author: WALLER, Justice,

text:
    Billy M. HAMILTON v. Gerald J. HOPKINS, Gay T. Hopkins and Buyer’s Agent of the Mississippi Gulf Coast, Inc.
    No. 2001-CA-01607-SCT.
    Supreme Court of Mississippi.
    Jan. 9, 2003.

      Felicia Dunn Burkes, New Orleans, LA, for appellant.
    Wayne L. Hengen, Biloxi, Woodrow W. Pringle, III, Gulfport, for appellees.
    Before PITTMAN, C.J., WALLER and GRAVES, JJ.
   WALLER, Justice,

for the Court.

¶ 1. Gerald J. and Gay T. Hopkins, as sellers, sued Billy M. Hamilton, as buyer, for breach of a real estate sales contract. Hamilton’s broker, The Buyer’s Agent of the Mississippi Gulf Coast, Inc., intervened, seeking a 3% commission. Hamilton counterclaimed for refund of the earnest money deposit and payment of attorney’s fees. The Chancery Court of the Second Judicial District of Harrison County held that the Hopkinses could not recover punitive damages, the Hopkinses could recover their attorney’s fees in prosecuting this action, The Buyer’s Agent could recover its commission of $3,750, and Hamilton could not recover his earnest money deposit. We affirm the chancellor on all points except for the award of attorney’s fees and commission, which we are compelled to reverse and render for lack of a legal or contractual basis for such awards.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 21, 1998, Billy M. Hamilton entered into an agency agreement with The Buyer’s Agent of the Mississippi Gulf Coast, Inc., and agent Cynthia Prin-gle to assist him in purchasing a home. The Hopkinses listed their home in Biloxi, Mississippi, with Carolyn Catchot of Century 21 Bay South Realty, Inc. in July of 1998. On July 15, 1998, The Buyer’s Agent submitted an offer on behalf of Hamilton to the Hopkinses to purchase their home. The Hopkinses accepted the offer and signed the contract on July 16, 1998. The contract, which was prepared by The Buyer’s Agent, provided for, inter alia, a purchase price of $125,000, an earnest money deposit of $1,000, and a closing date of August 31,1998.

¶ 3. A home inspection conducted pursuant to the contract revealed problems with the heating, venting, and air conditioning (HVAC) systems. In response, the Hop-kinses hired Charles Williams, a licensed heating and cooling contractor, to service the HVAC units. Williams performed the routine maintenance, cleaned off the normal accumulation of rust, and replaced one thermostat. After the servicing, Williams found that the units operated normally.

¶ 4. Beth Harriel, a broker for The Buyer’s Agent, received Williams’s report from Catchot and notified Hamilton. She noted that the results of the evaluation were satisfactory to Hamilton and that he wanted to move into the house by July 24 if possible. However, Hamilton contends that he told Harriel that he wanted the Hopkinses to replace the HVAC units or lower the price in an amount to cover their replacement.

¶ 5. On August 24, one week before the scheduled closing, Hamilton contacted Harriel and told her that he would not be needing the house because he had a job requiring him to travel. No mention was made of the HVAC units. At trial, Hamilton testified that he inquired of Harriel about lowering the price; however, Harriel denied having any knowledge of this. Hamilton further testified that he previously made these very same inquiries of Cynthia Pringle but was unable to contact either Pringle or Harriel during the preceding month. Harriel told Hamilton he should have contacted her earlier if he wanted to back out, but Hamilton asserts that he made it clear to Pringle that he would purchase the house if the price was lowered.

¶ 6. Hamilton contacted Catchot, informing her of his decision not to purchase the house. According to Catchot, Hamilton made no mention of the HVAC units. He likewise faxed The Buyer’s Agent on August 28 in confirmation of his August 24 conversation with Harriel that he would not be purchasing the house. Hamilton again made no mention of the HVAC units.

¶ 7. Hamilton did not appear at the August 31 closing. During the days preceding the closing, Hamilton was looking for another house and subsequently found one on August 27. He signed a contract for that new house on September 1, 1998, and closed within the next two months.

¶ 8. The Hopkinses sued Hamilton on November 5, 1998, alleging breach of the July 16,1998, contract and seeking specific performance or damages and attorney’s fees. The Buyer’s Agent intervened in the action, seeking the 3% commission allegedly due under its contract with Hamilton. Hamilton answered and filed a counterclaim seeking a return of the earnest money deposit and payment of attorney’s fees. The parties stipulated to a partial dismissal of the claim for specific performance since the Hopkinses had sold the house to another buyer.

¶ 9. The chancery court entered summary judgment on the claim for breach of contract based on the liquidated damages provision. The chancery court also allowed the Hopkinses to amend their pleadings to allege tortious breach of contract, proof of which could entitle the Hopkinses to punitive damages and attorney’s fees.

¶ 10. Following a trial, the Hopkinses were awarded $7,625 plus interest in attorney’s fees. The Buyer’s Agent was awarded its broker’s fee of $3,750 plus interest. All other relief, most notably punitive damages, was denied.

¶ 11. Hamilton appeals and asserts the following issues:

I. WHETHER THE CHANCELLOR ERRED IN AWARDING ATTORNEY’S FEES TO THE HOPKINSES.
II. WHETHER THE CHANCELLOR ERRED IN ENTERING JUDGMENT FOR COMMISSION IN FAVOR OF THE BUYER’S AGENT.
III. WHETHER THE CHANCELLOR ERRED IN DENYING HAMILTON’S COUNTERCLAIM FOR REFUND OF EARNEST MONEY AND ATTORNEY’S FEES.

The Hopkinses, as cross-appellants, assert the following issue:

IV. WHETHER THE CHANCELLOR ERRED IN DENYING THE HOPKINSES’ DEMAND FOR PUNITIVE DAMAGES.

STANDARD OF REVIEW

¶ 12. We will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, applied an erroneous legal standard, was manifestly wrong, or was clearly erroneous. Cox v. F-S Prestress, Inc., 797 So.2d 839, 843 (Miss.2001); Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996).

DISCUSSION

1. WHETHER THE CHANCELLOR ERRED IN AWARDING ATTORNEY’S FEES TO THE HOPKINS-ES.

¶ 13. Hamilton asserts that the chancellor erred' in awarding attorney’s fees to the Hopkinses. Paragraph 12 states that, with regard to attorney’s fees, “If it becomes necessary to insure the performance of the conditions of this contract for purchaser to initiate litigation, then the losing party agrees to pay reasonable attorney’s fees and court costs in connection therewith.” Contrary to the chancellor’s holding, we conclude that it was error to award attorney’s fees to the Hopkinses.

¶ 14. Both parties go to great lengths in their briefs to illustrate that they “won” and are therefore entitled to payment of attorney’s fees under the contract. The Hopkinses contend that, although they did not prevail on every issue, they did succeed in getting the earnest money as liquidated damages. On the other hand, Hamilton contends that he won since the claim for specific performance was dismissed and the Hopkinses lost on their claim for damages for an intentional tort of breach of contract.

■ ¶ 15. A close reading of the pertinent contract terms does not require a determination of which party prevailed. The contract provided, “If it becomes necessary to insure the performance of the conditions of this contract for purchaser to initiate litigation, then the losing party agrees to pay reasonable attorney’s fees and court costs in connection therewith.” (emphasis added). Both the chancellor in his opinion and Hamilton in his brief quote the clause as “necessary to insure the performance of the conditions of the contract for purchase to initiate litigation .... ” (emphasis added). Reading the contract as the chancellor did would naturally entail a determination of which party prevailed, since it assumes that either party could initiate litigation and be entitled to attorney’s fees and costs. Under such an interpretation, whichever party in this “contract for purchase” was the “losing party” would be required to pay attorney’s fees and costs.

¶ 16. We have held that parties may contractually provide that in the event of a dispute, the losing party will be charged ■ with paying attorney’s fees. Theobald v. Nosser, 752 So.2d 1036, 1042 (Miss.1999) (citing Grisham v. Hinton, 490 So.2d 1201, 1206 (Miss.1986)). However, a fair reading of this clause reveals that the right to payment of attorney’s fees was contingent on the purchaser, i.e., Hamilton, initiating litigation. This contract, prepared by The Buyer’s Agent, contemplated in Paragraph 12 that the seller was to accept the earnest money deposit as liquidated damages. We are, after all, obligated to enforce a contract when its terms are clear and unambiguous. Ivison v. Ivison, 762 So.2d 329, 334 (Miss.2000); Gulfside Casino P’ship v. Miss. State Port Auth. at Gulfport, 757 So.2d 250, 256 (Miss.2000); Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400, 403 (Miss.1997); Century 21 Deep S. Props., Ltd. v. Keys, 652 So.2d 707, 717 (Miss.1995). Also, if attorney’s fees are not authorized by the contract or by statute, they are not to be awarded when an award of punitive damages is not proper. Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 971 (Miss.1999); Miss. Dep’t of Wildlife, Fisheries & Parks v. Miss. Wildlife Enforcement Officers’ Ass’n, 740 So.2d 925, 937 (Miss.1999); Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 375 (Miss.1992); Smith v. Dorsey, 599 So.2d 529, 550 (Miss.1992); Grisham v. Hinton, 490 So.2d 1201, 1205 (Miss.1986); Stanton & Assocs., Inc. v. Bryant Constr. Co., 464 So.2d 499, 502 (Miss.1985); Bellefonte Ins. Co. v. Griffin, 358 So.2d 387, 391 (Miss.1978).

¶ 17. Here, an award of attorney’s fees to the sellers was not authorized by the contract or statute. Further, as discussed below, an award of punitive damages was not warranted on these facts. Therefore, the chancellor erred as a matter of law in awarding attorney’s fees to the Hopkinses.

II. WHETHER THE CHANCELLOR ERRED IN ENTERING JUDGMENT FOR COMMISSION IN FAVOR OF THE BUYER’S AGENT.

¶ 18. Hamilton next contends that the chancellor erred in awarding a 3% commission to The Buyer’s Agent. The commission clause provides that Hamilton will pay The Buyer’s Agent the commission at the time of closing from the proceeds of the sale:

10. COMMISSION. The parties hereby agree that The Buyer’s Agent [] is the procuring cause of this contract and is therefore entitled to a commission. As a part of this contract and being due and payable through the terms of this contract, the Seller understands that this offer to purchase is contingent on The Buyer’s Agent [] receiving a fee derived from the proceeds of the transaction in an amount equal to 3% of the final purchase price to be paid to The Buyer’s Agent [ ] at the time of closing on behalf of the purchaser. The Buyer’s Agent [] is receiving no compensation from the seller’s representative,

(emphasis added). Hamilton contends that since there was no closing, The Buyer’s Agent is not entitled to a commission.

¶ 19. Mississippi case law on the issue of broker commission has almost exclusively dealt with a broker representing a seller who demands a commission for locating a buyer, rather than a broker representing a buyer who demands a commission for locating a seller. See Varner Real Estate, Inc. v. Bobb, 491 So.2d 528 (Miss.1986); Minter v. Hart, 208 So.2d 169 (Miss.1968); Crichton v. Halliburton & Moore, 154 Miss. 265, 122 So. 200 (1929); Lizana v. Brown Realty Co., 146 Miss. 758, 111 So. 867 (1927); Hays v. Goodman-Leonard Realty Co., 146 Miss. 766, 111 So. 869 (1927); Long v. Griffith, 113 Miss. 659, 74 So. 613 (1917).

¶ 20. The general rule of brokerage contracts is that when a principal and a broker enter into a contract and the contract “specifies the price and terms of sale, the agent performs his duty, and is entitled to a commission, when he procures a purchaser ready, willing and able to buy, even though the owner may then decline to sell.” Varner Real Estate, 491 So.2d at 529 (quoting Partee v. Pepple, 197 Miss. 486, 20 So.2d 73, 78 (1944)); Lizana, 111 So. at 868; Hays, 111 So. at 870. Many of these listing agreements, however, were either oral or written, but made no specific provision for precisely when the commission was due. See, e.g., Minter v. Hart, 208 So.2d 169 (Miss.1968) (providing only for payment of commission of 6% of purchase price).

¶ 21. In awarding the commission to The Buyer’s Agent, the chancellor relied on Mississippi case law in which a commission was awarded to a broker for representing a seller when, in the instant case, a broker is demanding a commission for representing a buyer. He also cited Magnolia Fed. Sav. & Loan Ass’n v. Randal Craft Realty Co., 342 So.2d 1308 (Miss.1977), which applied quasi-contractual principles to justify awarding an $11,500 commission. The chancellor specifically held that Hamilton owed a commission to the Buyer’s Agent because it fulfilled all of its duties up to closing by finding a house accepted by Hamilton and preparing a contract which Hamilton signed:

[T]hey had a legal relationship implying that [The Buyer’s Agent] would be compensated for real estate work for Hamilton. [The Buyer’s Agent] in fact did find a house, find one that Hamilton accepted, prepared the offering contract which Hamilton signed, and handled the agency duties until the proposed closing. By breaching the Hopkins contract, Hamilton breached [The Buyer’s Agent] contract as well.

¶ 22. Contrary to the chancellor’s holding, the “ready, willing and able” rule is not dispositive on this issue. The contract contained a specific provision providing when the commission became due, specifically, “at the time of closing” and “from the proceeds of the transaction.” In Hamilton’s case, The Buyer’s Agent is bound to the specific terms of the contract.

Unlike a real estate broker’s general contract of employment, a special contract of employment imposes conditions upon the real estate broker’s right to a commission. A broker may by special agreement make the payment of commission dependent upon a contingency, or the happening of a condition precedent, and unless that contingency occurs or the contingency happens, or its performance is excused, there is no right to recovery. Likewise, a seller is entitled to prescribe any lawful condition on the real estate broker’s right to a commission to which the parties consent, notwithstanding the general rule that the broker is entitled to a commission if the broker is the procuring cause of the sale.

23 Richard A. Lord, Williston on Contracts § 62:19, at 380-81 (4th ed. 2002) (footnotes omitted). See Hill v. Capps, 248 Miss. 601, 613-14, 160 So.2d 186, 191 (1964) (holding'that “[i]n the absence of a special agreement, if the services are performed in good' faith, the broker is entitled to fair and reasonable compensation”). See also R.J. Kuhl Corp. v. Sullivan, 13 Cal.App.4th 1589, 17 Cal.Rptr.2d 425, 431 (1993) (stating that “parties to a brokerage contract are at liberty to adopt provisions making compensation depend upon any lawful condition stated”). In this case, The Buyer’s Agent negotiated a contract including a term specifically stating when and how its commission would be computed. We will enforce a contract when its terms are clear and unambiguous. If The Buyer’s Agent wanted its commission contingent on procuring a seller ready, willing and able to consummate the transaction, it very easily could have contracted for as much. Such not being the case, The Buyer’s Agent is not entitled to a commission, and we reverse the chancellor on this issue.

III. WHETHER THE CHANCELLOR ERRED IN DENYING HAMILTON’S COUNTERCLAIM FOR REFUND OF EARNEST MONEY AND ATTORNEY’S FEES.

¶ 23. Hamilton asserts that he is entitled to a return of his earnest money deposit and payment of his attorney’s fees because of his dissatisfaction with the inspection and service of the HVAC units. Specifically, Hamilton refers to Paragraph Í5 which states, in pertinent part, “If inspection is found to be unsatisfactory to Purchaser, because defects in the structures, systems or elements are discovered, the Purchaser shall not be obligated to complete the purchase of property herein described and all earnest money will be refunded to the Purchaser.” The Hop-kinses, however, assert that there was little evidence to support Hamilton’s claims and that his breach was untimely and unsupported. We agree with the Hopkinses.

¶ 24. Hamilton testified that he attempted to contact Harriet and Pringle from August 1 to August 24 to tell them he would not purchase the property without a reduction in price or replacement of the HVAC units. The Hopkinses knew that Hamilton was acting through an agent, namely, The Buyer’s Agent, throughout the process. A real estate agent is a special agent of its principal and is vested with limited powers. Blanks v. Sadka, 241 Miss. 821, 133 So.2d 291, 293 (1961) (citing Shemper v. Latter & Blum, Inc., 214 Miss. 113, 58 So.2d 359 (1952)). If Hamilton wished to rescind the contract due to the perceived defects in the HVAC units and recover his earnest money deposit, he would have had to communicate that to The Buyer’s Agent, which would, in turn, communicate it to the Hopkinses’ agent. Hamilton’s intention to rescind was not communicated to the Hopkinses until two days prior to the August 31 closing, at which time the Hopkinses had already moved out of the house early at Hamilton’s request. This notification two days prior to closing, while arguably timely, was not fair to the Hopkinses, and the chancellor’s refusal to return to Hamilton the earnest money deposit was a reasonable exercise of his equitable power, for equity regards as done that which should be done. Harris v. Kemp, 451 So.2d 1362, 1366 (Miss.1984); PMZ Oil Co. v. Lucroy, 449 So.2d 201, 208 (Miss.1984); Mahaffey v. First Nat’l Bank, 231 Miss. 798, 97 So.2d 756, 765 (1957). After the Hopkinses moved out early at Hamilton’s request, it would not be equitable to deny the Hopkinses the liquidated damages, the only damages to which they are entitled, simply because Hamilton was unable to contact his agents of his desire not to consummate the deal.

IV. WHETHER THE CHANCELLOR ERRED IN DENYING THE HOPKIÑSES’ DEMAND FOR PUNITIVE DAMAGES.

¶ 25. The Hopkinses, as cross-appellants, allege that the chancellor erred in refusing to award punitive damages. Specifically, they assert that Hamilton intentionally refused to close on the sale of the house which was an intentional wrong and in reckless disregard of the Hopkins-es’ rights. We agree with the chancellor that punitive damages were not appropriate in this case.

¶ 26. To qualify for punitive damages in a breach of contract case, a plaintiff must prove by a preponderance that the breach was the result of an intentional wrong or that a defendant acted maliciously or with reckless disregard of the plaintiffs rights. Paracelsus Health Care Corp. v. Willard, 754 So.2d 437, 442 (Miss.1999); Hurst v. Southwest Miss. Legal Servs. Corp., 708 So.2d 1347, 1350 (Miss.1998); Am. Funeral Assurance Co. v. Hubbs, 700 So.2d 283, 286 (Miss.1997); Dynasteel Corp. v. Aztec Indus., Inc., 611 So.2d 977, 985 (Miss.1992); Eselin-Bullock & Assocs. Ins. Agency, Inc. v. Nat’l Gen. Ins. Co., 604 So.2d 236, 241 (Miss.1992); Blue Cross & Blue Shield of Miss., Inc. v. Maas, 516 So.2d 495, 496 (Miss.1987).

¶ 27. The Hopkinses argue that Hamilton’s breach was not an honest mistake and that he chose to breach the contract. They list their actual damages incurred as evidence of Hamilton’s amenability to punitive damages. While it is true that Hamilton willingly chose not to complete the contract, there is no evidence he acted maliciously or in reckless disregard of the Hopkinses’ rights. Hamilton testified that he unsuccessfully tried to contact Harriel and Pringle from August 1 to August 24 to tell them he would not purchase the property without a reduction in price or replacement of the HVAC units. The Hop-kinses have failed to carry their burden of proof; and therefore, such circumstances do not rise to the level of an independent tort permitting imposition of punitive damages. The chancellor’s denial of all other relief was supported by substantial evidence, and we will not disturb it. See Wright v. Roberts; 797 So.2d 992, 997 (Miss.2001).

CONCLUSION

¶ 28. We reverse the chancellor’s award of attorney’s fees to the Hopkinses and a commission to The Buyer’s Agent, and we render judgment here finally denying the Hopkinses’ claim for an award of attorney’s fees and the claim of The Buyer’s Agent for a commission. We affirm the judgment below in all other respects.

¶ 29. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

PITTMAN, C.J., SMITH, P.J., COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR.

McRAE, P.J., CONCURS IN RESULT ONLY.

DIAZ, J., NOT PARTICIPATING.

      . The specific actual damages the Hopkinses sought were: $2,000 for the difference in the original contract price and amount received in the later sale of the house; $360 for maid service; $655 for lawn and pool service; $1,184.24 for interest on a home equity loan; $200 for storage unit rental; $276.80 for taxes; $239.29 for homeowners' insurance; $205 for pest control service; $1,135.84 for electric bills; $81 for water and sewage service; interest on the proceeds of sale they would have received; and lost wages.

      . Paragraph 12 contained the liquidated damages provision:
      12. BREACH OF CONTRACT. Specific performance is the essence of this contract ... and time is of the essence of this contract: (a) In the event of breach of this contract by Purchaser, Seller shall accept the earnest money deposit as liquidated damages and this contract shall then be null and void, (b) In the event of breach of contract by Seller, Purchaser at his option may either accept the return of the earnest money deposit and cancel the contract or enter suit for damages in any court of competent jurisdiction or enter suit in any court of competent jurisdiction for specific performance. If it becomes necessary to insure the performance of the conditions of this contract for purchaser to initiate litigation, then the losing party agrees to pay reasonable attorney’s fees and court costs in connection therewith.
      (emphasis added).

      . The complete text of Paragraph 12 dealing with breach of contract can be found in note 2.

      . A listing agreement can be oral and is not subject to the statute of frauds when separate and not included in a contract for the sale of land. See Minter v. Hart, 208 So.2d 169, 170 (Miss.1968) (citing Partee v. Pepple, 197 Miss. 486, 20 So.2d 73 (1944); Lizana v. Brown Realty Co., 146 Miss. 758, 111 So. 867 (1927)).

      . Also with regard to conditions on payment of a commission:
      A broker employed to buy, sell, or exchange property may be engaged on such terms that he is not entitled to compensation until the closing or transfer or passing of title, or until the passing of papers for the sale of property. A broker is not entitled to his commission where he waived his fee, for procuring a mortgage loan, in the event the mortgage does not close.

        A provision that the broker is to receive commission on the closing or transfer of title, or when the sale or title is closed, makes the occurrence of such event a condition precedent to the right to recovery, and the existence of a provision in a contract for the exchange of property that the commission is due on the signing of the agreement does not defeat the operation of the rule.
      12 CJ.S. Brokers § 151, at 451-52 (1980) (footnotes omitted) (emphasis added).


source: Caselaw Access Project

author: SMITH, P.J.,

license: Public Domain

text:
    Walter Dominique FAIRLEY v. STATE of Mississippi on Writ of Certiorari.
    No. 2001-CT-00009-SCT.
    Supreme Court of Mississippi.
    Jan. 9, 2003.

      Walter Dominique Fairley, Pro se, attorney for appellant.
    Office of the Attorney General, by John R. Henry, attorneys for appellee.
   SMITH, P.J.,

for the Court.

¶ 1. Walter Dominique Fairley was indicted for armed robbery and possession of a firearm by a convicted felon in Cov-ington County Circuit Court. Fairley pled guilty to the armed robbery charge and received a sentence of twelve years. Fair-ley subsequently filed a motion for post-conviction relief in the circuit court, alleging that his guilty plea was involuntary and that he had received ineffective assistance of counsel. The motion for post-conviction relief was denied. Fairley appealed, and his case was assigned to the Court of Appeals which affirmed the trial court. Fairley v. State, 822 So.2d 1015 (Miss.Ct.App.2002). This Court granted certiorari. Fairley v. State, 828 So.2d 200 (Miss.2002) (table). We conclude that Fairley was mistakenly given erroneous information regarding parole and sentencing by the trial court and is therefore, at a minimum, entitled to an evidentiary hearing to determine whether he relied upon the erroneous information in pleading guilty.

FACTS

¶ 2. Walter Dominique Fairley pled guilty to armed robbery in the Covington County Circuit Court on July 22,1997, and was sentenced to twelve years imprisonment with the Mississippi Department of Corrections. Fairley filed a Motion to Vacate Judgment in the circuit court on June 12, 2000, pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. §§ 99-39-1 to -29 (2000 & Supp.2002). Fairley raised the following issues in his petition: (1) that he was induced to enter the guilty plea because: (a) the sheriff told Fairley that if he did not take the plea, where the State was recommending a twelve-year sentence, that Fairley would be found guilty and would receive at least twelve years; (b) Fairley’s attorney told him that if he took the plea and received a twelve-year sentence, he would be eligible for parole after ten years; (2) Fairley’s attorney was ineffective because (a) he gave Fairley the wrong information regarding parole; (b) he ignored a speedy trial violation; (c) he gave Fairley incorrect sentencing information; and (3) Fairley was sentenced under the wrong statute. The circuit court denied the Motion to Vacate Judgment by order dated November 29, 2000, apparently without an evidentiary hearing.

¶ 3. Fairley then appealed to this Court, and the appeal was assigned to the Court of Appeals which affirmed, noting that the circuit court had informed Fairley that he would have to serve the first ten years of his sentence without parole. Fairley v. State, 822 So.2d at 1017. This Court granted certiorari and now considers the following issues.

I. WHETHER THE COURT OF APPEALS ERRED IN FINDING THAT FAIRLEY’S GUILTY PLEA WAS KNOWING AND VOLUNTARY.

II. WHETHER THE COURT OF APPEALS ERRED IN FINDING THAT FAIRLEY RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL.

DISCUSSION

¶ 4. Fairley raises the same arguments under both of these issues, most of which can be rebutted by review of the guilty plea transcript. As for Fairley’s argument that the sheriff made some kind of sentencing prediction or promise, the sentencing judge made it clear that no one could make such a guarantee and stopped the plea colloquy so Fairley could confer with his attorney. As for a speedy trial claim, this was waived when Fairley pled guilty. Fairley also makes some claim about being under the influence of drugs, but there is absolutely no evidence of this.

¶ 5. Fairley’s one potentially legitimate claim is that his guilty plea is involuntary because he alleges that he was incorrectly informed about the time he would have to serve without parole. On direct appeal before the Court of Appeals, Fairley’s primary argument was that his attorney had given him this incorrect information. On certiorari, Fairley continues to make this claim, but also argues that the trial judge gave him incorrect information on parole as well.

¶ 6. It is clear that the State’s recommendation for Fairley’s sentence was twelve years. The robbery for which Fair-ley was being prosecuted occurred in July 1996. Under Miss.Code Ann. §• 47-7-3(l)(d)(ii), Fairley was not eligible for parole and would have to serve the entire twelve years. Considering the record before us, what Fairley’s lawyer told him is not clear. What is clear however, is that the circuit court informed Fairley three times during the plea hearing that he would not be eligible for parole until he had served ten years, which was correct for someone convicted before October 1994, but not correct for Fairley. The circuit court further informed Fairley that he had nothing to do with parole, could make him no promises as to whether it might be granted, and he might have to serve the entire twelve-year sentence. The question is, does this incorrect information render Fairley’s guilty plea involuntary?

¶ 7. In Shanks v. State, 672 So.2d 1207 (Miss.1996), this Court found that failure of the circuit court to inform Shanks that he would not be eligible for parole for the first ten years of his armed robbery sentence did not render his guilty plea involuntary. In Washington v. State, 620 So.2d 966 (Miss.1993), Washington pled guilty to armed robbery and aggravated assault, and received a sentence of twenty-five years for the armed robbery and ten years for the aggravated assault, to run concurrently. Washington subsequently filed for post-conviction relief, alleging that the circuit court had given him incorrect information concerning the minimum time he would have to serve, ten years, before being eligible for parole. This Court reversed the circuit court’s dismissal of Washington’s petition, stating:

The issue is not whether Washington was sufficiently advised on his parole eligibility, but whether he was apprised of the mandatory sentence without parole consideration or the ability to accu-muíate “good time.” Scrutiny of the record shows that Washington was given erroneous information; moreover, the State concedes that Washington was inaccurately advised on this matter.
Washington should be given an opportunity to present his claims at an eviden-tiary hearing. At the hearing, the State will have an opportunity to raise its concerns on whether or not Washington actually relied on the possibility of parole as a condition before he entered into the guilty pleas.

Washington, 620 So.2d at 970.

¶ 8. The rule arising from these cases is that failure to mention something concerning parole eligibility may be no problem, but erroneous information concerning parole and sentencing at least entitles the petitioner to an evidentiary hearing on whether he relied oh the erroneous information. If there was an evidentiary hearing held on Fairley’s Motion to Vacate Judgment it is not included in this appeal record. Accordingly, we hold that the Court of Appeals erred in affirming the circuit court’s denial of Fairley’s petition for post-conviction relief, and the judgments of the Court of Appeals and the circuit court should be reversed and this matter remanded for an evidentiary hearing.

CONCLUSION

¶ 9. Based upon the record before us Fairley was not afforded an evidentiary hearing to determine whether in pleading guilty, he, in fact, relied upon the erroneous information concerning parole and sentencing. Our case law at a minimum, allows Fairley an evidentiary hearing. We therefore reverse the judgments of the Court of Appeals and the circuit court and remand with instructions to the trial court to afford Fairley his evidentiary hearing and then to rule on his motion.

¶10. REVERSED AND REMANDED.

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


author: WALLER, J., DIAZ, J.,

text:
    Joe P. SPENCER v. GREENWOOD/LEFLORE AIRPORT AUTHORITY a/k/a Greenwood/Leflore Airport Board and Leflore County Board of Supervisors.
    No. 2001-CA-00027-SCT.
    Supreme Court of Mississippi.
    Jan. 9, 2003.

      Andre Francis, Ducote Wayne E. Ferrell, Jr., attorneys for appellant.
    Charles J. Swayze, Jr., Greenwood, Louis Ferree Allen, Memphis, TN, Willie James Perkins, Sr., Greenwood, attorneys for appellees.
   WALLER, J.,

for the Court.

¶ 1. Joe P. Spencer filed a complaint for damages against the Greenwood-Leflore Airport Authority a/k/a Greenwood-Le-flore Airport Board (“the Airport Authority”), the City of Greenwood, and the Le-flore County Board of Supervisors (“the Board of Supervisors”) alleging he sustained damages while landing his aircraft at the Greenwood/Leflore County Airport (“the Airport”). The Airport Authority filed a motion to dismiss, alleging that it is an entity lacking the authority to sue or be sued; therefore, Spencer could not maintain a suit against it. The circuit court granted the motion to dismiss, finding that the Airport Authority was not an “airport authority,” as defined by statute, but was an “airport board,” as defined by statute. After a M.R.C.P. 54(b) certification, Spencer appeals from the grant of the motion to dismiss. We reverse and remand.

FACTS

¶ 2. Spencer was attempting to land his Pitts SIS FA aircraft at the Airport when one of the wheels lodged in a crack in the runway, causing the aircraft to go into a high speed swerve and then to invert. Spencer alleges that he lost control of the aircraft solely due to the crack and that he was flying in a lawful and proper manner. As a result of the crash, the aircraft was totally destroyed.

¶ 3. He filed a complaint for negligence against the City of Greenwood, the Airport Authority, and the Board of Supervisors for failure to properly maintain the runway at the Airport. In its motion to dismiss, the Airport Authority contended that it is by definition an “airport board,” as opposed to an “airport authority,” and therefore, may not be sued pursuant to Miss. Code Ann. § 61-5-37 (Rev.1996). The Airport Authority also contends that because it is neither a governmental entity nor a political subdivision, the Mississippi Tort Claims Act, Miss.Code Ann. §§ 11-46-1 to -23 (2002), is not applicable.

¶ 4. Spencer, on the other hand, argues that the Airport Authority is a governmental entity that can be sued. Furthermore, he argues that, as allowed by Miss.Code Ann. § 11-46-16 (2002), the Airport Authority has $5 million in insurance coverage for such accidents, well more than Spencer’s $75,000 claim.

DISCUSSION

¶ 5. The first issue raised in the appeal is whether the circuit court’s dismissal was granted per M.R.C.P. 12(b)(6) or M.R.C.P. 56. Spencer contends that the circuit court granted the Airport Authority a dismissal pursuant to M.R.C.P. 12(b) and that the motion to dismiss should properly have been treated as a motion for summary judgment, since evidence outside of the pleadings was attached to the motion to dismiss and the response thereto. Arnona v. Smith, 749 So.2d 63, 65 (Miss.1999). Spencer also claims that if the circuit court had ordered a summary judgment dismissal, then the evidence in this case, including the purchase of liability insurance and the joint resolution, was effectively ignored and dismissal was likewise improper.

¶ 6. Because a copy of the resolution which created the Airport Authority was attached to the motion to dismiss, the motion to dismiss should have been converted into a motion for summary judgment under M.R.C.P. 12(b). Jones v. Regency Toyota, 798 So.2d 474, 475 (Miss.2001); Walton v. Bourgeois, 512 So.2d 698, 700 (Miss.1987). We review orders granting or denying motions for summary judgment de novo and examine all evidentiary matters such as admissions in pleadings, answers to interrogatories, depositions, and affidavits. Miss. Farm Bureau Cas. Ins. Co. v. Britt, 826 So.2d 1261, 1263 (Miss.2002); Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041, 1046 (Miss.2002). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Britt, 826 So.2d at 1263; Leslie v. City of Biloxi, 758 So.2d 430, 431 (Miss.2000).

I. WHETHER THE CIRCUIT COURT ERRED BY FINDING THAT THE AIRPORT AUTHORITY COULD NOT BE SUED AND WHETHER THE AIRPORT AUTHORITY IS SUBJECT TO THE MISSISSIPPI TORT CLAIMS ACT.

¶ 7. The Airport Authority contends that it is a “joint airport board” created by joint resolution of the City of Greenwood and of the County of Leflore pursuant to Miss.Code Ann. §§ 61-5-33 to -41 (1996), and not an “airport authority” pursuant to Miss.Code Ann. §§ 61-3-1 to -85 (1996). A “joint airport board” is created by “two or more public agencies.” Miss.Code Ann. § 61-5-35 (Rev.1996). A “public agency” is defined as a municipality or any agency of the state government and of the United States. Miss.Code Ann. § 61-5-33 (Rev.1996). A “municipality” is defined as “any county, city, village, town, supervisors district or supervisors districts.” Miss.Code Ann. § 61-5-3(d) (Rev. 1996).

¶ 8. The Airport Authority further contends that since it is a “joint airport board” and Miss Code Ann. § 61-5-37 (1996), the statute which grants express powers to joint airport boards, does not confer the capacity to sue or to be sued, it is immune from Spencer’s lawsuit.

¶ 9. The circuit court simply ruled that, under the joint resolution that created it, the Airport Authority could only function at the discretion of the City of Greenwood and Leflore County and that it could not be sued. Also, Miss.Code Ann. § 61-5-39 (1996), which lists the powers of a joint airport board, does not include the traditional powers of a legal entity. The circuit court further ruled that the MTCA does not apply to joint airport boards since joint airport boards are not specifically listed in Miss.Code Ann. § 11 — 46—l(i), and that the Airport Authority was not a body politic, not a body corporate, and not responsible for governmental activities.

¶ 10. To the contrary, we find that the Greenwood/Leflore Airport Authority is a “governmental entity” under the MTCA. According to the MTCA, “[governmental entity means and includes the state and political subdivisions as herein defined.” Miss.Code Ann. § 11^6-l(g). Under Miss.Code Ann. § 11-46-1®, a “political subdivision means any body politic or body corporate ... responsible for governmental activities.” Miss.Code Ann. § 61-5-47 specifically provides that the exercise of power by a joint airport board constitutes a “public and governmental function! ], exercised for a public purpose, and [a] matter of public necessity.” It is clear, therefore, that a joint airport board which exercises powers which are declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity, as does the Airport Authority in this case, is a “political subdivision” under § 11-46-1® (“any body politic or body corporate other than the state responsible for governmental activities”). Sections 61-5-33 to -41, which specifically apply to joint airport boards, should not be read in a vacuum, and other aviation statutes do indeed apply to joint airport boards. Section 61-5-47 explicitly states that it applies to “any airport board, joint board or authority.”

¶ 11. In further evidence of the Legislature’s intent to subject joint airport boards to the MTCA, an amendment to § 61-5-47 was effective on October 1, 1993, the same date that the MTCA became applicable to the state’s political subdivisions. The amendment deleted a portion of § 61-5-47 which formerly read as follows:

No action or suit sounding in tort shall be brought or maintained against the state or any municipality thereof, or the officers, agents, servants of employees of the state or any municipality thereof, on account of any act done in or about the construction, maintenance, enlargement, operation, superintendence or management of any airport or other air navigation facility.

This amendment to § 61-5-47 was part of an act which amended the MTCA and made conforming amendments to other statutes, including § 61-5-47. 1992 Miss. Laws ch. 491. Thus, it is clear that the provision which gave immunity to “any airport board, joint board or authority” was superceded by the adoption of the MTCA.

¶ 12. Governmental actions under the MTCA are those which are performed pursuant to the act of statute or are a matter of public necessity. Thomas v. Hilburn, 654 So.2d 898, 900 (Miss.1995). The Airport Authority can not escape liability by merely asserting that it is really an “airport board.” Airport boards, although not specifically listed, are by definition subject to the MTCA.

II. WHETHER THE AIRPORT AUTHORITY’S PURCHASE OF LIABILITY INSURANCE IS RELEVANT.

¶ 13. Spencer contends that the $5 million insurance policy purchased by the Airport Authority is evidence that it was aware that it had the power to be.sued. Spencer argues that the Airport Authority, due to its purchase of liability insurance, should be equitably estopped from raising defenses that assert it is immune from lawsuit.

¶ 14. We find that the purchase of liability insurance does not subject the Airport Authority to liability suits and the potential liability of the Airport Authority is not a function of its insurance coverage. The MTCA, not an insurance policy which may be purchased, governs to what extent governmental entities have potential liability. L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1144-45 (Miss.1999) (“Miss.Code Ann. § 11-46-17(4) allows for the purchase of insurance by a sovereign which then covers' claims in excess of the amounts set by Miss.Code Ann. § 11 — 46-15 to the extent of the policy. This provision does not limit the exclusions or exemptions enumerated in Section 11-46-9.”) The purchase of insurance was relevant prior to the adoption of the MTCA, see, e.g., L.W., 754 So.2d at 1143 (Prior to the enactment of the MTCA, a defendant sovereign was estopped from asserting sovereign immunity if it had purchased a public liability policy), • but now the purchase of insurance is not relevant to the issue of whether a governmental entity is subject to the MTCA. See, e.g., McGrath v. City of Gautier, 794 So.2d 983, 986 (Miss.2001) (“The purchase of insurance by a governmental entity covers claims in excess of the statutory cap. It does not limit enumerated exclusions or exemptions from the waiver of sovereign immunity.”).

CONCLUSION

¶ 15. The Leflore County Circuit Court erred in finding that the Greenwood/Le-flore Airport Authority was not a “governmental entity” under the Mississippi Tort Claims Act. The circuit court’s dismissal of the Airport Authority is therefore reversed, and this case is remanded for further proceedings in accordance with this opinion.

¶ 16. REVERSED AND REMANDED.

PITTMAN, C.J., SMITH, P.J., COBB, EASLEY AND CARLSON, JJ„ CONCUR. DIAZ, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., AND GRAVES, J.

DIAZ, J.,

Concurring:

¶ 17. While I agree with the majority’s final decision in this case to reverse and remand, I do not join the majority’s holding that the insurance policy owned by the airport was not evidence that Airport was aware it could sue or be sued. For this reason alone, I respectfully write separately from the majority.

¶ 18. Before the MTCA was adopted, the purchase of insurance was considered relevant when a governmental entity claimed sovereign immunity. In fact, it estopped the entity from asserting sovereign immunity. L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1143 (Miss.1999). The majority continues further to cite McGrath v. City of Gautier, 794 So.2d 983, 986 (Miss.2001), which states, “[tjhe purchase of insurance by a governmental entity covers claims in excess of the statutory cap. It does not limit enumerated exclusions or exemptions from the waiver of sovereign immunity.”

¶ 19. The majority correctly states that since the adoption of the MTCA an entity’s mere purchase of insurance, does not waive its sovereign immunity (up to the statutory limit). But the majority overlooks the fact that the Airport tried to claim that it was not able to sue or be sued. While the Airport might have been immune to liability to a certain extent because of the MTCA, it anticipated the fact that it could be sued above this amount of protection afforded by the MTCA and purchased insurance for further protection. The fact that it owned this insurance is evidence that it believed it could be sued.

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

      . M.R.C.P. 12(b) provides as follows:
      If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56....

      . Miss.Code Ann. § 11-46-1 (2002) provides in pertinent part:
      (i) "Political subdivision” means any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including but not limited to any county, municipality, school district, community hospital ..., airport authority or other instrumentality thereof, whether or not such body or instrumentality thereof has the authority to levy taxes or to sue or be sued in its own name.

      . Miss.Code Ann. § 61-5-47 (1996) provides as follows:
      The acquisition of any lands for the purpose of establishing airports or other air navigation facilities, the acquisition of any airport protection privileges, the acquisition, establishment, construction, enlargement, improvements, maintenance, equipment and operation of airports and other air navigation facilities by any municipality or municipalities of this state, separately or jointly, and the exercise of any other powers granted in the Municipal Airport Law to any airport board, joint board or authority are hereby declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity. Such lands and other property and privileges acquired and used by the municipality in the manner and for the purposes enumerated in said law shall and are hereby declared to be acquired and used for public and governmental purposes and as a matter of public necessity.


author: BRIDGES, J.,

text:
    John Joseph DEDEAUX, Sr., Appellant, v. STATE of Mississippi, Appellee.
    No. 1999-CP-00106-COA.
    Court of Appeals of Mississippi.
    July 16, 2002.
    Rehearing Denied Sept. 17, 2002.
    Certiorari Denied Jan. 9, 2003.

      John Joseph Dedeaux, Sr., Pro Se, attorney for appellant.
    Office of the Attorney General by: Jeffrey A. Klingfuss, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES, and BRANTLEY, JJ.
   BRIDGES, J.,

for the court.

¶ 1. John Joseph Dedeaux, Sr. pled guilty to a charge of receiving stolen property on November 13, 1990, and was sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC). Dedeaux filed a motion for post-conviction relief (PCR) which was dismissed by an order entered September 22, 1992. Dedeaux filed a second motion for post-conviction relief on May 1, 1998, which the court returned for failure to meet the statutory requirements for PCR pleadings. Dedeaux then filed yet another motion for post-conviction relief on August 10, 1998, seeking relief from his plea and sentence of November 13,1990.

¶ 2. The Circuit Court of Hancock County denied Dedeaux’s motion as time-barred, and as a successive writ. Dedeaux appeals.

STATEMENT OF THE ISSUE

DID THE CIRCUIT COURT OF HANCOCK COUNTY PROPERLY DENY DEDEAUX’S MOTION FOR POST CONVICTION RELIEF?

ANALYSIS

¶ 3. A motion for post-conviction relief shall be made within three years of entry of judgment. Miss. Code Ann. § 99-39-5(2) (Rev.2000). Dedeaux properly filed his motion for post-conviction relief within two years of his guilty plea, and the court dismissed his motion. Dedeaux did not appeal. However, Dedeaux did file a second and third motion for post-conviction relief nearly eight years after he pled guilty. Consequently, Dedeaux’s motion does not fall within the statute of limitations, and this Court affirms the judgment of the circuit court.

¶ 4. Further, Dedeaux’s second and third motions for post-conviction relief are barred as successive writs. “The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this chapter.” Miss.Code Ann. § 99-39-27(9) (Rev.2000). Dedeaux could have pursued an appeal of the court’s dimissal of his original PCR, but did not. As this was the sole remedy available to him, De-deaux’s current PCR was properly denied.

¶ 5. For the foregoing reasons, we affirm the judgment of the Hancock County Circuit Court.

¶ 6. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

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


author: SOUTHWICK, P.J.,

text:
    Kevin Keith RUSSELL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00488-COA.
    Court of Appeals of Mississippi.
    Nov. 5, 2002.
    Rehearing Denied Jan. 7, 2003.

      Robert H. Koon, Gulfport, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Kevin Keith Russell was convicted of kidnapping and rape by a Harrison County Circuit Court jury. On appeal, he argues that his motion for a new trial based on newly discovered evidence was erroneously denied, and that the evidence to support the verdict was so insubstantial as to entitle him to an acquittal or else a new trial. We disagree with these assertions and affirm.

FACTS

¶ 2. On February 6, 1998, Deborah Searpero was visiting her mother, who was in Gulfport undergoing outpatient surgery. WTien her mother was discharged just after 6:00 P.M., Searpero went to the surgical center parking lot to retrieve her car. Kevin Russell approached her in the parking lot, forced her into her vehicle and drove out of the lot. He did not threaten her with any weapon. Searpero made one attempt to escape in Gulfport by jumping from the car when it slowed down. Russell grabbed her arm and hair and pulled her back inside the vehicle. Russell then tied her hands to the car’s cup holder with rope.

¶ 3. En route from Gulfport to New Orleans, Russell lost control of the vehicle and slid into a ditch. An armed security officer from the Stennis Space Center stopped and offered assistance. He took them to a Welcome Center where a couple in a tractor-trailer agreed to pull the car from the ditch. Searpero made no attempt to solicit help.

¶ 4. Russell made Searpero drive for some time before stopping at a motel. Russell displayed a knife and threatened to have Searpero’s children killed if she attempted to escape. The following day, they drove to a motel in Kansas City, Missouri. Searpero was left alone for several hours at the motel but made no attempt to escape or telephone anyone. WTien Russell returned to the room, he attempted to coerce Searpero into smoking something. Wflien she refused, he blew the smoke in her face and then sexually assaulted her. Searpero begged him to stop and told him he was hurting her. Afterward, Russell forced Searpero to bathe with him to wash away the evidence.

¶ 5. The following day, Russell drove to Jackson, Mississippi, checked into a motel and again assaulted Searpero. Some hours later, Russell drove back to Gulfport to the bus station and made a telephone call. Searpero stayed in the car, making no attempt to escape. At approximately 10:00 P.M., Russell drove Searpero to a Hattiesburg Shoney’s Restaurant and told her to wait there for two hours before leaving in order to give him time to escape. Scarpero entered the Shoney’s alone. Approximately five minutes later, Russell entered the restaurant and had Scarpero write a check on her account for $200. Russell filled in his name as payee, and then left.

¶ 6. Scarpero waited as she was told. A waitress eventually had her driven to a hospital emergency room just before midnight on February 10, 1998. Scarpero told personnel that she had been kidnapped from the parking lot of the Gulfport surgical center and sexually assaulted. Tests performed on Scarpero confirmed the presence of semen. Scarpero also had bruises on her left upper arm. Medical records indicate Scarpero was very upset and crying when she appeared in the emergency room. Blood tests were positive for the presence of marijuana and opiates.

¶ 7. Scarpero was interviewed on several occasions by various law enforcement officials. Each of her initial statements varied or contradicted each other in some fashion. Scarpero eventually admitted that her prior statements were false. She stated that her abductor fabricated a story for her to use to assist his escape. Scarpe-ro did not tell police the truth because her abductor had told her he was involved with “Mafia-types” who were watching her home and would kill her children.

¶ 8. Scarpero identified Russell from a photo array on February 13, 1998. He was charged with kidnapping and two counts of rape. He asserted at trial that Scarpero had gone with him willingly because she was unhappy with her marriage and consented to sex with him. He stipulated that the semen identified in the rape kit was his. A jury convicted Russell on the kidnapping charge and on one of two counts of rape.

DISCUSSION

1. Newly discovered, evidence.

¶ 9. Scarpero gave a statement to the Hattiesburg police while in a hospital emergency room; the State failed to provide this statement in discovery. Russell alleges that this constitutes newly discovered evidence warranting a new trial because the statement contained yet another inconsistent version of events that may have persuaded the jury of Scarpero’s lack of credibility.

¶ 10. In this statement, Scarpero told police that she had been forced into her car at gunpoint by a black man with two gold teeth, a long scar down the left side of his face, who spoke with a foreign accent and called himself Paul. She said that Paul had taken her wallet and checkbook, and knew a great deal about her family including where they lived. He threatened to have her children killed if Scarpero did not cooperate. Scarpero had further stated that Paul had given her to two other black men who tried to get her to smoke something before sexually assaulting her with an unknown object.

¶ 11. The purpose of post-trial motions is to bring to the court’s attention facts unknown at the time of trial. Williams v. State, 669 So.2d 44, 52 (Miss.1996). In order to grant a new trial on the basis of newly discovered evidence, the defendant must show by a preponderance of the evidence that the evidence was discovered after trial, that diligence would not have led to its earlier discovery, that it is material and not merely cumulative nor impeaching, and that it is such that it would change the outcome if a new trial were granted. Howell v. State, 354 So.2d 1124, 1127 (Miss.1978). At the hearing on the motion, the State argued that the inconsistencies in Scarpero’s first statement from her trial testimony were known to the defendant because of her later inconsistent statements.

¶ 12. A review of the trial transcript-shows that Russell cross-examined Scarpe-ro on almost every detail that she had given to the Hattiesburg police. The only detail in the report not raised on cross-examination was that an officer overheard Scarpero tell her father that she and Russell had stopped to buy drugs. However, Russell was aware of drug use even without access to this police report. The emergency room records were provided in discovery and the treatment sheet notes the presence of marijuana and opiates in Searpero’s system. Russell cannot now claim he was unaware of, and thus preju- ' diced by, this point.

¶ 13. Having had all of the statement’s details before them, the jury chose to believe Scarpero. Russell argues that it is the cumulative effect of having one more instance of inconsistency that might have swayed the jury. We do not find that a report that combines the information into a single document would have had any greater impact than what the jurors did hear. That is especially true when the new report is in principal details the same as some of the statements that Russell did have to use in his counsel’s examination of Scarpero. Her explanation of the reasons for these inconsistencies from trial testimony was no less believable if proof was offered of one more occasion during which Scarpero told the same fabrications. If anything, consistent inconsistencies from the truth support her explanation that fear drove her initial statements.

¶ 14. Russell further asserts that failure of the State to provide discoverable material is reversible error, in reliance upon Hickson v. State, 697 So.2d 391(Miss.1997). It is true that the failure of the State to abide by discovery rules may be cause to grant a new trial. However, Hickson did not rely solely upon a discovery violation in granting a new trial to the defendant. The violation was coupled with trial “ambush” of the withheld information and some questionable conduct on the part of prosecutors. Id. at 395. The court looked to the effect of the withheld information rather than the discovery violation alone. Russell was not ambushed at trial, nor was he prejudiced by the State’s failure to provide the written statement. He was aware of all information contained within the report and cross-examined the witness on these very points. We find no error in denying a new trial.

2. Sufficiency and weight of evidence

¶ 15. Russell also argues that his conviction was not supported by sufficient evidence and was contrary to the weight of the evidence. It is his contention that evidence of the many ignored opportunities that Scarpero had to escape established that she willingly accompanied him and overwhelmingly points to his innocence such that his conviction should be overturned.

¶ 16. When reviewing a claim of insufficient evidence on appeal, we look to the evidence most supportive of the State’s case. Harrell v. State, 583 So.2d 963, 964 (Miss.1991). “All evidence supporting, or tending to support the verdict, as well as all reasonable inferences that may be drawn from the evidence, must be accepted as true.” Id. Where there is competent evidence to sustain a verdict, it will not be disturbed on appeal. Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979).

¶ 17. Taking as true the evidence of guilt presented by the State, we find there was sufficient evidence to sustain the conviction. The prosecution presented both testimonial and physical evidence which, if deemed true, was competent to sustain the verdict. That she was sufficiently fearful of her kidnapper not to try to escape even when she was temporarily out of his sight was a conclusion that the jury could accept.

¶ 18. Likewise, we will order a new trial only when the overwhelming weight of evidence is so contrary to a finding of guilt that the conviction was an “unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). It is the jury’s duty to weigh conflicting testimony and witness credibility. Gandy, 373 So.2d at 1045. Juries are empaneled to resolve questions of fact. We will not substitute our factual findings for that of the jury in a contest of credibility.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF COUNT I KIDNAPPING, AND COUNT III RAPE, AND SENTENCE OF LIFE ON EACH COUNT TO RUN CONSECUTIVELY AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MYERS, J.,

text:
    P. WILLIAMS a/k/a Howard Gober, Appellant v. The CHASE MANHATTAN BANK, Successor by Merger to Chase Bank of Texas, N.A. Formerly Known as Texas Commerce Bank, National Association, as Trustee and Custodian, Appellee.
    No. 2002-CA-00038-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2003.

      James H. Herring, Jackson, for appellant.
    John Mark Franklin III, for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   MYERS, J.,

for the Court:

¶ 1. The chancellor entered a default judgment wherein he ruled that notice from the chancery clerk to Chase Manhattan Bank, the holder of a deed of trust by virtue of a merger, regarding a tax sale was not sufficient pursuant to statutory requirements. The chancellor held that the tax sale was void, vacated the deed, and reinstated the deed of trust. Howard Gober, the true name of P. Williams, who was the purchaser at the tax sale, sought to have the default judgment set aside. The chancellor denied the motion. Gober appeals that denial asserting:

1. THE TRIAL COURT ERRED WHEN IT GRANTED A FINAL JUDGMENT IN FAVOR OF CHASE MANHATTAN; AND
2. THE TRIAL COURT ERRED BY DENYING THE MOTION TO SET ASIDE THE DEFAULT JUDGMENT.

STATEMENT OF THE FACTS

¶ 2. A tax sale of certain land was conducted on August 31,1998. The purchaser was P. Williams. A subsequent tax deed was conveyed by the Chancery Clerk of Madison County on September 13, 2000. At some point, Chase Manhattan discovered that the tax sale had occurred. Chase Manhattan is the holder of a $204,000 deed of trust on the land dated November 10, 1997. Chase Manhattan attempted to locate the purchaser and eventually filed suit on March 5, 2001, against numerous people including the borrowers, the tax and court officials, and P. Williams. Chase Manhattan was able to determine that P. Williams was a fictitious name used by Howard Gober when he purchased the land at the tax sale. On May 2, 2001, securing the services of a private investigator, Chase Manhattan was able to serve process on Gober. Accompanying the process was the boilerplate language explaining the need to respond.

¶ 3. After receiving no response, Chase Manhattan filed for an entry of default on June 12, 2001, which was granted that day. Gober filed an untimely pro se answer on July 19, 2001. A final judgment was granted in favor of Chase Manhattan on August 10, 2001, without notice to Gober or a hearing. On November 6, 2001, Gob-er filed a motion seeking to set aside the default judgment. Gober served Chase Manhattan with his answer the following day. The chancellor held a hearing on November 9. The motion was denied by the court on December 7, 2001. Gober filed his notice of appeal on January 4, 2002.

LEGAL ANALYSIS

¶ 4. Since the two issues raised by Gober overlap, we will discuss the issues as a whole.

¶ 5. The Court follows a limited standard of review when addressing appeals from a chancery court. Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997). We shall not disturb the findings of a chancellor unless the chancellor was manifestly wrong, was clearly erroneous, or there was an application by the chancellor of an erroneous legal standard. Wright v. Roberts, 797 So.2d 992, 997(¶ 14) (Miss.2001); Mercier v. Mercier, 717 So.2d 304, 306(¶ 8) (Miss.1998).

¶ 6. Rule 55 of the Mississippi Rules of Civil Procedure allows for a default judgment. Chase Manhattan properly requested and received the entry of default under Rule 55(a). This does not appear to be contested, Gober swore that his answer was served within thirty days of' process, although there is no certificate of proof to substantiate this claim.

¶ 7. Gober’s appeal turns on the interpretation of Rule 55(b) and its application to these facts. The rule reads:

In all cases the party entitled to a judgment by default shall apply to the court therefor. If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application; however, judgment by default may be entered by the court on the day the case' is set for trial without such three days’ notice. If in order to enable the court to enter, judgment or to carry it into effect it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearing with or without a jury, in the court’s discretion, or order such references as it deems necessary and proper.

M.R.C.P. 55(b) (emphasis added).

¶ 8. Gober’s first argument is that Chase Manhattan did not properly apply for the default judgment. Gober argues that there was no formal written application. A review of the record reveals that Chase Manhattan’s request for a default judgment was granted. It is. highly unlikely that a trial court would take up such action without a request. Gober’s argument that there needs to. be a formal written application is not well taken.

¶ 9. Gober’s next argument is that a party is entitled to the notice of the hearing. We read the rule and do not come to the same conclusion. The rule specifically states that an appearance must be made for the notice requirement to be initiated. Just being a named party does not entitle one to such notice. One must be a party that has appeared to be entitled to the notice.

¶ 10. Gober next argues that his filing of his answer on July 19, 2001, even though untimely, constituted an appearance therefore resulting in the need for three days’ notice and a hearing. Chase Manhattan counters that Gober did not properly file a motion to set aside the entry of default; therefore, the answer filed by Gober can not be considered an appearance. We hold that the filing of the answer, although untimely, constituted an appearance by Gober in the suit.

¶ 11. “The purpose of this portion of Rule 55(b) is simple: It is intended to protect those parties who, although delaying in a formal sense by failing to file pleadings within the thirty day period, have otherwise indicated to the moving party a clear purpose to defend the suit .... ” M.R.C.P. 55 cmt. Chase Manhattan argues that allowing an answer that is filed after the entry of default to count as an appearance would effectively eliminate the burden a defaulting party has when trying to set aside a default. Our decision does not. go that far. We simply hold that even an untimely pleading filed after entry of default but prior to the default judgment constitutes an appearance and entitles that defaulting party to the notice and hearing requirements of M.R.C.P. 55(b). The burdens remain the same.

CONCLUSION

¶ 12. By filing the pleading prior to the default judgment, Chase Manhattan was aware that Gober intended to defend the suit. We do not say that the default judgment was incorrect, but rather that notice and hearing be afforded to Gober. An attorney should check the trial docket pri- or to seeking a default judgment in order to prevent possible delays or other problems. The trial court may still have found and may still find that default judgment is proper, but Gober is entitled to three days’ notice prior to the hearing.

¶ 13. THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY IS REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

GRIFFIS, J., NOT PARTICIPATING.


author: LEE, J.,

text:
    Peter R. MILLER, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-00522-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2003.
    Peter R. Miller, pro se, appellant.
    Office of the Attorney General by Billy L. Gore, for appellee.
    Before KING, P.J., LEE, and IRVING, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. This is an appeal from the denial of the appellant’s motion for post-conviction relief. In November 1999, Peter Miller pled guilty to and was convicted on Count I of kidnaping and sentenced to serve twelve years in the custody of the Mississippi Department of Corrections, convicted on Count II of simple assault on a police officer and sentenced to serve five years in prison, and convicted on Count III of possession of a firearm by a convicted felon and sentenced to serve three years, with credit for time served and said sentences to run concurrently to one another.

¶ 2. Miller filed his first motion for post-conviction relief in May 2000, arguing ineffective assistance of counsel. A Yazoo County Circuit Court judge denied that motion, and Miller filed a second motion for post-conviction relief in February 2002, arguing that his guilty pleas were entered unknowingly and unintelligently due to an improper indictment, that the trial court was without jurisdiction to impose the sentence, that he was unlawfully held in custody, and that the grand jury foreman’s affidavit was improper. The court found Miller’s motion to be frivolous and without merit, and Miller appeals to this Court raising similar issues. We first note that this second petition is proeedurally barred as a successive motion under Miss. Code Ann. § 99-39-23 (Rev. 2000). Without waiving the procedural bar, we nonetheless briefly address the merits of the motion as did the trial judge. We find no merit; thus, we affirm.

' DISCUSSION OF THE ISSUES

I. WAS THE INDICTMENT FATALLY DEFECTIVE?

¶ 3. The issues raised by Miller largely concern his allegation that his indictment was faulty. We first look to our general standard of review concerning motions for post-conviction relief.

Mississippi Code Annotated. § 99-39-11(2) (Rev. 2000) addresses the judicial examination of the original post-conviction collateral relief motion and states: If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified. In Par Industries, Inc. v. Target Container Co., [708 So.2d 44 (¶ 4) (Miss.1998)] the applicable standard of review was stated: “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,” and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.

McCullen v. State, 786 So.2d 1069 (¶ 4) (Miss.Ct.App.2001).

¶ 4. Miller first argues that his indictment was fatally defective, since the words “against the peace and dignity of the state” appeared at the end of Count I of his indictment, effectively voiding the remainder of the counts charged in the indictment. Article 6, § 169 of the Mississippi Constitution states that all indictments shall conclude “against the peace and dignity of the state.” Miller cites to McNeal v. State, 658 So.2d 1345 (Miss.1995), where the defendant argued that the State’s act of placing the words “against the peace and dignity of the state,” signaled the end of his indictment, effectively voiding any words which followed this phrase. McNeal, 658 So.2d at 1349. Following this phrase was the information charging McNeal as an habitual offender, which placement the supreme court found to violate the Mississippi Constitution. Id. at 1350-51. The court consequently reversed and rendered as to McNeal’s conviction as an habitual offender. Id.

¶ 5. We look to the history of the McNeal case and note the supreme court limited the McNeal holding three months later in Brandau v. State, 662 So.2d 1051, 1054 (Miss.1995), finding the appellant’s argument on this issue was waived since he failed to raise the issue in his initial brief on appeal, only thereafter raising the issue in his motion for rehearing. See also Voyles v. State, 822 So.2d 358 (Miss.Ct.App.2002) (Any defect such as this had to be brought to the attention of the trial court by a demurrer or by motion, and Yoyles’s failure to raise this objection to the indictment waived his ability to raise the issue on appeal). Concerning Brandau, this Court has explained, “This holding did not overrule McNeal but certainly left it to be applied in only the narrowest of situations where an obstinate prosecutor declines to request leave to amend the indictment after the matter has been timely raised by the defense.” Buford v. State, 756 So.2d 815(¶ 6) (Miss.Ct.App.2000). Further, both this Court and the supreme court have upheld this precedent in King v. State, 739 So.2d 1055 (¶¶ 9-13) (Miss.Ct.App.1999) and in Crawford v. State, 716 So.2d 1028 (¶¶ 81-83) (Miss.1998).

¶ 6. Finally, both Miller and the State cite to Starling v. State, 90 Miss. 255, 43 So. 952 (1907). In Starling, the Mississippi Supreme Court found that the act of including the phrase, “against the peace and dignity of the state,” at the end of each of the individual counts was unnecessary, but did not act to render the indictment void, so long as those words were also found at the conclusion of the indictment. Starling, 90 Miss. at 271, 43 So. at 955. In Miller’s case, the words “against the peace and dignity of the State of Mississippi” appear at the end of each of the three counts listed in Miller’s indictment, including at the final charging paragraph. No charging words are found after this final phrase is listed for the final count. Although the constitution requires that this phrase be found at the end of the indictment, as well, the mere fact that it is found elsewhere in the indictment does not void all words appearing thereafter in the document. Accordingly, we find that the trial judge did not err in finding the indictment to be valid and consequently in denying Miller’s motion based on this argument.

¶ 7. Because we have found no fault with the indictment, we do not address Miller’s contention that his counsel was ineffective for failing to object to the faulty indictment. As well, Miller’s argument that the trial court was without jurisdiction to convict or sentence on Counts II and III is without merit since this argument is based on Miller’s conclusion that his indictment was faulty. Finally, we find that Miller’s argument that his guilty plea was not knowingly and intelligently entered is without merit since he, again, bases this argument on what he perceived to be a fault with his indictment.

II. WAS THE GRAND JURY FOREMAN’S AFFIDAVIT IMPROPER?

¶ 8. Miller finally also argues that the affidavit of the foreman of the grand jury was improper because the date of the minutes, January 24, 1997, conflicted with the filing date of the affidavit, which was January 7, 1997. Miller claims that the indictment does not meet the requirements of Miss.Code Ann. § 99-7-9, which explains the process whereby the indictment is submitted to the clerk of the court and which also mandates that the affidavit explain that ten or more members of the grand jury voted for the indictment and that fifteen members were present. The affidavit has not been made a part of the record on appeal; thus, we are unable to make such determination. However, according to Miss.Code Ann. § 99-7-9 and according to McCormick v. State, 377 So.2d 1070, 1074 (Miss.1979), and Temple v. State, 165 Miss. 798, 805-06, 145 So. 749, 751 (1933), so long as the jury foreperson has signed the indictment and the clerk has marked it “filed,” both of which occurred in Miller’s case, the indictment is fully established. We find no merit to this or any other of Miller’s claims; thus, we affirm.

¶ 9. THE JUDGMENT OF THE YA-ZOO COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

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

GRIFFIS, J., NOT PARTICIPATING.

      . “All indictments and the report of the grand jury must be presented to the clerk of the circuit court by the foreman of the grand jury or by a member of such jury designated by the foreman, with the foreman's name endorsed thereon, accompanied by his affidavit that all indictments were concurred in by twelve (12) or more members of the jury and that at least fifteen (15) were present during all deliberations, and must be marked “filed,” and such entry be dated and signed by the clerk. It shall not be required that the body of the grand jury be present and the roll called. An entry on the minutes of the court of the finding or presenting of an indictment shall not be necessary or made, but the endorsement by the foreman, together with the marking, dating, and signing by the clerk shall be the legal evidence of the finding and presenting to the court of the indictment Miss.Code Ann. § 99-7-9 (Supp.2002) (emphasis added).


text:
    Joe Nathan GREEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2001-CA-00740-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2003.

      Joe Nathan Green, appellant pro se, M.A. Bass, Hazlehurst, for appellant.
    Office of the Attorney General by Jean Smith Vaughan, for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. Joe Nathan Green was convicted of selling crack cocaine within fifteen hundred feet of a school. He was originally sentenced to sixty years’ imprisonment. This Court affirmed his conviction but remanded to .the trial court for reconsideration of sentence. Green was re-sentenced to thirty years’ imprisonment, with twelve years suspended with five years on post-release supervision and an $18,000 fine. Green asserts the following issue in this appeal:

1. WHETHER THE RECONSIDERED SENTENCE OF THIRTY YEARS IS TANTAMOUNT TO CRUEL AND INHUMAN PUNISHMENT AND IS A LIFE SENTENCE.

STATEMENT OF FACTS

¶ 2. These facts were taken from the opinion of this Court in Green’s first appeal. Green v. State, 762 So.2d 810 (Miss.Ct.App.2000).

¶ 3. On January 5, 1997, Officer John Whitaker of the Copiah County Sheriffs Department, who also worked for the Mississippi Bureau of Narcotics as a special contract agent, met with a confidential informant to prepare for a drug purchase. This meeting was arranged due to a prior telephonic communication between Whitaker and the confidential informant. During their telephone conversation, the informant advised Whitaker that she could purchase drugs from Joe Green. Subsequently, she contacted Green by telephone and arranged to meet him at a predetermined place in order to exchange the drugs and money. At the pre-buy meeting with Whitaker and others, the informant was wired and told to make contact with Green. Although there was conflicting testimony regarding the number of individuals present with Green at the time the informant purchased the drugs, the informant testified that she met with Green and two other individuals at a location which was within 1,500 feet of Crystal Springs Middle School. At this location, drugs and money were exchanged between the informant and Green. Thereafter, the informant met with Whitaker and gave him the drugs which were identified as crack cocaine.

¶4. Green was indicted on March 7, 1997, and was tried before a jury for the sale of crack cocaine within 1,500 feet of a school on March 26,1997. He was convicted and sentenced to serve sixty years in the custody of the Mississippi Department of Corrections. His motion for a JNOV or new trial was denied April 4, 1997. Green appealed his conviction and sentence. The trial court used the authority granted in Miss.Code Ann. § 41-29-142 (Rev. 1993) to double Green’s possible sentence of thirty years under Miss.Code Ann. § 41-29-139(b)(1) (Supp.1999) to a sixty-year sentence. This Court affirmed his conviction but reversed and remanded for reconsideration of sentence because of an absence of reasons for the enhanced sentence in the record..

LEGAL ANALYSIS

1. WHETHER THE RECONSIDERED SENTENCE OF THIRTY YEARS IS TANTAMOUNT TO CRUEL AND INHUMAN PUNISHMENT AND IS A LIFE SENTENCE.

¶ 5. Sentencing is generally within the sound discretion of the trial judge and the trial judge’s decision will not be disturbed on appeal if the sentence is within the term provided by statute. Davis v. State, 724 So.2d 342, 344(¶ 10) (Miss.1998). In most instances, this means that a trial judge’s sentencing decision has traditionally been treated as not reviewable so long as the sentence was within the statutory limits. As a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal. Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992).

¶ 6. Green’s primary argument is that he received a longer sentence after a jury trial than others received by plea bargaining, thus punishing him for exercising his right to a trial. The trial judge was authorized to sentence Green to a longer sentence than Green received. Green offers no evidence that his sentence was done to punish him for exercising his right to a jury trial; therefore, this argument fails.

¶ 7. Green also argues that his sentence is of a character that “shocks the general consciousness or be intolerable to fundamental fairness.” Green offers only that the length would subject him to overcrowding and unsanitary conditions and make him a victim of physical attacks while imprisoned. Without proof, this does not rise to the level that would shock our conscience.

¶ 8. Green also comments upon the theory that because of his age, the sentence he received was tantamount to a life sentence thus requiring a bifurcation of the trial and sentencing phase as is done in capital offense cases. Green offers that his life expectancy, now probably shortened due to imprisonment, negates any possibility that he will ever be a free man. While it is terrible that older individuals are committing such crimes, we can not say that older individuals deserve a break from the criminal justice system. To do so would destroy the fabric of equality in justice on which our legal system is founded. In addition, we do not know how long Green may live. He may serve his time and live for many years after that.

¶ 9. We sent this case back to the trial court because we in essence have created a requirement that the trial judge justify any sentence that seems too harsh. Green, 762 So.2d at 810(¶ 10); Davis, 724 So.2d at 344(¶ 10). After a review of the record, the trial judge made very specific comments about the problems that drugs have caused in America. The trial judge also made comments about the age of Green, Green’s possible rehabilitation, and the lack of previous criminal offenses by Green. We disagree with Green’s assertion that this is cruel and inhuman punishment and that this is a life sentence.

CONCLUSION

¶ 10. Green’s original appeal was remanded for the trial judge to make a proper determination on the record of why Green’s sentence was enhanced. The trial judge used the opportunity to explain his reasoning for the length of sentence imposed. Green’s earlier appeal decision did not mandate that his earlier sentence was too long, just that the reasons for the length needed to be stated. The legislature authorized the trial judges to sentence individuals like Green to these lengths for these crimes.

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

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, AND CHANDLER, JJ„ CONCUR.

GRIFFIS, J., NOT PARTICIPATING.


text:
    William C. MARTIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01470-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2003.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before McMILLIN, C.J., THOMAS, LEE and CHANDLER, JJ.
   LEE, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. On July 24, 2001, a George County Circuit Court jury found William C. Martin guilty of accessory after the fact to burglary. Martin was sentenced to five years in the custody of the Mississippi Department of Corrections. Martin appeals his conviction, raising the following issues: (1) there was insufficient evidence to sustain a conviction for accessory after the fact to burglary, therefore the trial court erred in denying Martin’s motion for a directed verdict, a new trial, and a judgment notwithstanding the verdict; (2) the investigator’s testimony was inadmissible hearsay and violated Martin’s right to confront the witnesses against him. Finding no merit, we affirm.

FACTS

¶ 2. On September 30, 1999, Cap Gun’s Jiffy Mart in Rocky Creek was broken into by three men who stole numerous items, including the main cash register and forty cartons of cigarettes. The three burglars, later determined to be William Coker, Gabe Nicholson, and Robert Pharham, hid the stolen cigarettes in the woods and disposed of the cash register. After returning to a local motel for a few hours, the men, now with Martin rather than Pharham, returned to retrieve the cigarettes and cash register. The cash register was disposed of a second time, and Coker, Nicholson, and Martin transported the stolen cigarettes to Alabama where they were subsequently sold. Coker, Nicholson, and Pharham were later arrested for the burglary and their confessions led to the arrest of Martin.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN DENYING MARTIN’S MOTION FOR A DIRECTED VERDICT, NEW TRIAL, AND A JUDGMENT NOTWITHSTANDING THE VERDICT DUE TO THE INSUFFICIENCY OF THE EVIDENCE?

¶ 3. With his first issue, Martin contends that the State’s evidence was insufficient to support the guilty verdict. Specifically, Martin claims the evidence was vague and inconclusive, never rising to the level of proof needed for a conviction. We look to our standard of review concerning the sufficiency of the evidence:

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). It is within the discretion of the jury to accept or reject testimony by a witness, and the jury “may give consideration to all inferences flowing from the testimony.” Mangum v. State, 762 So.2d 337(¶ 12) (Miss.2000) (quoting Grooms v. State, 357 So.2d 292, 295 (Miss.1978)).

¶ 4. An accessory after the fact is one who has “concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that such person had committed a felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment.” Miss. Code Ann. § 97-1-5 (Rev.2000).

¶ 5. Looking at the available evidence and testimony, we find it was sufficient to support the guilty verdict. There was testimony that Martin was in Coker’s room at the motel when Coker, Nicholson, and Pharham returned after the burglary, and that Martin was “in and out of the motel at all times.” Martin was involved in dumping the cash register into a stream and accompanying Coker and Nicholson into the woods to retrieve the stashed cigarettes. Martin also knew the guy in Alabama who would buy the stolen cigarettes and he drove Coker, along with Nicholson, there to initiate the sale. Although most of the evidence was circumstantial, the jury could easily infer that Martin was helping Coker and Nicholson get rid of the evidence from the burglary in order to help them avoid arrest.

¶ 6. In viewing the evidence favorably to the State, we find fair-minded jurors had sufficient evidence to find Martin guilty. Consequently, the trial court did not err in denying Martin’s motions.

II. DID THE INVESTIGATOR’S TESTIMONY CONSTITUTE INADMISSIBLE HEARSAY AND VIOLATE MARTIN’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM?

¶ 7. With his second issue, Martin contends that he was denied his fundamental right to confront the witnesses against him because the investigator was permitted to testify how Martin was implicated as an accessory to the crime. Martin argues that the investigator’s testimony was inadmissible hearsay. A trial judge enjoys a great deal of discretion as to the relevance and admissibility of evidence. Hughes v. State, 735 So.2d 238 (¶ 134) (Miss.1999). However, the discretion of the trial judge must be exercised according to the Mississippi Rules of Evidence. Johnston v. State, 567 So.2d 237, 238 (Miss.1990). We will only reverse a trial court’s determination concerning the relevancy or admissibility of evidence if an abuse of discretion existed. Jefferson v. State, 818 So.2d 1099(¶ 6) (Miss.2002).

¶ 8. The exchange at issue concerns the direct examination of the investigator who questioned Coker, Nicholson, and Phar-ham about the burglary. We think it would be helpful to quote the exchange between the prosecuting attorney, Cheryl Sullivan; the investigator, Officer Keel; and the defense attorney, William Bailey:

SULLIVAN: After obtaining the identity of William Martin, what if anything did you do in relation to that information? Did you subsequently come in contact with him?
KEEL: Yes, I did. If I may back up just a minute. I obtained statements from these three guys. Out of three of them, two of them indicated that he was involved after the fact.
BY MR. BAILEY: May it please the Court, we’re going to object unless there’s some documentation through written statements.
BY THE COURT: Sustained.
BY MS. SULLIVAN: Well, Your Hon- or, the defense has been provided the copies of those statements.
BY MR. BAILEY: I don’t care.
BY THE COURT: Well, he can testify to what led him, without telling us what was in the statements. That’s the objection I’m sustaining.
BY MS. SULLIVAN: Right.
SULLIVAN: In other words, don’t say what the individuals said to you, but you obtained a name from individuals, correct?
KEEL: Right. The third individual I questioned, I did obtain the name of Billy Martin or William C. Martin.

¶ 9. We fail to see how this statement by the investigator is inadmissible hearsay or how Martin’s right to confront the witnesses against him was violated. Although Martin’s objection to the first statement did not specifically state a hearsay violation or the right to confront witnesses, the judge properly sustained the objection. The investigator was then instructed not to mention what was in the statements. Once the judge sustained the objection, any defect in the investigator’s testimony was cured.

¶ 10. There is, of course, a right to confront witnesses. However, we find that this isolated reference to what the perpetrators told the investigator was insufficient to rise to the level of a confrontation clause issue, especially since one of the perpetrators did testify against Martin. Finding that there was no abuse of discretion by the trial court, we affirm.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY OF CONVICTION OF ACCESSORY AFTER THE FACT TO BURGLARY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FINE OF $1,000 AND TO PAY $1,500 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GEORGE COUNTY.

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