author: LBROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Jeffery D. HUNTER, Appellant.
    No. 36,692-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2002.
    H. Paul Garner, Homer, G. Paul Marx, Lafayette, for Appellant.
    Richard Ieyoub, Attorney General, Walter E. May, Jr., District Attorney, Daniel W. Newell, Assistant District Attorney, for Appellee.
    Before BROWN, KOSTELKA and DREW, JJ.
   LBROWN, C.J.

Defendant, Jeffery Hunter, was convicted by a jury of the second degree battery of Jason Friemel, a violation of La. R.S. 14:34.1. The district court sentenced defendant to three years at hard labor. Defendant appeals his conviction and sentence. For the following reasons, we affirm.

Facts

In the early morning hours of June 4, 2000, in a park in Haynesville, Louisiana, defendant hit Jason Friemel in the face, knocking him to the ground. Friemel, who was smaller than defendant, lay unable to defend himself while defendant kicked him in the head and chest and stomped him on his back.

Christopher Bowman, D.J. Bailey, and Ryan Lewis loaded Friemel into his truck because he was limp and could not stand to help them. He could not speak any words on the way to the hospital and was unable to sit up straight. When the young men arrived at the Homer Hospital, they used a wheelchair to carry Friemel into the hospital.

By bill of information, on June 22, 2000, the state charged defendant with the offense of second degree battery. On November 27, 2001, a unanimous jury convicted defendant of the offense of second degree battery. After a pre-sentence investigation, on February 5, 2002, defendant was sentenced to three years at hard labor, with credit for time served; the trial court also ordered him to undergo a mental health examination and evaluation. This appeal follows.

I;,Discussion

Sufficiency of the Evidence

In reviewing the sufficiency of the evidence to support a conviction, an' appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The appellate court must determine whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt. State v. Nealy, 450 So.2d 634 (La.1984); State v. Doby, 540 So.2d 1008 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (1989).

Bowman, Bailey and Lewis testified that they knew Friemel and that after being beaten by Hunter, Friemel’s eyes were closed, he was groaning, and was unaware of who was there and what was going on. He could not get up, sit up, or stand. They tried to slap Friemel in the face several times to rouse him, but to no effect.

A Haynesville police officer, Jason Willis, testified that he was called to the hospital; he observed a two to two and one-half-inch contusion on Friemel’s head, other scrapes on his face, and a busted lip. He testified that taking a statement from Friemel took longer than usual, because Friemel “seemed kind of cloudy, kind of dazed at the time.” He interviewed other witnesses to the event, who testified at trial.

Dr. John Smith testified as an expert in family practice. He testified that he treated Friemel when he came to the hospital. At the time of Dr. | .^Smith’s evaluation at 3:00 a.m., Friemel was “alert and fairly well oriented.” Dr. Smith testified that Friemel did not remember anything about the incident other than that he had gotten “beat up.” According to Dr. Smith, Friemel “did not remember whether or not he was out or knocked out, if there was a loss of consciousness.” He testified that Friemel had a contusion and an abrasion on his right forehead, a laceration on his lip and complained of a headache. Although Friemel knew where he was at the time of the examination, he did not know how he had arrived at the hospital. Dr. Smith testified that Friemel had a Grade II concussion (more than a few minutes, less than an hour). He testified that a concussion could cause unconsciousness. He went on to state that there could be “a period of anywhere from a few seconds to where they are unresponsive up to a few minutes.” The doctor further testified that he could not contradict witnesses who testified that Friemel was unconscious after the fight. Dr. Smith testified that Friemel’s injuries could be characterized as “extremely painful,” and that he gave him Toradol, the strongest non-narcotic pain reliever available, and then gave him a prescription for Darvocet, another pain reliever.

La. R.S. 14 § 34.1. Second degree battery

Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
14Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.

We find that the evidence presented here is legally sufficient to convict defendant of second degree battery. As previously stated, three witnesses saw the blows that knocked the victim down and saw defendant both punch and kick the victim’s head. They testified that the victim had a head injury, his eyes were closed, he could not sit or stand by himself, and could not be roused, even with slapping. He had to be carried to the vehicle to go to the hospital and had to be put in a wheelchair to be taken into at the hospital. A physician testified that the victim had no memory of the events (other than that he had been in a fight) and no memory of being transported to the hospital. Although the victim was well-oriented when examined, the examination was over an hour after he had been brought to the hospital. The doctor testified that nothing in his examination would contradict witness testimony that the victim was unconscious. The doctor also testified that the injuries sustained would cause “extreme pain.”

The testimony of the witnesses establishes both unconsciousness and extreme pain. Although something that Friemel said, either to defendant or Smith, may have precipitated the attack, the evidence clearly establishes that defendánt Hunter threw the first punch and then continued punching and kicking Friemel after he was on the ground, unable to defend himself.

Second degree battery is a specific intent crime. State v. Fuller, 414 So.2d 306 (La.1982). The evidence must show that the defendant intended to “inflict serious injury.” A rational trier of fact, hearing testimony of a pfight culminating in kicks to the victim’s head and body while the victim was down, could reasonably infer that defendant specifically intended to inflict serious injury to the victim.

Ineffective Assistance of Counsel

In his second assignment of error, Hunter urges ineffective assistance of counsel for failure to file a motion to reconsider the sentence. As a remedy, he asked that the sentence be reviewed on appeal, rather than through ■ post-conviction relief. Hunter is adverting to a post-conviction relief allegation of ineffective assistance of counsel, and the reinstatement of appellate review rights. We will review the sentence on appeal as requested.

The trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, we do not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Thompson, 25,583 (La.App.2d Cir.01/19/94), 631 So.2d 555; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (1988); State v. Madison, 535 So.2d 1024 (La.App. 2d Cir.1988).

Whether a sentence is too severe depends on the circumstances of the case and the background of the defendant. A sentence is constitutionally excessive if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of [ ¿justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Tuttle, 26,307 (La.App.2d Cir.09/21/94), 643 So.2d 304.

We find that the trial court adequately considered and articulated lengthy reasons for imposing a three-year hard labor sentence on defendant.

The trial court noted that the present offense was defendant’s first felony conviction as an adult. He had a juvenile delinquency adjudication for simple battery, which also resulted in contempt of court proceedings. The trial court considered defendant’s family and social history. His educational history included an expulsion from school in Haynesville in the ninth grade, and' expulsion from the Claiborne Parish Alternative School for expressing gang activities in -1999. The trial court particularly noted that after the instant offense on September 9, 2000, defendant was arrested for yet another, second degree battery; no prosecution was undertaken and no bill of information was filed because the victim did not press charges against him. . The trial court articulated that the subsequent arrest for an identical offense indicated that there was an undue risk that defendant would commit another crime during any period of suspension of sentence. .. The trial court felt that defendant was in need, of correctional treatment. The trial court observed the PSI’s sentencing recommendation, which was that defendant receive the maximum statutory period of five years at hard labor.

The court adverted to deliberate cruelty to the victim, economic loss, previous involvement in similar offenses, a joint attack with another, possible victim provocation, and the unlikelihood (due to the victim’s death) of any further involvement between the victim and defendant, and ^defendant’s supportive family, as factors bearing on the sentence imposed. The trial court’s articulation was more than adequate.

The sentence imposed is neither grossly disproportionate to the severity of the offense nor, under the totality of the circumstances, is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion. Therefore, the claim of constitutional excessiveness is without merit.

Failure to Advise of Postr-Conviction Relief Time Limits

In his last assignment, defendant urges that at sentencing, the trial court did not properly advise the him of the time period within which to apply for post-conviction relief. Upon review of the record, we find that the trial court did not advise defendant of time delays to apply for post-conviction relief; however, La.C.Cr.P. art. 930.8 C, which requires the trial court to inform the defendant of the limitations period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. By this opinion, we advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts.' 914 or 922.

AFFIRMED.

      . Between the date of the instant injury and prior to trial, Friemel died in a separate and unrelated oilfield accident.


source: Caselaw Access Project

author: I .WILLIAMS, Judge.

license: Public Domain

text:
    Mitch W. WEST and Kristi Lynn West, Plaintiff-Appellant, v. Deanna LAING and Estelle Crawford, Defendant-Appellee.
    No. 36,608-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2002.

      John R. Sisk, for Appellant.
    Robert A. Breithaupt, Monroe, for Ap-pellee.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   I .WILLIAMS, Judge.

The plaintiffs, Mitch West and Kristi West, appeal a judgment in favor of the defendants, Deanna Laing and Estelle Crawford. The district court sustained the defendants’ exception of prescription. For the fobowing reasons, we reverse and remand.

FACTS

In 1994, Estelle Crawford and her late husband, Dudly Crawford, donated a parcel of land and a residence to their daughter, Deanna Laing. The Crawfords continued to occupy the residence. In 1999, Mitch and Kristi West believed they had reached an agreement with Laing and the Crawfords to purchase the land and the house, with the understanding that the Crawfords could remain on the property until their deaths. However, this agreement apparently was not reduced to writing.

According to the Wests, .over the next two years they obtained an appraisal of the property, built a new fence and placed a shed on the land in addition to other improvements. In April 2001, Dudly Crawford died and several months later Estelle Crawford was placed in a nursing home. In November 2001, the Wests observed a “For Sale” sign on the. property.

On December 14, 2001, the plaintiffs, Mitch and Kristi West, filed a petition for damages against the defendants, Deanna Laing and Estelle Crawford. The plaintiffs alleged that they had rebed to their detriment upon representations by the defendants regarding the sale of the immovable property and that defendants would be unjustly enriched as a result. The defendants filed exceptions of prescription, vagueness and no cause of action.

1 ¡After a hearing, the district court found that the plaintiffs’ claims of either negligence or fraud had prescribed on the face of the December 2001 petition, which referred only to the date of 1999. The court rendered judgment sustaining the exception of prescription and dismissing plaintiffs’ claims. Plaintiffs appeal, the judgment. Defendants filed an answer to the appeal seeking amendment of the judgment to assess all costs and reasonable attorney fees against the plaintiffs.

DISCUSSION

The plaintiffs contend the district court erred in -sustaining the exception of prescription. Plaintiffs argue that their suit was timely filed because their petition alleged personal causes of action subject to a ten-year prescriptive period, or alternatively, that they filed suit within one year of learning of their cause of action in November 2001.

The petition shall contain a short and concise statement of all causes of action arising from, and material facts related to, the transaction that is the subject of the litigation. LSA-C.C.P. art. 891. Del-ictual actions are subject to a liberative prescription of one year. This period begins to run from the day injury or damage is sustained. LSA-C.C. art. 3492. The nature of the obligation breached determines the applicable prescriptive period. Harrison v. Gore, 27,254 (La.App.2d Cir.8/23/95), 660 So.2d 563; Dean v. Hercules, Inc., 328 So.2d 69 (La.1976).

The doctrine of contra non valen-tem suspends prescription where a cause of action is not known or reasonably knowable by the plaintiff. In such a situation, prescription begins when the injured party discovers or | ashould have discovered facts upon which the cause of action is based. Senn v. Bd. of Sup’rs of Louisiana State University, 28,599 (La.App.2d Cir.8/21/96), 679 So.2d 575.

In the present case, plaintiffs contend their claims are quasi-contractual in nature because they acted to improve the land based upon representations of the defendants. However, the record indicates that plaintiffs did not act for the benefit of the defendants. Instead, the plaintiffs acted to improve the land for their own benefit, with the expectation that they would purchase the land. Thus, the nature of the defendants’ alleged breach of an obligation to the plaintiffs is more closely associated with an action in damages for tort. Consequently, the applicable prescriptive period for plaintiffs’ action is one year.

In its written reasons for judgment, the district court found that because only the date of “1999” was mentioned in the petition, the plaintiffs’ suit filed two years later in 2001 had prescribed. However, we note that plaintiffs alleged in paragraph eighteen of the December 2001 petition that Laing “recently” had offered the land for sale contrary to the plaintiffs’ interests. Thus, the petition suggests that plaintiffs may not have known of the basis of their cause of action until a later date than 1999. In fact, plaintiffs argued during the hearing on the exceptions and have alleged in their appellate brief that they were not aware of a problem with their anticipated purchase of the property until November 2001, when a “For Sale” sign was placed on the land.

In this situation, we find that the plaintiffs should be allowed an | opportunity to amend their petition to provide more specific factual allegations regarding the date of discovery of their cause of action, the description and cost of the improvements allegedly made on the land and the nature of any misrepresentations. Consequently, we must conclude that the district court erred in sustaining the exception of prescription. In reaching this conclusion, we pretermit discussion of the issue raised in defendants’ answer to the appeal.

An appeal may be taken from a final judgment, from an interlocutory judgment which may cause irreparable injury and from certain reformed judgments. LSA-C.C.P. art.2083. An appeal lies from the judgment itself, not from the reasons for judgment. Wilson v. Wilson, 30,445 (La.App.2d Cir.4/9/98), 714 So.2d 35. Here, the judgment itself addressed only the exception of prescription. Thus, we are constrained from considering the other exceptions filed by defendants.

CONCLUSION

For the foregoing reasons, the district court’s judgment sustaining the exception of prescription is reversed. This matter is remanded to the district court for an order directing the plaintiffs to amend their petition within a specified time period and for further proceedings consistent with this opinion. Costs of this appeal are assessed to the appellees, Deanna Laing and Estelle Crawford.

REVERSED AND REMANDED.

PEATROSS, J., concurs in the result without written reasons.


author: | PEATROSS, J.

text:
    David JONES and Sandra Jones, Individually and On Behalf of their Minor Child, Brittany Jones, Plaintiffs-Appellants, v. Doug COBB and Janis Cobb, Individually and in their Capacity as Natural Tutor of Justin Cobb, Defendants-Appellees.
    No. 36,724-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 30, 2002.

      Richard L. Fewell, Jr., West Monroe, for Appellants.
    Theus, Grisham, Davis & Leigh, by Phillip D. Myers, Monroe, for Appellees.
    Before PEATROSS, KOSTELKA & HARRISON (Pro Tempore), JJ.
   | PEATROSS, J.

This is an appeal from a judgment of the trial court finding that twelve-year-old Justin Cobb was not negligent when he hit eight-year-old Brittany Jones in the head with a baseball bat while he was batting in a neighborhood softball game. Brittany’s parents, individually and on her behalf, appeal. For the reasons stated herein, we affirm.

FACTS

On November 3, 1997, several neighborhood children, Justin and Ginny Cobb, Brittany Jones and Ryan Smith, were playing softball in the Cobbs’ front yard. This was, apparently, a common practice as the children had designated areas of the yard for the pitcher’s mound, bases and home plate or “batter’s box”. The Cobbs and the Smiths were next door neighbors. Their yards were separated by an embankment which sloped down from the Smiths’ yard to the Cobbs’ yard, where the softball game was in progress. The testimony established that Justin, twelve years old, was at bat and his nine-year-old sister, Ginny, was pitching. Brittany, eight years old, had already batted once in the game and was to bat again after Justin. As Justin was preparing to bat, Brittany was riding her bicycle in the Smiths’ yard. Brittany, however, rode down the embankment from the Smiths’ yard into the Cobbs’ yard coming to a stop right behind Justin as he swung the bat. His backswing hit Brittany in the temple area of her head causing her to fall, unconscious. Brittany suffered a depressed skull fracture and was hospitalized for approximately one week.

12Before this case went to trial, it came to this court on summary judgment, which the trial court had .granted in favor of the Cobbs on the issue of strict liability. Finding that genuine issues of material fact existed in the case “which require weighing conflicting facts and inferences regarding the circumstances of the children’s baseball game,” this court reversed and remanded for trial. See Jones v. Cobb, 34,926 (La.App.2d Cir.8/22/01), 793 So.2d 495.

At trial, Justin testified that he knew where Brittany was before he batted as he had seen her riding her bicycle in the Smiths’ yard, which was located behind him as he was batting. Justin further testified that, because his back was to Brittany, he did not see her ride up behind him as he swung. Ginny testified that Brittany was riding her bicycle from the Smiths’ yard to theirs when Ginny threw the pitch to Justin, but that she believed Brittany was far enough away to not be in any danger of being hit. Brittany testified that she rode up behind Justin “at an angle” to him, stopped and was pushing her bicycle or straddling it when the bat struck her. She further testified that she was familiar with the game of softball and had played the game with the Cobb children on many occasions. In addition, she testified that she had already batted once in the game that was in progress when she was struck.

The trial court concluded that Justin was not negligent in “any way whatsoever.” The trial court further found that this was just a neighborhood ball game, not a dangerous, hazardous adult activity for |awhich there might be strict liability for the actions of a child of tender years. Judgment was entered in favor of the Cobbs. This appeal ensued.

DISCUSSION

La. C.C. art. 2318 provides as follows:

The father and the mother and, after the decease of either, the surviving parent, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons. The same responsibility attaches to the tutors of minors.

In Turner v. Bucher, 308 So.2d 270 (La.1975), the supreme court interpreted article 2318 to include a form of strict liability of the parent for acts of the child. The activity of the child causing the injury has to have been “sufficiently negligent, imprudent and careless to constitute civil negligence if the child had been a person of discernment.” Turner, supra. In Loescher v. Parr, 324 So.2d 441 (La.1975), the supreme court explained the standard for strict liability under article 2318, stating that the parent of a. minor child is liable for the damage caused by the child’s conduct which creates an unreasonable risk of injury to others, even though the parent is not personally negligent and the child is too young to be personally negligent. The determination of whether an activity constitutes an unreasonable risk of harm or injury to others is the risk-utility analysis described by the supreme court as follows:

There is. no fixed rule for determining whether the thing presents an unreasonable risk of harm. To assist the trier-of-facts, we note that many, factors are to be considered and weighed, including (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden, of adequate precautions; (5) | individual and societal rights and obligations; and (6) the social utility involved.

Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002.

In the case sub judice, the matter was remanded for trial so that the above analysis could be utilized by the trial court in determining whether Justin’s act of swinging the bat, which resulted in Brittany’s injury, could give rise to strict liability of his parents. After hearing, evaluating and weighing the evidence presented at trial, the trial court concluded that Justin’s act of swinging the bat in the neighborhood softball game was not negligent and did not present an unreasonable risk of harm to others. We find no error in the trial court’s conclusion.

This court’s' review of the trial court’s findings is governed by the manifest error/clearly wrong standard. Stobart v. State of Louisiana, Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review', even though the appellate court may feel that its own evaluations and inferences are as reasonable. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that, had it been sitting as the trier' of fact, it would have weighed the evidence differently. Stobart, supra; Rosell, supra. Where there are two permissible views of the evidence, the factfin-der’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra.

| ¡¡In the case sub judice, the trial court heard the testimony of three of the children who were playing softball that day, including the victim. There was not much discrepancy among the versions of the accident as related at trial by Justin, Ginny and Brittany. The trial court found, and the record supports, that each of these children was familiar with the game of softball and had engaged in this activity on many occasions in the Cobbs’ yard. The testimony supports the conclusion . that Justin had seen Brittany riding her bicycle a good distance away, in the neighboring yard, before he swung and that his back was facing the Smiths’ yard where Brittany was riding. We find it reasonable to conclude that Justin had no reason to believe that Brittany was in a zone of danger to be hit by his baekswing or that she would suddenly ride her bicycle up behind him where she could be hit. Further, all witnesses agreed that Brittany was familiar with the game as it was being played that afternoon and she admitted that she had already batted in the game. It is not unreasonable to conclude that Brittany should have appreciated the danger of riding her bicycle up behind a batter in a softball game. After reviewing the evidence presented at trial, we find no manifest error in the trial- court’s conclusion that, under the particular circumstances at the time, Justin’s act of swinging the bat in the neighborhood softball game did not present an unreasonable risk of harm to others. We, therefore, affirm the judgment of the trial court in favor of the defendants, Doug and Janis Cobb.

\ «CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed at Plaintiffs’ cost.

AFFIRMED.

      . Justin testified that the batter's box was not a "chalked off' area, but the record clearly indicates that the spot designated as home plate was known by all of the children as the batter's area.


author: _[iDREW, J.

text:
    STATE of Louisiana, Appellant, v. James PALMER, Appellee.
    No. 36,779-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 30, 2002.
    Rehearing Denied Jan. 23, 2003.

      Kidd-Culpepper, by Paul Henry Kidd, Monroe, for Appellant.
    Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Edward Dion Young, Assistant District Attorney, for Appellee.
    Before CARAWAY, PEATROSS and DREW, JJ.
   _[iDREW, J.

Defendant appeals from an adverse ruling denying his Motion to Quash, based on the alleged unconstitutionality of La. R.S. 40:982. We affirm the ruling of the trial court.

HISTORY

- On March 4, 1999, the state charged James Palmer by bill of indictment with possession of marijuana on January 8, 1999, with intent to distribute. The indictment further alleged that defendant was a second offender, predicated on the fact that he was adjourned (sic) guilty of possession of cocaine in July of 1994.

The defendant moved to quash the instant charge, arguing that the bill was prejudicial because it listed his prior drug conviction. The trial court initially granted the motion to quash, but later reversed itself and denied the motion. Defendant then pled guilty to a charge of possession of marijuana with intent to distribute, with an agreed 10-year sentence, reserving his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the denial of his motion to quash.

BACKGROUND

In January 1999, following two buys by an informant and an undercover officer, members of the Bastrop Police Department executed a search warrant at defendant’s residence. The police seized three pounds of marijuana, as well as Baggies and other drug paraphernalia.

DISCUSSION .

Defendant relies on State v. Wells, 01-1276 (La.App. 5th Cir.3/26/02), 815 So.2d 1063, which held that there is no reason to place 12aIlegations of prior convictions in a bill of information when the first offense was for a felony and the alie-gation is used to invoke an enhancement provision. The Fifth Circuit noted that its approach was. not followed by the First and Third Circuits. After consider the excellently drafted and well-reasoned opinions on both sides of the question, we feel that the First and Third Circuits got it right. See State v. Franklin, 96-1346 (La.App. 3d Cir.4/16/97), 693 So.2d 219, writ denied, 97-2129 (La.3/13/98), 712 So.2d 867; and State v. Rodriguez, 572 So.2d 358 (La.App. 1 Cir.1990), writ denied, 576 So.2d 46 (La.1991).

It is the intent of La. R.S. 40:982 to punish repeat drug offenders. State v. Sarrio, 01-543 (La.App. 5th Cir.11/27/01), 803 So.2d 212.

To obtain a multiple offender conviction under R.S. 40:982, the allegation that the offense is a second or subsequent offense “must be contained in the formal charge instituting criminal prosecution of the underlying offense.” State v. Franklin, supra. The prior conviction “must” be alleged in the charging document in order to enhance the penalty. State v. Murray, 357 So.2d 1121 (La.1978).

This is so, even though sentencing is not a jury function. State v. Livings, 95-251 (La.App. 3d Cir.11/15/95), 664 So.2d 729, writ denied, 95-2906 (La.2/28/96), 668 So.2d 367. In such cases, the jury is given a limiting instruction that the past convictions are not to be taken into account in assessing guilt or innocence on the charged offense. State v. Green, 493 So.2d 588 (La.1986).

|sThe fact of the prior conviction must be alleged in the formal charge, or else the sentence as a second offender is invalid and must be vacated, giving the state no choice in the matter. See State v. Rodriguez, supra; State v. Franklin, 449 So.2d 63, 67 (La.App. 4th Cir.1984). (A bill of information containing the prior drug conviction' was properly read to the jury.)

Furthermore, the defendant must be informed of the nature and cause of the accusation against him. State v. Livings, supra. The Sixth Amendment to the U.S. Constitution provides for the right of confrontation. Knowledge of all elements of the charge should be clearly imparted to the defendant, to satisfy this basic right.

Other than one case from our learned colleagues on the Fifth Circuit, the jurisprudence does not support the defendant’s argument in this appeal. Even that case, which erroneously held that the previous conviction should not have been alleged in the bill of information, found that the reading of the bill to the jury was harmless error due to the overwhelming evidence of guilt. State v. Wells, supra. Likewise, we also have overwhelming and direct evidence of guilt in this instant case.

We are sensitive to the quandary of the defendant in this situation. Normally, a petit jury would not learn of a prior conviction unless the defendant took the stand, or unless the Prieur situation existed, with proper notice and requisite hearing.

If the Legislature or Supreme Court established an out-of-court notice procedure similar to State v. Prieur, 277 So.2d 126 (La.1973), ^acknowledged in each case by each defendant, then a defendant would at least have the option of either:

• requiring the state to prove this element, with the jury learning about the previous misdeed during opening instructions; or
• conceding the proof of this element to the court, outside of the presence of the jury, thereby leaving the defendant the option of concealing this information from the jury.

Until a legislative or jurisprudential solution is found, however, we find no way to harmonize the defense position here with the clear holding of Apprendi v. New Jer sey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that proof beyond a reasonable doubt of all elements of the crime must be arrived at by a jury, in order to expose a defendant to criminal sanctions.

The Motion to Quash lacks merit. We affirm the learned trial court’s denial of the motion. We farther affirm the conviction and sentence.

DECREE

The trial court’s ruling on the Motion to Quash, as well as the conviction and sentence are AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS,. GASKINS, CARAWAY, PEATROSS, and DREW, JJ.

Rehearing denied.


author: JjDfeEW, J. hPEATROSS, J.,

text:
    Josephine WESLEY, Plaintiff-Appellant, v. FOOD BANK OF NORTHEAST, LOUISIANA, INC. and American Central Insurance Company, Defendants-Appellees.
    No. 36,588-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 7, 2003.

      Bruscato, Tramontana & Wolleson by Anthony J. Bruscato, Monroe, for Appellant.
    Davenport, Files & Kelly, L.L.P. by W. David Hammett, Monroe, for Appellees.
    Before BROWN, STEWART, PEATROSS, KOSTELKA and DREW, JJ.
   JjDfeEW, J.

Plaintiff, Josephine Wesley, appeals from the grant of summary judgment in favor of defendants, Food Bank of Northeast Louisiana, Inc. .(Food Bank) and its liability insurer, CGU Insurance Company (CGU). For the following reasons, we reverse and remand.

FACTS

This is an action to recover damages for personal injuries sustained by Ms. Wesley after she fell off a loading ramp at the Food Bank. Because the case was decided on summary judgment, the facts available for review come primarily from the depositions of the plaintiff and witnesses.

Ms. Wesley was an occasional volunteer at the Food Bank, having worked there one day per week for a period of about two months. Her tasks primarily consisted of placing cans or packages of food in boxes for distribution. Much of the food in the Food Bank’s large warehouse is stored in cases stacked on wooden pallets. These pallets occasionally had to be moved from one part of the warehouse to another by forklift or pallet jack, but moving the pallets was apparently supposed to be done by full-time Food Bank employees trained in the use of the equipment and not by the volunteers. Ms. Wesley said that she had never used a pallet jack prior to the day of her accident.

On the afternoon of July 10, 2000, Ms. Wesley and her sister, Jennatt Jackson, were at the Food Bank. They both stated in their respective depositions that they had been doing volunteer work that day. At approximately 3:00 that afternoon, Ms. Jackson was-in the process of retrieving a load of “spoiled” food to take to her farm for use as animal feed. [?The spoiled food had been placed in a box and was ready to be transported, by forklift, out of the warehouse loading dock, down a ramp and placed into the bed of Ms. Jackson’s pickup truck waiting outside. The forklift driver was Chyvis Turner, a full-time Food Bank employee. Ms. Wesley said that before she and her sister could take the food, the Food Bank had to weigh it. The Food Bank scale was near the doorway of the loading area of the warehouse. Ms. Wesley stated that the doorway was partially blocked by a barrel sitting on a manual pallet jack. She added that her sister had earlier used the pallet jack to move the barrel “with that broken glass and stuff in it” from the doorway of the loading bay near the scale and-that Mr. Turner was having difficulty maneuvering the forklift around the pallet jack.

Ms. Jackson, who claimed wide experience with manual pallet jacks, testified in her deposition:

The manual pallet jack, I had it with the barrel on it. She never touched it the whole time that I saw her. I brought it •out and put — I parked it on one side of the scales way away from where Chyvis had to go with the forklift. Way out of the way.

According to Ms. Wesley, she pushed the pallet jack to clear a path for Mr. Turner’s forklift, and then once he passed, she pulled it toward her to return the pallet jack to its original spot. The pallet jack apparently continued rolling past the intended stopping point, as Ms. Wesley testified, “The hydraulic jack pushed me off the ramp. I didn’t just fall. It shoved me.” Ms. Wesley gave this detailed account of the incident in her deposition:

I was standing right in the door and the hydraulic jack was sitting' there, but it was sitting like Chyvis was trying to get it around.' He was trying to get — he was on the forklifter (sic) and |she was trying to get around the hydraulic jack to weigh the big old box and he kept-on struggling, and I asked him, I said, ‘Chyvis, do you want me to move it a little bit?’. And he kept looking down and turning and I said ‘well, I’ll just kind of move it a little bit.’ So I pushed it out of the way a little bit and he come around and put the box on the scale. So as he weighed the food he took it off and he went down the ramp to put it on the truck, and I was still standing there and I said, well, let me move it back in the position it was in so when he come back up he could, you know, get back up with the forklifter (sic) and come around and weigh the barrel because it was a barrel sitting waiting to be weighed, too, and I went to shove it back a little bit and it took off, and when it did I didn’t have no, you know — I had it like this (indicating) but it, — you know, I couldn’t hold on to nothing or nothing. It just throwed (sic) me over the ramp on this right arm here.

Ms. Wesley received several injuries as a result of her fall, including a broken right arm and suffered pain in her right knee, back and pelvis. At the September 2001 deposition she said that her pain still continued, particularly in her lower back, right shoulder and arm, and pelvis. Pain limited her ability to move her right arm.

Mr. Turner testified in his deposition that he first became aware of the accident when he heard a loud rumbling noise while he was loading a pallet of spoiled food into the bed of Ms. Jackson’s pickup truck. He said that he turned around and saw the pallet “rolling down the dock by itself’ and also saw Ms. Wesley’s legs as she fell over the loading ramp. Ms. Wesley’s sister, Ms. Jackson, recalled the incident somewhat differently; at her deposition, she said that when Ms. Wesley fell, Mr. Turner had not yet driven the forklift down the ramp. However, Ms. Wesley testified that her sister and Mr. Turner were both at her sister’s truck, loading a box, when she fell off the ramp.

|4Ms. Wesley filed suit against the Food Bank and its insurer alleging in part that the defendants created an unreasonable yet foreseeable risk of harm to her, that they failed to exercise reasonable care, that they allowed her to move the pallet jack without prior experience, and exposed her to risks beyond the scope of her background or work experience. After depositions were taken, the defendants filed a motion for summary judgment. Ms. Wesley opposed the motion for summary judgment and in her opposition she included the depositions, the defendants’ responses to interrogatories and a set of photographs of the loading dock and the pallet jack. The motion was submitted to the trial court on briefs, and the court granted summary judgment in favor of the defendants, dismissing Ms. Wesley’s lawsuit. The trial court cited Holmes v. Cromwell & Spencer Lumber Co., 51 La. Ann. 352, 25 So. 265 (1899), and Lynch v. Cities Service Refining Corp., 52 So.2d 456 (La.App. 1st Cir.1951), for the proposition that Ms. Wesley was required to show that the defendants had behaved with gross negligence by willfulness and wantonness. The trial court found that Ms. Wesley had not met this burden and that she had been injured as the result of her own negligence.

DISCUSSION

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. The mover has the burden of establishing the absence of a genuine issue of material fact. If the mover [¿will not bear the burden of proof at trial on -the matter, then he is required to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or action. La. C.C.P. art. 966(C)(2).

The party opposing summary judgment cannot rest- on the mere allegations of his pleadings, but must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If he does not produce such evidence, then there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. arts. 966(C)(2). Appellate' courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. NAB Natural Resources v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477.

We are mindful. of the purpose of a motion for summary judgment as stated in Johnson v. Entergy Corp., 36,323 (La.App.2d Cir.9/20/02), 827 So.2d 1234, 1237:

The purpose of the motion for summary judgment is to weed out those cases where it is obvious that the evidence, even if accepted as true, is insufficient to establish an essential element of a party’s case. Therefore, irrespective of the legislature’s mandate ‘that summary judgments are now favored, the trial court cannot make credibility determinations when considering such motions. The court should draw those inferences from the undisputed facts which are most favorable to the party opposing the motion for summary judgment since summary judgments deprive the litigants of the opportunity to present their evidence to a jury and should be granted only when the evidence presented at the motion for summary judgment establishes that there is no genuine issue of material fact in dispute. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226; Knowles v. McCright’s Pharmacy, Inc., 34,559 (La.App.2d Cir.4/4/01), 785 So.2d 101.

Although Ms. Wesley gave her opinion that the pallet jack pushed her off the loading dock, we do not find that she is claiming under La. C.G. art. 2317.1 that the pallet jack was defective. Unlike the cart in Kugler v. Tangipahoa Parish School Board, 99-0016 (La.App. 1st Cir.2/18/00), 752 So.2d 375, there is no evidence that the pallet jack itself was defective and for that reason contributed to Ms. Wesley’s accident. In the absence of any testimony describing the pallet jack as broken or damaged, we consider Ms. Wesley’s claim to sound essentially in ordinary negligence.

Since the decisions in Holmes, supra and Lynch, supra, Louisiana has adopted a comparative fault scheme whereby even a party who is partly responsible for his damages may recover, in proportion to the parties’fault, a portion of his damages from the other tort-feasor. La. C.C. art. 2323. However, in order to recover, under the duty-risk analysis, a plaintiff must prove five separate elements:

(1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element).

Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 276.

Although Ms. Wesley had been volunteering her services at the Food Bank on the day of the accident, her presence at the loading dock at the time |7of the accident was unrelated to her volunteer work. She was still present at the warehouse because her sister was gathering an assortment of food to take home. Under the circumstances, we believe that she may be considered a business invitee. In general, the owner of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of harm. Holmes v. Harper, 34,631 (La.App.2d Cir.5/9/01), 786 So.2d 245, 248.

Mr. Turner testified that there was no need for volunteers to work around the loading docks. He stated that volunteers were ordinarily not allowed around the loading docks because of the hazard involved, although he was never told that this was the Food Bank’s policy. He also said, over the objection of defendants’ counsel, that in his opinion it was unsafe for volunteers to use the pallet jacks because they did not have the proper training. There were no visible warnings at the Food Bank regarding the use of the pallet jacks, and Mr. Turner was never told by his supervisors that only employees could use the pallet jacks. Mr. Turner testified that he had never known of a volunteer using a pallet jack.

Ms. Jackson testified that she had been working as a volunteer at the Food Bank for a little over a week on the date of the accident, and that she,|shad been picking up damaged products from there for three to four years. On the date of the incident, Ms. Jackson had used the manual pallet jack to move a barrel containing trash and damaged food out of the way. She recalled that the last time she saw the pallet jack before the incident, it was not in the path of the ramp to the loading dock that the forklift would take. She testified that she had used the manual pallet jack numerous times since she began picking up spoiled food products from the Food Bank several years earlier, and had continued using it after she started volunteering there. Ms. Jackson did not recall anyone at the Food Bank ever telling her not to use the pallet jack, although she was never ordered to use it.

If Mr. Turner was supervising Ms. Wesley’s movement of the jack, then the Food Bank could be responsible for his failure to properly supervise the plaintiff. If a person undertakes a task which he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable and prudent manner. Moore v. Safeway, Inc., 95-1552 (La.App. 1st Cir.11/22/96), 700 So.2d 831, 846, writs denied, 97-2921 (La.2/6/98), 709 So.2d 735, and 97-3000 (La.2/6/98), 709 So.2d 744. In the absence of evidence that Mr. Turner was supervising Ms. Wesley, however, Food Bank cannot be held liable under this theory.

Ms. Wesley admitted that Mr. Turner never asked her to move the pallet jack. Nevertheless, she testified that when she asked him if he wanted her to move the pallet, he never responded to her question. Noise from the forklift apparently would not have prevented him from hearing Ms. Wesley’s alleged question about moving the pallet jack, as Mr. Turner 1 described the propane-powered forklift as having a quiet motor. In any event, according to Ms. Wesley, Mr. Turner did not object to her taking this action. Mr. Turner testified that he did not see Ms. Wesley move the pallet jack to give him room to maneuver the forklift before he went down the ramp. There is clearly a genuine issue of material fact regarding whether Ms. Wesley moved the pallet jack in Mr. Turner’s presence. If such is the case, then Mr. Turner took upon the duty to supervise Ms. Wesley’s use of the pallet jack. Moreover, it would also be a breach of the Food Bank’s duty not to expose Ms. Wesley to unreasonable risks of harm. Mr. Turner recognized the danger of non-employees using the pallet jacks. It will be up to the trier of fact to make the credibility determination between the two versions of the event.

It is of no importance to our analysis that even if Ms. Wesley initially moved the pallet jack in Mr. Turner’s presence, Mr. Turner did not know, what Ms. Wesley was doing after he proceeded down the ramp, which was when she pulled the pallet jack toward herself to return it to its original location. The implication would be that at that point Mr. Turner was no longer in a position to object to Ms. Wesley’s further movements of the pallet jack. However, it would be absurd to suggest that Mr. Turner’s unspoken consent (evidenced simply by a lack of objection) was only valid when Ms. Wesley initially pushed the pallet jack out of the way of Mr. Turner’s forklift, but then this consent dissipated seconds later, again without a signal from Mr. Turner, verbal or otherwise.

|1flDECREE

For the above-assigned reasons, the judgment of the trial court is REVERSED at defendants’ cost.

PEATROSS, J., dissents with written reasons.

KOSTELKA, J., dissents for reasons assigned by Judge PEATROSS.

hPEATROSS, J.,

dissents.

I respectfully dissent.

The majority opinion states in part as follows:

If Mr. Turner was supervising Ms. Wesley’s movement of the jack, then the Food Bank could be responsible for his failure to properly supervise the plaintiff ... In the absence of evidence that Mr. Turner was supervising Ms. Wesley, however, Food Bank cannot be held liable under this theory. (Emphasis added.)

Based on my reading of the record in this case, I find no evidence that Mr. Turner was supervising Ms. Wesley at any time prior to her injury. Accordingly, I would affirm.

      . The plaintiffs in Holmes v. Cromwell & Spencer Lumber Co., supra, and Lynch, supra, were not volunteers in the sense that they were performing charitable deeds. Instead, each had simply volunteered to perform gratuitous tasks in an employment setting. The plaintiff in Holmes was employed as a log washer on a day to day basis, and was not working on the day he was injured. Holmes, who had been loitering around the sawmill, had answered the call from defendant's locomotive engineer for assistance in loading railroad ties. In Lynch, the plaintiff was connecting pipe lines for his employer on defendant’s property. Lynch was injured when he voluntarily placed his foot against a 55 foot long pipe lying across a road so that a truck owned by defendant could drive over it. See also, Lafont v. Chevron, U.S.A., Inc., 593 So.2d 416 (La.App. 1st Cir.1991).

      . Mr. Turner testified that he had never seen a policy manual outlining what the volunteers were permitted or not permitted to do.


author: WALLER, J., PITTMAN, C.J.,

text:
    Charles R. WEBSTER, Jr. v. Jean Lala WEBSTER.
    No. 2001-CA-00570-SCT.
    Supreme Court of Mississippi.
    Oct. 17, 2002.
    Rehearing Denied Jan. 9, 2003.
    Clement S. Benvenutti, Bay St. Louis, attorney for appellant.
    William W. Dreher, Jr., Gulfport, attorney for appellee.
   WALLER, J.,

for the court.

¶ 1. This appeal presents the issue of what is considered to be “good cause” for failure to serve process within 120 days. We find that the plaintiff did not show good cause for failure to effect service of process within 120 days under Mississippi Rule of Civil Procedure 4(h) and that the chancellor abused his discretion by failing to dismiss the complaint.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jean Lala Webster filed a complaint of divorce in the Chancery Court of Hancock County against Charles R. Webster, Jr., alleging that he had deserted her by leaving the marital home, emptying the joint checking account, allowing the marital home to be foreclosed upon, her automobile to be repossessed, and the household goods .to be auctioned off, dropping her from his health insurance, and leaving the state. She also alleged that even though Charles had obtained a divorce decree against her in Texas, she had never been a resident of Texas and Texas did not have personal jurisdiction over her.

¶ 3. Jean’s complaint for divorce was filed on October 5, 1999, and, on that same date, summons was issued to Jean’s attorney. Service on Charles by certified mail was attempted three times in October of 1999, but was returned marked “unclaimed.” The address on the certified envelope was that of 537 Pritchett Road, Red Oak, Texas, the residence of Charles’s father. On February 8, 2000, a motion to allow out of time service was filed and granted. The motion stated that Charles had intentionally avoided service of process, but there was no affidavit attached to the motion to support this allegation. Based upon this motion, the chancery court specifically found that good cause existed for failure to serve process in accordance with Rule 4(h). One hundred twenty additional days were granted to Jean for service of process. In an attempt to locate Charles, on February 29, 2000, a subpoena directed to Charles’s employer, Southern Towing, was issued to Jean’s attorney. On June 21, 2000, outside the 120-day extension given by the chancery court, an amended complaint was filed and summons issued. Charles was served by certified mail on July 3, 2000, at the address shown on the Texas divorce decree. Charles moved to dismiss Jean’s complaint for divorce for failure to comply with Rule 4(h).- A hearing was held in which testimony was given pertaining to Charles’s attempts to avoid process. The chancery court specifically found that Charles had intentionally avoided service of process of Jean’s complaint for divorce and that these acts constituted good cause to excuse Jean’s failure- to serve him with process within 120 days pursuant to M.R.C.P. 4(h). The chancery court ordered that Charles pay alimony to Jean in the amount of $2,000 per month, that Jean have ownership of all personal property in her possession, that Charles give Jean one-half of an IRA, and that Charles pay all costs of court and attorney’s fees.

DISCUSSION

I. WHETHER JEAN’S COMPLAINT FOR DIVORCE SHOULD HAVE BEEN DISMISSED FOR FAILURE TO COMPLY WITH M.R.C.P. 4(h).

¶ 4. Mississippi Rule of Civil Procedure 4(h) mandates that a complaint be dismissed if service of process is not effected within 120 days of the filing of the complaint and good cause cannot be shown for failure to do so. The rule has been interpreted to provide that “a plaintiff must serve a defendant with process within 120 days or show good cause why service was not made.” Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996) (emphasis added). The .rule has also been interpreted to require that, if the defendant, is not served within 120 days, the plaintiff must either refile the complaint before the statute of limitations ends or show good cause; otherwise, dismissal is proper. Id. at 1244. “To .establish 'good cause’ the plaintiff must demonstrate ‘at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.’ ” Peters v. United States, 9 F.3d 344, 345 (5th Cir. 1993) quoting Systems Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir.1990) (cited favorably in Bang v. Pittman, 749 So.2d 47, 51 (Miss.1999), and Watters, 675 So.2d at 1243).

¶ 5. A determination of good cause is a discretionary ruling by the trial court and is entitled to deferential review of whether the trial court abused its discretion and whether there was substantial evidence supporting the determination. Bang, 749 So.2d at 51; Rains v. Gardner, 731 So.2d 1192, 1197 (Miss.1999).

¶ 6. The chronology of events in the case sub judice is as follows:

ACTION DATE
June 1,1998 Charles vacates marital domicile
June 28,1999 Charles’s complaint for divorce (showing Cedar Hill address) filed in Texas
October 5,1999 Jean’s complaint for divorce filed in Mississippi
October 19,1999 Jean served with Charles’s complaint for divorce
October, 1999 Three attempts made to serve Charles with process at Red Oak address
February 2, 2000 First 120-day period elapses
February 8, 2000 Motion for additional time in which to serve Charles filed
February 8, 2000 Order granting motion for additional time entered, allowing 120 additional days in which to effect service of process ' " '
February 29, 2000 Subpoena issued to Charles’s employer
April 4, 2000 Divorce, Dallas County, Texas
June 7, 2000 Second 120-day period elapses
June 21, 2000 Amended complaint filed
July 3, 2000 Service of process of amended , complaint on Charles at Cedar Hill address
October 30,2000 Hancock County, Mississippi, ' judgment on alimony, one-half (1/2) of IRA, court costs, attorney fees, and the award of personal property in Jean’s possession
March 20, 2001 Judgment denying M.R.C.P. 60 motion filed by Charles

¶ 7. Citing Collom v. Senholtz, 767 So.2d 215 (Miss.Ct.App.2000), Charles contends that, under Mississippi law, a motion for additional time in which to effect service of process which is filed after the 120 day period has elapsed will be denied and the complaint will be dismissed under Rule 4(h). A close reading of Collom, however, shows that motions for additional'time in which to effect service of process were not addressed by the Court of Appeals.

¶ 8. Rule 4(h) does not require that a motion for additional time for service of process, be filed within 120 days of the filing of the complaint. Arkansas and New York’s rules of civil procedure mandate that a motion for additional time be filed within the 120-day period. See, e.g., Weymouth v. Chism, 75 Ark.App. 164, 55 S.W.3d 307 (2001); Norstar Bank of Upstate New York v. Wittbrodt, 154 Misc.2d 260, 594 N.Y.S.2d 115 (N.Y.Sup.Ct.1993). Arkansas’s counterpart to Rule 4(h) specifically provides, “If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause.” Ark. R. Civ. P. 4(i). New York’s rule'is similar. Therefore, if the drafters of our rules of -civil procedure wished to require that motions for additional time in which to serve process be filed within the 120 days, they could have done so.

¶ 9. Jean did not file her motion for additional time until after 120 days after the filing of the complaint had elapsed. Even though Jean finally did effect service of process on Charles on July 3, 2000, this date was outside the second 120-day period granted by the chancery court, and Jean never filed a second motion for additional time within the second 120-day period or after the second 120-day period had elapsed.

¶ 10. Our rule states that if the 120-day period has elapsed without effecting service of process, “the action shall be dismissed ... upon the court’s own initiative with notice to such party or upon motion.” M.R.C.P. 4(h). The comments state that the complaint will be dismissed “unless good cause can be shown as to why service could not be made.” The rule therefore provides that the plaintiff will have an opportunity to show good cause after the 120-day period has elapsed. Why else does Rule 4(h) require that notice be given to the plaintiff before the court can dismiss the complaint? The requirement of notice being given contemplates a response to the notice. A motion for additional time is an appropriate response to the notice.

¶ 11. Although we hold that a motion for additional time may be filed after the 120-day time period has expired, a diligent plaintiff should file such a motion within the 120-day time period. Such diligence would support an allegation that good cause exists for failure to serve process timely. Indeed, in Moore v. Boyd, 799 So.2d 133 (Miss.Ct.App.2001), the Court of Appeals found that excusable neglect is a “very strict standard” and the plaintiff should have filed a motion for additional time within 120 days of filing the complaint.

¶ 12. At a hearing on Charles’s motion to dismiss, testimony was given as to why service was not timely made. The chancellor found that Jean had shown good cause for failure to serve process in a timely manner because Charles avoided service. The record does not support this finding. Jean had Charles’s correct address in Cedar Hill, Texas, all along — the correct Cedar Hill address was noted in the first sentence of Charles’s petition for divorce, with which she was served in October of 1999. Jean’s only attempts to serve Charles were at the residence of Charles’s father in Red Oak, Texas. These attempts were made during the first 120-day period. The only action Jean took during the second 120-day period was to issue a subpoena to Charles’s employer. Attempts to serve someone at an incorrect address when in possession of the correct address and one solitary action during a four-month period of time (issuing a subpoena) does not constitute diligence; and therefore, Jean did not show good cause for failing to serve Charles timely.

CONCLUSION

¶ 13. Because Jean did not show good cause for failing to serve Charles, the chancellor erred in denying Charles’s motion to dismiss Jean’s complaint for divorce. Therefore, we reverse the chancery court’s judgment, and we render judgment dismissing Jean’s complaint and this civil action without prejudice for failure to comply with M.R.C.P. 4(h).

¶ 14. REVERSED AND RENDERED.

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

PITTMAN, C.J.,

dissenting:

¶ 15. I disagree with the majority’s decision to reverse and render this case. Therefore, I must respectfully dissent. Rule 4(h) of the Mississippi Rules of Civil Procedure provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period; the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

M.R.C.P. 4(h) (emphasis added). The determination of whether “good cause” exists is a “discretionary ruling on the part of the trial court and entitled to deferential review of whether the trial court abused its discretion and whether there was substantial evidence supporting the determination.” LeBlanc v. Allstate Ins. Co., 809 So.2d 674, 676 (Miss.2002) (quoting Rains v. Gardner, 731 So.2d 1192, 1196 (Miss.1999)).

¶ 16. The chancellor took into account the italicized portion of this rule in his opinion when he discussed the law on Charles Webster’s motion for relief from judgment. The opinion stated with no uncertainty that the facts here are distinguished from other cases which have been dismissed for lack of service of process because the chancellor found that good cause existed for lack of service:

Our case is easily distinguishable, for our Court properly found that Charles’ avoidance tactics, with the help of his family, friends and employer, was in fact a showing of good cause for the delay. Without wasting any more time on the point, the first prong of the attack [on the judgment] is devoid of merit.

¶ 17. As the chancellor noted, the plain text of the rule does not automatically dismiss complaints which have not been served within 120 days. Furthermore, there is evidence in the record that Jean Webster diligently, although with admittedly poor direction, sought to serve Charles with divorce papers. Since the chancellor found that good cause existed why Jean was incapable of serving process, namely the efforts by Charles and his family to avoid process, the case properly remained active when service was finally completed upon him. Therefore, I would uphold the chancellor’s ruling that good cause existed to avoid dismissal of the complaint in this case.

¶ 18. An uncontested divorce does not require the presence of the defendant, only proof of the grounds for divorce. See Miss.Code Ann. § 93-5-7 (1994); Lindsey v. Lindsey, 818 So.2d 1191, 1194 (Miss.2002). There is no statute of limitations for divorce decrees. Rule 4(h), according to its own terms, was designed so that a trial court may maintain control of its docket by dismissing stagnant complaints without notice, and thereby ensure timely service by the parties. As a practical matter, the majority today unnecessarily imposes the costs of relitigation of these issues upon Jean Webster after a full and uncontested hearing on this matter has been conducted. All she must do now is simply refile her complaint and face, once again, the screens and dodges 'of the man who was once her husband. If service can ever be made again, perhaps she will still be the only party interested in presenting evidence to the chancellor as proof for the divorce. In my opinion, this second trial and all the expense associated with it are not the results this Court should now reach. I would affirm the chancellor’s decision as it was not an abuse of discretion.

COBB, DIAZ AND GRAVES, JJ., JOIN THIS OPINION.

      . M.R.C.P. 4(h) provides that "[i]f a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.”

      . Charles filed a motion for relief from judgment in which he raised issues of full faith and credit and res judicata. We will not address these issues because we find that Jean did not show good cause for failure to serve timely the complaint and that the complaint should be dismissed.

      . The filing of an amended complaint does not give a plaintiff an additional 120 days in which to effect service of process. Watters, 675 So.2d at 1243.

      . Such a motion should be supported by evidence (in the form of affidavits or documents) upon which a court can make a determina- " tion of whether good cause exists for failing to serve process in a timely manner. Bang, 749 So.2d at 52.


author: EASLEY, J., SMITH, P.J.,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. JUSTICE COURT JUDGE S.S.
    No. 2002-JP-01126-SCT.
    Supreme Court of Mississippi.
    Jan. 2, 2003.

      Luther T. Brantley, III, Patricia Hancock, attorneys for appellant.
    Azki Shah, attorney for appellee.
   EASLEY, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On August 15, 2001, the Mississippi Commission of Judicial Performance (“Commission”) filed a formal complaint against Justice Court Judge S.S. (Judge), alleging judicial misconduct in violation of Article 6, § 177A Mississippi Constitution of 1890, as amended. ■ The Judge filed an answer to the formal complaint on September 18, 2001.

¶ 2. The Commission’s Finding of Facts and Recommendation was filed with this Court on July 12, 2002. Specifically, the Commission found that the Judge’s conduct violated Canons 1, 2A, 2B, 3A(1), and 4 of the Code of Judicial Conduct of Mississippi Judges. The Commission failed to find any proof that the Judge violated Canon 3C(1). Furthermore, the Commission found that proof presented that the Judge violated Canons 5A, 5B and 7A(4) did not rise to the level of proof of a political violation by clear and convincing proof. The Commission found that the Judge’s behavior constituted 'willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Section 177A of the Mississippi Constitution of 1890, as amended. The Commission recommended, to the Court that the Judge be publicly" reprimanded and assessed the costs of this proceeding in the amount of $718.40.'

FACTS

¶ 3. The Facts arid Recommendation adopted by the Commission were submitted to this Court. The Judge admitted that he was a member of a county concerned citizens association. As a member of the association, the Judge participated in writing a petition and getting the petition typed. The Judge’s participation in drafting the petition was not done in his official capacity as justice court judge. The petition requested the removal of a Deputy Sheriff from the County Sheriffs Office citing (1) disrespect to the black community, (2) violation of civil rights of black citizens, and (3) little or no law enforcement training. The Judge denied any involvement in signing or circulating the petition. The petition was prepared some time after the Deputy had stopped the Judge for speeding and.requested a field sobriety test. The Judge also had complained to the highway patrol of the conduct of the highway patrolman who stopped him with the Deputy.

¶ 4. Between the time the Judge helped formulate the petition and the complaint being filed against the Judge, the Judge heard cases that involved the Deputy. The Judge testified that he heard three cases that had the Deputy’s name listed as the law enforcement officer. The Judge testified that he considered that once a law enforcement officer made a complaint, the law enforcement officer was only a witness.

¶ 5. One of the three cases was bound over to the grand jury, and one was a DUI where the person pled guilty by an agreement between the defendant’s attorney and the Deputy and was assessed a fine. The Judge testified that in each case that the Deputy was an affiant, an agreement was presented to the court between the prosecutor and the defense. The Judge agrees that his conduct was an effort to improve law enforcement in the County and did not amount to willful misconduct of office. The Deputy testified that he had not been adversely affected by the petition. The Deputy also stated that he was not aware of the petition ever being presented to his boss, the Sheriff.

¶ 6. The Commission found that the Judge violated Canons 1, 2A, 2B, 3B(1) and 4, as follows:

Canon 1 was violated by Judge S.S.’s failure to uphold the integrity and independence of his office (judiciary) by participating in a petition procedure against an officer who regularly presented cases in his court and “cautioning” the sheriff of his county with said petition.
Canon 2 was violated when Judge S.S. became publicly involved with the public, while a judicial officer, in petitioning the general public against a law officer, both deputy and sheriff, which put the integrity and impartiality of the judiciary in question.
Canon 2B was violated by allowing his actions and relationship with others to influence his conduct and judgment.
Canon 3B(1) was violated by Judge S.S.’s failure to disqualify himself on subsequent cases brought by the Deputy which followed the drafting of the “petition.”
Canon 4 was violated when his extrajudicial activities did east a reasonable doubt on the judge’s capacity to act impartially as a judge and did interfere with the proper performance of his duties.

¶ 7. The Commission failed to find any proof that the Judge’s motive arose out of the traffic stop. Therefore, the Commission found no violation of Canon 3C(1). The Commission found that proof of any violation of Canon 5A, 5B and 7A(4) did not prove a political violation by clear and convincing proof. The Commission determined that the Judge’s conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute as defined by this Court. The Commission recommended that this Court publicly reprimand the Judge with no fine assessed and the assessment of all costs herein. The costs associated with this inquiry are $718.40.

STANDARD OF REVIEW

¶ 8. The' standard of review for judicial misconduct proceedings is de novo. Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 874 (Miss.2000) (citing Miss. Comm’n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993)). The Commission’s findings, based on clear and convincing evidence, are given “great deference.” Id. This Court however, is obligated to conduct an independent inquiry. Miss. Comm’n on Judicial Performance v. Neal, 774 So.2d 414, 416 (Miss.2000). Even though the Commission’s findings are considered, this Court is not bound by the findings and additional sanctions may be imposed. Miss. Comm’n on Judicial Performance v. Whitten, 687 So.2d 744, 746 (Miss.1997).

DISCUSSION

I. WHETHER THE JUDGE’S CONDUCT CONSTITUTES WILLFUL MISCONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION.

¶ 9. In judicial performance proceedings, this Court determines whether the conduct of a judge constitutes willful misconduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Article 6, § 177A of the Mississippi Constitution of 1890, as amended.

¶ 10. This Court has held:

Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. ■ However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith....
Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into, disrepute.

Whitten, 687 So.2d at 747 (quoting In re Quick, 553 So.2d 522, 524 (Miss.1989)) (emphasis in original).

¶ 11. The Commission determined by clear and convincing evidence that the Judge violated Canons 1, 2A, 2B, 3B(1) and 4 of the Code of Judicial Conduct of Mississippi Judges. In the case sub judi-ce, the Judge participated in drafting a petition against a law officer while serving as a judicial officer and continuing to preside on cases involving the Deputy without disqualifying himself. “Whether this behavior was actually willful is of no consequence.” As this Court has held:

While the conduct of Respondent, in our opinion, amounted to willful misconduct in office and conduct prejudicial to the administration of justice, bringing the judicial office into disrepute, we recognize as quoted in In re Anderson, supra, that a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. The result is the same regardless of whether bad faith or negligence and ignorance are involved and warrants sanctions.

Boykin, 763 So.2d at 875 (quoting In re Anderson, 451 So.2d 232, 234 (Miss.1984)).

¶ 12. This Court finds that while the Judge’s involvement in drafting the petition against the Deputy was not performed in his official capacity as justice court judge, Judge S.S.’s conduct does constitute willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Accordingly, the Commission’s findings, as to the willfulness of the conduct before this Court, are correct, upheld, and adopted.

II. WHETHER THE JUDGE SHOULD BE PUBLICLY REPRIMANDED AND ASSESSED ALL COSTS AS RECOMMENDED BY THE COMMISSION.

¶ 13. The Commission’s recommendation determined that the Judge should be publicly reprimanded and assessed all costs associated with this proceeding in the amount of $7Í8.40. However, imposing sanctions is left solely to the discretion of this Court. Miss. Comm’n on Judicial Performance v. Jones, 735 So.2d 385, 389 (Miss.1999). The sanction, however, ought to fit the offense at issue. Boykin, 763 So.2d at 876.

¶ 14. In determining the appropriate sanction for each case before this Court mitigating factors are reviewed pursuant to this Court’s holding in In re Baker, 535 So.2d 47 (Miss.1988). In determim ing whether a reprimand should be public, this Court considers mitigating factors which weigh in favor of confidential, private action. Miss. Comm’n on Judicial Performance v. Walker, 565 So.2d 1117, 1125 (Miss.1990). The factors from In re Baker, Walker, 565 So.2d at 1125 (citing In re Baker, 535 So.2d at 54), along with the evidence from the case sub judice, are:

(1) The length and character of the judge’s public service.
(2) Positive contributions made by the ' judge to the courts and the community.
■ (3) The lack of prior judicial precedent on the incident in issue.
(4) Commitment to fairness and innovative procedural form on the part of the judge.
(5) The magnitude of the offense.
(6) The number of persons affected.
(7) Whether “moral turpitude” was involved.

¶ 15. At the time of the hearing before the Commission, the Judge had served as a justice court judge approximately ten years and four months. ' There is no record of any prior judicial complaints against the Judge. The Judge’s position was that he thought he was'' serving to improve the quality: of . the county law enforcement. The Judge did not preside on any .case involving the Deputy after drafting the petition that was not presented to the court as an agreement between the defense and .the prosecution. The Deputy testified that he. received-no. adverse effect from the Judge’s actions. The Judge acknowledged that in hindsight he made, a unwise decision.

¶ 16. The Judge testified that he was concerned that the Deputy was not living up to the standards' required, for his position. The Judge testified that the Deputy seemed to have a problem with the amount of bonds that were set 'and áome of the rules, regulations 'and laws that he had to follow. The Judge testified he had talked to Minimum Standards, the Sheriff, and the board of supervisors about the Deputy in the past with no results. The Judge testified that he told the Sheriff that since the Deputy seemed to have- a problem with him that the Sheriff should transfer the Deputy to another side of the county to limit the number' of cases that came before him.

¶ 17. Moral turpitude was not involved in the case before this Court. There was no proof that the Judge’s actions were motivated by his traffic stop by the Deputy. No negative outcome to any case or the Deputy’s career was established as a result of the conduct of the Judge.

¶ 18. Based on the assessments of all the factors involved in this case, we find that a private reprimand rather than a public reprimand is a sufficient sanction in this case. See Miss. Comm’n on Judicial Performance v. A Municipal Court Judge, 755 So.2d 1062, 1063-65 (Miss.2000); Miss. Comm’n on Judicial Performance v. Justice Court Judge R.R., 732 So.2d 224 (Miss.1999).

CONCLUSION

¶ 19. In conclusion, we find that the conduct of Justice Court Judge S.S. constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Article 6, § 177A of the Mississippi Constitution of 1890, as amended. Justice Court Judge S.S. shall be privately reprimanded and assessed court costs in the amount of $718.40.

¶ 20. JUSTICE COURT JUDGE S.S. SHALL BE PRIVATELY REPRIMANDED AND IS ASSESSED COSTS OF $718.40.

McRAE, P.J., WALLER, DIAZ AND GRAVES, JJ., CONCUR. SMITH, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN, C.J., AND COBB, J. CARLSON, J., NOT PARTICIPATING.

SMITH, P.J.,

Concurring in Part and Dissenting in Part.

¶ 21. I concur with the majority’s conclusion that judicial misconduct occurred, but dissent as to the lenient punishment imposed by the majority. I would affirm the recommendation by the Commission of a public reprimand.

PITTMAN, C.J., AND COBB, J., JOINS THIS OPINION.


author: SMITH, P.J.,

text:
    Larry J. BREWER v. STATE of Mississippi.
    No. 2001-KA-01663-SCT.
    Supreme Court of Mississippi.
    Jan. 2, 2003.

      Edmund J. Phillips, Jr., Newton, attorney for appellant.
    Office of the Attorney general by Charles W. Maris, Jr., attorneys for appel-lee.
    Before SMITH, P.J., EASLEY and GRAVES, JJ.
   SMITH, P.J.,

for the Court.'

¶ 1. Larry J. Brewer (“Brewer”) was tried and convicted by a jury in the Circuit Court of Scott County, Mississippi, of aggravated assault. He was then sentenced to serve a term of five years in the custody of the Mississippi Department of Corrections and to pay a fine of $1,500.00 and all court costs. Aggrieved by this judgment, Brewer appeals to this Court.

FACTS-

¶ 2. On Christmas day 2000, Brewer recklessly passed a vehicle driven by Lar-od Odom (“Odom”), who was on his way to his mother’s home in Scott County. Shortly thereafter Brewer went to Odom’s mother’s home and bragged about his beating Odom in his car. Odom repeatedly asked Brewer to leave and finally grabbed him by the collar. Brewer left but returned with a shotgun and shot Odom in the leg. After he had been shot, Odom retrieved his pistol from his truck and fired three times at Brewer never hitting him. Thereafter, Brewer left and came back to only once again leave.

¶ 3. Brewer testified as his only witness that he thought that his son was on the property that Odom, was on and that he fired his gun only in self defense. However, after receiving the court’s instructions on the applicable law, including self-defense, the jury reached a verdict of guilty in only twelve minutes.

¶ 4. Brewer’s appellate counsel filed a “Turner Memorandum to the Court,” which states:

The record in this case is almost devoid of objection by Appellant overruled and motion by Appellant denied. Counsel for Appellant would show that:
1. The Appellant is unlikely to prevail on appeal.
2. Counsel for Appellant has scoured the record thoroughly, and referring to anything in the record that might arguably support the appeal, found nothing.
3. Appellant’s Counsel respectfully requests that Appellant be allowed twenty-five days additional days within which to file such comments or raise points as he may desire per Turner v. State, 1999-KA-00411-SCT (Miss. June 7, 2001).
Counsel for Appellant regards the appeal without merit. He certifies that he has this same date forwarded, postage pre-paid, a copy of this brief to Appellant and moves that Appellant be allowed twenty-five days to file such comments or raise such additional points as he may desire, per Turner v. State, 1999-KA-00411-SCT (Miss. June 7, 2001).

Brewer has not filed a pro se brief.

DISCUSSION

1. DESPITE DEFENSE COUNSEL’S COMPLIANCE WITH THIS COURT’S HOLDING IN TURNER V. STATE, WHETHER THE PROCEDURE IN TURNER MEETS MINIMUM CONSTITUTIONAL REQUIREMENTS.

¶ 5. Turner v. State, 818 So.2d 1186, 1189 (Miss.2001), requires that appellate counsel must:

(1) determine that the defendant is “unlikely to prevail on appeal.” Smith v. Robbins, 528 U.S. 259, 279, 120 S.Ct. 746, 761, 145 L.Ed.2d 756,
(2) file a brief indicating “that he scoured the record thoroughly.” Hughes v. Booker, 220 F.3d 346, 351 (5th Cir.2000), and “referring to anything in the record that might arguably support the appeal.” Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493, and
(3) advise client of his right to file a pro se supplemental brief. People v. Wende, 25 Cal.3d, 436, 158 Cal.Rptr. 839, 600 P.2d 1071, 1073.

Turner goes on to say that after these three steps have been taken the appellate court must then “make its own independent review of the record.” 818 So.2d at 1189.

¶ 6. The State previously asked this Court to revisit this same issue in Evans v. State, 813 So.2d 724 (Miss.2002). This Court in Evans refrained from addressing this issue based on the premise that both submitted briefs declared that the appeal was without merit and that no pro se brief was filed alleging any other error. Id. at 728. The same is true in the present case. Additionally, in Evans just as in the case sub judice, neither the appellant’s counsel nor the appellant addressed the State’s suggestions to modify Turner. Id.

¶ 7. Evans was decided by this Court on April 11, 2002. Id. There is no benefit in revisiting this issue at this time.

CONCLUSION

¶ 8. After a thorough review of the record, we conclude that there is nothing in the record to support an appeal. Thus, for the foregoing reasons, we affirm the judgment below and refrain from expanding the Turner requirements.

¶ 9. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A FINE OF $1,500.00 AND ALL COURT COSTS, AFFIRMED.

PITTMAN, C.J, McRAE, P.J., WALLER, COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ„ CONCUR.