company, paid Harvey temporary disability benefits from the date of injury to August 29, 1997, in the amount of $12,282.67. Benefits were suspended at that time because one of Bradley’s treating physicians, Dr. Howard Katz, found that Bradley had reached maximum medical recovery from a physia-tric perspective. Even though Bradley’s functional capacity evaluation indicated he could only do a light duty job, Dr. Katz concluded that Bradley could probably do up to a medium duty job. He released Bradley with some restrictions and no permanent impairment rating. Bradley’s primary treating physician, Dr. John Frenz, recommended surgical intervention. Dr. Katz disputed this finding. On the basis of Dr. Katz’s recommendation Hardaway notified Bradley that it would refuse to pay for the surgery. A motion to controvert was filed.

¶ 2. The parties agreed to submit the matter for determination by the Commission on the record made by the affidavits of the medical providers. No evidentiary hearing was held to receive lay testimony. The issues presented by the parties sought (1) a determination of whether Bradley needed surgery as a result of his injury as recommended by his primary treating physician, and (2) a determination of the existence of and extent of temporary disability attributable to the injury.

¶ 3. The administrative law judge found that the preponderance of the evidence supported the finding that Bradley did not need surgery and ordered Hardaway to pay temporary total disability at the rate of $264.55 per week from November 1, 1996 to August 29, 1997. On appeal the Full Commission affirmed the administrative law judge. The circuit court reversed the order of the Commission and Harda-way appealed.

¶ 4. According to the findings of the administrative law judge, Bradley was first treated on the day of the injury at MEA Medical Clinic. The treating physician diagnosed a cervical strain secondary to blunt trauma to the head. In a visit to the clinic several days later, in addition to neck pain and stiffness, Bradley complained of intermittent numbness and tingling in the fingers of both hands, and chronic back pain radiating through his left leg. An MRI was ordered and physical therapy and pain medication were prescribed.

¶ 5. Bradley sought treatment from a neurosurgeon, Dr. John Frenz, on November 18, 1996. Dr. Frenz saw Bradley on approximately twenty-six occasions between November 18, 1996 and November 25, 1997. According to Dr. Frenz, the MRI performed on November 6, 1996, had shown disc desiccation (meaning that over time the intervertebral discs had dried out due to a decrease in the amount of water present, causing the appearance of “Black disc” on an MRI) at C4-5 and C5-6 with central disc bulging. According to Dr. Frenz, the bulge encroached slightly on the cervical cord canal but not significantly on the cervical cord itself. Dr. Frenz noted that Bradley had not responded to a wide array of conservative treatments including wearing a cervical collar, using a TENS (Transcutaneous Electrical Nerve Stimulation device which works by sending electrical pulses across the surface of the skin and along the nerve fibers which prevent pain signals reaching the brain and also stimulate the body to produce higher levels of its own natural painkiller, called “endorphin”) unit, and various spinal epidural corticosteroid injections.

¶ 6. Dr. Frenz concluded that Bradley’s “symptoms of cervical spine injury with chronic sprain/strain and intervertebral disc injury disabled him from gainful employment.” Dr. Frenz also concluded that Bradley would “gain a reasonable degree of improvement by relief of symptoms and increased functional capacity were he to undergo surgery to the cervical spine for a removal of the abnormal disc and fusion of the involved vertebrae.” He further opined that “it is within reasonable medical certainty that at best without said surgery [Bradley] would remain in his present state of pain and incapacitation indefinitely, if not in fact worsen over some undefined period of time.” He also stated that Bradley had elected to proceed with surgery.

¶ 7. On January 15, 1997, Bradley submitted to an independent examination by neurosurgeon Dr. Lon Alexander. At that time, Dr. Alexander reported that Bradley was.wearing a soft collar and complained of posterior neck pain that radiated down his right arm into his right hand with numbness bilaterally. Bradley also complained of low back pain with radiation into his right leg and burning in his legs.

¶ 8. Dr. Alexander’s report of the examination revealed a free range of cervical motion, normal strength in all extremities, and reflexes that were found to be equal. It was also Dr. Alexander’s opinion that the November 6, 1996 MRI was “entirely within normal limits.” Dr. Alexander concluded that:

1. Bradley was “status post injury with objectively normal neurological examination and non-dermatomal sensory loss.”
2. He had no surgical lesions in his neck and should continue with some sort of therapy.
3. An evaluation by a physiatrist would be prudent at some point.
4. A normal EM6 and nerve conduction study might help rule out any structural lesions if Bradley continued to complain of non-dermatomal, non-anatomic numbness in the upper extremities.

¶ 9. On May 9, 1997, Bradley saw Dr. Howard Katz, a physiatrist, for the first time for an independent medical evaluation. Bradley’s chief complaints were (1) low back pain; (2) burning in both legs “on the tops and bottoms,” sharp shooting pains throughout his legs, numbness and tingling in both legs and sometimes his feet; (3) spasms in both arms, numbness down the medial right forearm down to the index, long and ring fingers; (4) numbness down the left medial forearm to the small finger; and (5) headaches every two days.

¶ 10. The report of Dr. Katz’s physical examination indicated that:(l) a pin prick exam administered to Bradley was unreliable throughout; (2) sometimes Bradley said that something was dull and the next time when tapped in the same place he would say that it was sharp;(3) there was no dermatomal or anatomic explanation for Bradley’s inconsistent pin prick examination; (4) Dr. Katz found Bradley’s pin prick examination to be one of the most unreliable he had ever encountered; and (5) Dr. Katz found that Bradley’s deep tendon reflexes were normal and symmetric and the rest of the neurologic exam to be normal.

¶ 11. Dr. Katz assessed Bradley’s condition as status post cervical strain with no objective evidence of neurologic deficit. He concluded that Bradley’s complaints were difficult to compare to his injury and could represent symptom magnification, psychological overlay and malingering.

¶ 12. A second pin prick examination By Dr. Katz on June 19, 1997, was again thought to be unreliable. Bradley was referred to physical therapy for therapeutic strengthening, exercise and flexibility. Pain medication was also prescribed. On July 10,1997, on a return visit to Dr. Katz, Bradley reported no improvement with physical therapy. He still complained of neck pain, bilateral arm pain, low back pain and right leg pain. He requested refills on Daypro and Valium and different pain medication. Bradley also asked to have surgery performed. Dr. Katz’s diagnosis remained unchanged and he ordered a functional capacity evaluation for Bradley at the Reliability Center.

¶ 13. Bradley was evaluated by the Reliability Center on August 20, 1997. The records from the Center indicate that Bradley did not give his maximum effort and that he magnified his symptoms. The physical therapist concluded that Bradley’s true functional máximums could not be determined “secondary to claimant stopping tasks due to complaint of pain with few, if any, changes in physical signs present to warrant stopping the tasks.” The therapist noted that further evaluation of psychological social and/or motivational factors might have been warranted.

¶ 14. Dr. Katz next saw Bradley on August 29, 1997. Bradley complained that he still tingled all over. Dr. Katz discussed the findings of the functional capacity evaluation with Bradley and questioned why it showed four of five positive non-organic signs, inconsistent varying behaviors and overall self limiting, and inconsistent and inappropriate behavior with all testing except for his strength grip. Bradley’s immediate response was, “They could have lied about me.” When Dr. Katz asked why the therapist would lie, Bradley said that he did not know.

¶ 15. Dr. Katz’s own examination of Bradley at this visit indicated that Bradley sat comfortably and moved smoothly and evenly during conversations and when he walked down the hall with Dr. Katz. Dr. Katz noted that when not testing, Bradley had no difficulty ambulating, but in testing he had only 3+ strength in his lower extremities. Dr. Katz’s diagnosis and impressions remained unchanged and he concluded that Bradley might benefit from psychiatric counseling but that Bradley was only interested in surgery. Dr. Katz saw no indication for surgery. He also concluded that Bradley had reached maximum medical recovery from a physiatric perspective. While Bradley’s functional capacity evaluation indicated he could do only a light duty job, it was Dr. Katz’s opinion that Bradley could probably do up to a medium duty job. He released Bradley to return to work with some restrictions and no permanent impairment rating.

¶ 16. The administrative law judge found that, even though Dr. Frenz treated Bradley more often and over a longer period of time than did either Dr. Katz or Dr. Alexander, a preponderance of he evidence indicated that the opinions of Drs. Alexander and Katz had greater probative value than the opinion of Dr. Frenz. She also found that all of the diagnostic tests and analyses including the MRI, myleogram, CT scan and functional capacity evaluation supported Dr. Katz and Dr. Alexander’s conclusion that no surgery was warranted. These findings were affirmed by the Full Commission.

¶ 17. In reversing the decisions of the administrative law judge and the Full Commission, the circuit court judge found that their decisions were not supported by the substantial credible evidence. Circuit Court Judge Tomie Green held as follows in her memorandum opinion and order:

In determining whether the Commission erred in its decision, the Court must review the record as a whole. Even though there may be slight evidence to support the Workers’ Compensation Commission’s decision, that decision can be clearly erroneous when in light of the entire evidence, the reviewing court is left with the definite and firm conviction that a mistake has been made. Guardian Fiberglass, Inc. v. LeSueur, 751 So. 2nd 120[1], 1204 (Ct.App.1999). This Court, after review finds that Bradley submitted substantial evidence to support an award of permanent partial disability benefits and that the Full Commission may likely have made such a mistake in its assessment of Bradley’s benefits. While it is true that Dr. Katz and Dr. Alexander opined that Bradley did not require surgery, and Dr. Katz specifically diagnosed Bradley as reaching maximum medical recovery, Dr. Katz, Dr. Alexander, and Dr. Frenz’s diagnosis conflicted in that, Dr. Frenz opined that without the recommended surgery, Bradley’s condition would not improve and would in fact worsen. Further, it should be noted that the conflict regarding Bradley’s condition came from physicians who examined' Bradley at the request of the Workers’ Compensation Commission. The Court in Atlas Rollr-Lite [Door]Corporation v. Ener, 741 So.2d 343, 347 (Ct.App.1999), was clear in its opinion that “doubtful cases should be resolved in favor of compensating a 'claimant so that the beneficent purposes of the Workers’ Compensation Act may be accomplished.”
In light of the rulings in Atlas and Guardian Fiberglass, the Court is of the opinion that Bradley had not reached maximum medical recovery on August 29, 1997, and that further surgery is needed.

¶ 18. Finding that Judge Green came to the correct resolution of this matter, this Court affirms her ruling to reverse the Commission, albeit on different grounds.

ANALYSIS OF THE LAW

¶ 19. Under this Court’s standard of review on workers’ compensation matters the Full Commission, as the ultimate fact finder, enjoys the presumption that it made proper determinations as to the weight and credibility of the evidence and .its findings are binding on this Court provided they are supported by substantial evidence. . Furthermore, this Court will only reverse the Commission’s decision when the decision is erroneous and contrary to the weight of the evidence. Page v. Zurich Am. Ins. Co. of Ill., 825 So.2d 721, 722(¶ 3) (Miss.Ct.App.2002). Finding that the Commission’s decision was erroneous and contrary to the weight of the evidence, reversal is in order.

¶ 20. In a factually similar case, The Mississippi Supreme Court held that “it is the obligation of the employer to provide whatever is needed or is reasonably calculated to carry out the humanitarian purposes of the Workers’ Compensation Act,” and that, “there is a broad public policy behind the Act to provide the necessary treatment to restore the injured worker to health and productivity.” Spann v. Wal-Mart Stores, Inc., 700 So.2d 308, 315 (¶¶ 31-32) (Miss.1997).

¶ 21. In Spann, the Commission upheld the administrative law judge’s ruling that Spann was not entitled to surgery that had been recommended by his primary treating physician who was, coincidentally, Dr. John Frenz. As in the case sub judice, two other physicians had found that surgery was unnecessary or would not be beneficial to Spann’s recovery. In reversing the Commission, the court held that the employer, Wal-Mart, was obligated, pursuant to the Act, to allow Spann to have the surgery recommended by Dr. Frenz. Id. at (¶ 33). The court further held that “the case law and Act mandate that as long as a particular treatment is deemed ‘necessary and reasonable’ by a competent treating physician, the employee and carrier are obligated to furnish such treatment ... [and][t]here is no dispute that Dr. Frenz is a competent physician as defined by the Act.” Id. at (¶ 34).

¶ 22. Following the dictates of the supreme court’s holding in Spann, it is the finding of this Court that “[following surgery, if still indicated, and the appropriate period of recovery, it should be determined whether or not maximum medical recovery has indeed been achieved, and if so, whether any temporary or permanent partial disability exists.” Id. at (¶ 36).

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

GRIFFIS, J.,

Dissenting.

¶ 24. With respect to the majority, I am of the opinion that both the circuit court and now this Court reached an incorrect result. Therefore, I dissent.

¶ 25. In Fought v. Stuart C. Irby Co., 523 So.2d 314 (Miss.1988), the Mississippi Supreme Court succinctly stated the appropriate standard of review of a decision by the Mississippi Workers’ Compensation Commission. The Court held:

The Workers’ Compensation Commission is the trier and finder of facts in a compensation claim, the findings of the Administrative Law Judge to the contrary notwithstanding. See Dunn, Mississippi Workers’ Compensation §§ 284 (3d ed.1982). If the Commission’s findings of fact and order are supported by substantial evidence, all appellate courts are bound thereby, [citations omitted.] This is so, even though the evidence would convince this Court otherwise, were we the fact finder. Georgia-Pacific Corp., 484 So.2d at 1028 (quoting Olen Burrage Trucking Co. v. Chandler, 475 So.2d 437, 439 (Miss.1985)). Stated differently, this Court will reverse the Commission’s order only if it finds that order clearly erroneous and contrary to the overwhelming weight of the evidence. Myles v. Rockwell International, 445 So.2d 528, 536 (Miss.1983) (citing Masonite Corp. v. Fields, 229 Miss. 524, 91 So.2d 282 (Miss.1956)); and Riverside of Marks v. Russell, 324 So.2d 759, 762 (Miss.1975).

Fought, 523 So.2d at 317.

¶ 26. In the second sentence of its analysis, the majority cites the appropriate standard of review to be that “this Court will only reverse the Commission’s decision when the decision is erroneous and contrary to the weight of the evidence.” I am of the opinion that this is incorrect. The court in Fought stated one principle, which may be applied through two similar examinations. First, an appellate court is bound by the Commission’s decision if it is supported by “substantial evidence.” Second, stated differently, an appellate court may reverse the Commission only if the decision is clearly erroneous and contrary to the overwhelming weight of the evidence. Id. In practice, the difference between these two standards is slight; however, the essence is that appellate courts may not simply reweigh the evidence and interject its decision for that of the Commission. Indeed, this Court has a duty to defer to the Commission when its decision can be supported. Id. My review will consider the facts and an examination of both versions of the standard of review.

¶ 27. Several different physicians examined Bradley. An MRI was performed and interpreted. The physicians arrived at two totally opposite conclusions. Dr. Frenz, Bradley’s physician, concluded that the MRI revealed abnormalities which required surgery. Dr. Alexander and Dr. Katz, who performed independent medical examinations at the request of the Commission, found the MRI to be within normal limits and concluded that Bradley was not in need of further surgery. The administrative law judge and the Commission considered these conflicting opinions and determined that Bradley had reached maximum medical improvement and was not in need of further medical or surgical intervention.

¶ 28. The Commission’s decision is supported by the opinions of Dr. Alexander and Dr. Katz. Under Fought, we must consider whether the Commission relied on “substantial evidence.” If it did, we must affirm. Substantial evidence has been defined as more than a scintilla of evidence. Central Elec. Power Ass’n v. Hicks, 236 Miss. 378, 389-90, 110 So.2d 351, 357 (1959). Here, with the testimony of two physicians, who conducted independent medical examinations, the Commission’s decision was supported by more than a scintilla of evidence. Therefore, “substantial evidence” supporting the Commission’s decision was present.

¶ 29. Next, the majority concludes that the Commission’s decision was erroneous and against the weight of the evidence. Neither the circuit court nor this Court should attempt to reweigh the evidence. In Baugh v. Cent. Miss. Planning, 740 So.2d 342, 344 (Miss.Ct.App.1999), we held:

Where two or more qualified medical experts reach different conclusions, we will not determine where the preponderance of the evidence lies when the evidence is conflicting, the assumption being that the Commission as the trier of fact, has previously determined which evidence is credible, has weight, and which is not.

Again, with the opinion of two physicians to support the Commission’s decision, it is difficult to conclude that the Commission’s decision was against the “overwhelming” weight of the evidence.

¶ 30. Other legal principles must also be considered. In reviewing this claim and the evaluation of evidence by the Commission, this Court is bound by the factual findings of the Commission “even though the evidence would convince the court otherwise if it were instead the fact finder.” Ladnier v. Shoney’s Inn, 751 So.2d 1099, 1101 (Miss.Ct.App.1999). We may not interfere, absent an error of law, where credible evidence exists to support the Commission’s decision. Lanterman v. Roadway Express, Inc., 608 So.2d 1340, 1345 (Miss.1992). As in this claim, “where there is a conflict of qualified and substantial medical testimony, the decision of the commission, for or against an award, is final and must be affirmed on review.” Ladnier, 751 So.2d at 1103.

¶ 31. The portion of the circuit court’s memorandum opinion, cited by the majority, clearly indicates that the circuit court reweighed the evidence before the Commission and interposed its findings in the place of the Commission’s, which should not occur. While the majority states that it relies on different grounds, it must be noted that there was a direct conflict in the qualified medical testimony presented to the administrative law judge and the Commission. Accordingly, the appropriate standard of review requires that we, as an appellate court, must therefore accept the Commission’s findings and conclusions.

¶ 32. The majority’s other grounds for reversal focuses on language contained in the Mississippi Supreme Court’s decision in Spann v. Wal-Mart Stores, Inc., 700 So.2d 308 (Miss.1997). Spann does not support the majority’s position. In Spann, three doctors offered testimony. Dr. Frenz concluded that Spann needed surgery; Dr. Nix testified that surgery was not necessary; and Dr. Barrett concluded that there was a 50-50 chance that Dr. Frenz’s planned surgery would improve Spann’s condition enough for him to go back to work. Id. at 310 (¶¶ 7-10). The supreme court ordered treatment, by Dr. Barrett instead of Dr. Frenz, to continue on the basis that “the only disagreement” between Dr. Frenz and Dr. Barrett was that the former opined surgery was required and the latter opined it had a 50-50 chance of success. Id. at 312(¶ 15). The expert opinions by Drs. Frenz and Barrett were not in direct conflict. The only credible physician testimony was that the proposed medical treatment had a high rate of success, i.e. it would allow Spann to resume heavy work duties. Id. at 314 n. 2 (¶ 25). Such is not the case here.

¶ 33. Instead, the majority cites Spann for the proposition that if a competent treating physician says that a particular treatment is necessary and reasonable, the employer and carrier must pay for it. Id. at 315 (¶ 34). This reading of Spann is contrary to our workers’ compensation laws. Certainly, the employer, through the proper procedures, has the right to question whether a certain treatment is necessary. The statutes and rules allow the employer to object and require the Commission to decide whether certain medical procedures should be authorized. Mississippi Code Annotated Section 71-3-47 (Rev.2000); Commission General Rule 9; Procedural Rule 22. “[I]f a dispute arises about whether a particular medical service or supply is reasonable and necessary, one or more of the parties may call upon the Commission to resolve the dispute.” 9 Ency. Miss. Law, Workers’ Compensation Law, § 76:102 (2001).

¶ 34. The majority here reads Spann to override the employer’s right to challenge a particular medical treatment on the grounds that it is not reasonable or necessary. Such cannot be the case. In Spann, the only two credible physicians agreed that the planned treatment was reasonable, necessary, and there was a significant chance that the surgery would allow Spann to resume his work duties. Spann, 700 So.2d at 310. Spann stands for the proposition that if all physicians agree that a certain medical treatment would benefit the employee and there is no credible evidence to the contrary, the Commission is then obligated to authorize the treatment.

¶ 35. Here, the situation is different. The expert testimony by Dr. Alexander and Dr. Katz was in direct conflict to the testimony of Dr. Frenz. The physicians did not agree on the treatment. Instead, there was substantial evidence from two physicians, both of whom conducted independent medical examinations as ordered by the Commission, that the planned treatment was not reasonable or necessary based on the medical findings.

¶ 36. For these reasons, I find that the Commission’s decision was proper. The decision was supported by substantial evidence, and it was not clearly erroneous and contrary to the overwhelming weight of the evidence. Therefore, I would reverse the circuit court and reinstate the Commission’s decision.

SOUTHWICK, P.J., JOINS THIS SEPARATE OPINION.

      . A physiatrist is a medical specialist in the field of physical medicine and rehabilitation whose focus is on evaluating and restoring function. The physiatrist cares for patients who suffer acute and chronic pain and mus-culoskeletal problems like back and neck pain, tendinitis, pinched nerves and fibro-myalgia. Florida Society of Physical Medicine & Rehabilitation, http:www.fspmr.org/physiatrist.htm

      . Dr. Nix's testimony was not considered credible because (a) his answers on cross-examination were uncertain; (b) he examined Spann only once; and (c) he admitted that he had not reviewed Spann’s MRI. Spann, 700 So.2d at 310.


author: CHANDLER, J., KING, P.J.,

text:
    Michael SHEFFIELD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CA-00559-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.
    Rehearing Denied April 6, 2004.

      James A. Williams, Meridian, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On November 20, 1997, Michael Sheffield was indicted on charges of burglary of a dwelling and grand larceny. Sheffield was tried and found guilty of burglary of a dwelling and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections as a habitual offender. Sheffield appealed, and the supreme court affirmed Sheffield’s conviction. Sheffield v. State, 749 So.2d 123 (Miss.1999).

¶ 2. Sheffield filed a request in the supreme court for leave to file a motion for post-conviction relief in the trial court. The supreme court granted the request. After an evidentiary hearing, the trial court denied the motion for post-conviction relief. Sheffield filed a motion for reconsideration of post-conviction collateral relief on March 11, 2002, which was denied by the trial court. Sheffield appeals that decision before this Court. We address the following four assignments of error:

I. WHETHER SHEFFIELD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.
II. WHETHER SHEFFIELD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE POST-CONVICTION RELIEF HEARING.
III. WHETHER SHEFFIELD WAS ENTITLED TO A PLEA UNDER THE BUILDING BURGLARY STATUTE, OR ALTERNATIVELY, WHETHER SHEFFIELD SHOULD BE DISCHARGED.
IV. WHETHER THE TRIAL COURT SHOULD HAVE GRANTED SHEFFIELD’S MOTION FOR RECONSIDERATION.

¶ 3. Finding the issues raised by Sheffield proeedurally barred and/or without merit, we affirm the trial court’s denial of post-conviction relief.

FACTS

¶ 4. On August 27, 1999, Billy Joe Madison and his grandmother, Mary M. Carpenter, were outside Carpenter’s home in Meridian, Mississippi. Madison was working in Carpenter’s yard. They were approached by Sheffield, who asked Madison for a ride so Sheffield could take some items to another location in an effort to sell them. Madison agreed to Sheffield’s request. Sheffield then asked to borrow a screwdriver. Madison thought this was a rather unusual request, so Madison told Sheffield that he had decided against giving him a ride. Undaunted, Sheffield next requested to use the telephone to call an antique store. After Sheffield called the antique store, he left Madison’s presence and returned a short time later with two gas space heaters, which he placed in the back of Madison’s truck. Madison told Sheffield to remove the heaters. Sheffield removed the heaters as instructed to a nearby yard. Carpenter and Madison next saw Sheffield leave the home of their neighbor, Lela Jolly, with two more heaters and carry those heaters to the same location as the other two. Next, they saw Sheffield leave the Jolly house with a white door. A pickup truck arrived and Sheffield loaded the door and the heaters onto the back of the truck.

¶ 5. The Jolly house had been vacant since 1994, when its owner, Lela Jolly, moved to a nursing home. The house was unfurnished except for a few miscellaneous items. The house was listed for sale with a local real estate broker, Robert E. Trotter. On the evening of August 27, Trotter arrived at the house to show it to a potential buyer. Trotter noticed broken glass on the back door and noted that some heaters were missing.

¶ 6. The next day, Madison was again working in his grandmother’s yard. Sheffield approached him and asked for assistance. Madison told Sheffield that what he was doing was wrong. Sheffield said “it’s no big deal” and returned to the Jolly house. The police were summoned and they arrested Sheffield.

¶ 7. At trial, Sheffield was represented by trial counsel who assumed a position as an assistant district attorney before the appeal was perfected. A new attorney was appointed who perfected Sheffield’s direct appeal. Another attorney was assigned by the court to handle Sheffield’s case on post-conviction relief. After an evidentia-ry hearing, Sheffield’s petition for post-conviction collateral relief was denied. Following the denial of post-conviction relief, Sheffield, pro se, submitted to the court a petition to reinstate guilty plea offer on February 27, 2002. The trial judge received the petition and transmitted it by letter to the attorney who was representing Sheffield at that time. The attorney filed a motion for reconsideration of post-conviction collateral relief on March 11, 2002, on behalf of Sheffield. On March 20, 2002, the trial judge entered an order denying the reconsideration motion on the basis there was no provision for such a rehearing in the Mississippi Rules of Civil Procedure. The trial judge ruled the only avenue for Sheffield to proceed under was Rule 59(e) or amend judgment pursuant to Rule 60. The trial judge ruled that the motion was not filed within ten days of the order of reconsideration; therefore, Rule 59(e) was not available for Sheffield. Sheffield’s motion pursuant to Rule 60 was denied on the basis that none of Sheffield’s assertions fell within the realm of Rule 60. Sheffield appeals the denial of post-conviction relief and the March 20, 2002, order denying the motion to reconsider.

LAW AND ANALYSIS

1. WHETHER SHEFFIELD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

¶ 8. Sheffield asserted in his motions for a directed verdict and JNOV that the State had failed to prove every essential element of the crime, and specifically challenged the State’s proof that Sheffield broke into the Jolly home. Sheffield’s motions were denied by the trial court.

¶ 9. On direct appeal to the Mississippi Supreme Court, Sheffield challenged the rulings on the ground that the State had failed to prove the house was a “dwelling.” Sheffield 749 So.2d at 126(¶ 10). The Mississippi Supreme Court found the issue procedurally barred because Sheffield’s motions failed to specifically address the State’s failure to prove the “dwelling” element. Id at (¶ 10).

¶ 10. Following the direct appeal, the Mississippi Supreme Court granted Sheffield’s request for an evidentiary hearing on a post-conviction collateral relief petition. At the evidentiary hearing, Sheffield argued that trial counsel’s failure to specifically challenge the “dwelling” element constituted ineffective assistance of counsel. The trial court found the “dwelling” issue procedurally barred and denied relief because Sheffield’s appellate counsel was different than his trial counsel. Therefore, a claim of ineffective assistance by trial counsel should have been asserted in Sheffield’s direct appeal. The trial court held that the failure to assert the claim resulted in a waiver of the issue.

¶ 11. Feeling aggrieved, Sheffield appeals the adverse ruling on his petition for post-conviction relief. The State argues that Sheffield’s appellate counsel failed to argue ineffective assistance of trial counsel on direct appeal. The State asserts that this failure by Sheffield’s trial counsel has resulted in a waiver of the issue pursuant to Mississippi Code Annotated § 99-39-21(1) (Supp.2002), which provides:

Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.

¶ 12. In Evans v. State, 485 So.2d 276, 281 (Miss.1986), the supreme court discussed the application of § 99-39-21(1) to a movant’s claim of ineffective assistance of counsel. The court explained that “the right to the effective assistance of counsel, like any other constitutional right, may be waived. But before there can be a waiver, the defendant must have a meaningful and realistic opportunity to assert the right. If he is given that opportunity and he intelligently and voluntarily declines to assert the right, it is then waived.” Id.

¶ 13. The Mississippi Supreme Court has repeatedly found that the defendant had a meaningful opportunity to raise effectiveness of counsel where the defendant was represented by different counsel on appeal than at trial, and where the defendant fails to allege cause or actual prejudice for not raising the issue on direct appeal. Moore v. State, 676 So.2d 244, 245 (Miss.1996); Lockett v. State, 614 So.2d 898, 903 (Miss.1992).

¶ 14. Sheffield’s counsel at the trial court level and in his direct' appeal to the Mississippi Supreme Court were two different attorneys. When the lawyer who handled Sheffield’s appeal to the supreme court declined to raise the ineffectiveness of trial counsel, it resulted in a waiver for Sheffield on the issue. In this appeal, Sheffield does not challenge the effectiveness of appellate counsel for failure to raise the issue. This indicates to the Court that Sheffield views appellate counsel’s decision against raising trial counsel’s ineffectiveness as a tactical decision, because appellate counsel believed the supreme court would notice plain error in his direct appeal regarding the dwelling element.

¶ 15. The Court holds that Sheffield’s argument is proeedurally barred because he had a meaningful opportunity on direct appeal to raise trial counsel’s error of specifically failing to address the dwelling element. Sheffield was given an opportunity to assert the claim but decided against it. Sheffield waived the claim and is procedurally barred from pursuing it.

¶ 16. Sheffield also argues that the Court should notice plain error because his claim of ineffective assistance of counsel has merit. To prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-pronged test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, the defendant must show that (1) counsel’s performance was deficient, and (2) the deficiency prejudiced the defendant. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). There is a strong but rebuttable presumption that counsel’s decisions were sound trial strategy. Id. at 969. To overcome the presumption, the defendant must show that but for counsel’s deficiency, a different result would have occurred. ■ Id. at 968. The reviewing court must examine the totality of the circumstances. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶ 17. The alleged deficient performance is trial counsel’s failure to specifically attack the State’s proof of the dwelling element. Prejudice results from the failure to preserve the dwelling issue only if the issue affects the outcome of the trial. Williams v. State, 722 So.2d 447, 448(¶ 4) (Miss.1998). Sheffield cites the holding in Carr v. State, 770 So.2d 1025, 1030 (¶ 16) (Miss.Ct App.2000), where this Court stated that counsel’s failure to specifically object to the State’s proof of the dwelling issue in his motion for directed verdict and JNOV was plain error. However, it is important to note, the Mississippi Supreme Court did not choose to notice plain error in Sheffield’s direct appeal after it found that the dwelling issue was proeedurally barred. This Court is inclined to follow the ruling of the Mississippi Supreme Court in Sheffield’s direct appeal and finds no plain error in Sheffield’s claim of ineffective assistance of counsel.

¶ 18. Aside from the procedural bar, itself a sufficient basis on which this Court might rest its resolution of Sheffield’s first issue, this Court is of the opinion that the Jolly house was a dwelling contained within the purview of Mississippi Code Annotated Section 9Y-17-23 (Supp.2003). Therefore, Sheffield did not receive ineffective assistance based on counsel’s failure to specifically object to the dwelling element.

¶ 19. Mississippi Code Annotated Section 97-17-23 (Supp.2003), describes the crime of burglary:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by imprisonment in the Penitentiary not less than three (3) years nor more than twenty-five (25) years.

A “dwelling” is defined as “every building joined to, immediately connected with, or being part of the dwelling house, shall be deemed the dwelling house.” Miss.Code Ann. § 97-17-31 (Supp.2003). In Edwards v. State, 800 So.2d 454, 461 (¶ 11) (Miss.2001), the court held the intention of the dweller is material in determining whether a building is characterized as a dwelling under the statute. The house of a person who was confined to a nursing home is considered a dwelling if the house remains furnished and there is an intent to return. Course v. State, 469 So.2d 80, 82 (Miss.1985).

¶ 20. The trial court evaluated the merits of the ineffective assistance of counsel claim in its opinion denying post-conviction collateral relief. The court found that the Jolly house was a dwelling because the proof showed it was temporarily unoccupied due to the fact that Lela Jolly was in a nursing home. The court noted the absence of proof at trial of whether Jolly was regaining her health and intending to return, or whether her health was deteriorating and it was reasonable to assume she would never return. The trial court’s findings are upheld. Houston v. State, 776 So .2d 695, 697 (¶ 13) (Miss.Ct.App.2000) (holding trial court findings are reviewed pursuant to the clearly erroneous standard).

¶ 21. The house was on the market to be sold as a dwelling. There were for sale signs posted in the yard and the house was being shown to potential purchasers by a real estate agent. There was clearly an intent by the owner that the house continue to function as a dwelling. Accordingly, Sheffield’s claim is without merit.

¶ 22. Sheffield argues that it was impermissible for the jury to be instructed on the elements of burglary of a building other than a dwelling because it is not a lesser-included offense and the charge was not made part of his indictment. Sheffield is correct that burglary of a building other than a dwelling is not a lesser-included offense of burglary of a dwelling. Smith v. State, 725 So.2d 922, 929(¶ 16) (Miss.Ct.App.1998). In Smith, the Court held that the error of adding a constructive amendment to the indictment was harmless because Smith was not convicted on the added amendment’s charge. Id. Instead, Smith was convicted on the charge of burglary of a dwelling and not burglary of a building other than a dwelling. Like Smith, Sheffield was convicted of burglary of a dwelling and not burglary of a building other than a dwelling. The jury instruction was harmless.

2. WHETHER SHEFFIELD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE POST-CONVICTION RELIEF HEARING.

¶ 23. Sheffield’s post-conviction relief counsel limited his argument to the above stated issue. The attorney stated that, in his opinion, the issues raised by Sheffield’s pro se motion for post-conviction relief were frivolous and could not be ethically addressed. In this appeal, Sheffield argues that this was ineffective assistance of counsel.

¶ 24. A defendant has no state or federal right to counsel in post-conviction proceedings. Nance v. State, 766 So.2d 111, 114 (¶ 12) (Miss.2001). Counsel for indigent defendants are appointed at the trial court’s discretion. Id. Where there is no constitutional right to counsel, there can be no deprivation of effective assistance. Wainwright v. Toma, 455 U.S. 586, 588, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982). Therefore, Sheffield did not receive ineffective assistance of counsel when his attorney declined to address the issues raised by him in his pro se motion.

3. WHETHER SHEFFIELD WAS ENTITLED TO A PLEA UNDER THE BUILDING BURGLARY STATUTE, OR ALTERNATIVELY, WHETHER SHEFFIELD SHOULD BE DISCHARGED.

¶ 25. Sheffield rejected the State’s offer of twenty-five years without parole, the maximum sentence for dwelling burglary as a non-violent habitual offender. Miss. Code Ann. § 99-19-81 (Supp.2003). Sheffield argues that, if the Court finds that counsel was ineffective for failure to preserve the dwelling issue, then the State must extend the identical plea offer under the building burglary statute. The offer would entitle Sheffield to a seven year sentence rather than the twenty-five year sentence. Miss.Code Ann. §§ 97-23-33 and 99-19-81 (Supp.2003). Sheffield argues that the State is required to make the plea offer to avoid a presumption of prose-cutorial vindictiveness under Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).

¶26. Sheffield is procedurally barred from re-litigating the dwelling issue on appeal. Therefore, Sheffield’s claim that he is entitled to a plea bargain under the statute of burglary of a building will not be addressed by this Court.

4.WHETHER THE TRIAL COURT ERRONEOUSLY DENIED SHEFFIELD’S MOTION FOR RECONSIDERATION.

¶ 27. The trial court’s order denying post-conviction relief was entered on February 27, 2002. Sheffield filed his motion for reconsideration on March 11, 2002. The trial court received Sheffield’s motions pursuant to Rules 59(e) and 60(b) of the Mississippi Rules of Civil Procedure.

¶ 28. Under Rule 60(b), Sheffield has six months to file his motions. Rule 60(b) motions for a new trial may be granted for: (1) fraud, misrepresentation or other misconduct of an adverse party; (2) accident or mistake; (3) the judgment is void; (4) the judgement has been satisfied, released or discharged, or a prior judgement upon which it was based has been reversed or otherwise vacated; (6) any other reason justifying relief from judgement. M.R.C.P. 60. The trial court held that the motion for reconsideration did not fit any of these categories.

¶29. Sheffield argues that the motion raised an issue of “miscarriage of justice,” namely, that he was wrongly indicted for dwelling burglary. Sheffield was not wrongly indicted for burglary of a dwelling. Sheffield’s Rule 60(b) motion, therefore, does not fall within any of the limited provisions of the rule as echoed by the trial court’s order denying post-conviction relief. No miscarriage of justice has occurred and Sheffield is not entitled to a new trial under Rule 60(b).

¶ 30. The trial court stated that Rule 59(e) motions to amend or alter judgment must be based on only three possible grounds: (1) an intervening change in controlling law; (2) availability of new evidence not previously available; (3) need to correct clear error of law or prevent manifest injustice. M.R.C.P 59(e). The rule requires that the motion must be filed within ten days of judgement. The trial court found that Sheffield’s motion was not timely filed.

¶ 31. Sheffield argues that the motion was timely filed under Mississippi Rule of Civil Procedure 6(a). The last day that Sheffield could file his Rule 59(e) motion was March 9, 2002, which fell on a Saturday. Rule 6(a) states, “the last day of the period so computed shall be included, unless it is a Saturday, Sunday, or legal holiday ... in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.” M.R.C.P. 6. We agree with Sheffield that the trial court erred in holding that his reconsideration motion was untimely filed within ten days as required by Rule 59. When the proper considerations are taken into account, the motion was timely. However, we observe that, before reaching that erroneous conclusion, the trial court had already determined that the movant had not shown the “[n]eed to correct a clear error of law or prevent manifest injustice.” M.R.C.P 59(e) We construe that as a holding by the trial court that the reconsideration motion was without merit. This ruling on the merits of the motion makes the court’s subsequent incorrect assertion that the motion was untimely nothing more than harmless error.

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

McMILLIN, C.J., BRIDGES, LEE, MYERS AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. KING, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J., AND THOMAS, LEE AND IRVING, JJ.

KING, P.J.,

CONCURRING.

¶ 33. I agree with the majority that Sheffield’s claim of ineffective assistance of counsel is waived under these facts. However, I write separately to express my strong disagreement with the majority’s holding expressed in paragraph 18, that the Jolly home was a dwelling within the purview of Mississippi Code Annotated Section 97-17-23, which makes burglary of a dwelling a crime.

¶ 34. Under this State’s burglary statute a dwelling is (1) a structure presently inhabited, or (2) a structure from which the regular inhabitants have temporarily absented themselves, with the intent to return. Carr v. State, 770 So.2d 1025(¶ 12) (Miss.Ct.App.2000); Pool v. State, 764 So.2d 440 (¶¶ 13,15) (Miss.2000).

¶ 35. In this case the record reflects that the structure had been uninhabited and vacant for at least three years. There was no proof that the absence was temporary, or that the owner intended to return. Nor may it be inferred that the absence was a temporary one, and the owner intended to return. Indeed, the inference to be derived from the evidence was just the opposite, that being that the owner’s absence was intended to be permanent.

¶ 36. The evidence was (1) that Mrs. Jolly, a widow, had been moved out of the home and into a nursing home because of age and ill health; (2) that, save for a few miscellaneous items, all of her property had been moved out of the house; and (3) that the house had been listed with a realty company for sell, and a sign advertising this fact had been placed in the yard.

¶ 37.- Given this state of the record, I am at a loss to understand the majority’s holding that the house in this case was a dwelling.

¶ 38. Once the present owner vacated the house, with no indicated intention to return, it lost its character as a dwelling for purposes of the burglary statute. That characterization as a dwelling would not return until such time as the structure was again occupied.

SOUTHWICK, P.J., THOMAS, LEE AND IRVING, JJ„ JOIN THIS OPINION.


author: BRIDGES, J.,

text:
    In the Matter of the ESTATE of Ezell “Boggie” a/k/a “Boogie” THOMAS, Deceased. Sharon Haley, Jannie Collins, Derick Thomas, Eric Thomas, Timothy Thomas, Lynn Vallian, Dezie Haley, Gayle Haley, Demetria Murry, Jimmy Dale Dixon, Ray Joseph Fountain, Delanious Grinnell and Marion Oliver, Appellants, v. Glenda Joyce Thomas, Administrator, Appellee.
    No. 2002-CA-01230-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.
    Rehearing Denied Feb. 3, 2004.
    Kevin Dwight Muhammad, attorney for appellant.
    Christopher E. Fitzgerald, and Robert A. Pritchard, Pascagoula, attorneys for ap-pellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. The chancellor of Jefferson County found the illegitimate children of Ezell Thomas, Natasha Motley and Donnie Howard, to be his heirs at law. From that determination the appellants, the nieces and nephews of the decedent, appeal to this Court. The issues are stated verbatim.

STATEMENT OF THE ISSUES

I. DID THE CHANCELLOR ERR IN NOT UPHOLDING THE APPROPRIATE STATUTE OF LIMITATIONS AGAINST THE ILLEGITIMATE HEIRS?

II. DID THE CHANCELLOR ERR IN DETERMINING THAT THE APPELLANTS WERE NOT LEGITIMATE HEIRS?

FACTS

¶ 2. The many filings in the record have conflicting names for several of the parties mentioned throughout. A diligent inspection of the record by the Court has resulted in an attempt to correctly identify all parties involved. The names used by the chancellor in his final judgment will be used in this opinion; however, initially the various other names will follow as an “a.k.a.”

¶ 3. On August 27, 1997, Ezell “Boggie” Thomas died intestate as a resident of Jefferson County, Mississippi. His estate consisted solely of claims for unliquidated damages against R.J. Reynolds Tobacco Co. and others. Suits remain pending along with a wrongful death claim by his beneficiaries at the time these issues were brought up on appeal. On November 10, 1997, Glenda Joyce Thomas, the decedent’s sister, filed a petition to administer the estate. Ms. Thomas named the following as surviving heirs of the estate: Dezie Lee Thomas (a.k.a. Marie Thomas), his mother; Natasha Gail Motley, an illegitimate daughter; Glenda Joyce Thomas, a sister; Elisha Clark, a sister; Louise Griffin (a.k.a. Louis Griffin), a sister (brother); Mamie Lee Fountain (a.k.a. Mamie Thomas and Marie Thomas), a half-sister; and Marion Lee Thomas (a.k.a. Marion Lee Fountain), a brother. Letters of administration were issued on that date and notice to creditors was filed three days later.

¶ 4. The estate lay dormant until August 6, 2001, when Ms. Thomas filed a petition to distribute funds. The funds were to be divided equally between his three living sisters and his daughter. The decedent’s mother, half-sister and brother who were listed as heirs died while the estate lay dormant. Half-sister, Mamie Lee Fountain, at her death left four children: Jannie Collins, Jimmie Dale Dixon, Ray Joseph Fountain and Delanious Graynell. Brother, Marion Lee Thomas, died leaving nine children: Sharon Haley, Derek Thomas, Eric Thomas, Timothy Thomas, Lynn Vallian, Dezie Haley, Gayle Haley, Demetria Murry and Marion Oliver.

¶ 5. Later that year R.J. Reynolds filed a petition to remove Ms. Thomas as ad-ministratrix and requested a suit to determine heirs. The petition to remove Ms. Thomas was denied and in January 2002, Ms. Thomas began at the court’s instruction the suit to determine heirs. Notice to necessary parties was filed on February 14th of that year. Ms. Thomas had not previously notified the decedent’s daughter, Natasha Motley, of the administration of her father’s estate and had also failed to discover the existence of a second illegitimate child, Donnie Howard (a.k.a. Donnie Thomas). Donnie’s existence was known by Natasha Motley and by many of the decedent’s siblings, nieces and nephews.

¶ 6. It was established at trial that the decedent never married the mother of Natasha Motley but lived with her for about ten years beginning in the early 1970s in Texas. Natasha was born out of this relationship and always referred to the decedent as “daddy.” The decedent at all times acknowledged her as his daughter, even after he left Texas, though he did not provide support and they rarely saw each other. Other relatives introduced Natasha as the decedent’s daughter during his final hospital visit and it was at this time Ms. Thomas learned of Natasha. Because of this meeting, Ms. Thomas named Natasha as an heir in the initial filing.

¶ 7. The decedent never acknowledged to Ms. Thomas that he had a son, Donnie. However, testimony established that if she had contacted Natasha she could have easily discovered the existence of a second child fathered by the decedent. Donnie Howard was the result of a relationship begun in 1967 and continued until the late 1970s while the decedent lived in Houston, Texas. Donnie testified that even though there was no contact between him and his father once his father left Texas he had always known the decedent as his father from the little contact they had while the decedent still lived in Texas. Donnie testified that he had a close relationship with one of the decedent’s sisters and recognized the decedent’s nieces and nephews as his cousins all his life.

¶ 8. Natasha Motley and Donnie Howard did not begin their adjudication of paternity until after notice was given of the suit to determine heirs following the January 2002 hearing. Also, at that time the children of Mamie Lee Fountain and Marion Lee Thomas petitioned the court to determine the heirs at law in the hope that they could take their parents’ share of the estate.

ANALYSIS

I. HAD THE STATUTE OF LIMITATIONS LAPSED FOR THE DECEDENT’S ILLEGITIMATE CHILDREN?

¶ 9. Sharon Haley and the other appellants assert that the failure of the illegitimate children of the decedent to file a petition for paternity within the one year statute of limitations bars their ability to inherit through him. However, Ms. Thomas, as administratrix, defends the trial court’s decision that failure to provide Natasha Motley with actual notice and failure to diligently discover the existence of potential heirs effectively tolls the running of the statute of limitations; therefore, Natasha Motley and Donnie Howard are not proeedurally barred from filing a petition to determine paternity.

¶ 10. Relevant Mississippi code sections provide in part:

Illegitimacy Statute
(3) An illegitimate shall inherit from and through the illegitimate’s natural father and his kindred, ... if:
(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or
(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed unthin one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child.

Miss.Code Ann. § 91-1-15 (Rev.1994) (emphasis added).

Determining heirs at law All the heirs at law and next of kin of said deceased who are not made parties plaintiff to the action shall be cited to appear and answer the same....

Miss.Code Ann. § 91-1-29 (Rev.1994).

¶ 11. Under Mississippi Code Annotated § 91-7-293 (Rev.1994), Ms. Thomas, as administratrix, had a duty to use all reasonable diligence to ascertain the identity of all potential heirs for her final account of heirs, devisees and legatees of the estate. Estate of King I, 501 So.2d 1120, 1123 (Miss.1987). It is established that had Ms. Thomas either contacted Natasha Motley or questioned some of the decedent’s nieces and nephews she could have easily discovered the existence of Donnie Howard. Therefore, it can be assumed all reasonable diligence was not used but this failure by the administratrix is a breach not addressed in this suit.

¶ 12. In this case the issue at bar is whether or not there is an affirmative duty for the administratrix to provide actual notice to the potential heirs of the estate and whether that failure to provide notice tolls the running of the one year statute of limitations. Mississippi Code Annotated § 91-1-15 provides that in suits to determine heirship either a one year or a ninety-day statute of limitations will apply and this time bar runs independently from the administration of the estate. In instances like the present case where the suit to determine heirship was begun more than one year past the death of the decedent the potential heirs will not have the benefit of either the one year or ninety-day statute of limitations.

¶ 13. This Court interpreted the notice requirement for the ninety-day statute in the case of In re Estate of Brewer, 755 So.2d 1108(¶ 21) (Miss.Ct.App.1999) and relied upon the findings in Leflore By and Through Primer v. Coleman, 521 So.2d 863, 868 (Miss.1988). Leflore found that “the administratrix, because of her knowledge of these children’s status as potential heirs, ‘should have complied with Miss. Code Ann. § 91-1-29 and had process issued upon [them].’ ” Id. Also that “ ‘[s]ince the administratrix knew of these illegitimate children, she should have given them notice of the issuance of letters of administration,’ and [this Court] refused to bar the children’s right to seek to share in their putative father’s estate.” Id.

¶ 14. Therefore in Leflore, the ninety-day statute of limitations was held inapplicable when the administrator deliberately failed to attempt to bring all potential heirs into court. Leflore by and Through Primer, 521 So.2d at 868 (Miss.1988). The court reasoned that since the administrator knew of the existence of the potential illegitimate children and even listed them as such with previous estate filings that the administrator was also under a duty to provide them with actual notice. Id. at 868-69. Similarly in Smith, the administrator’s intentional concealment of a potential heir in an attempt to benefit herself was held a fraud upon the court. Smith, By and Through Young v. Estate of King, 579 So.2d 1250, 1253 (Miss.1991). This fraud effectively tolled the ninety-day statute of limitations for the publication of notice to creditors because of the administrator’s failure to provide the potential heir with actual notice. Id. at 1254. The supreme court reasoned that allowing an administrator to personally benefit from failing to notify potential heirs of a shorter statute of limitations would go against public policy and encourage administrators not to notify potential heirs. Id.

¶ 15. However, in both Leflore and King, the potential heir did file suit to establish paternity within one year of the death of the decedent. In both eases it was the reduction of the statute of limitations from one year to ninety-days that required actual notice. Leflore held that the ninety-day statute would be upheld against a wholly unknown heir but not against a known heir concealed from the administration of the estate. Leflore, 521 So.2d at 868. In neither case did the court set aside the one year statute of limitations because of the administrator’s failure to provide actual notice. Therefore, there is no statutory protection for potential heirs beyond the one year statute of limitations regardless of whether or not the administration of the estate has begun.

¶ 16. Following court precedent, we find that the statute of limitations prohibiting suits to determine heirs more than one year beyond the death of the decedent cannot be tolled. Natasha and Donnie’s claim that the administratrix’s failure to provide them with actual notice tolled the running of the one year statute of limitations cannot be supported and they are barred from recovery under the decedent’s estate.

II. ARE THE APPELLANTS LEGITIMATE HEIRS?

¶ 17. The above finding that the appellants failed to file their suit to determine legitimacy within the statute of limitations makes any consideration of whether or not the appellants are legitimate heirs moot. The heirs of the estate will be determined by the Mississippi laws of intestate succession, Mississippi Code Annotated sections 91-1-3 and 91-1-11 (Rev.1994). Following those statutes and since Mr. Thomas died leaving no interest in land, his estate consists solely of personal property to be distributed in the same manner as real estate descends. Under Mississippi Code Annotated section 91-1-3, having no spouse or children, the heirs at law of Mr. Thomas are his brother, sisters and mother and descendants of his deceased brother and sister in equal parts.

¶ 18. THE JUDGMENT OF THE JEFFERSON COUNTY CHANCERY COURT IS REVERSED AND RENDERED. COSTS ARE TAXED AGAINST THE APPELLEE.

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


text:
    Mark CARR, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CA-01557-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.
    Rehearing Denied March 23, 2004.

      B. Sean Akins, Ripley, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before MCMILLIN, C.J., BRIDGES and THOMAS, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. Mark Carr pled guilty to a felony charge of sale of a controlled substance and sentencing was deferred for the purpose of conducting a pre-sentence investigation allowing Carr to put on proof. This hearing was held months later but provided the appellant’s attorney with only one day’s notice. The court, over the motions for continuance and psychological evaluation filed by Carr, sentenced the appellant to fifteen years with five years suspended. Carr’s motion for reconsideration and later a motion for reconsideration or in the alternative post-conviction relief was heard by the succeeding judge. This judge did not believe Carr had a meaningful opportunity to be heard at his sentencing but thought since Carr’s constitutional rights were not violated, as a judge, he lacked the authority to re-sentence. From this ruling Carr appeals to this Court. The issues are stated verbatim.

STATEMENT OF THE ISSUES

I. JUDGE HOWORTH POSSESSED AUTHORITY TO VACATE THE ORIGINAL SENTENCE DUE TO THE INTERVENING DECISION OF PRESLEY V. STATE WHICH OVERRULED DICKERSON V. STATE WHICH WAS CONTROLLING DURING THE ORIGINAL MOTION.

II. THE ACTIONS OF THE TRIAL COURT IN FAILING TO PROVIDE THE DEFENDANT WITH REASONABLE NOTICE OF SENTENCING HEARING AND FAILURE TO REQUIRE THE COMPLETION OF THE PRE-SENTENCE INVESTIGATION PRIOR TO SENTENCING VIOLATED THE DEFENDANT’S CONSTITUTIONAL RIGHTS TO DUE PROCESS.

FACTS/ PROCEDURAL HISTORY

¶ 2. Mark Carr pled guilty to two counts of sale of a controlled substance under an “open” or “blind” plea in November of 1998. With his open plea he preferred to have a pre-sentencing hearing and investigation as opposed to accepting the State’s recommendation on sentencing. The sitting judge, Circuit Judge Kenneth Coleman, postponed the sentencing hearing until the first day of February. However, that hearing was never held and no reason was given in the record as to why.

¶ 3. Carr claims the pre-sentencing report was never filed and it was not available in the record when the judge sentenced him. The date contained in the pre-sentencing report is February 8, 1999, and it is included in the court records certified by the court clerk. The general docket lists the pre/post sentencing investigation as being filed on February 8,1999. However, the filing does not contain the clerk’s stamp like all other filed documents and the entry' appears conspicuously squeezed in on the page.

¶ 4. The sentencing was not listed on the docket for May but on May 11, 1999, at around 4:00 p.m. Carr’s attorney received notice of the sentencing hearing to be held on May 12,1999, at 9:00 a.m. Carr immediately filed a motion for continuance and a motion for psychological evaluation to be conducted before sentencing and then orally agreed with the district attorney that they would not have the sentencing while the motions were pending. At nine o’clock the next morning neither the district attorney nor Carr’s attorney were present for the hearing. However, that afternoon Carr’s attorney happened to be in the courtroom passing through and the judge ordered the sentencing hearing to commence.

¶ 5. Having no witnesses ready to call, the judge allowed Carr’s attorney to state what he expected the witnesses to give as testimony and treated those facts as if they were proven. Carr was sentenced to fifteen years with five years suspended, a sentence which is greater than other similar charges in the area for the past three years. Most receive fifteen years with eight suspended but Carr was charged with two counts.

¶ 6. Carr then filed a motion for reconsideration dated May 13, 1999, the day after the sentencing. However, it does not have a filing stamp and is listed in the docket as being filed on May 18, 1999. This is significant because if it was filed on the eighteenth instead of the thirteenth then it would not have been filed in the same court term as the sentencing. Over a year later, on May 24, 2000, Carr filed another motion a, “Motion for Reconsideration or in the Alternative, Post-Conviction Relief.” Carr claims this motion is an amendment to his prior motion which was already before the court. However, there is a question of whether or not it is an amendment of the prior motion since it does not specifically reference it. Judge Coleman denied the motion and a hearing on its merits was never held.

¶ 7. Carr then promptly filed a motion for Judge Coleman to recuse himself from the hearing on the motion which was granted almost a year later on June 7, 2001. The motion was finally heard by Judge Coleman’s successor, Judge Ho-worth, who denied re-sentencing in his order dated August 14, 2002. Judge Ho-worth admitted that the sentencing of Carr was problematic and the sentence was more severe than others but since Carr’s constitutional rights were not violated the judge ruled that he lacked the authority to change the sentence at that time. Judge Howorth even welcomed an appeal to determine his authority to reduce sentences.

ANALYSIS

I. DID JUDGE HOWORTH POSSESS THE AUTHORITY TO VACATE THE ORIGINAL SENTENCE IN LIGHT OF PRESLEY V. STATE?

¶ 8. There are two ways in which a criminal may challenge a trial court proceeding: (1) a direct appeal, or (2) a proceeding under the Post Conviction Relief Act. Fleming v. State, 553 So.2d 505, 506 (Miss.1989). A reduction or reconsideration of a sentence by a judge must occur prior to the expiration of the sentencing term. Harrigill v. State, 403 So.2d 867, 868-69 (Miss.1981).

¶ 9. Carr cites the ruling in Presley v. State, in which the Mississippi Supreme Court overruled Dickerson v. State, 731 So.2d 1082 (Miss.1998) by holding that a judge has the authority to hear motions which are pending at the end of the court term. Presley v. State, 792 So.2d 950(¶ 13) (Miss.2001). Also Mississippi Code Annotated § 11-1-16, as amended, grants a judge in a criminal proceeding authority in vacation to hear motions which were pending and triable during the current term. Carr contends that Judge Howorth, wrongly relied on the court’s ruling in Dickerson and was unaware of its overruling by Presley. A change which occurred between Judge Coleman’s ruling and Judge Howorth’s.

¶ 10. The State argues that according to the date on the general docket Carr’s motion for reconsideration was not filed until May 18, 1999, which was after the end of the court term in which Carr was sentenced and would make the application of Presley moot. The State also argues that that motion was not the motion Judge Howorth finally heard and ruled on but rather a “Motion for Reconsideration or, in the Alternative, Petition for Post-Conviction Relief.” This motion did not refer to the prior motion before the court or identify itself as an amendment. Therefore, the State suggests that the motion finally heard by Judge Howorth dated May 20, 2000, does not amend the prior motion and therefore does not relate back.

¶ 11. Typically for post-conviction motions, such as appeal or new trial, the date of filing not the date of service controls. Carr’s motion to reconsider may have been served on May 13 but it was not recorded and filed with the clerk until May 18, a date after the court term in which Carr was sentenced ended. If that rationale is followed May 18th is the governing date of the document. Even if this Court assumes that the later “amendment” of the motion is in fact an amendment it would still relate back to the date of May 18th. Under Presley, which Carr cites, he does not meet its requirement of being pending at the end of the court term. Therefore, Judge Howorth did not have authority to hear the motion for re-sentencing. Carr should have appealed rather than ask for a re-hearing.

¶ 12. Carr states that he is appealing from a denial of post-conviction relief but supported his brief with law regarding the jurisdictional questions of his motion to reconsider not that he adequately met the burdens of a motion for post-conviction relief. Despite the absence of support in the briefs this Court is also considering whether or not Carr had adequate grounds for post-conviction relief.

¶ 13. Carr would also not be successful on an appeal strictly for post-conviction relief because his motion does not technically comply with the requirements of the pleading since there was not a separate statement of facts of which the prisoner had knowledge. Miss.Code Ann. § 99-39 — 9(l)(d) (Rev.2000). Another technical defect to the pleading is that there was no separate statement of facts which the prisoner asserted but did not himself have knowledge of and how they could be proven. Miss.Code Ann. § 99 — 39—9(l)(e) (Rev. 2000). Judge Coleman could have refused to hear this motion because of its noncompliance. Miss.Code Ann. § 99-39-9(4) (Rev.2000).

¶ 14. While refusing to hear a motion not in compliance with the statute is discretionary with the judge, Carr would also not succeed on the merits of his argument for post-conviction relief. Carr believes his sentence should be reduced because he received a longer sentence for his crime than others convicted of the same crime. The sentence he received was still within the statutory bounds and would not be considered an abuse of the judge’s discretion. The judge’s decision on sentencing was not manifestly in error in light of the weight of evidence before him and will not be reversed on appeal.

II. WAS THE DEFENDANT’S RIGHT TO DUE PROCESS VIOLATED WHEN THE CIRCUIT JUDGE LIMITED HIS RIGHT TO BE HEARD IN THE SENTENCING HEARING?

¶ 15. Whether Carr had sufficient notice of the sentencing hearing and whether he had adequate opportunity to be heard is a question of law and this Court will conduct a de novo review for determination of this legal question. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002).

¶ 16. Carr contends that the matter was not listed on the May docket and he received notice of the actual hearing at 4:00 p. m. the day before he was to attend at 9:00 a.m. on May 12, 1999. The State suggests the sentencing was continued from November when he pled guilty at the February term. Then Carr’s attorney even admitted that sentencing did not go forward in February because the pre-sen-tencing report was not complete. The major point within this issue is whether or not Carr was adequately heard so that his due process rights were not violated.

¶ 17. Carr did not accept the State’s sentencing suggestions but rather gambled with an open plea and requested a pre-sentencing report and inquiry. This report is not mandatory in any case but once completed the defendant has the right to review the report before sentencing. Edwards v. State, 615 So.2d 590, 598 (Miss.1993). One of Carr’s claims of error is that the pre-sentencing report was not completed and in the file for the judge to review during the May sentencing. However, if the judge did not review the report and such a report is not mandatory the failure of its review and its absence is no error.

¶ 18. Also, Carr did not rely to his detriment by submitting an open plea requesting a pre-sentencing report. The reliance theory of compelling prosecutors to act only applies to settlements and plea bargains on sentencing. Presley, 792 So.2d at 955(¶ 22). Carr did not plea bargain on the sentencing but rather took his chances with the judge.

¶ 19. Carr also claims the lack of preparation by the attorney and unavailability of witnesses for the sentencing resulted from the lack of notice. While this may be true Carr was not actually harmed by this error because the judge allowed Carr to state what he expected his witnesses to testify and considered those facts as if they had been proven. Furthermore, lack of preparation for a matter that was postponed over four months is not a valid excuse for an attorney.

¶ 20. Regardless of Carr’s due process claims, the thirty day statute of limitations for appealing these claims of error has passed since they relate to a final judgment reviewable on appeal post sentencing. Miss.Code Ann. § 99-39-21 (Rev.2000) This statute makes waiveable any constitutional claims determinable at trial or by direct appeal if not properly appealed within the statute of limitations. The court can only overlook such waiver by a showing of cause and actual prejudice. Carr did not meet this burden thus the procedural time bar of raising this issue on appeal has lapsed.

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

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