author: SOUTHWICK, P.J.,

text:
    Stoney Frank STEWART, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00813-COA.
    Court of Appeals of Mississippi.
    Aug. 20, 2002.
    Rehearing Denied Nov. 19, 2002.
    Certiorari Denied March 6, 2003.

      James A. Williams, Meridian, attorney for appellant.
    Office of the Attorney General by: John R. Henry, Jr., attorney for appellee.
    Before SOUTHWICK, P.J., LEE, and MYERS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Stoney Frank Stewart was convicted after a jury trial of one count of burglary of a church. On appeal, Stewart alleges that certain instructions were defective, that witnesses were unfairly allowed to imply that he had previously been in trouble with law enforcement authorities, that hearsay about theft of cash at the church should not have been introduced, and that he received ineffective assistance of counsel. We find no error and affirm.

STATEMENT OF FACTS

¶ 2. On the afternoon of August 2, 1999, the Reverend David Chambers arrived at the Briarwood Baptist Church located just outside of Meridian, Mississippi. Chambers made certain that all outside doors except for one were locked. The south door was left closed but unlocked in order that anyone who might want to meet with him could enter. The minister walked through the church and found nothing amiss. He then went to use the restroom. While there he heard a noise coming from the women’s restroom. Soon thereafter he heard another noise from the direction of the secretary’s office. He then went to investigate.

¶ 3. As he walked down the hall, Chambers noticed that a plexiglass window in the door to the secretary’s office had been broken out. The lights in the office were lit. In the office, Chambers discovered a man who identified himself as Stoney Frank Stewart. Stewart was standing between the door and the secretary’s desk. The mini-blinds in the office were askew.

¶ 4. Stewart told the minister that it appeared someone had broken into the office. Stewart explained that, while on his way to receive an eye examination in a nearby town, he had gone into the church to use the restroom. Stewart was from Mobile, Alabama. Chambers noted that Stewart was sweating profusely. While continuing to speak with Stewart, Chambers called the Lauderdale County Sheriffs Department.

¶ 5. Stewart then went to his car. Chambers accompanied him. Chambers asked Stewart how he entered the church, and Stewart replied that he had entered through the north door. Stewart’s vehicle, a dark green Jeep Cherokee, was parked near the church’s north entrance. Before Stewart drove away, the minister noted his vehicle’s tag number.

¶ 6. The Reverend Chambers examined the north door of the church, which he was certain had previously been locked. He found that the door jamb was pushed out slightly. The door also had scratches in the wood and latch. Chambers quickly surveyed the secretary’s office and did not discover anything missing. The church secretary later reported to Chambers that a twenty dollar bill was missing, but the church secretary did not testify.

¶ 7. The day after the breaking and entering, it was discovered that a set of keys was missing. Included were keys to several offices and the church’s drink vending machine. Chambers remembered at one time seeing the keys on the secretary’s desk but also remembered that the keys were not on the desk the day after the break-in.

¶ 8. A sheriffs deputy, Kenneth Graham, inspected the church premises. When he examined the north door, he found it to be unlocked and the locking mechanism to have “odd scratches.” Graham concluded that the scratches were not consistent with normal opening and closing but were consistent with a door being pried open. No usable fingerprints were found. .

¶ 9. Using the tag number recorded by the minister on the day of the incident, Stewart was traced to his home in Mobile. There he was arrested and later extradited to Mississippi. After a two-day trial, Stewart was convicted of burglary of a church. Because he was an habitual offender, Stewart was sentenced to fourteen years with no possibility of early release. Stewart acquired new counsel for the purpose of prosecuting this appeal.

DISCUSSION

1. Indictment and Jury Instruction

¶ 10. Stewart alleges that he was indicted for the crime of burglary of a building other than a dwelling, but that the jury instructions did not conform. The indictment alleged that Stewart

on or about the 2nd day of August, A.D., 1999, did then and there unlawfully, felo-niously, and burglariously break into and enter the building of Briarwood Baptist Church, wherein valuable things were kept for sale and use; there situated, with the intent to commit the crime of larceny therein and did unlawfully take, steal and carry away the personal property of another, to wit: twenty dollars ($20.00) in good and lawful currency of the United States, and keys to several offices and coke machines, and, if not this greater crime, then the lesser crime of Grand Larceny, by taking the personal property of another....

The indictment reproduces some of the language of the statute dealing with burglary of structures other than a dwelling. That subsection reads as follows:

Every person who shall be convicted of breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building or private room or office therein, water vessel, commercial or pleasure craft, ship, steamboat, flatboat, railroad car, automobile, truck or trailer in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, or who shall be convicted of breaking and entering in the day or night time, any building within the curtilage of a dwelling house, not joined to, immediately connected with or forming a part thereof, shall be guilty of burglary, and imprisoned in the penitentiary not more than seven (7) years.

Miss.Code Ann. § 97-17-33(l)(Rev.2000). This code section has another subpart:

Any person who shall be convicted of breaking and entering a church, synagogue, temple or other established place of worship with intent to commit some crime therein shall be punished by imprisonment in the penitentiary not more than fourteen (14) years.

Miss.Code Ann. § 97-17-33(2)(Rev.2000).

¶ 11. The indictment specified the statute but not the subsection under which Stewart was charged. Stewart argues that because the indictment replicates some significant language from the first subsection, that he was in fact charged with burglary of a building other than a dwelling and not with burglary of a church. To be guilty of burglarizing a church, one need only break and enter a church with intent to commit some crime. Miss.Code Ann. § 97-17-33(2)(Rev.2000).

1112. The indictment alleges that Stewart broke and entered the church building with the intent to commit and did commit the crime of larceny. Though the indictment’s language is similar to what is in the first subsection of this statute, there is no ambiguity that he was being charged with breaking and burglarizing the “Briarwood Baptist Church.” This indictment was sufficient to provide Stewart “notification in fact of the nature of the charge against him and out of what transaction or occurrence it arose” despite its failure to note a particular subsection. Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992). There is no element of the crime of burglarizing a church that is absent from the indictment, and no realistic ambiguity results.

¶ 13. Stewart next complains of the jury instruction concerning the elements of the offense.

The Court instructs the Jury that, should you find from the evidence in this case, beyond a reasonable doubt that:
1. On or about the 2nd day of August, 1999, in Lauderdale County, Mississippi;
2. The Defendant, Stoney Frank Stewart, did wilfully, unlawfully, and felo-niously break and enter the Church Building of Briarwood Baptist Church, with the intent to take, steal, and carry away valuables therein;
then it is your sworn duty to find the Defendant guilty of Burglary of a Church.

¶ 14. During the instruction conference, the judge asked the prosecutor whether there was a statute dealing with burglary of a building other than a dwelling and with burglary of a church. The prosecutor responded that one code section dealt with both offenses but that the penalty for each offense was different. Stewart’s counsel requested that the jury instruction be amended to burglary of a budding other than a dwelling, an offense for which the penalty is seven instead of fourteen years. The request was denied.

¶ 15. Two errors with the instruction are alleged here on appeal. The first is that the instruction omitted the language requiring the building to be one “in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation.” This language is included in the first subsection of the statute and is an element of that crime. Turner v. State, 721 So.2d 642, 648 (Miss.1998). It is not included in the second subsection and is not an element of burglary of a church. However, the indictment charged that “valuable things were kept for sale and use” within the Briarwood Baptist Church. No motion to remove that element from the indictment was made.

¶ 16. When an issue of an improper amending of the indictment through instructions is made, the Supreme Court has insisted that this specific issue have first been raised at the trial level. Doss v. State, 709 So.2d 369, 387-88 (Miss.1996). The only statement that Stewart’s trial counsel made regarding this instruction was this: “I would ask that to be amended to burglary other than a dwelling.” He did not suggest that an improper constructive amending of the indictment would otherwise occur or that the extra elements needed to be included even though a burglary of a church was charged. That issue was not raised at trial and is thus waived on appeal.

¶ 17. Had the issue been specifically raised, a proper ruling by the court might well have led to the language from the indictment being added to the instruction. There was evidence in support, including that a drink vending machine was in the church and that the keys to it had been stolen. That would support the charge that “valuable things were kept for sale and use” in the church. The value was small, but it would have been sufficient.

¶ 18. The second alleged error is that the jury instruction, by use of the phrase “valuables therein,” fails “to have the jury consider whether, as alleged in the indictment, there was a theft of the church keys.” Stewart argues that the instruction’s failure to include any explicit reference to the keys somehow allowed the jury to consider the alleged theft of twenty dollars, testimony that the jury was ordered by the trial court to disregard. It is presumed that the jury follows the instructions given it by the trial court. McGilberry v. State, 741 So.2d 894, 920 (Miss.1999). We therefore assume that this jury did not consider the missing twenty dollars during its deliberations.

¶ 19. Stewart also argues that thfe use of the term “valuables therein” allows the jury to assume he was present in the church with the intent to commit larceny. We do not find such an implication arising from the use of this phrase. The Supreme Court has stated that whether the requisite intent to commit a crime is present is “a question of fact to be gleaned by the jury from the facts shown in each case.” Shive v. State, 507 So.2d 898, 900 (Miss.1987). Intent may be proven by the “surrounding circumstances” and “circumstantial evidence.” Shive, 507 So.2d at 900.

¶ 20. Intent was demonstrated by the following. Stewart said that he entered through the north door of the church, a door the minister was certain was locked prior to his finding Stewart in the church office. The window of the church office door was shattered. The blinds in the office were askew. Finally, a set of keys which had been on the desk were later discovered to be missing.

2. Other Jury Instructions

¶ 21. Stewart complains that the jury instructions concerning the presumption of innocence, the definition of breaking and entering, drawing inferences from statements made by the judge, and his right to remain silent were erroneous. We have examined these instructions and find no error. Further, no objection was made by trial counsel to these other instructions. Failure to object to jury instructions at trial bars consideration of present objections to those instructions raised on appeal. Jones v. State, 776 So.2d 643, 653 (Miss.2000).

3. Reference to Other Photos

¶ 22. After Stewart’s arrest, the Reverend Chambers was shown a photo line-up. The minister was unable to identify Stewart. Chambers stated that the photographs in the line-up were grainy. Chambers traveled to Choctaw County, Alabama to view photographs at the sheriffs department there. There he identified Stewart from clearer and more recent photographs.

¶ 23. During opening statements, the prosecutor noted that Chambers could not make an identification using the photographs possessed by the Lauderdale County Sheriffs Department. The prosecutor began to refer to photographs in possession of the sheriffs department in Alabama. The exact statement, after noting no identification was made because of the photographs’ condition, was this: “At a later time, Deputy Graham found out that the Alabama Sheriffs Department had.... ” The statement was cut off at this point by an objection from Stewart’s counsel. The trial judge sustained the objection and ordered the prosecutor to “rephrase.”

¶ 24. Stewart argues here that the “State wilfully injected the issue of identification into the trial ...” by making reference to both the old and newer photographs. Stewart argues that the State misrepresented how he came to be identified so it could refer to these photographs. This misrepresentation allegedly occurred when the State failed to mention in its opening statement that Stewart identified himself to Chambers. The objection here is that the State implied prior bad acts by Stewart, an implication arising from the fact that a sheriff in another state had his photograph. However, an objection was made. The trial judge sustained it. The judge rejected a later request made in chambers for a mistrial based on the same grounds. A trial judge is afforded “considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared.” Weeks v. State, 804 So.2d 980, 992 (Miss.2001). There was no abuse of discretion.

A Hearsay

¶ 25. Deputy Graham testified that twenty dollars was reported to be missing from the secretary’s office. An objection was made on the basis of hearsay. The trial judge allowed the testimony on the condition that the State present a witness who had personal knowledge of the money’s disappearance. The State failed to do so. Defense counsel moved to strike all testimony concerning the twenty-dollar bill. During the hearing on the motion, the prosecutor explained that he was unaware that his witnesses did not have the requisite personal knowledge. The prosecutor apologized to the court and stated that he had been confident he could prove the point. The trial judge ordered the jury to disregard all testimony regarding the disappearance of the twenty dollars. The trial judge informed the jury that the only alleged theft that they could consider was the theft of the keys.

¶26. Stewart argues that the “egregious, repeated references to the $20.00 was purposeful for besmirching [Stoney’s] character....” The trial judge effectively cured the error made by the State by ordering the jury to disregard the testimony. Again, it is presumed that a jury follows the instructions given it by the trial court. McGilberry, 741 So.2d at 920. The judge was clear that only the missing keys could be considered; there was sufficient evidence on which to infer that theft.

5. Ineffective Assistance of Counsel

¶ 27. Stewart argues that his trial counsel was ineffective because he struck some jurors and not others, pursued a defense of misidentification instead of seeking an instruction on simple trespass, and moved to strike statements Stewart made to law enforcement during the trial instead of prior to the trial’s beginning.

¶ 28. For a successful claim of ineffective assistance, “a defendant must prove (1) that his attorney’s overall performance was deficient and (2) that the deficient performance, if any, was so substantial as to prejudice the defendant and deprive him of a fair trial.” Gary v. State, 760 So.2d 743, 753 (Miss.2000). There is a strong but rebuttable presumption that the assistance rendered by trial counsel was effective. Gary, 760 So.2d at 753. The presumption may be rebutted if there was a “ ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id.

¶ 29. Stewart complains that his trial counsel should have removed several jurors. One of those jurors stated that the assistant district attorney was his neighbor whom he saw each morning, noon, and evening. This juror also stated that the assistant district attorney was “a great neighbor” and “[a] former student too.” The juror responded that despite his acquaintance with the assistant district attorney, that he could render a verdict of not guilty if he felt it was his duty. Stewart complains that his trial counsel did not remove two jurors who answered that they had relatives who worked for law enforcement in Lauderdale County, but did remove one juror who had a relative working for law enforcement in Clarke County. Also, Stewart claims that his trial counsel should have removed another juror who was affiliated with a Baptist church in the area. Trial counsel did not seek to remove any jurors for cause and used only three peremptory strikes.

¶ 30. Under the assumptions that our review standard require, we find it reasonable that the dynamics of jury selection required counsel to evaluate a variety of facts, not all of which appear in the record. Each of the jurors indicated an ability to be impartial. A trial attorney must sometimes choose from among a number of less than optimal jurors. We find no clear deficiency here.

¶31. Another area of complaint is that trial counsel made a motion in the middle of trial to suppress any statements that Stewart may have made to law enforcement. Stewart resided in Mobile, Alabama and was transported to Lauder-dale County for trial. The trip by car was approximately three hours in length. Stewart spoke with the officers transporting him concerning this matter, although he had refused to make a specific waiver of his rights against self-incrimination. The gist of this conversation was that Stewart claimed not to have committed any crime but was only in the church to use the restroom. Stewart now argues that these statements should not have been suppressed since they would have been helpful to a claim that he was in the church only to use the restroom. Alternatively, Stewart argued that his trial counsel should have made the motion before trial. Trial counsel was pursuing a defense of misidentifi-cation. It is understandable that counsel would not want the jury to hear any admissions by Stewart that he was in the church. The minister’s inability to identify Stewart from the initial pictures that he was shown gave some basis for such a defense, even if the intruder did identify himself as Stoney Frank Stewart.

¶ 32. Stewart also argues that his trial counsel damaged his defense when he called to the jury’s attention that the tag number recorded by the Reverend Chambers did not match the current tag number on his vehicle. Stewart argues that this allowed the jury to assume he had “switched tags” and encouraging a conclusion that he was of bad character. Again, though, this fits within a defense strategy of mistaken identity. Bringing this tag inconsistency to the jury’s attention might strengthen this defense, though certainly other reactions could occur as well.

¶ 33. Stewart argues that because the testimony concerning his presence in the church, and the fact that he identified himself to Chambers could not be rebutted, his trial counsel should not have attempted to utilize a misidentification defense but rather a defense of trespass. “Attorneys are permitted wide latitude in their choice and employment of defense strategy.” Hiter v. State, 660 So.2d 961, 965 (Miss.1995). This Court should not determine, especially in hindsight, what would have been the best strategy in a difficult case and resolve the issue of effectiveness on that basis. It is enough that we conclude that misidentification had some support in the evidence.

¶ 34. The last area of complaint concerns the jury instructions. Stewart claims that his trial counsel should have requested a trespass instruction. However, since the strategy was mistaken identity, it was plausible that counsel would not want to weaken that defense with arguing that perhaps it was Stewart after all, but he had no intent to commit a crime. If Stewart admitted being in the church, counsel may have decided that jurors would not accept that he simply was trespassing and did not have a desire to commit a larceny. As for the other instructions, the only possible error that we have already noted concerned the elements of the crime. A clearer objection certainly could have been made. Yet we find that if an objection had properly raised the issue, the judge’s agreeing with the objection might have led to placing a requirement of proof in the instruction that “valuable things were kept for sale and use” in the church. There was evidence to support that element. Thus we find no prejudice from the possible error by his counsel on that instruction.

¶ 35. We cannot say that trial counsel’s actions fell outside that of reasonable professional practice. Stewart has failed to demonstrate how any of these alleged errors by trial counsel deprived him of a fair trial, thus failing to satisfy one of the requirements for a successful ineffective assistance of counsel claim. Washington v. State, 800 So.2d 1140, 1145-46 (Miss.2001).

¶ 36. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A CHURCH, SENTENCE OF FOURTEEN YEARS WITHOUT POSSIBILITY OF EARLY RELEASE, AND FINE OF $10,000 IS AFFIRMED. SENTENCE SHALL BE SERVED CONSECUTIVELY TO ANY SENTENCE CURRENTLY IMPOSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

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


source: Caselaw Access Project

author: THOMAS, J.,

license: Public Domain

text:
    Earl TERRY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01489-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2002.
    Rehearing Denied March 4, 2003.

      Earl Terry, pro se, attorney for appellant.
    Office of Attorney General By: Scott Stuart, attorneys for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   THOMAS, J.,

for the court.

¶ 1. Earl Terry entered a guilty plea to two counts of sale of a controlled substance and was sentenced to twenty years on each count. He filed a motion for post-conviction collateral relief, and it was denied. Aggrieved, Terry asserts the following:

I. THE PLEA WAS NOT VOLUNTARILY AND KNOWINGLY ENTERED.
II. THE APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED.
III. THE INDICTMENTS ISSUED AGAINST THE DEFENDANT DO NOT COMPLY WITH THE LAW.
IV. THE PROSECUTOR AND THE JUDICIAL OFFICERS MISLED THE MEMBERS OF THE GRAND JURY IN ORDER TO PERPETRATE A CONSPIRACY.

Finding no error, we affirm.

FACTS

¶ 2. On September 2, 1999, Earl Terry sold cocaine to an under cover officer, Terry Davis. Again on September 30, 1999, Earl Terry sold cocaine to officer Terry Davis.

¶ 3. Earl Terry was indicted on these two counts for the sale of cocaine. The indictments charged Terry with transfer of controlled substance under Mississippi Code Ann. § 41-29-139(a)(l), enhanced penalty under Mississippi Code Ann. § 41-29-147, and habitual offender under Mississippi Code Ann. § 99-19-81 (Rev.2000). Terry’s plea petition indicates that he was informed and was aware of the result of a guilty plea.

¶ 4. Terry entered a plea of guilty on both counts of sale of a controlled substance. The court sentenced Terry to serve twenty years on each count, with the two terms running concurrently.

ANALYSIS

¶ 5. Terry provides little authority in the collage of issues regarding the denial of post-conviction relief. More importantly, Terry provides this Court with nothing to substantiate the assertions being the bases for appeal. Furthermore, Terry provides this Court with very little to review regarding his habitual offender status. The record reflects only a copy of the indictment, one page of the plea agreement, and only the last page of the sentencing order. The entire record lacks any evidence or attempt to enter evidence which might support any of Terry’s many interpolated issues.

I. WAS THE PLEA OP GUILTY VOLUNTARILY AND KNOWINGLY ENTERED?

¶ 6. Terry asserts that his plea of guilty was not entered voluntarily or knowingly and furthermore that law enforcement officers acted improperly by creating the crime. He further claims that he explained to the trial judge that he was afraid for his life.

¶ 7. In reviewing a trial court’s decision to deny a motion for post-conviction relief the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999). The standard of review pertaining to vol-untariness of guilty pleas is well settled: “this Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” Weatherspoon v. State, 736 So.2d 419, 421(¶ 5) (Miss.Ct.App.1999). The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence. Id. at 422 (superceded by Miss. Code Ann. § 99-39-23 (Rev.2000)).

¶ 8. In the case sub judice, Terry asserts a number of inequities regarding the sentencing. The record shows no signs that Terry was in fear for his life as he asserts. There is no evidence that the officers created the crime for which Terry was charged. Terry cites Baca v. State, 106 N.M. 338, 742 P.2d 1043 (1987), to support the contention that the police created the crime. In Baca, the court determined that the police created the crime for which the accused had no predisposition. There is nothing in the record to show that the facts were in any way similar to those in Baca.

¶ 9. With np record of the plea hearing available for perusal by this Court, we must presume that the trial court acted properly. Moawad v. State, 531 So.2d 632, 635 (Miss.1988). There is no evidence in the record to support Terry’s contentions of fear for his life at the sentencing or police creation of the crime. This issue is without merit.

II. WERE THE APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED?

¶ 10. Terry argues, “During Denial [sic] post-conviction respondent showed Know [sic] professional conduct at all in doing so violated petitioners constitutional rights.” Terry continues to make claims of a conspiracy regarding the denial of post conviction relief and conduct that is in violation of the law on the part of the judge.

¶ 11. Terry’s claims that his due process rights were violated are procedurally barred. An appellant is not entitled to raise new issues on appeal that have not first been presented to the trial court for determination. Dunn v. State, 693 So.2d 1333,1339 (Miss.1997). Furthermore, as there is no evidence in the record which in any way corroborates Terry’s claims, this Court will presume that the trial court acted properly. Ford v. State, 708 So.2d 73,74 (¶ 11) (Miss.1998).

III. WHETHER THE INDICTMENTS ISSUED AGAINST THE DEFENDANT COMPLY WITH THE LAW?

¶ 12. Terry asserts that the circuit court should have directly found that the indictment was defective. Terry asserts that he should not have been sentenced under the habitual criminal: maximum term statute, Miss.Code Ann. § 99-19-81 (Rev.2000). This argument is wholly without merit. As the circuit court held, Terry’s petition has no merit due to the fact that Terry was a habitual criminal under the statute. Additionally, Terry’s entry of the guilty plea waived any such non-substantive defects to the indictment. See, e.g., Buford v. State, 756 So.2d 815(¶ 4) (Miss.Ct.App.2000); Brandan v. State, 662 So.2d 1051, 1055 (Miss.1995).

¶ 13. Mississippi Code Annotated § 99-39-21(1) (Rev.2000) mandates that a failure to raise an objection, defense or error in fact or law capable of determination at trial or on direct appeal shall be deemed a waiver. The prisoner will then be procedurally barred from raising that claim unless he can make a showing of good cause and actual prejudice. However, the question of the indictment is one which could and should have been raised on direct appeal. The indictment was not defective, but even if it were, the deficiencies were non-jurisdictional in nature and were waived when Terry entered his guilty plea. “A valid guilty plea ... admits all elements of a formal criminal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment against a defendant.” Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990) (citations omitted). Therefore, the issue of whether the indictment was flawed is barred.

IV. WHETHER THE PROSECUTOR AND THE JUDICIAL OFFICERS MISLED THE MEMBERS OF THE GRAND JURY IN ORDER TO PERPETRATE A CONSPIRACY GIVING RISE TO INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 14. In his motion for post-conviction relief, Terry alleges that he received ineffective assistance of counsel because his attorney coerced him into pleading guilty, misrepresented the status of his case, and failed to properly prepare the case for trial, all with the collateral intent to cover up the fact that counsel was unprepared for trial. In order for Terry to prove the ineffective assistance of counsel claim, under Miss.Code Ann. § 99-39-11(2) (Rev.2000), the allegation must be alleged with specificity. “[He must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different.” Smith v. State, 434 So.2d 212, 219 (Miss.1983).] See also Miss.Code Ann. § 99-39-9(l)(c) (Rev.2000). Terry alleges that his attorney coerced him into pleading guilty and did not advise him of the correct status of his case. However, Terry does not state the manner in which his attorney coerced him nor detail in what way he was unaware of the correct status of his case. Terry further asserts that the district attorney conspired with the public defender, attorney for Terry, in order to convict Terry of the crime charged. Terry fails to provide any reasons for these assertions.

¶ 15. We find that Terry has failed to meet his statutory burden of proof regard-mg the allegation of ineffective assistance of counsel in that his assertions lack the “specificity and detail” required to establish a prima facie showing. Terry fails to meet his burden of proof. Terry is required to show that counsel’s performance was deficient and that the defendant was prejudiced by counsel’s mistakes. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This issue is without merit.

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

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


author: McMILLIN, C.J., KING, P.J.,

text:
    Tabitha A. OTTO, Appellant, v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2001-CC-01768-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2002.
    Rehearing Denied March 11, 2003.

      Tabitha A. Otto (Pro Se), attorney for appellant.
    Albert B. White, Madison, attorney for appellee.
    Before MCMILLIN, C.J., BRIDGES and THOMAS, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Tabitha Otto filed for unemployment benefits. The Board of Review for the Mississippi Employment Security Commission found that Otto had been discharged for misconduct, disqualifying her from benefits. Here on appeal, Otto argues that this finding is not supported by the evidence. We find substantial evidence to support the decision. Therefore, we affirm.

I.

Facts

¶ 2. Tabitha Otto had worked at Happy Day Child Care in Saltillo, Mississippi for approximately two years prior to April 16, 2001. On that day, Otto and the director of the child care center, Darlene Garrison, got into a disagreement concerning the care for one of the children. As a result, Otto went to another part of the facility to talk to the owners. They were not in. Otto informed the director that she was leaving but would be back later that day when the owners were likely to be present. According to evidence introduced at the Commission, the director asked her not to leave. Otto did anyway. She was terminated for having left work without permission.

¶ 3. Otto filed for unemployment compensation. The claims examiner found that Otto had quit her job in a manner that constituted misconduct. See Miss.Code Ann. 71-5-513(A)(l)(b) (Rev.2000). Though she sought review by an appeals referee, she did not attend the scheduled hearing. The appeals referee affirmed the claim examiner’s findings.

¶ 4. Otto filed a notice of appeal to the Board of Review, claiming that she never received notice of the earlier-stage hearing. Otto, not represented by counsel, put on the form noting her appeal that “I do not agree with the decision. Also I did not get my letter to tell me when the hearing was. I have some witnesses for me.” The Board then sent Otto a letter informing her that her appeal had been received. It would be considered on the record already made, unless the Board found that a further hearing would be necessary. It that case it would notify her of that hearing.

¶ 5. Without a hearing, the Board of Review affirmed that Otto was ineligible for unemployment compensation. The Lee County Circuit Court affirmed. Otto now appeals to this Court.

II.

Discussion

¶ 6. Factual findings of the Commission’s Board of Review, if supported by substantial evidence, will be upheld on appeal. Miss.Code Ann. § 71-5-531 (Rev. 2000); Williams v. Mississippi Emp. Sec. Comm’n, 395 So.2d 964, 966 (Miss.1981) (“evidence” in statute means “substantial evidence.”) Otto’s argument in this appeal is that the evidence presented by her former employer did not prove misconduct. Therefore, we must determine whether under the relevant law applicable to disqualification from benefits, there was substantial evidence of misconduct.

¶ 7. Prior to considering the evidence, we examine a procedural issue that Otto raises.

A.

Rehearing

¶ 8. In her first issue, Otto asserts a due process violation. She believes that she was unfairly deprived of her right to notice and a hearing by the appeals referee. Because of this, she believes that she should have been granted a rehearing.

¶ 9. Otto claims that she never received notice from the appeals referee of the hearing. She alleges that on several occasions she did not receive mail from the Commission and had to go to the unemployment office and submit her claims forms. She did receive, though, a letter informing her of the outcome of the appeals referee’s hearing that occurred without her. That letter stated this:

you may file an appeal with the Board of Review ... or, if neither you nor your representative attended your hearing, you may file a written request with the Referee for a rehearing .... Your request should state the reason you failed to attend. The Referee will determine if good cause exists to grant a rehearing. IF AN APPEAL IS TAKEN TO THE BOARD OF REVIEW, SUCH APPEAL WILL BE CONSIDERED ON THE RECORD PREVIOUSLY MADE AND NO HEARING BEFORE THE BOARD OF REVIEW WILL BE SCHEDULED.

¶ 10. Otto, proceeding without counsel, did not take this advice, perhaps not noticing it or else not understanding its significance. She did discuss her desires with an employment interviewer at the Tupelo MESC office, named Ruby Trimble. The result of that discussion was that a document was prepared, probably by Trimble, then signed by Otto that she wanted to appeal the decision. That document, which appears to be a computer-generated form with specific information inserted regarding the case, mentioned that she had not received notice of the prior hearing and that “I have some witnesses for me.”

¶ 11. The dissent would take this language to be a request for a hearing, the denial of which is found to be arbitrary and capricious. Instead, we find that the document is what it says it is — an appeal. What Otto and Trimble discussed, why Otto signed a document that said that she was appealing and did not seek a rehearing, what Otto understood and what she may have misunderstood, cannot be reconstructed. She had been given notice that if she appealed, no more evidence would be taken. She had also been informed that she could request a rehearing in writing if she had not received notice of the earlier hearing. We acknowledge that Otto’s appreciation of the distinctions between an appeal and a rehearing may have been minimal. It is also possible that Otto decided just to appeal based on the record that there was, perhaps in frustration over the process or pessimism about the effect of a rehearing. Misunderstanding or simple resignation are both plausible. There is no confusion, though, that she had received a document that said no more evidence was to be taken if she appealed, and signed another document that specifically requested an appeal.

¶ 12. As a result of this response, no further consideration was given to whether Otto had good cause for failing to attend her first hearing. The Commission then sent Otto a letter informing her that her appeal to the Board of Review had been received. The letter stated that her appeal would be considered on the record already made and no further hearing would be scheduled unless the Board informed her that it had determined such a hearing would be useful.

¶ 13. The Supreme Court has determined that the proper management of the court system requires that pro se parties conform to the same procedural requirements as do represented parties. Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987). Otto had a right to a hearing, failed both to attend the initial hearing or, after being informed of her right, taking advantage of the opportunity to request a second hearing. There is no due process violation.

B.

Substantial Evidence

¶ 14. The central issue on this appeal was whether misconduct was shown. Otto largely relies on the argument that since the Appeals Referee only heard the employer’s side of the story, the referee’s finding of statutory misconduct was unfairly reached. That is not enough, as responsibility for the failure to have her side of the story cannot be assigned to the Commission nor to the employer.

¶ 15. Otto next argues that the evidence presented by the director and the day care owner was not sufficient for a finding of misconduct. Disqualifying misconduct is defined as actions “evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.... ” Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982).

¶ 16. Garrison, who was the director who had the confrontation with Otto, testified that Otto refused to accept Garrison’s instruction as to when the children in the nursery were in need of care. She stated that Otto insisted on leaving, even after Garrison had explained that, by leaving, she was going to be assumed to have quit her job. Garrison testified that such an extreme measure was needed because, as she explained to Otto, when Otto left the premises, she placed the child care center in the position of being in violation of regulations requiring two or more adults to be present with the number of children in the center. Based upon this testimony, the referee found that Otto had left her job in a manner which constituted misconduct. We agree that these actions could be characterized as a willful and wanton disregard of the employer’s interest, and to fall well short of standards of behavior which the employer has the right to expect.

¶ 17. These findings are supported by the only evidence in the record, and that evidence was substantial. We affirm.

¶ 18. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT, UPHOLDING THE DENIAL OF UNEMPLOYMENT BENEFITS, IS AFFIRMED.

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

KING, P.J.,

Dissenting:

¶ 19. My review of the record of this case constrains me to dissent.

¶ 20. The majority affirms the denial of unemployment benefits to Otto by stating that the Board’s decision was supported by substantial evidence, and should therefore be affirmed.

¶ 21. I agree that the record contains substantial evidence which supports the Board’s denial of benefits. Indeed, I concede that the only testimony considered by the Board in the record supports the denial of benefits. However, it is this concession which also compels me to dissent.

¶ 22. For some two years prior to April 16, 2001, Otto had been employed as a childcare worker. On April 16, she left the job because of a disagreement with her supervisor. Terminated for this action, Otto filed for unemployment compensation.

¶ 23. An April 27, 2001 letter, directed to T.A. Otto, 988 CR 1409, Mooreville, MS 38857, from the claims examiner, informed Otto that benefits were denied. Otto appealed that decision, which triggered a hearing before an appeals referee.

¶24. On May 11, 2001, the appeals referee mailed notice of a May 21, 2001 hearing to Tabitha A. Otto, 988 CR 1409, Mooreville, MS 38858. Otto did not appear at the May 21, 2001 hearing. The owner and director of the childcare facility appeared and testified. Their testimony is the only testimony taken and made a part of the record.

¶ 25. Based upon their adverse testimony, the appeals referee denied benefits to Otto.

¶26. Following receipt of the appeal referee’s denial of benefits, Otto contacted Ruby Trimble of the MESC, and expressed her dissatisfaction with the denial of benefits.

¶ 27. As reduced to writing by Trimble, Otto’s dissatisfaction was “I do not agree with this decision. Also I did not get my letter to tell me when the hearing was. I have some witnesses for me.” Trimble placed this statement on a MESC computer generated form styled “Notice of Appeal To Board of Review.” Trimble had this form signed by Otto. The form is attached to this opinion as an appendix.

¶ 28. The statement attributed to Otto is a request for a hearing, not an appeal. It asks that she be given notice of the hearing date, and allowed to present her witnesses.

¶ 29. There is nothing to indicate that MESC, after receiving Otto’s statement that she wished to have her witnesses heard, gave any consideration to providing Otto with a hearing. Instead, it proceeded to decide this matter only upon the adverse testimony offered by the childcare facility owner and director. Absent some identifiable reason in the record for not giving Otto the opportunity to present her witnesses, the actions of the MESC can at best be described as arbitrary and capricious. An arbitrary and capricious act, by its very definition, is not supported by substantial evidence. Public Employees’ Retirement System v. Shurden, 822 So.2d 258(¶ 12) (Miss.2002).

¶ 30. The majority notes that, as a pro se litigant, Otto is held to the same standard as a party represented by counsel. It would appear that the majority decision actually imposes a higher standard upon Otto. Under Mississippi’s notice pleading, a party is merely required to state what he wants and the basis for that request. Dynasteel Corp. v. Aztec Industries, Inc., 611 So.2d 977, 984 (Miss.1992). Otto did just that. She wanted to be notified of the hearing and present her witnesses.

¶ 31. At the least, Otto was entitled to have that desire addressed. The failure to do so was an abuse of discretion.

¶ 32. In its desire to justify, what in my opinion, is an erroneous decision, the majority states, “It is also possible that Otto decided just to appeal based on the record that there was, perhaps in frustration over the process or pessimism about the effect of a rehearing. Misunderstanding or simple resignation are both plausible.”

¶ 33. I find nothing to suggest that Otto decided to appeal on the record rather than seek a hearing. Indeed a full review of the record suggests the contrary.

¶34. In her brief filed with the Lee County Circuit Court, Otto identified two issues for the court’s consideration. The very first issue was stated as “whether another hearing should have been scheduled after I notified MESC I did not receive notice of the hearing of May 21st 2001?”

¶ 35. This does not suggest an intent to appeal solely on the existing record.

¶36. In the fact portion of her brief, Otto stated:

After I filed for unemployment and was denied benefits, I did not receive notice of the hearing date. I had been having trouble receiving my claim forms and had gone to the office several times to fill out my unemployment claim. In the decision dated 23 May 2001, I was advised that the decision would be final after 14 days from May 23 unless an appeal with the Board of review was filed, or if I did not attend the hearing I could file a written request for rehearing within 14 days. It further stated my request should state the reason I failed to attend and if good cause existed I would be granted a rehearing. It further stated this could be filed at the nearest claim office or by a letter addressed to MESC.
On May 30, 2001 I filed notice that I had not been aware of the hearing date. On the day of the hearing I was not aware the hearing was being held. There had been several prior occasions where the claim forms had not been received, and I went to the local unemployment office to obtain and submit the form. The day of the hearing I went to the office to turn in my claim form. If I had known the hearing was going to be held, I would have been there.

¶ 37. In her reply brief Otto states:

I filed an Appeal to get another hearing, but it was denied. I do not feel this is fair. They were aware that I had not received previous claims in the past, therefore they should have given me another hearing.
❖ # * H* * %
If the MESC would have only given me a fair hearing then I could have proven my case. I have witnesses that actually heard and saw what went on. Also, the day care director, Darlene Garrison, has treated previous employees with the same inappropriate behavior.

¶ 38. These things would indicate a consistent intent and desire on the part of Otto to present her case, including her witnesses. Had Otto decided to appeal solely on the existing record, her statement about having witnesses would be meaningless.

¶ 39. I would reverse and remand this matter for a hearing.

IRVING AND BRANTLEY, JJ., JOIN THIS SEPARATE OPINION.


author: IRVING, J.,

text:
    Jeff WIMBERLY a/k/a Jeffery W. Wimberly a/k/a Jeffery Wayne Wimberly, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00587-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.
    Rehearing Denied March 4, 2003.

      Stephen P. Livingston, New Albany, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., IRVING, and BRANTLEY, JJ.
   IRVING, J.,

for the court.

¶ 1. Jeff W. Wimberly appeals from a conviction of attempted robbery with a deadly weapon, rendered in the Circuit Court of Union County, Mississippi and raises five issues which we quote verbatim:

1. The court was in error when it allowed the Defendant’s oral and written confessions to be introduced into evidence, since these confessions were not voluntarily given.
2. It was error on the court’s part not to grant a JNOV or direct a verdict based on the lack of evidence presented by the prosecution and their failure to prove an attempted robbery, due to the fact, there was no proof other than the confession.
3. It was error on the court’s part to refuse Defendant’s jury instruction number D-17 concerning the crime of robbery.
4. It was error on the court’s part to allow physical evidence to be introduced since this physical evidence had not been disclosed to the Defendant pursuant to the Defendant’s discovery request.
5. It was error on the court’s part to allow the oral confession of the Defendant into evidence since it was not disclosed to the Defendant pursuant to the Defendant’s discovery request.

If 2. We find these issues lack merit; therefore, we affirm.

FACTS

¶ 3. Jeff W. Wimberly was charged and found guilty of attempted robbery with a deadly weapon. On August 12, 1999, between 10:30 and 11:00 p.m., two men entered the residence of the Catlin family in New Albany, Mississippi. The men intended to steal marijuana from Jason Cat-lin, one of the Catlin children. On the night in question, Mr. and Mrs. Catlin and their four children: Jennifer, age twenty, Jason, nineteen, Jonathan, seventeen, and Jeffrey, sixteen, were at home.

¶ 4. Jason, Jonathan and Jeffrey were in their room in the back of the house when they noticed three shadows walking by the window. As a result, Jason went into the living room and opened the door while his sister Jennifer was sitting in the living room. As Jason opened the door, two white males and one black male stood in the door. The black male hit Jason in the mouth as the other men watched. The intruders wore blue bandannas which extended from underneath their eyes to their chin. Jason’s attacker entered the house with a knife and continued to attack Jason as the victim screamed. Meanwhile, Jonathan came into the living room with a .12 gauge shotgun and shot Jason’s attacker in the back.

¶ 5. After the attacker was shot, his accomplices left the house. Meanwhile, Officer Tommy Smithey was en route to the Catlin residence. He was told over the police radio that the attacker had been found under a trailer. Officer Smithey went to the scene and discovered Wimberly with a bullet wound in his back. Officer Smithey retrieved a blue bandanna, a knife and a white ball cap from the location. Wimberly was taken to the New Albany Baptist Memorial Hospital. Later that night, Officers Smithey and Mike Pannell arrived at the hospital to question Wim-berly. During the officers’ visit, Wimberly gave an oral statement.

¶ 6. Five days later, the hospital transferred Wimberly to the North Mississippi Medical Center. On August 17, 1999, Wimberly signed a waiver of rights form and provided Officers Smithey and Benny Kirk with a written confession. The confession described the events which led to the shooting and named the co-attackers.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Admission of Oral and Written Confession

¶ 7. Wimberly contends that his confessions were involuntary because he was on pain medication and in physical pain when he gave his statements to the police. Thus, Wimberly asserts that his equal protection and due process rights were violated by the admission of the involuntary confessions during trial. Wimberly gave two confessions to the police, and both were admitted during trial. The first confession was oral and given on the night in question upon Wimberly’s arrival at the hospital. The second confession was a written confession given on August 17, 1999, five days after the incident when Wimberly was released from the hospital. He signed a waiver before giving the written confession. Wimberly avers that the court should have taken into consideration the totality of the circumstances in determining whether his confession was voluntary.

¶ 8. A trial judge’s admission of a confession will only be overturned where an incorrect legal standard was applied, manifest error was committed, or the decision was contrary to the overwhelming weight of the evidence. Kircher v. State, 753 So.2d 1017, 1023(¶27) (Miss.2000).

¶ 9. The trial judge held a suppression hearing before trial to determine whether Wimberly’s confessions were voluntarily, knowingly, and freely given. During this hearing, the judge heard the testimony of Wimberly and Officers Thomas Smithey, Benny Kirk, and Mike Pan-nell. All officers testified that the statements were given when they were present, were not coerced, and were given freely and voluntarily without an offer of reward. They affirmed that Wimberly was read his rights before each confession. The officers testified that Wimberly stated that he understood the rights that he was waiving on the day the written confession was given. Officers Smithey and Kirk also testified that Wimberly appeared coherent, and his speech was not slurred. Moreover, Officers Smithey and Pannell testified that all details given by Wimberly the night of the incident matched those of the Catlins. Most importantly, Wimberly testified that the date the confession was given was on the same day he was released from the hospital.

¶ 10. We find that the State met its burden of proving its prima facie case and that Wimberly failed to rebut the State’s assertions. Therefore, we affirm the trial judge’s admission of Wimberly’s oral and written confessions.

2. Failure of Court to Grant JNOV or Directed Verdict

¶ 11. Wimberly asserts that the court should have granted his motion for a directed verdict or a JNOV because the State should prove its case with more than his confession. Also, Wimberly avers that the State’s witnesses never testified that anything was ever said about robbing or that a robbery transpired. Wimberly concludes that no proof of an attempted robbery existed.

¶ 12. The standard of review concerning a denial of a motion for a JNOV and a directed verdict are the same. Baker v. State, 802 So.2d 77, 81(¶ 18) (Miss.2001). We must consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences which may be reasonably drawn from the evidence and reverse and render where the facts point so overwhelmingly in favor of the appellant that reasonable men could not have found the defendant guilty. Id. However, we must affirm where there is substantial evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions. Id.

¶ 13. Considering the evidence in the light most favorable to the State, fair-minded jurors could find that Wimberly attacked Jason Catlin with a knife, was shot in the back by Jonathan Catlin, and was found underneath a trailer with a bullet wound to the back as a result of an attempted robbery. During trial, Jennifer, Jonathan, and Jason Catlin testified that a black male attacked Jason and that Jonathan shot Jason’s attacker in the back. Officer Tommy Smithey testified that Wimberly was found blocks away from the Catlin residence with a bullet wound in his back. Moreover, Officer Smithey testified that he retrieved a knife, a bandanna and a baseball cap where Wimberly was found. In addition, Officer Smithey explained to the court that Wimberly’s oral confession matched that of the Catlins and lead the police to one of the other men involved. This issue is without merit.

S. Jury Instruction D-l 7

¶ 14. Wimberly asserts that his D-17 instruction was necessary to outline the elements of the crime. The proposed instruction reads, “The Court instructs the jury that in order to be guilty of armed robbery, the victim has to be robbed of something of value. If you find from the evidence that marijuana has no value, then you must find the defendant not guilty.”

¶ 15. In reviewing the denial of a jury instruction, we must consider all instructions given in order to determine whether the refusal of the requested instruction was error. See Coleman v. State, 697 So.2d 777, 782 (Miss.1997). However, if the instruction does not fairly represent the law, then the defendant is not entitled to it, and no reversible error will be found. Id. The State asserts that the giving of this instruction would have been a misstatement of the law because the statute does not require that personal property taken have value. We agree with the State.

¶ 16. Wimberly was charged with attempted robbery under Mississippi Code 97-3-79 which provides that:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by exhibition of a deadly weapon shall be guilty of robbery....

Miss.Code Ann. § 97-3-79 (Rev.2000). Consequently, we find no error in the trial court’s refusal to grant instruction D-17.

k. Admission of Oral Confession and Physical Evidence

¶ 17. We combine issues four and five for discussion because they allege violations of Wimberly’s discovery requests. Wimberly argues that the admission of both the oral confession and the bandanna, knife, t-shirt, and cap was reversible error because Wimberly’s counsel only became aware of the existence of this evidence during trial proceedings, rather than prior to those proceedings as per Wimberly’s discovery requests.

¶ 18. Wimberly’s counsel asserts that the State engaged in a discovery violation when it did not timely disclose the oral confession and that the confession’s admission was prejudicial to his client.

¶ 19. “The determination of whether a statement should be suppressed is made by the trial judge sitting without a jury as the finder of fact.” Hicks v. State, 812 So.2d 179, 191(¶ 32) (Miss.2002) (citing Herring v. State, 691 So.2d 948, 956 (Miss.1997)). “Determining whether a confession is admissible is a finding of fact which is not disturbed unless the trial judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence.” Id. (citing Balfour v. State, 598 So.2d 731, 742 (Miss.1992); accord, Palm v. State, 748 So.2d 135, 142(¶25) (Miss.1999)).

¶ 20. Based on the facts of this case, we do not find a discovery violation by the court below. To be sure, we turn our attention to Uniform Circuit and County Court Rule 9.04, subpart I, which provides:

If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.

URCCC 9.04(1). The essential purpose of Rule 9.04 is the elimination of trial by ambush and surprise. Robinson v. State, 508 So.2d 1067, 1070 (Miss.1987); see also Frierson v. State, 606 So.2d 604, 607 (Miss.1992).

¶ 21. Here, the suppression hearing served the purpose of disclosing the existence of Wimberly’s oral confession and the State’s intended use of it against him. Wimberly objected to the admissibility of the oral confession during the suppression hearing. Wimberly alleged that he became aware of the oral confession the day before trial during the suppression hearing. The circuit court opted to hear testimony regarding both the oral and written confessions before rendering its decision on whether the oral confession was admissible. Wimberly testified himself, and the State presented Officers Smi-they, Pannell, and Kirk as witnesses. Each party received the opportunity to examine and cross-examine witnesses. The court heard testimony regarding the surrounding circumstances of both the oral confession given on the night of the incident and the written confession given five days later. After considering all testimony about Wimberly’s oral and written confessions, the court explained, “We’ve heard the testimony as to both of them at the same time, and the Court is of the opinion that both the statements were made voluntarily, knowingly and intelligently, and the Court will allow it.”

¶ 22. Although the State failed to submit the oral confession upon Wimberly’s discovery request, the admission of the oral confession is not reversible error, as the written confession was essentially the same as the oral confession. The confessions’ similarities are adequately supported in the record. Officer Smithey, who was present both during Wimberly’s oral and written statements, gave the following testimony regarding Wimberly’s oral confession on the night of the incident:

Q: Did you, at some point, take a statement from Mr. Wimberly?
A: We — we took an oral statement. We went over to the emergency where they were working on Mr. Wimberly....
Q: Did you — did you ask Mr. Wimberly any questions?
A: Yes, sir, we did.
Q: What did you ask him?
A: We asked him who the other people were, and you know, what had happened, and he told myself and the other policeman, and so—
Q: Who was the other police officer?
A: That would be Officer Pannell.
That they had bought a dime bag of marijuana earlier there that day or that evening, and Stephen Dukes, one of his friends, was with him. Another subject, he didn’t know his last name, but thought that his first name was Marcus, and they had got out and ridden around and said this would be an easy target for them to go back, and I think Stephen Dukes had told them it would be an easy mark or something to that effect. And they went back to rob them of the marijuana or the — and money or whatever.

Smithey later testified:

Q: Okay. Did you there, at a later time, take a more formal statement from Mr. Wimberly?
A: Yes, we did....
Q: And what date.... What day is that taken?
A: This was 11:59 a.m. on the 17th of August ...
Q: Now, was [the] statement consistent with what he told you on the night of this incident.
A: Basically, it was the same, yes, sir.

¶ 23. Officer Pannell, who accompanied Smithey during Wimberly’s oral confession on the night of the incident, confirmed the reliability of Wimberly’s oral statement:

Q: Did he [Whnberly] have anything to indicate that to you he appeared to indicate that he didn’t know what he was talking about?
A: He knew exactly what he was saying because the information he was giving us was truthful and correct in what had happened from the statements of the individuals that were in the house he went into.
Q: What he was telling you was matching up with what they were telling you?
A: Yes, sir.

¶ 24. Officer Benny Kirk, who accompanied Smithey during Wimberly’s written confession at the hospital, attested to the credibility of Wimberly’s written confession:

Q: Did he [Wimberly] give you a coherent statement?
A: He did.
Q: Those details that are included in that statement, who provide[d] those details?
A: He did.
Q: Were the other details consistent with the details that the victims in this case had given you earlier?
A: Yes, sir.

¶25. This Court therefore finds that the trial court properly admitted Wimberly’s oral confession during the trial. It is indeed strange that Wimberly would claim surprise or prejudice about the late disclosure of a confession that he surely knew he had given. Surely, he had had ample opportunity to disclose to his attorney that he had given an oral confession to the officers on the day of the incident, thereby giving his attorney plenty of time for preparation of Wimberly’s defense in light of the confession. This issue is without merit.

¶ 26. Wimberly also argues that the State’s failure to timely disclose certain physical evidence unfairly prejudiced him and should not have been admitted. Wimberly also asserts that the trial court deprived him of the opportunity to examine the evidence, introduced by the State, which had not been previously disclosed to him in discovery.

¶ 27. Wimberly filed a motion for discovery and requested the State to exhibit any physical evidence and photographs relevant to the case which the State intended to offer into evidence during the trial. The State allegedly failed to inform Wim-berly that Officer Smithey had recovered and maintained in his possession a knife, shirt, blue bandanna, and cap, all supposedly used during the alleged attempted armed robbery at the Catlin residence. Because the State failed to disclose these items during discovery, Wimberly argues that the lower court’s ruling should be reversed.

¶ 28. The State counters that if it did breach the discovery rules that its breach did not warrant a reversal because Wim-berly did not request additional relief after being granted a brief recess to review evidence pursuant to Box v. State, 437 So.2d 19 (Miss.1983). The State argues, in the alternative, that if the court did err by admitting the evidence, it was harmless error in light of the overwhelming weight against Wimberly.

¶ 29. Evidentiary rulings are within the broad discretion of the trial court and will not be reversed absent an abuse of discretion. Coleman v. State, 697 So.2d 777, 784 (Miss.1997). Rule 9.04 of the Uniform Circuit and County Court Rules sets forth the appropriate procedure and remedies for the trial court to consider in resolving discovery violations. If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:

1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.

URCCC 9.04(1). The purpose of the discovery guidelines and remedies is to avoid an ambush or unfair surprise to either party during the trial. See Frierson v. State, 606 So.2d 604, 607 (Miss.1992).

¶ 30. In the case sub judice, the State attempted to introduce the knife, bandanna, shirt, and cap that Officer Smithey recovered during the course of his investigation. Wimberly’s counsel then told the court, “Your Honor, I’m going to have an objection on this, maybe we need to be heard.” Outside the presence of the jury, counsel argued before the judge as to whether the physical evidence should be admitted. Wimberly’s counsel objected to the State’s failure to exhibit any physical evidence that the State intended to use at Wimberly’s trial. He further asserted that the admission of such evidence would amount to unfair surprise and therefore prejudice his client. The State admitted that the discovery given to the defendant did not list the physical evidence in question; however, the State urged (1) the discovery had been available in the evidence room for the defendant’s inspection before trial, (2) it was the State’s policy to offer the entire file and any evidence in the possession of the State to the defendant on discovery, and (3) prior testimony existed about the physical evidence. The State also took the position that Wimberly was aware that the State had this evidence because the evidence was retrieved when Wimberly was found under the trailer.

¶ 31. Following the consultation between the court and counsel, the trial court gave Wimberly’s counsel time to examine the evidence. However, after doing so, Wimberly’s counsel never requested an additional continuance or mistrial but only reasserted his claims of unfair surprise and prejudice. The judge determined that Wimberly was not surprised because “[E]very witness that has testified, as I recall, testified about a knife. It can’t be surprise, and the cases — the Rule talks about unfair surprise and undue prejudice.” He consequently overruled Wim-berly’s objection.

¶ 32. Although this Court finds that the State violated the discovery rules when it did not exhibit the physical evidence upon Wimberly’s request, there is no evidence that the discovery violation worked to Wimberly’s detriment or prejudiced his case. Wimberly was aware that the crime involved a knife because such was specified in his indictment. In his August 17, 1999 written confession, Wimberly admitted that he entered the Catlin home and got on top of a guy with a knife.

¶ 33. Furthermore, it should be noted, Wimberly did not request a mistrial or an additional continuance after the court granted him an opportunity to examine the physical evidence upon his Rule 9.04 objection. Even if a discovery violation had occurred, Wimberly’s failure to request a continuance after reviewing the material would procedurally bar his argument for an inadequate continuance. See URCCC 9.04(1); see also Snelson v. State, 704 So.2d 452, 458(¶ 35) (Miss.1997).

¶34. Given the purpose of Rule 9.04 and the minimal significance that the introduction of the weapon had on the case, we find that this assignment of error is without merit.

¶ 35. THE JUDGMENT OF THE UNION COUNTY CIRCUIT COURT OF CONVICTION OF ATTEMPTED ARMED ROBBERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED TO BE SERVED ON POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO UNION COUNTY.

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

      . During trial, Officer Smithey read Wimberly’s confession which stated the purpose for going to the Catlin home.


author: MYERS, J.,

text:
    Curtis RODRIGUEZ, a/k/a Curtis Rodriguiz, a/k/a Curtis Herold, a/k/a Curtis Harrell, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00571-COA.
    Court of Appeals of Mississippi.
    March 4, 2003.

      Curtis Rodriguez (Pro Se), attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., LEE AND MYERS, JJ.
   MYERS, J.,

for the Court:

¶ 1. Curtis Rodriguez a/k/a Curtis He-rold petitioned the Attala County Circuit Court for post-conviction relief. The circuit court denied his petition. Rodriguez appealed to this Court, asserting three issues for our consideration:

I. WHETHER RODRIGUEZ WAS DENIED DUE PROCESS BY OFFICIALS OF THE LEFLORE COUNTY RESTITUTION CENTER CONVICTING HIM OF RULE VIOLATION REPORTS WITHOUT GIVING HIM THE OPPORTUNITY TO BE HEARD OR TO DEFEND HIMSELF.
II. WHETHER THERE WAS INSUFFICIENT EVIDENCE TO REVOKE RODRIGUEZ’S PROBATION.
III. WHETHER RODRIGUEZ’S SENTENCE IS EXCESSIVE AND VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

Statement of the Facts

¶2. The Attala County Circuit Court convicted Rodriguez of aggravated assault on March 19, 1996. He received a sentence of twelve years in the custody of the Mississippi Department of Corrections. The circuit court suspended eleven years of the sentence. On completion of the one-year imprisonment, Rodriguez was to serve five years of supervised probation. Additionally, the circuit court ordered Rodriguez to pay restitution of $12,000 and $236 in court costs.

¶ 3. Rodriguez served the one year uneventfully, but had problems with the probation. On May 29,1997, Rodriguez’s probation officer filed an affidavit alleging that Rodriguez had violated several terms and conditions of his probation. The circuit court had a hearing and entered an order modifying probation, which was filed on June 23. The order placed Rodriguez in the custody of the Hinds County Restitution Center, where he was to remain until he had paid the amount owed.

¶ 4. On June 12, 1998, Rodriguez’s probation officer filed another affidavit, stating that Rodriguez had violated several rules and regulations of the restitution center. This was a violation of his modified probation. The circuit court held a hearing that resulted in the circuit court transferring Rodriguez from the Hinds County Restitution Center to the Leflore County Restitution Center.

¶ 5. The change of locale did not affect Rodriguez’s unwillingness to follow rules. The director of the Leflore County Restitution Center filed an affidavit on May 11, 1999, charging Rodriguez with violation of several rules. The circuit court held another hearing, and decided to revoke Rodriguez’s probation. He was ordered to serve eleven years in the custody of the MDOC with credit for time served at the restitution centers.

Legal Analysis

I. WHETHER RODRIGUEZ WAS DENIED DUE PROCESS BY OFFICIALS OF THE LEFLORE COUNTY RESTITUTION CENTER CONVICTING HIM OF RULE VIOLATION REPORTS WITHOUT GIVING HIM THE OPPORTUNITY TO BE HEARD OR TO DEFEND HIMSELF.

¶ 6. We note first that we do not agree with the trial judge that Rodriguez must have gone through the administrative remedies set forth in Miss.Code Ann. § 47-5-803(2) (Rev.2000). There is nothing an administrative panel can do to remedy such a grievance. Only a court has the power to continue or revoke probation. Miss.Code Ann. §§ 47-7-33, 47-7-37 (Rev. 2000). Additionally, by specifically listing unlawfully revoking parole as a ground for post-conviction relief, Miss.Code Ann. § 99-39-5 would seem to except such a complaint from the procedures described in § 47-5-803.

¶ 7. No matter what procedure was used to reach this Court, the evidence does not support Rodriguez’s claim of denial of due process. On both February 8, 1999, and April 27, 1999, he received a form entitled “NOTIFICATION OF PRELIMINARY PROBATION REVOCATION HEARING.” This form listed the date, time, and place of the hearing. It informed Rodriguez that he would “be allowed to be present, speak, present evidence, and cross-examine any witnesses against [him].” Further, he was advised he had the right to retain a lawyer for the hearing. The notification also informed him of the charges he faced. Rodriguez signed this form in the presence of a witness. Under questioning by the circuit court, Rodriguez admitted MDOC held this hearing.

¶ 8. In light of the evidence, we do not see any merit in Rodriguez’s claim. See Riely v. State, 562 So.2d 1206 (Miss.1990) (resident of the Attala County Restitution Center was not denied due process when he had notice of hearing, right to be present, right to present evidence, and right to cross-examine witnesses).

II. WHETHER THERE WAS INSUFFICIENT EVIDENCE TO REVOKE RODRIGUEZ’S PROBATION

¶ 9. Again, the record does not support this issue. One condition of his probation was that Rodriguez would complete service at the Hinds County Restitution Center. He was transferred from this center because of several rules violations. He was twice transferred from the Leflore County Restitution Center for failing to follow rules. Considering just the violations at the Leflore County center, Rodriguez violated the following rules:

June 31, 1998: Terminated from employment
September 24, 1998: Tested positive for marijuana
October 7, 1998: Used abusive language to center staff
October 7,1998: Disobeyed staff
January 2, 1999: Fought with another resident
March 19, 1998: Threatened staff member
April 5,1999: Disobeyed staff
April 5,1999: Refused to work
April 14,1999: Disrespectful to staff
April 14,1999: Used abusive language
April 14, 1999: Disciplinary action on job

¶ 10. Given the leniency the circuit court showed Rodriguez and the constant rule violations, there existed adequate evidence to revoke his probation.

III. WHETHER RODRIGUEZ’S SENTENCE IS EXCESSIVE AND VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

¶ 11. Rodriguez claims that he is now serving a longer sentence than his original twelve year sentence, and as such, the sentence is excessive, cruel, and unusual punishment. The Mississippi Supreme Court has held that a reviewing court will uphold a sentence if it falls within the statutory limits. “ ‘Where a sentence does not exceed statutory limits, it does not constitute cruel and inhuman treatment.’ ” Nichols v. State, 826 So.2d 1288, 1292(¶ 17) (Miss.2002) (quoting Jackson v. State, 740 So.2d 832, 835(¶ 13) (Miss.1999)) (quoting Sanders v. State, 678 So.2d 663, 669 (Miss.1996)). However, when a comparison threshold of the crime committed to the sentence imposed leads to an inference of gross disproportionality, a three-pronged analysis is used to see if the sentence is out of proportion with the crime. Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Smallwood v. Johnson, 73 F.3d 1343, 1347 (1996) (citing Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)).

¶ 12. In the case before us, Rodriguez was convicted of aggravated assault. He could have faced a maximum sentence of twenty years in the custody of MDOC. Miss.Code Ann. § 97-3-7(2) (Supp.2002). Instead, Rodriguez was sentenced to twelve years, with eleven suspended and five years of probation. In other words, Rodriguez had to serve only one year in prison, and then have limited freedom for five more years while working to pay restitution. This Court cannot say that this sentence was disproportionate to the crime of aggravated assault.

¶ 13. We should also note that Rodriguez argues his sentence is actually seventeen years (twelve years’ imprisonment plus five years’ probation). To this, we would first respond that this is incorrect since probation is not considered part of the sentence. Miss.Code Ann. § 47-7-37 (Rev.2000) (“no part of the time that one is on probation shall be considered as any part of the time that he shall be sentenced to serve”). Secondly, after a probationer has violated terms of his probation, a court “may continue or revoke all or any part of the probation ... and may ... impose any part of the sentence which might have been imposed at the time of conviction.” Id. The circuit court merely reinstated the eleven years of Rodriguez’s sentence which it had previously suspended.

Conclusion

¶ 14. None of the issues raised by Rodriguez are found to have any merit. Therefore, we affirm the circuit court’s decision.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO AT-TALA COUNTY.

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

      . The appellant's name is spelled throughout the record as ''Rodriguiz.” However, in his brief, the appellant spells his name as "Rodriguez.” We will defer to the appellant on the spelling of his name.

      . Rodriguez was readmitted to the center after the first transfer since the center (admittedly) denied him due process in that decision.