author: CARLTON, J.,

text:
    Felix WYNN a/k/a Creep a/k/a Cadillac, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KP-00776-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      Felix Wynn, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. On April 25, 2006, Felix Wynn was convicted as an habitual offender by an Oktibbeha County Circuit Court jury on two counts of sale of cocaine. Wynn appeals his conviction and sentence pro se and asks this Court to consider whether he was denied the effective assistance of counsel; whether the circuit court erred in “overlooking” the defense of entrapment; whether the circuit court erred in denying his motion for judgment notwithstanding the verdict or new trial; whether the indictment charging him was defective; and whether he was denied his right to appeal. Finding no error, we affirm his sentence and conviction.

FACTS

¶ 2. Wynn was arrested and convicted as a result of two separate sales of crack cocaine to Charles Lamar Clinton, a confidential informant, who was working with the Starkville Police Department. On November 6, 2000, a pre-buy meeting was held between Clinton and Lieutenant Gerald Davis, an employee of the Starkville Police Department in charge of narcotics. At this meeting, the details of the proposed transaction were discussed and Wynn was determined to be the target. Lieutenant Davis searched Clinton’s person and vehicle, wired Clinton for sound and video, and gave him one hundred dollars to be used for the purchase.

¶ 3. Clinton left the meeting at about 4:00 p.m. and proceeded to Wynn’s home. Upon his arrival, Clinton went inside the home with Wynn and told him that he wanted to buy one hundred dollars worth of cocaine. Clinton testified that Wynn then reached inside his cabinet and took out a plastic baggy, opened it up, and handed him one hundred dollars worth of cocaine wrapped in a paper napkin. Clinton handed Wynn one hundred dollars and left the house to meet Lieutenant Davis at a pre-arranged location, where Clinton turned the cocaine over to Lieutenant Davis, who placed the drugs in an evidence bag. Lieutenant Davis then reviewed the video and noticed that the audio was lost and the video “was shooting a little low.” The video recorded the transaction; however, it did not capture the face of the seller. The video did clearly depict the seller’s mid-section as well as the clothing worn by the individual. Clinton identified Wynn as the seller. Nevertheless, Lieutenant Davis, unsatisfied with the quality of the video from the transaction, decided to make a second purchase from Wynn.

¶ 4. Lieutenant Davis gave Clinton another one hundred dollars and Clinton returned to Wynn’s house for a second purchase around 5:00 p.m. Clinton again gave Wynn one hundred dollars in exchange for cocaine and then returned to the meeting place where he again turned the drugs over to Officer Davis. Officer Davis and Clinton reviewed the video of the second transaction. In viewing this video, they were able to clearly observe the clothing of the seller as well as his face. Both men identified Wynn as the seller.

¶ 5. Brandi Goodman, a forensic scientist employed with the Mississippi Crime Laboratory, later confirmed that the substance obtained in the first purchase contained cocaine with a total weight of 0.76 grams. Likewise, Jamie Johnson, another forensic scientist employed by the Mississippi Crime Laboratory, determined that the substance obtained in the second transaction contained cocaine with a weight of 0.56 grams.

¶ 6. On July 19, 2001, Wynn was indicted for two counts of sale of cocaine in violation of Mississippi Code Annotated section 41-29-139 (Rev.2005). Trial was held on April 25, 2006. The evidence against Wynn consisted of the video recording of both transactions and the testimony of Clinton, Lieutenant Davis, Goodman, and Johnson. Wynn did not testify, nor did he offer any other evidence. The record reflects that, at the close of the State’s casein-chief, Wynn was advised of his right to testify, whereafter, Wynn’s attorney made the following statement to the court: “Your honor, my client and I have discussed. We will not be presenting any evidence. We will be resting.” The jury returned a verdict of guilty on both counts of sale of cocaine. Wynn was then remanded to the custody of the sheriff to await sentencing.

¶ 7. On April 26, 2006, the State moved to amend the indictment to charge Wynn as an habitual offender under Mississippi Code Annotated section 99-19-81 (Rev 2000). On the same day, a hearing was held, at which, the State’s motion to amend the indictment was sustained, and Wynn was adjudicated as both an habitual offender within the meaning of Mississippi Code Annotated section 99-19-81 and a prior violator of the Mississippi Uniform Controlled Substances Law pursuant to Mississippi Code Annotated section 41-29-147. Wynn was then sentenced as an habitual offender to sixty years in the Mississippi Department of Corrections on each count, to run consecutively for a total of 120 years, with zero years suspended or reduced, without the possibility of parole or probation. On May 1, 2006, Wynn filed a motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict, which was overruled by the circuit court.

DISCUSSION

1. Ineffective Assistance of Counsel

¶ 8. Wynn argues that he received ineffective assistance of counsel. He raises this issue for the first time on appeal. Specifically, Wynn claims that his attorney should have requested pretrial discovery, investigated the circumstances and laws surrounding the case, and interviewed potential witnesses. Wynn also suggests that his attorney’s performance was ineffective because he received an enhanced sentence.

¶ 9. While this Court may consider the merits of a claim of ineffective assistance of counsel raised for the first time on direct appeal, it is unusual to do so because “[w]e are limited to the trial court record in our review of the claim and there is usually insufficient evidence within the record to evaluate the claim.” Wilcher v. State, 863 So.2d 776, 825(171) (Miss.2003) (citing Aguilar v. State, 847 So.2d 871, 878(17) (Miss.Ct.App.2002) (citation omitted)). Our supreme court instructs that, on direct appeal, the entire record should be reviewed. Read v. State, 430 So.2d 832, 841 (Miss.1983). This Court will reach the merits of an ineffective assistance claim only in instances where, “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Wilcher, 863 So.2d at 825(171) (citations omitted). Where the record is insufficient to support a claim of ineffective assistance, “[t]he appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.” Aguilar, 847 So.2d at 878(17) (citing Read, 430 So.2d at 837).

¶ 10. In the instant case, there is no stipulation made by the parties as to the record. Our review then is focused to determine whether the record affirmatively demonstrates that Wynn was denied the effective assistance of counsel. The relevant inquiry here is whether the representation of Wynn was “so lacking in competence that it becomes apparent or should be apparent that it is the duty of the trial judge to correct it so as to prevent a mockery of justice.” Ransom v. State, 919 So.2d 887, 889(9) (Miss.2005) (quoting Parham v. State, 229 So.2d 582, 583 (Miss.1969)).

¶ 11. To prove a claim of ineffective assistance, a defendant must show (1) that his defense counsel’s performance was deficient, and (2) that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Swington v. State, 742 So.2d 1106, 1114(22) (Miss.1999). “The determination of whether counsel’s performance was both deficient and prejudicial must be determined from the ‘totality of the circumstances.’ ” Cole v. State, 666 So.2d 767, 775 (Miss.1995) (citation omitted). The defendant bears the burden of proving both prongs of Strickland and faces a rebuttable presumption “that trial counsel’s conduct is within the wide range of reasonable conduct and that decisions made by counsel are strategic.” Edwards v. State, 615 So.2d 590, 596 (Miss.1993) (citing Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985)). To rebut this presumption “the defendant must show that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 12. The record does not affirmatively show ineffectiveness of constitutional dimensions. Despite Wynn’s claim to the contrary, the record reveals that a very thorough motion for pre-trial discovery was in fact made. Furthermore, Wynn fails to identify any witnesses who should have been interviewed or whose testimony would have strengthened his defense. Likewise, Wynn identifies no aspect of his attorney’s performance that suggests a failure to investigate the circumstances and law surrounding his case. The record reflects that Wynn’s attorney was prepared factually and legally, and cross-examined the State’s witnesses thoroughly on all relevant issues. Beyond all this, the sentence Wynn received is in accord with the applicable statutes. Miss.Code Ann. § 99-19-81; Miss.Code Ann. § 41-29-147; Miss.Code Ann. § 41-29-139. Wynn has failed to meet his burden under Strickland.

¶ 13. In accordance with Read, 430 So.2d at 837, we deny relief on this issue without prejudice to Wynn’s right to raise it in appropriate post-conviction proceedings.

2. Entrapment

¶ 14. Wynn argues that he was entrapped by the State and that the trial court “erred in overlooking the fact that he was entrapped.” This defense was not raised at trial, nor was a jury instruction requested on the defense of entrapment.

¶ 15. Entrapment is an affirmative defense that must be proved by the defendant. Morgan v. State, 703 So.2d 832, 835 (Miss.1997). As an affirmative defense, entrapment must be raised at trial; the failure to do so precludes the defendant from raising the defense on appeal. Lyons v. State, 766 So.2d 38, 40(7) (Miss.Ct.App.2000). Accordingly, we find that Wynn has waived the defense of entrapment due to his failure to raise the defense in the lower court. Nevertheless, we will address the merits of Wynn’s claim of entrapment notwithstanding the procedural bar.

¶ 16. Entrapment is defined as “the act of inducing or leading a person to commit a crime not originally contemplated by him, for the purpose of trapping him for the offense.” Walls v. State, 672 So.2d 1227, 1230 (Miss.1996) (quoting Hopson v. State, 625 So.2d 395, 399-400 (Miss.1993)). To make out a prima facie case of entrapment, the defendant is required to demonstrate (1) government inducement to commit the criminal act(s), and (2) lack of predisposition to commit the criminal act(s) on the part of the defendant. Hopson, 625 So.2d at 400 (citations omitted). “If, however, the crime had already existed in the mind of the defendant and the request or inducement merely acted as an opportunity to commit what was in his mind, entrapment is no defense.” Bush v. State, 585 So.2d 1262, 1264 (Miss.1991) (citing King v. State, 530 So.2d 1356, 1359 (Miss.1988)).

¶ 17. We find that Wynn cannot make out a prima facie case of entrapment in the instant case. As to government inducement, nothing in the record reflects excessive government involvement or inducement in Wynn’s case. Clinton initiated contact with Officer Davis. The record reveals that Officer Davis simply instructed Clinton to go to Wynn’s house and ask for one hundred dollars worth of cocaine. On the day in question, Officer Davis and Clinton drove to the Rock Hill community and presented Wynn with an opportunity to sell crack cocaine. Clinton testified that Wynn readily complied with his request. Additionally, we find no evidence that Wynn lacked the predisposition to commit the criminal act of selling crack cocaine; rather, we find the evidence strongly suggests that Wynn was predisposed to commit the act. Clinton testified that Wynn immediately went into his cabinet and handed him a plastic baggy which contained one hundred dollars worth of crack. There is no evidence that Wynn hesitated at all to comply with Clinton’s request. “Ready commission of the crime amply demonstrates the predisposition of the accused.” Tran v. State, 785 So.2d 1112, 1119(22) (Miss.App.2001) (citation omitted). Furthermore, at the time of trial Wynn had two prior convictions for the possession of a controlled substance. In light of the foregoing evidence, we find that Wynn’s claim of entrapment must fail.

3. Sufficiency and Weight of the Evidence

¶ 18. Wynn argues that the trial court erred in denying his motion for judgment notwithstanding the verdict (JNOV) or for a new trial. Wynn simply asserts that there was no evidence to support the jury’s verdict.

¶ 19. In order to prove that Wynn committed the crime of sale of cocaine, the State was required to prove that Wynn did “ ‘knowingly or intentionally’ ... [s]ell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, distribute or dispense, [cocaine].... ” Miss.Code Ann. § 41-29-189(a)(1) (Rev.2005).

Motion for JNOV

¶ 20. A motion for JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In Gleeton v. State, 716 So.2d 1083, 1087(14) (Miss.1998), our supreme court set out the standard of review for sufficiency of the evidence as follows:

We must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Gleeton, 716 So.2d at 1087(14). In sum, “[t]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jones v. State, 904 So.2d 149, 153-54(12) (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 21. Considering the evidence in the light most favorable to the State, we find that there was sufficient evidence to support a conviction of sale of cocaine on both counts. The evidence against Wynn consisted of two eyewitness identifications, two forensic confirmations that the substance sold was cocaine, and a video recording of the two transactions. Officer Davis testified that he could not see Wynn’s face in the video of the first transaction, but that in the video of the second transaction, he was able to observe both the clothing and the face of the seller. He positively identified Wynn as the seller in the video of the second transaction and that Wynn was wearing the same clothing as the seller in the first transaction. Clinton also made a positive in-court identification of Wynn as the man from whom he purchased the cocaine on both occasions and testified that Wynn was wearing the same clothing during both purchases. Additionally, the jury was allowed to view the video recordings of both transactions, the second of which clearly depicted Wynn’s face.

¶ 22. In light of these facts, we find that sufficient evidence was presented to the jury such that any rational juror could have found that all of the elements of sale of cocaine were established beyond a reasonable doubt. Therefore, we find that the trial court did not err in denying Wynn’s motion for JNOV.

Motion for New Trial

¶23. Wynn also argues that the trial court erred in denying his motion for a new trial. A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127(16) (Miss.1999). Reversal by this Court is proper only when the lower court abused its discretion in failing to grant a new trial. Id. In reviewing a challenge to the weight of the evidence, we sit as a limited thirteenth juror, viewing the evidence in the light most favorable .to the verdict. Bush v. State, 895 So.2d 836, 844(18) (Miss.2005). “[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (citation omitted).

¶ 24. The evidence discussed above demonstrates that Wynn sold cocaine to Clinton in the second transaction, and all but conclusively suggests that he also sold Clinton cocaine in the first transaction. Viewed in the light most favorable to the verdict, we cannot say that the jury’s decision is contrary to the weight of the evidence or that to allow it to stand would sanction an unconscionable injustice. We find that the trial court committed no error in overruling Wynn’s motion for a new trial.

i. Defective Indictment

¶ 25. Wynn claims that his indictment was fatally defective because “he was indicted for two offenses that never occurred” and “his sentence was enhanced because of prior offenses which he never obtained.” It appears that the gravamen of Wynn’s argument challenges the amending of his indictment to charge him as an habitual offender. He cites Mississippi Code Annotated section 99-7-9 (Rev. 2000) for the proposition that his indictment could not have been properly amended without re-submission to the- grand jury.

¶ 26. Wynn is correct to the extent that an amendment as to the- substance of the charge is required to be made by grand jury. Eakes v. State, 665 So.2d 852, 859-60 (Miss.1995). However, an amendment to an indictment to charge one as an habitual offender is not an amendment as to the substance of the crime charged, as it only affects sentencing. Cox v. State, 793 So.2d 591, 597(21) (Miss.2001) (citing Adams v. State, 772 So.2d 1010, 1020(49) (Miss.2000)).

¶ 27. Uniform Rules of Circuit and County Court Rule 7.09 provides:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement, (e.g., driving under the influence, Miss.Code Ann. § 63-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present, a defense and is not unfairly surprised.

URCCC 7.09

¶28. On appeal, Wynn offers no evidence to show unfair surprise or that the amendment prejudiced his ability to defend the case. In fact, at the hearing to amend the indictment, Wynn did not contest or dispute the prior charges against him, rather, his attorney acknowledged them by stating “those are in fact his convictions.”

¶ 29. We note that Wynn’s attorney objected to the amendment being made after trial. Although Wynn does not assert this as error in his brief, we point out that our supreme court has held that an indictment may be amended to charge one as an habitual offender after trial but prior to sentencing. Torrey v. State, 891 So.2d 188, 194-95 (35-39) (Miss.2004). For these reasons this argument lacks merit.

5. Denial of Right to Appeal

¶ 30. In his last assignment of error, Wynn appears to argue that he has been denied his right to appeal through no fault of his own. Wynn also cites authority and seemingly contends that he has been denied his right to counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (Fourteenth Amendment guarantees an indigent defendant the right to counsel on his first appeal as of right). We find both of these arguments devoid of merit.

¶ 31. Wynn was represented by Mark G. Williamson at trial and at the outset of this appeal. Mr. Williamson perfected Wynn’s appeal on May 2, 2006 by timely filing a notice of appeal pursuant to Mississippi Rule of Appellate Procedure 3(a). By order of the Circuit Court of Oktibbeha County dated May 10, 2006 and order of this Court dated May 23, 2006, Mr. Williamson was permitted to withdraw, as Wynn hired Richard Burdine to represent him on appeal. Apparently, Mr. Burdine failed to file a brief because he was suspended by the Mississippi Bar subsequent to his undertaking to represent Wynn. On August 4, 2006, Wynn sent a letter to Mr. Burdine stating that he would no longer be needing his services for the reason that he has decided to proceed in this appeal on his own. The record reflects that Wynn filed a motion for informa pauperis (IFP) which was denied by the trial judge on August 26, 2006. Wynn then filed with the supreme court a request to file a brief in this appeal and proceed pro se. Wynn’s request was granted by order of this Court, dated November 14, 2006, and he has so proceeded in this appeal.

¶ 32. Wynn’s assertion that he has been denied the right to appeal is misplaced. Wynn’s brief has been filed with this Court and the issues raised are presently before this Court for consideration. Likewise, Wynn’s contention that he has been denied his right to counsel on appeal is without merit. Wynn is not indigent and thus not entitled to court-appointed counsel; his motion for IFP was denied. Furthermore, Wynn elected to proceed pro se rather than hiring another attorney or reaffirming his declaration of indigency. This issue is without merit.

¶ 33. Wynn filed, along with his appellate brief, a document entitled “Appeal from the Arbitration Committee.” The State moves to dismiss this attempted “appeal” and argues that no appeal will lie as no appeal has been perfected, and there is no record of any decision from which to appeal.

¶ 34. The record is not clear as to the facts giving rise to Wynn’s grievance. Wynn attached to his appellate brief a request for assistance, filed with the Mississippi Bar, in which he sought help obtaining a reimbursement of the retainer paid to Mr. Burdine. We can only assume that some sort of proceeding, civil in nature, was held in an attempt to resolve the fee dispute, the outcome of which was unsatisfactory to Wynn. As the record does not contain a final judgment from which an appeal may be taken to this Court, we find that Wynn’s attempted “Appeal from the Arbitration Committee” is not properly before this Court for consideration. Miss. Code Ann. § 11-51-3 (Rev.2002) (appeals may be taken to this Court “[fjrom any final judgement of a circuit .-or chancery court in a civil case.... ”).

¶ 35. Additionally, we note that the issues raised and the arguments contained in Wynn’s “Appeal from the Arbitration Committee,” namely, ineffective assistance and right to counsel on direct appeal, are virtually identical to the respective issues raised in his appellate brief, and thus pertain in no way to any dispute resolution proceeding. Having decided the substantive merits of every claim articulated by Wynn in this appeal, we decline to entertain this supplemental filing.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF COUNTS I AND II, SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF SIXTY YEARS ON' EACH COUNT AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH SENTENCES TO RUN CONSECUTIVELY, AND PAYMENT OF A $2,000,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.

      . The indictment also consisted of five additional counts charging Wynn with the following: counts three and four, sale of cocaine to Clinton on or about July 3, 2000; count five, possession of cocaine; count six, firearm possession by a convicted felon; and count seven, receiving stolen property. Following Wynn’s convictions on counts one and two, the remaining charges were nolle prossed.

      . Prior to trial, on August 3, 2005, the State filed a motion to amend the indictment to reflect Wynn's status as a second or subsequent offender of the Mississippi Uniform Controlled Substances Law pursuant to Mississippi Code Annotated section 41-29-147 (Rev.2005). However, no action was taken on the motion until the April 26, 2006 hearing.

      .Wynn had two prior convictions for possession of a controlled substance.

      . In his brief, Wynn states the issue as follows: "Whether the appeal counsel erred in failure to appeal direct appeal as of right.”


source: Caselaw Access Project

author: CHANDLER, J., for the Court:

license: Public Domain

text:
    Kirby JORDAN, Appellant v. BANCORPSOUTH BANK f/k/a Bank of Mississippi, Appellee.
    No. 2006-CP-01920-COA.
    Court of Appeals of Mississippi.
    Sept. 11, 2007.
    Kirby Jordan, Appellant, pro se.
    Bo Russell, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J., for the Court:

¶ 1. This appeal requires our determination of the statute of limitations applicable to a promissory note. We find that the six-year limitations period prescribed by Mississippi Code Annotated section 75-3-118(a) (Rev.2002) applies. Therefore, we affirm the judgment of the circuit court to that effect.

FACTS

¶2. On April 15, 2005, BancorpSouth Bank (BancorpSouth) filed suit against Kirby Jordan in the County Court of Lee County to recover funds due under a promissory note. BancorpSouth asserted that the unpaid funds due under the note amounted to $4,745.85. The note was signed by Jordan and dated September 7, 1999. In the note, Jordan promised to pay BancorpSouth the sum of $3,422.78 plus interest in installments of thirty-five dollars per month beginning on September 25, 1999. The note also contained a provision for Jordan to pay any reasonable attorney’s fees incurred by BancorpSouth in an effort to collect under the note.

¶ 3. Jordan, pro se, moved to dismiss the complaint on the basis of the expiration of the statute of limitations. Jordan alleged that the applicable statute of limitations was Mississippi Code Annotated section 15-1-49 (Rev.2003), which provides a three-year limitations period for all actions for which no limitations period is prescribed. He contended that the action was untimely because it was filed outside the three-year period. BancorpSouth argued that the action was timely because the applicable limitations period was six years as prescribed by section 75-3-118(a).

¶ 4. At a hearing, BancorpSouth indicated that Jordan had made one payment on the note. The parties stipulated that, if the statute of limitations defense failed, then BancorpSouth was entitled to a judgment in the amount evidenced by the note, minus the single payment, plus reasonable attorney’s fees. The county court held that section 75-3-118(a) applied to the action to collect under the promissory note and entered summary judgment for Ban-corpSouth in the amount of $3,387.78 with eight percent interest after October 25, 1999, attorney’s fees in the amount of $1,133.33, and court costs. Jordan appealed to the circuit court, which affirmed the judgment of the county court.

LAW AND ANALYSIS

I. WHAT STATUTE OF LIMITATIONS APPLIED TO THE ACTION TO ENFORCE THE PROMISSORY NOTE?

¶ 5. The lower court’s determination of the applicable statute of limitations presents a question of law; thus, it is reviewed de novo. Jackpot Miss. Riverboat Inc. v. Smith, 874 So.2d 959, 960(¶ 4) (Miss.2004). Jordan contends that section 75-3-118(a) is inapplicable to BancorpSouth’s action to enforce the promissory note and, therefore, the general three-year limitations period at section 15-1-49 applies. While the general three-year limitations period does apply to an action in the absence of a specific controlling statute of limitations, in this case we find that section 75-3-118(a) governs the action. Section 75-3-118(a) states, in pertinent part:

[A]n action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six (6) years after the due date or dates stated in the note or, if a due date is accelerated, within six (6) years after the accelerated due date.

Section 75-3-118(a) is contained within the Uniform Commercial Code — Negotiable Instruments. Miss.Code Ann. § 75-3-101 (Rev.2002).

¶ 6. Jordan argues that section 75-3-118(a) is inapplicable to the action because the promissory note was an instrument, not a “note payable.” This argument is without merit. We find that section 75-3-118(a) is applicable to a promissory note that is payable at a definite time and is otherwise subject to Title 75, Chapter 3. See Miss.Code Ann. 75-3-104 (Rev.2002) (containing the definition of “negotiable instrument”). In the courts below, it was undisputed that the promissory note was a negotiable instrument and, therefore, was subject to Title 75, Chapter 3. Section 75-3-103(a)(9) provides that a “promise” is a written undertaking to pay money signed by the person undertaking to pay. According to section 75-3-108(b), a promise is “ ‘payable at a definite time’ if it is payable ... at a fixed date or dates.... ” Section 75-3-104(e) states that an instrument is a note if it is a promise. Because a promise is a note under the Title 75, Chapter 3, the reference in section 75-3-118(a) to “a note payable at a definite time” is to a promise payable at a definite time, in other words, a promissory note. Section 75-3-118(a) contained the applicable statute of limitations of six years.

¶ 7. Jordan further argues that the cases of EB, Inc. v. Smith, 757 So.2d 1017 (Miss.App.2000), and Ezell v. Williams, 724 So.2d 396 (Miss.1998), stand for the proposition that section 15-1-49 applies to an action to enforce an obligation due under a promissory note. However, in those cases, the promissory notes at issue were made and came due prior to the effective date of section 75-3-118 on January 1, 1993. EB, Inc., 757 So.2d at 1019(¶ 2); Ezell, 724 So.2d at 397(¶ 2). Therefore, these cases are of no assistance to Jordan. The six-year limitations period in section 75-3-118(a) applied and BancorpSouth’s action was timely commenced. Therefore, we affirm the judgment of the circuit court.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR. BARNES, J., NOT PARTICIPATING.


author: LEE, P.J.,

text:
    Kendrix B. JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01783-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2007.

      David Fitzgerald Linzey, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On December 27, 2005, Kendrix Johnson was incarcerated in the Lincoln County jail. Ted Goleman, a retired law enforcement officer employed as the day shift jail supervisor, was informed that Johnson was kicking his cell door and yelling that he needed to speak with Goleman. As Goleman opened the cell door, Johnson charged Goleman and knocked him into the wall. Goleman attempted to spray Johnson with pepper spray but was unable to and dropped the canister. Johnson was able to grab the pepper spray and proceeded to spray Goleman and Anthony Newsome, an inmate trusty, in the face. Goleman also saw Johnson strike New-some on the head with the canister of pepper spray. Goleman and Newsome were able to extricate themselves from the cell. Goleman suffered a laceration on his forehead, numerous abrasions on his shoulder and back, and a sprained thumb.

¶ 2. On August 23, 2006, a jury in the Lincoln County Circuit Court found Johnson guilty of simple assault on a law enforcement officer. Johnson was sentenced to five years, with four years to serve in the custody of the Mississippi Department of Corrections and one year on post-release supervision. Johnson was also ordered to pay a $1,000 fine along with court costs and attorney’s fees.

¶ 3. Johnson filed a motion for a judgment notwithstanding the verdict or, in the alternative, a motion for a new trial. This motion was denied and Johnson filed his appeal asserting three issues: (1) the trial court erred in failing to grant a continuance; (2) a rebuttal witness should not have been allowed to testify; and (3) the evidence was insufficient to support the guilty verdict.

DISCUSSION

I. DID THE TRIAL COURT ERR IN FAILING TO GRANT A CONTINUANCE?

¶ 4. In his first issue on appeal, Johnson argues that the trial court should have granted him a continuance. On the morning of trial, Johnson asked the trial court to allow him to obtain alternate trial counsel and to subpoena more witnesses, more specifically his entire cell block. Although Johnson did not specifically request a continuance, the trial court decided to treat his request as such and denied this request.

¶ 5. To preserve this issue for appeal, Johnson was required to include the denial of the continuance in his motion for new trial. Pool v. State, 483 So.2d 331, 336 (Miss.1986). Johnson’s posttrial motion did not mention this denial. Because the issue was not properly preserved, and because the trial court did not have the opportunity to rule on this claimed error, this issue is not properly before this Court and is procedurally barred.

¶6. Notwithstanding the procedural prohibition, this claim fails on the merits. Trial judges have wide latitude in deciding whether to grant continuances and that decision is left to the sound discretion of the trial judge. McFadden v. State, 929 So.2d 365, 369(¶ 16) (Miss.Ct.App.2006). Denial of a continuance is not reversible unless manifest injustice appears to have resulted from the denial. Atterberry v. State, 667 So.2d 622, 631 (Miss.1995). Merely claiming that there might be other witnesses to support Johnson’s theory of the case is insufficient to amount to a manifest injustice. The trial judge’s refusal to grant a continuance here was not an abuse of discretion, nor is there any indication of manifest injustice resulting from the denial of a continuance. This issue is without merit.

II. DID THE TRIAL COURT ERR IN ALLOWING A REBUTTAL WITNESS TO TESTIFY?

¶ 7. In his second issue on appeal, Johnson argues that the trial court erred in allowing a rebuttal witness, Deputy Marshall London, to testify. Deputy London, who testified during the State’s casein-chief, was called back to the stand to state that prior to the altercation Johnson had not asked for medical treatment. Part of Johnson’s testimony was that earlier that day he had asked Deputy London for medical treatment in relation to a boil on his chest. The admission of rebuttal testimony rests within the discretion of the trial court. Wash v. State, 880 So.2d 1054, 1056(¶ 4) (Miss.Ct.App.2004). In Jackson v. State, 840 So.2d 739, 741(¶ 6) (Miss.Ct.App.2003), this Court reiterated the requirements of rebuttal testimony: (1) the testimony and its reception will not consume so much additional time as to give undue weight in practical probative force to the evidence so received; (2) the opposite party would be substantially able to meet the evidence by surrebuttal as if the testimony were offered in chief; and (3) the opposite party upon request is given the opportunity to reply by surrebuttal.

¶ 8. The third requirement was not requested and is not at issue in this case. The first requirement was properly met since the testimony of Deputy London consisted of less than half a page in the transcript of the trial. The second requirement was also properly met when Johnson had an opportunity to cross-examine Deputy London, but did not, and was given proper notification of his testimony prior to trial. For these reasons, we determine that the trial judge did not abuse his discretion in allowing Deputy London’s rebuttal testimony. This issue is without merit.

III. WAS THE EVIDENCE SUFFICIENT TO SUPPORT A GUILTY VERDICT?

¶ 9. In his final issue on appeal, Johnson argues that the evidence was insufficient to support the guilty verdict. Johnson claims that the State’s witnesses offered inconsistent and conflicting testimony, thus his motion for a directed verdict should have been granted. Motions for directed verdict challenge the legal sufficiency of the evidence presented at trial. Jefferson v. State, 818 So.2d 1099, 1111(¶ 30) (Miss.2002). In reviewing the sufficiency of the evidence, all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that could be reasonably drawn from the evidence. Bell v. State, 910 So.2d 640, 646(¶ 16) (Miss.Ct.App.2005). Furthermore, it is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Evans v. State, 725 So.2d 613, 680-81 (¶ 293) (Miss.1997).

¶ 10. Goleman and Newsome both testified as to what transpired in Johnson’s cell. Both men stated that Johnson attacked them when Goleman tried to enter his cell. Their versions were consistent and any inconsistencies were trivial enough for the jury to resolve them in favor of the State. We find that there was sufficient evidence for the jury to find Johnson guilty of simple assault on a law enforcement officer. This issue is without merit.

¶11. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCE OF FIVE YEARS, WITH FOUR YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND ONE YEAR OF POST-RELEASE SUPERVISION AND TO PAY A $1,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: BARNES, J.,

text:
    Donald RASPBERRY, Appellant v. CITY OF ABERDEEN, Appellee.
    No. 2006-KM-01508-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2007.
    Mose Lee Sudduth, Columbus, attorney for appellant.
    Robert H. Faulks, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. The Municipal Court of the City of Aberdeen convicted Donald Raspberry of three charges: driving under the influence (first offense), violation of an “open container” ordinance, and careless driving. Raspberry appealed his three convictions to the Circuit Court of Monroe County. That court dismissed and remanded his cases to the municipal court for enforcement of the sentence because Raspberry failed to appear in circuit court on the designated date. Raspberry filed a motion to restore his cases to the active docket of the Circuit Court of Monroe County. The motion was denied for lack of jurisdiction. Raspberry now appeals to this Court. We dismiss his appeal for lack of jurisdiction as well.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In March 2005, Raspberry was arrested and charged by an Aberdeen city policeman with driving under the influence (DUI) of an intoxicating substance, an open container violation, and careless driving. On September 14, 2005, the municipal court found Raspberry guilty of all three charges. Raspberry timely filed notices of appeal for the three charges in the Circuit Court of Monroe County on October 7, 2005. On this day Raspberry also signed three appearance bonds (one for each charge), with each bond stating “the said Donald Raspberry shall be and appear at the Circuit Court of Monroe County on the 7th day of November, 2005 9:00 A.M. and there remain ... until discharged .... ” According to the circuit clerk, Raspberry received copies of these appearance bonds. Three days later, on October 10, 2005, the circuit clerk issued three notifications of appeal scheduling the cases for hearing on November 7, 2005. The circuit clerk testified these notices were mailed to Raspberry’s attorney, per standard court procedure, and were never returned as undelivered.

¶ 3. On the morning of November 7, 2005, neither Raspberry nor his attorney was present when called in open court. The circuit court was advised that Raspberry had received notice of the November 7, 2005 appearance date. Therefore, the court dismissed his appeal and remanded the cases to the municipal court for enforcement of the sentence. Additionally, a writ of procedendo was ordered for the three cases, enforcing the judgment of the Aberdeen Municipal Court. The writ was issued and executed by the municipal judge on November 14, 2005.

¶ 4. The record indicates and defense counsel admits that neither Raspberry nor his attorney had any contact with the circuit court from October 2005 until March 14, 2006, when Raspberry’s counsel contacted the court and discovered the cases had been dismissed. That same day, Raspberry’s counsel filed a motion to restore the cases to the active docket of the circuit court. However, the motions to restore were filed after the conclusion of the November 2005 and February 2006 Monroe County Circuit Court terms.

¶ 5. A hearing on these motions occurred in circuit court on August 9, 2006. Raspberry’s counsel testified his reason for not appearing with his client in court on November 2005 was either lack of notice from the circuit clerk or an inability to find the notices in his file. He claimed he had been “basically waiting for notice” from the circuit clerk for the six months from October 2005 to March 2006. Raspberry’s counsel also attempted to take the blame for his client’s not appearing, testifying that the reason Raspberry did not appear was because he did not tell Raspberry to appear. Additionally, counsel stated that Raspberry did not receive copies of the appearance bonds he signed, and his client probably did not read those bonds when he signed them. At the hearing, the circuit judge questioned the circuit clerk about court procedures but failed to find any irregularities.

¶ 6. The circuit court declined to reinstate the appeal because the record supported Raspberry “had personal notice of the date he was supposed to appear in court, coupled with the notification that’s in the file.” Even though the circuit court expressed its preference for hearing the case on the merits, the court found it lacked jurisdiction to do so “after expiration of the term of court and after the cases have been returned to the Municipal Court for enforcement of its sentence.” The court also ordered the three cases to be consolidated for purposes of appeal. Subsequently, Raspberry filed a motion for judgment notwithstanding the verdict or, in the alternative a new trial, which was overruled. Raspberry then filed a notice of appeal to this Court.

STANDARD OF REVIEW

¶ 7. Whether a circuit court has jurisdiction to hear a particular matter is a question of law which is reviewed de novo. Edwards v. Booker, 796 So.2d 991, 994(¶ 9) (Miss.2001).

DISCUSSION

¶ 8. Raspberry raises one issue: whether the circuit court committed reversible error in overruling his motion to restore the cases to the active docket. For discussion purposes, we shall first discuss the jurisdictional issue and then address whether there was sufficient evidence to prove Raspberry had proper notice of the court date.

1. Jurisdiction.

119. The ultimate reason the Monroe County Circuit Court declined to reinstate Raspberry’s appeal was lack of jurisdiction. We find authority which states if “the motion to reinstate the appeal and the order thereon were both filed after expiration of-the term of court, neither the circuit court nor the Supreme Court has jurisdiction.” McDowell v. State, 251 Miss. 156, 161, 168 So.2d 658, 660 (Miss.1964); see also Sanders v. State, 259 So.2d 117, 117-18 (Miss.1972) (motion to dismiss appeal sustained for want of jurisdiction on unsworn motion to reinstate appeal after court term was concluded).

¶ 10. In our case, the circuit court dismissed the three cases on November 7, 2005, after Raspberry and his counsel did not appear for his court date. The circuit court remanded the case to the Municipal Court of Aberdeen for enforcement of its sentence and ordered a writ of proceden-do, directing the municipal court to proceed with its judgment as if the conviction had never been appealed. Raspberry filed his motion to restore the cases to the circuit court’s docket on March 14, 2006. Since this filing was after the conclusion of the November 2005 and February 2006 Monroe County circuit terms, the circuit court and this Court are without jurisdiction. Accordingly, we dismiss this appeal.

¶ 11. We will, however, discuss below whether there was sufficient notice of the court date, since Raspberry argues that because he did not receive proper notice, the circuit court retains jurisdiction of his appeal.

2. Evidence of Notice.

¶ 12. Raspberry argues that neither he nor his counsel had notice of the November 7, 2005 court date. Further, he claims the circuit court did not follow proper procedure in dismissing his appeal and issuing a writ of procedendo. Finally, Raspberry contends the circuit court did not affirmatively prove his name was called out three times in open court on the date of the hearing.

¶ 13. A right of appeal is granted following a conviction of a criminal offense by a municipal court “on appearance of the appellant in the circuit court.” Miss.Code Ann. § 99-35-1 (Rev.2007). An appellant must appear before the court “at the next term after such appeal is taken, to answer the charge against him_” Miss.Code Ann. § 99-35-3 (Rev.2007). The appeal is a trial de novo. URCCC 12.02(C); Miss. Code Ann. § 99-35-1 (Rev.2007). “If the defendant fails to appear at the time and place set by the court, the court may dismiss the appeal with prejudice and with costs.” URCCC 12.02(B); see also Hegwood v. State, 208 Miss. 517, 523, 44 So.2d 850, 851 (Miss.1950) (holding when defendant appeals from justice of peace court to circuit court and fails to appear, the circuit court may dismiss case, order writ of pro-cedendo and it is not necessary to inquire about validity of proceedings before dismissal).

¶ 14. At the hearing on the motion to restore the cases to the active docket, the circuit court made the following findings based on the record regarding notice of the court date. On October 7, 2005, Raspberry signed three appearance bonds after filing his notice of appeal. Each bond stated he was to appear in court November 7, 2005. According to the circuit clerk’s testimony, it is the customary practice of the circuit clerk to hand the appellant a copy of these bonds. The circuit clerk’s notifications of appeal, mailed October 10, 2005, contained the court date as well, and were addressed to defense counsel’s correct address. The clerk did not receive any returned mail. The circuit clerk thus testified that Raspberry had personal notice of the court date, as did his attorney, from the notifications in his file. After our review of the record, we conclude these findings were proper.

¶ 15. Raspberry argues that he did not receive proper notice and filed his motion to restore as soon as counsel discovered his case had been dismissed. His defense counsel maintains that his client did not receive a copy of the bonds from the circuit court at the time he signed them. Counsel also claims he never received notice of the court date. Thus, Raspberry contends the denial of his motion to restore was improper because his failure to file a timely objection was unintentional. He cites Kennard v. State, 240 Miss. 488, 127 So.2d 848 (Miss.1961) in support of his argument. Kennard held that because the appellant was not guilty of willful neglect or bad faith in inadvertently not appearing in court, and nevertheless promptly made a motion to reinstate his appeal while not prejudicing the State, the denial of his motion to reinstate was an abuse of discretion. Id. at 494, 127 So.2d 848. The case was reversed for a trial on the merits. Id.

¶ 16. While we agree, as stated in Ken-nard, that “[w]here there is a reasonable doubt as to whether or not a[ ] judgment should be vacated, the doubt should be resolved in favor of ... hearing the case on the merits,” in our case, we also agree with the circuit judge that her court did not retain jurisdiction to hear the case on the merits, as discussed above. Id. at 493, 127 So.2d 848 (quoting Manning v. Lovett Motor Co., 228 Miss. 191, 195, 87 So.2d 494, 496 (Miss.1956)). Further, we do not agree with Raspberry’s contention that he was improperly noticed and thus jurisdiction remained with the circuit court. The record contains substantial evidence of proper notice provided by the circuit clerk. Importantly, not just one, but two court terms passed before Raspberry’s counsel contacted the circuit court and filed his motion to reinstate, and it was six months since Raspberry’s convictions in municipal court. Further, Raspberry himself could have looked at the appearance bonds and noted the date when he executed them.

¶ 17. Raspberry also makes the argument that the circuit court was in error for not affirmatively proving his name was called three times in open court, as the circuit court’s November 7, 2005 order merely stated “Raspberry having been called in open Court and not appearing.” While it is well-settled that before a writ of procedendo is issued, “the appellant be called and given an opportunity to defend,” (see Pool v. State, 176 Miss. 514, 516, 169 So. 886, 887 (Miss.1936) (citing Wilson v. Town of Handsboro, 96 Miss. 376, 377, 50 So. 982, 982 (Miss.1909)) Raspberry does not provide any authority stating it is mandatory to call the appellant’s name three times in open court. We find sufficient evidence in the record that Raspberry was given the opportunity to defend on November 7, 2005, and he did not appear. Therefore, this issue is without merit.

¶ 18. THE APPEAL FROM THE CIRCUIT COURT OF MONROE COUNTY IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . 1985 Miss. Laws, chapter 502 (court terms for the Circuit Court of Monroe County are the third Monday in February, the third Monday in June, the second Monday in September, and the first Monday in November, each term lasting twelve days).


text:
    Edwin Glenn SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01370-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2007.
    Edwin Glenn Smith, Appellant, pro se.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Edwin Glenn Smith challenged his 1979 convictions of kidnaping, armed robbery and aggravated assault by way of a motion for post-conviction relief. The circuit court found that Smith’s post-conviction relief petition was time-barred as it was brought almost twenty-two years after the court’s entry of corrected sentencing orders and that none of the statutory exceptions applied. We find that the trial court was correct in finding the petition time-barred, and further we find that Smith’s petition is not properly before the Court as he has long since completed his Mississippi sentences. Therefore, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. On August 24, 1979, Edwin Glenn Smith pled guilty in three cause numbers: 16,787 kidnaping; 16,788 armed robbery; and 16,789 aggravated assault. Orders were entered sentencing him to serve ten years, twelve years and five years, respectively, in the custody of the Mississippi Department of Corrections with the sentences to run concurrently. On October 15, 1984, in response to a writ of habeas corpus, the sentence in cause number 16,-787 was vacated, and Smith was sentenced to six years with credit for time served. Also on that date, an order was entered sentencing Smith to six years in cause number 16,788.

¶ 8. Approximately one week later, on October 23, 1984, the court on its own motion recognized the order of October 15 in cause number 16,787 to be incorrect, having been “entered in error with the wrong cause number” and thereby set the order aside and held the original sentence to remain in full force and effect. A second order of October 23, 1984, explained that, as to cause number 16,788, the order of October 15 should have reflected that the previous sentence of twelve years was vacated and that Smith was being re-sentenced to serve six years.

¶ 4. On December 18, 1984, upon the motion of the State, the court corrected the sentencing order in cause number 16,787 to reflect that twelve years were originally imposed for the kidnaping. By further order of December 18, 1984, the circuit court corrected the original sentencing order in cause number 16,788 to reflect that ten years had been originally imposed for the armed robbery.

¶ 5. On June 2, 2006, Smith filed a motion to vacate his convictions on jurisdictional grounds which the circuit court treated as a post-conviction relief petition. Smith’s argument is that neither he, nor his attorney, was present when the court amended or set aside the orders which had reflected only six year sentences. He claims that the court “lacked jurisdiction to re-sentence Smith again because the sentence had been completed” and requested that “the sentence and convictions ... be vacated in their entirety.”

¶ 6. Smith is currently incarcerated in an Alabama State Correctional Facility.

ANALYSIS

¶ 7. In reviewing a trial court’s decision to deny a petition for post-conviction relief, this Court will not reverse such a denial absent a finding that the trial court’s decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 566(¶ 8) (Miss.1999). However, where questions of law are raised, the standard of review is de novo. Rice v. State, 910 So.2d 1163, 1164-65(¶ 4) (Miss.Ct.App.2005). The trial court’s obligation is to review the original motion and all files, records, transcriptions and correspondence relating to the judgment under attack so that the allegations may be resolved upon the merits. Miss. Code Ann. § 99-39-11(1) (Rev.2007). The burden is upon Smith to prove by a preponderance of the evidence that he is entitled to the requested post-conviction relief. See Miss.Code Ann. § 99-39-23(7) (Rev. 2007).

¶ 8. The first reason that the lower court’s decision should be affirmed is because Smith has served his Mississippi sentences. In order to file a motion for post-conviction relief the applicant must be a “[p]risoner in custody under sentence of a court of record of the State of Mississippi ...” Miss.Code Ann. § 99-39-5(1) (Rev. 2007). Smith was sentenced in August 1979 to concurrent terms of imprisonment which totaled twelve years. There is nothing in the record to reflect any circumstance under which Smith might still be incarcerated on these charges. Smith’s motion for post-conviction relief stated that “the sentence had been completed.” In his brief to this Court, he states that he discovered the trial court’s re-sentencing “[a]fter [he] had been discharged from the Miss. Department of Corrections.” This Court has previously held that “our post-conviction relief statutes are available only to those serving a sentence for the crime for which they were convicted by a Mississippi court of record.” Rice, 910 So.2d at 1166(¶ 10) (quoting Phillips v. State, 856 So.2d 568, 570(¶ 5) (Miss.Ct.App.2003)). Smith has failed the threshold requirement for seeking post-conviction relief as he is no longer a prisoner in custody under of a sentence from a Mississippi court. It is obvious to this Court that Smith, incarcerated in the State of Alabama, is attempting to have his former Mississippi convictions vacated so that they may not be used to enhance his Alabama sentence. Our post-conviction relief statutes may not be used in this manner.

¶ 9. The second reason this post-conviction petition must fail is that it is time-barred and fits into none of the exceptions to the time bar. The Uniform Post-Conviction Collateral Relief Act provides that motions for post-conviction relief from guilty pleas shall be made within three years after the entry of judgment of conviction or the motion will be time-barred. Miss.Code Ann. § 99-39-5(2) (Rev.2007); Bevill v. State, 669 So.2d 14, 17 (Miss.1996). A defendant, however, may survive this time bar if his claim falls within one of the statutory exceptions. Bevill, 669 So.2d at 17. These exceptions include (1) cases where the Supreme Court of Mississippi or the United States has rendered an intervening decision that would actually adversely affect the outcome of the conviction or sentence, (2) cases where the defendant presents evidence, not reasonably discoverable at the time of trial, that would have been practically conclusive at trial to cause a different result in the conviction or sentence, and (3) cases where the defendant’s sentence has expired, or his probation, parole or conditional release has been unlawfully revoked. Miss.Code Ann. § 99-39-5(2). Smith has brought forward none of the exceptions to the time-bar. His petition was filed some twenty-two years after the entry of corrected sentencing orders. Therefore, we uphold the decision of the trial court which found that the petition was time-barred.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: ROBERTS, J.,

text:
    John W. BOOZE a/k/a John Booze, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01004-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2007.

      Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. A jury sitting before the Madison County Circuit Court found John Booze guilty of aggravated assault. The circuit court sentenced Booze to twenty years with fifteen years to serve and five years of post-release supervision. Aggrieved, Booze appeals and claims: (1) the circuit court erred when it amended the indictment after the jury was empaneled, (2) the trial court erred when it denied a lesser-included instruction on simple assault, (3) the evidence was insufficient as a matter of law to convict on aggravated assault, and (4) the conviction was against the weight of evidence. We find that the circuit court erred when it declined to instruct the jury on the lesser-included offense of simple assault. As such, we reverse and remand this matter for a new trial.

FACTS

¶ 2. On July 15, 2005, John Booze and his girlfriend, Santanya Riley, walked to the Community Store in Canton, Mississippi. By chance, they encountered Joe Luckett. Riley and Luckett were once involved in a relationship. As will be shown, recollections varied at trial, but there is no doubt that Booze and Luckett got into a fight. At some point, Riley injected herself into the fray and struck Luckett in the head with several beer bottles.

¶3. The Madison County Grand Jury returned an indictment against Booze and charged him with aggravated assault in violation of Mississippi Code Annotated Section 97-3-7(2). Booze pled not guilty and proceeded to trial on March 30, 2006.

¶4. The prosecution called four people who testified as to their recollection of the altercation. According to Luckett, Booze walked up to him and, without provocation, spontaneously punched him in the face. Luckett testified that, shortly after the fight ensued, Riley hit him in the head with a beer bottle. When Reverend William Thornton tried to break up the fight, Riley hit Luckett with a second bottle. Luckett testified that Booze slammed him to the ground, held him in place, and instructed Riley to kill Luckett while she continuously hit him with beer bottles. Lastly, Luckett stated that Booze held him down, grabbed a broken bottle, and tried to stab him in the face.

¶ 5. Reverend Thornton, the owner of the store, testified that Luckett purchased beer and left. A few minutes later, he heard some commotion and argument outside the store. When he went outside, he saw Booze and Luckett arguing and “bulldogging.” He tried to break up the fight, but Booze and Luckett pushed him aside. When Booze and Luckett appeared to be cooling down, Riley came from behind him and struck Luckett with a beer bottle. However, on cross-examination, Reverend Thornton testified that, at one point, Luck-ett had Booze in a headlock and, at that moment, Riley hit Luckett with the bottle.

¶ 6. After Riley struck Luckett with a bottle, Reverend Thornton went back inside his store and called the police. As for whether Booze told Riley to hit Luckett with a bottle, Reverend Thornton testified that he never heard Booze call for help or otherwise instruct Riley to hit Luckett. In Reverend Thornton’s words, “[Booze] had too much heat on him. He couldn’t say nothing.”

¶ 7. Dante Luckett, the owner of a restaurant located next to Thornton’s store, testified that he was less than fifteen feet from the altercation. According to Dante, he saw Luckett and Booze fighting and “a girl came up and just hit this one fellow with a bottle twice.” He stated that he saw most of the fight but did not see anyone fall to the ground. Additionally, he said he did not see Booze hold Luckett down. Likewise, he did not hear Booze say anything to Riley or otherwise ask her for help.

¶ 8. Cohisa Myers testified that she was inside Reverend Thornton’s store when she heard a bottle break. She went outside to see what was happening. According to Myers, she saw Luckett and Booze fighting. At some point Luckett was on the ground “for a minute.” By her recollection, Riley “came out of nowhere, and she was picking up bottles and hitting [Luckett] upside the head with it.” However, she testified that she never heard Booze instruct Riley to hit Luckett. Additionally, she stated that Luckett and Booze continued fighting after Riley hit Luckett.

¶ 9. Booze took the stand and testified in his own defense. According to Booze, he and Riley were walking to the store when he stopped to talk to a relative. Riley continued on to the store. When he arrived at the store, he saw Luckett with his left hand around Riley’s neck. Booze testified that Luckett choked Riley as he held a beer bottle in his right hand. Booze told Luckett to let Riley go. When Luckett refused to let go, Booze stated that he punched Luckett. In response, Luckett hit Booze with the bottle in his right hand. At that point, they grappled with one another and fell to the ground.

¶ 10. By Booze’s description, he and Luckett traded punches and, out of nowhere, Riley intervened on her own and hit Luckett with a bottle. However, even after Riley intervened, he and Luckett continued to fight and throw punches. According to Booze, he never used a weapon and he did not know Riley was going to attack Luckett with a beer bottle. Booze further testified that he did not encourage Riley to hit Luckett with a beer bottle. Specifically, during direct examination, Booze testified as follows:

Q: What if any instruction did you give Santanya Riley before she struck Joe Luckett with the beer bottle?
A. None at all, sir. I had no idea she was fixing to do what she did. I didn’t give her none. I was too busy tying [sic] to defend myself.
Q. What if anything did you see her do before she struck Joe Luckett with the beer bottle?
A. Nothing.
Q. Did you see her?
A. I really didn’t see her, period, because I was too busy. His cousin was there. I thought both of them was really going to jump on me. So I was too busy trying to watch both of them. I had really practically have forgotten that she was even there.
Q. What if anything did you do during this time period to restrain or hold Joe Luckett so that Santanya Riley could strike him with the beer bottles?
A. Really, I couldn’t hold him, ‘cause he was getting out on me, you know. He was whipping me, to tell the truth.

¶ 11. As mentioned, the jury found Booze guilty of aggravated assault. Following unsuccessful post-trial motions for JNOV or, alternatively, for a new trial, Booze appeals.

ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED WHEN IT DECLINED TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT.

¶ 12. Booze submitted a simple assault instruction and claimed he was entitled to the lesser-included offense instruction. The circuit court declined to instruct the jury that it could convict Booze for simple assault. Booze argues that by not including the lesser charge of simple assault in the jury instructions, the trial court committed reversible error. This argument is based on the assumption that Booze did not introduce a deadly weapon into the confrontation, and was not an accessory; therefore, the trial court should have given a jury instruction on the lesser-included offense of simple assault. The State contends that the trial court was correct to deny the simple assault instruction because the evidence could not support a reasonable juror finding Booze guilty of the lesser offense. We disagree. As such, we reverse and remand for a new trial.

¶ 13. A trial court should refuse a proposed lesser-included instruction when the evidence presented “could only justify a conviction of the principal charge.” Jones v. State, 798 So.2d 1241 (¶ 38) (Miss.2001). That is, a trial court should not grant a lesser-included offense instruction if “no reasonable jury could find the defendant guilty of the lesser-include-offense, and ultimately not guilty of at least one element of the principal charge.” Odom v. State, 767 So.2d 242(¶ 11) (Miss.Ct.App.2000).

¶ 14. In considering whether a proposed jury instruction is supported by the evidence presented, “we must consider all of the evidence in the light most favorable to the party requesting the instruction. ... That party must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Jones, 798 So.2d at (¶ 420). A trial court considering a proposed instruction “should err on the side of inclusion rather than exclusion.” Id. at (¶ 38). Finally, proposed instructions should be given so long as they are not repetitious, are correct statements of the law, and are supported by the evidence. Id.

¶ 15. In order to prove the crime of simple assault the State is required to show the defendant “attempt[ed] to cause or purposely, knowingly or recklessly cause[d] bodily injury to another.” Miss. Code Ann. § 97 — 3—7(l)(a) (Rev.2006). In contrast, to prove aggravated assault the State must show the defendant “attempt[ed] to cause or purposely or knowingly cause[d] bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.” Miss.Code Ann. § 97-3-7(2)(b). Viewing the testimony in a light most favorable to Booze, and drawing all reasonable inferences in favor of Booze, it is clear that, given the option, reasonable jurors could find Booze guilty of simple assault and not guilty of aggravated assault.

¶ 16. The amended indictment that charged Booze read, in pertinent part, as follows:

JOHN W. BOOZE ... on or about the 15th day of July, 2005, in the county aforesaid and within the jurisdiction of this court, did purposely, knowingly and feloniously cause or attempt to cause bodily injury to Joe M. Luckett, by holding Joe M. Luckett down while another person hit Joe M. Luckett with five unopened beer bottles, in Madison County, Mississippi, in violation of Mississippi Code Annotated § 97-3-7(2), (1972), as amended, against the peace and dignity of the State of Mississippi.

By removing the word “serious” from the indictment the State proceeded to trial on the sole theory that Booze was guilty of aggravated assault by the fact that he aided and assisted Riley in her commission of an aggravated assault. Stated differently, the State’s only theory of Booze’s guilt was that Booze was an accomplice to Riley’s aggravated assault. This theory of guilt is burdened by the necessity to prove two factors. First, the State must have shown, and the jury must have determined, that the bottles used by Riley were “deadly weapons.” Secondly, the State must have proven, to the satisfaction of the jury, that Booze was an accomplice of Riley.

¶ 17. That the indictment did not allege a simple assault is of no moment. A jury may convict a defendant of an “inferior offense ... necessarily included within the more serious offense” charged in the indictment. Odom v. State, 767 So.2d 242(¶ 11) (Miss.Ct.App.2000). Simple assault is such an “inferior offense” to the crime of aggravated assault. Id. at (¶ 13). If the jury decided against the State on either of the factors above the jury could have reasonably found Booze guilty of simple assault for two logical reasons. First, Booze admitted during his testimony that he started the fight by punching Luckett in the face. Since this punch did not cause serious bodily injury, this alone would be sufficient to sustain a charge of simple assault. Secondly, if the jury determined that Booze did act as an accomplice with Riley, but found the bottles used not to be deadly weapons, Booze could have been found guilty of simple assault under the theory of accomplice liability. Stated differently, if the jury concluded that Riley had committed a simple assault on Luckett because the beer bottles were not “deadly weapons,” but that Booze aided, encouraged, or assisted Riley in that simple assault, then Booze was likewise guilty of simple assault. Anyone who aids, incites, participates, or abets another to commit a crime is guilty as a principal. Collins v. City of Hazlehurst, 709 So.2d 408(¶ 25) (Miss.1997).

¶ 18. Jackson v. State, 594 So.2d 20, 24 (Miss.1992) seems to support a contention that even if the jury found Booze did not introduce the bottle into the fight, they could still find him guilty of aggravated assault as even bare hands may constitute a deadly weapon if the jury determines them to be a “means likely to produce serious bodily injury.” While it is certainly true that an attack with bare hands and closed fists is sufficient to sustain a charge for aggravated assault, such an issue is a matter for a jury to decide and is “to be resolved according to the circumstances of each case.” Jackson, 594 So.2d at 23; see also Reynolds v. State, 776 So.2d 698, 700 (Miss.Ct.App.2000) (holding that whether the use of a telephone could constitute a deadly weapon if used with means or force likely to produce death involves a question of fact to be decided by the jury in light of the evidence); Pulliam v. State, 298 So.2d 711, 713 (Miss.1974). More importantly, Booze was not charged with aggravated assault in causing bodily injury with a “deadly weapon,” i.e., his fists.

19. One could contend that Booze’s alleged act of attempting to stab Luckett with a broken beer bottle removed his actions from that of a simple assault to aggravated assault. However, this view of the evidence is not in a light most favorable to Booze. While Luckett did testify that Booze tried to stab him, no other witness corroborated this version of events. Booze testified that he did not have a weapon at any time during the altercation. Additionally, no other witness, other than the victim Luckett, testified that he or she saw Booze use a weapon of any kind. More importantly, Booze was not charged with aggravated assault by cutting Luckett with a broken beer bottle.

¶ 20. Finally, one could argue that even if the jury were to determine that Booze’s pugilistic attack alone did not constitute the use of a deadly weapon likely to produce serious bodily harm and, further, did not believe Luckett’s testimony that Booze attempted to stab him, the jury could still find him guilty of aggravated assault as an accomplice with Riley in her attack of Luckett.

To be convicted as an accessory the defendant must possess the mens rea for the commission of the crime. The precise state of mind of the defendant has great significance in determining the degree of his guilt. An accomplice may be convicted of accomplice liability only for those crimes as to which he personally has the requisite mental state.

Welch v. State, 566 So.2d 680, 684 (Miss.1990). True enough, Luckett claimed that Booze instructed Riley to kill him. However, Booze denied this and other witnesses present testified that Booze made no such request. While it is the jury who decides upon the credibility of witnesses, when reviewing whether a lesser-included offense instruction should have been given, this Court must view all evidence in a light most favorable to the defendant.

¶ 21. As to whether Booze’s accomplice status and the necessary accompanying intent is evident from the fact that Riley intervened in the fight while Booze fought Luckett, all eyewitness testimony except Luckett’s indicated that Booze had no knowledge of Riley’s intent to assault Luckett with the bottles. Accordingly, viewing the evidence in a light most favorable to Booze, the only point in time that raises an inference of Booze’s intent to sustain a charge of aggravated assault as an accomplice to Riley, is when Booze continued to fight Luckett after Riley’s initial attack. However, an equally reasonable interpretation of the facts is that Booze had no choice but to continue fighting. Booze stated that Luckett continued to press his attack after being hit by Riley.

¶ 22. Myers corroborated this when she testified that, after Luckett was struck by the bottle, he and Booze kept fighting. In a situation such as this, where Booze started the fight with Luckett with no intention to use a beer bottle as a weapon, and Riley interjected herself in the altercation without request from Booze, it is not unreasonable for a jury to conclude that the intent required to sustain a charge of aggravated assault was not shown by the fact that Booze continued to fight. Accordingly, the circuit court erred when it did not grant the lesser-included offense instruction. As such, we reverse and remand this matter for a new trial.

¶ 23. Booze raised three other issues. However, based on our resolution of this issue, Booze’s other issues become moot. Consequently, there is no need to address them.

¶ 24. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ„ CONCUR.


author: STUART, Justice. MURDOCK, Justice

text:
    Anthony ROBINSON v. ALABAMA CENTRAL CREDIT UNION.
    1051327.
    Supreme Court of Alabama.
    March 23, 2007.

      Cinda R. York of Campbell, Waller & Poer, LLC, Birmingham, for appellant.
    James N. Nolan and Kary Bryant Wolfe of Walston, Wells & Birchall, LLP, Birmingham, for appellee.
   STUART, Justice.

Anthony Robinson appeals the summary judgment entered by the Jefferson Circuit Court in favor of his former employer, Alabama Central Credit Union (“ACCU”), on his age-discrimination claim brought pursuant to the Alabama Age Discrimination and Employment Act, § 25-1-20 et seq., Ala.Code 1975 (“the AADEA”). We affirm.

I.

On February 15, 2000, Robinson was hired by ACCU for the position of “Vice President for Marketing and Business Development.” Robinson was interviewed and selected for the position by Ron Haas, president and chief executive officer of ACCU; Haas would also serve as Robinson’s direct supervisor during Robinson’s tenure with the company. At the time of his hiring, Robinson was 48 years old.

Robinson’s performance evaluations for the years he was employed by ACCU were generally satisfactory; however, they did note that there was room for improvement in some areas. Nevertheless, Robinson received merit pay raises and bonuses during this time.

In early 2004, ACCU hired an outside consultant, Glen Blickenstaff of Human Strategies, Inc., to advise management on issues related to employee development, performance management, and strategic planning. Blickenstaff worked with the ACCU senior management team, which included Robinson, to develop a comprehensive business plan and to improve the business’s efficiency. This process ultimately resulted in Haas’s decision, made sometime in the late summer of 2004, to restructure the senior management team. First, the position of vice president of operations was eliminated; in its place two regional vice-president positions were created. Joe Kiser, the then senior vice president, was also promoted to the newly created position of executive vice president and chief operating officer.

In approximately late September 2004, after consultation with Kiser and Blicken-staff, Haas decided to terminate Robinson’s employment and to eliminate the position of marketing vice president on the senior management team. On October 4, 2004, Haas met with Robinson and terminated Robinson’s employment with ACCU. Robinson was 52 years old at the time. On October 18, 2004, ACCU announced that Jennifer Denholm, who was 25 years old at the time, had been promoted to the newly created position of “Marketing and Business Development Coordinator.”

On March 25, 2005, Robinson sued ACCU in the Jefferson Circuit Court alleging that the termination of his employment was an unlawful act of age discrimination prohibited by the AADEA. ACCU filed an answer denying the substance of Robinson’s claim and, on March 2, 2006, moved for a summary judgment. Robinson responded and, on March 27, 2006, the trial court granted ACCU’s motion and entered a judgment in its favor. Robinson moved the trial court to alter, amend, or vacate its judgment pursuant to Rule 59(e), Ala. R. Civ. P.; however, the trial court denied that motion. Robinson appealed.

II.

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

Additionally, we note that this Court has not yet considered the burden of proof applicable to an AADEA claim. However, federal courts considering the issue have noted that the purpose and prohibitions of the AADEA are similar to those of the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and concluded that ADEA principles should therefore govern in AADEA eases as well. See, e.g., Bonham v. Regions Mortgage, Inc., 129 F.Supp.2d 1315, 1321 (M.D.Ala.2001); see also § 25-1-29, Ala.Code 1975 (expressly adopting as part of the AADEA the remedies, defenses, and statutes of limitations applicable to the ADEA). Accordingly, the federal courts have applied to AADEA claims the same evidentiary framework applied to federal age-discrimination claims. We agree that this framework, which was articulated by the Supreme Court of the United States in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), is the proper means by which to review an AADEA claim. The eviden-tiary framework was summarized as follows in Dooley v. AutoNation USA Corp., 218 F.Supp.2d 1270, 1278 (N.D.Ala.2002):

“ ‘First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.’
“Burdine, 450 U.S. at 252-53, 101 S.Ct. 1089 (citations omitted). At all times, plaintiff bears the burden of persuasion on the ultimate question of whether the defendant acted with an unlawful motive. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the plaintiff does not proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer’s articulated reasons is pretextual, the employer is entitled to judgment as a matter of law on the plaintiffs claim. See Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997).”

Thus, in reviewing the summary judgment in favor of ACCU, we must determine whether Robinson established a prima fa-cie case of age discrimination and, if so, whether ACCU articulated a legitimate, nondiscriminatory reason for discharging Robinson and, if so, whether Robinson then presented substantial evidence to create a genuine issue of material fact as to whether ACCU’s proffered reason for his discharge is pretextual.

III.

ACCU, in its motion for a summary judgment, argued both that Robinson failed to establish a prima facie case and that, even if he did establish a prima facie case, he failed to establish that ACCU’s stated reason for his discharge was pretex-tual. In granting the motion, the trial court based its decision on the second argument, stating:

“Assuming [Robinson’s] evidence is sufficient to create an issue of material fact that precludes summary judgment as to [Robinson’s] prima facie case, [ACCU] nevertheless articulated legitimate, nondiscriminatory reasons to justify [Robinson’s] termination, which [were] not related to age and which [were] not rebutted by substantial evidence by [Robinson].”

We agree. Even assuming, for the sake of argument, that Robinson did establish a prima facie case of age discrimination, we affirm the judgment of the trial court because ACCU has articulated a legitimate reason for Robinson’s discharge, which he has failed to prove was pretextual.

ACCU has stated its reason for terminating Robinson’s employment as follows:

“[Robinson’s employment] was terminated as part of a restructuring in the Fall of 2003. After carefully analyzing [Robinson’s] position, the functions [Robinson] was performing and how he was performing those functions, Ron Haas determined that it would be beneficial to the Credit Union to outsource many of [Robinson’s] primary functions and have a lower-grade marketing person to merely coordinate and assist the outside agency to perform those functions. [Robinson’s] position was eliminated and to date, has not been reinstated.”

Robinson does not dispute that, if true, this would qualify as a legitimate, nondiscriminatory reason. The burden, therefore, shifted to him to produce evidence indicating that ACCU’s stated reason for discharging him is pretextual.

Robinson first argues that over time ACCU has changed the reason it has given for terminating his employment and that its doing so accordingly presents a genuine issue of material fact as to the truthfulness of that reason. This Court has previously held that a judgment as a matter of law is inappropriate when evidence exists indicating that an employer has given contradictory reasons for an employee’s discharge. See, e.g., Flint Construction Co. v. Hall, 904 So.2d 236, 252 (Ala.2004), a retaliatory-discharge case in which this Court held that “a [judgment as a matter of law] is not appropriate where, as here, the employer subsequently contradicts the reason it initially gave for the discharge, thereby at least implicitly disavowing it or by such action acknowledging its pretextual status.” In his brief to this Court, Robinson states this argument as follows:

“To establish pretext, the Court need look no farther than the inconsistent and contradictory reasons given for [Robinson’s] termination. Since [Robinson’s] termination, defendant has offered a variety of different reasons:
“(1) October 5, 2004 — Denying that Robinson ‘had done anything to cause [his] termination ... and that this wasn’t about Tony. Simply the credit union is going in a new direction.’
“(2) October 27, 2005 — ‘[Robinson] was terminated as part of a restructuring in the Fall of 2003.’
“(1) December 21, 2005 — ‘The primary reason was cost; and then of course we had some performance issues as well.’ “(4) March 2, 2006 — ‘Ron Haas was displeased with Robinson’s lack of initiative and the extensive and expensive] use of outside vendors.’
“Based on these direct quotations alone, [ACCU] cannot decide whether it fired [Robinson] because of restructuring, performance problems, or some combination of both. Because [ACCU] cannot itself provide a consistent explanation for its actions, whatever reason it currently gives is unworthy of credence and thus substantial evidence of pretext.”

(Citations to record omitted.)

We cannot agree that these reasons are “inconsistent and contradictory.” To the contrary, the evidence cited by Robinson appears to be entirely consistent with ACCU’s stated reason for terminating Robinson’s employment — that, after reviewing his job duties and performance, it was decided “that it would be beneficial to the Credit Union to outsource many of [Robinson’s] primary functions and have a lower-grade marketing person to merely coordinate and assist the outside agency to perform those functions.”

It is instructive to compare the facts in this case with those in Flint. In Flint, the employee was initially told that his employment was being terminated because of a lack of available work. However, the employer subsequently admitted that there was, in fact, no such lack of work and stated that its real reason for discharging the employee was that he had too many absences and was gambling in casinos when he was supposed to be working or undergoing medical treatment. Accordingly, this Court concluded that the employer was not entitled to a judgment as a matter of law because the employer itself had acknowledged the pretextual status of the initial reason given for the employee’s discharge. However, ACCU, unlike the employer in Flint, has never disavowed a reason it has given for terminating Robinson’s employment. ACCU has consistently maintained that the decision to terminate Robinson’s employment was a business decision made as part of a restructuring process. That Robinson’s performance was considered in the context of making that decision in no way indicates that that reason is anything other than legitimate. Robinson is not entitled to relief on this basis.

Robinson next argues that there is a genuine issue of material fact as to the truthfulness of the reason given by ACCU for the termination of his employment because, he claims, the facts in the record do hot support that reason. Robinson notes that ACCU has claimed it eliminated his position so that it could outsource more of its marketing work; however, he notes, ACCU has simultaneously claimed that management was displeased with him for that very reason — because he outsourced too much of the marketing work. Thus, he concludes, that reason must be pretextual.

Again, we cannot agree with Robinson’s conclusion that this evidence is inconsistent. As Haas testified in his deposition, “[Robinson] was outsourcing everything. So after we looked at it; we said, well, look, you know, we’d be better off [if his employment was terminated]. Everything’s already outsourced.” Or, as ACCU stated the issue in its brief: “[T]he efficiencies and cost-savings which ACCU anticipated when it created the VP position and hired Robinson were not being realized.” Thus, the fact that Robinson was criticized for doing too much outsourcing does not cast aspersions on the legitimacy of ACCU’s decision to terminate his employment and to do more outsourcing. It appears that ACCU simply decided that it did not need to pay a vice president to coordinate outsourcing when a lower-grade employee could do the same.

Robinson also argues that there is no credible evidence indicating that his performance was in any way deficient, stating: “The only evidence that [ACCU] has produced concerning Robinson’s poor performance is Haas’s testimony, which is contradicted by Haas’s own evaluation of Robinson’s performance.” See Wascura v. City of South Miami, 257 F.3d 1238, 1245 (11th Cir.2001) (“[T]he lack of complaints or disciplinary reports in an employee’s personnel file may support a finding of pretext....”). However, the record does not support Robinson’s argument. Although it is true that Robinson’s evaluations were generally laudatory and that he received merit-based bonuses and pay increases, those same evaluations provide some support for the criticism voiced by Haas after Robinson’s employment was terminated. For example, his February 14, 2003, performance evaluation included the following critiques:

“I encourage you to be more timely meeting with branches and lenders on all promotions.”
“Tony does a great job carrying through on projects assigned to him. But, you need to reach another level.”
“Tony must seek out new responsibilities and take on more risk and challenges that lie outside your responsibility.”
“You should not be afraid of applying more creative solutions to marketing programs. As explained, one major goal of the credit union upon your employment was to reduce outside resources .... The credit union incurred considerable expense in the purchase [of] special computer equipment to meet your needs. This equipment must be better utilized.”
“Tony should take a stronger leadership role in management team situations.”
“Tony’s presentations have always been good. But often, I need to encourage you to do more.”

Robinson’s April 1, 2004, performance evaluation likewise contained the following statements:

“Tony does a satisfactory job but at times he has a tendency to assume all details will be handled without his follow up. Tony can be counted on to get most tasks done, but not necessarily to go the EXTRA MILE and push beyond the limits of your instruction.”
(Capitalization in original.)
“Tony has other interests beyond ACCU. These interests can be mutually beneficial to our organization if they are communicated and planned well in advance. This has created difficulty in the past and must be addressed early this year to avoid a breakdown in communication.”
“[Initiative] continues to be Tony’s weak area. He does a great job in following through with assigned or specific tasks. The credit union must tap his ability to perform employee and director development. Tony must achieve a higher level. It is essential for Tony to step forward and demonstrate much more initiative in assisting in employee training and business development.”

These statements not only refute Robinson’s claim that there was no evidence outside Haas’s deposition testimony indicating that his performance was deficient, but also buttress the reason given by ACCU for terminating his employment. As early as February 14, 2003, Robinson was told that one of the reasons he was hired was to reduce the credit union’s dependence on outside contractors. Yet the evidence indicates that ACCU’s expenses for outside contractors in fact increased during Robinson’s tenure as vice president for marketing. Robinson has not presented substantial evidence to create a genuine issue of material fact as to whether ACCU’s proffered reason for his discharge is pretextual; therefore, the summary judgment entered in favor of ACCU was appropriate.

IV.

ACCU moved for a summary judgment on Robinson’s AADEA claim, arguing both that Robinson failed to establish a prima facie case of age discrimination and that he failed to rebut ACCU’s proffered legitimate reason for his discharge. We need not consider whether Robinson established a prima facie case, however, because he has not put forth substantial evidence that would allow a reasonable fact-finder to conclude that ACCU’s stated reason for terminating his employment was pretextual. Accordingly, ACCU was entitled to a judgment as a matter of law, and the summary judgment was proper.

AFFIRMED.

SEE, BOLIN, and PARKER, JJ., concur.

COBB, C.J., and LYONS, WOODALL, SMITH, and MURDOCK, JJ., concur in the result.

MURDOCK, Justice

(concurring in the result).

I question whether the varying explanations given by ACCU for terminating Robinson’s employment do not create a genuine issue of fact as to whether any one of those explanations is pretextual. I concur in the result, however, because Robinson has failed to present substantial evidence that he was replaced in his position by Jennifer Denholm, as opposed to his position being eliminated, with Denholm and others dividing the responsibilities previously assigned to Robinson’s position.

LYONS, J., concurs.

      . Robinson and ACCU dispute whether, in fact, Jennifer Denholm replaced Robinson after his employment was terminated; however, it is undisputed that she was paid less than half of Robinson’s $65,000 salary.


author: PER CURIAM. COBB, Chief Justice

text:
    Ex parte Paula Denise SHIVELY. (In re Paula Denise Shively v. CRR Hospitality, LLC, et al.)
    1060337.
    Supreme Court of Alabama.
    March 30, 2007.
    Patrick J. Ballard, Birmingham, for petitioner.
    Submitted on petitioner’s brief only.
   PER CURIAM.

WRIT DENIED. NO OPINION.

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

COBB, C.J., dissents.

MURDOCK, J., recuses himself.

COBB, Chief Justice

(dissenting).

I respectfully dissent from the denial of this petition for the writ of certiorari. To the extent this Court’s denial rests upon a strict application of the particularity and specificity requirements of Rule 39(a)(1)(D), Ala. RApp. P., I believe that such an application should defer to the policy set out in Rule 1 for applying the Alabama Rules of Appellate Procedure:

“These rules shall not be construed to extend or limit the jurisdiction of these appellate courts as established by constitution or law. They shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits.”

(Emphasis added.)

Based upon my review of Paula Denise Shively’s petition, I conclude that Shively adequately asserted that a conflict exists between the no-opinion affirmance issued by the Court of Civil Appeals in her case and that court’s opinion in City of Auburn v. Brown, 638 So.2d 1339 (Ala.Civ.App.1993). I believe that Shively’s assertion of a conflict sufficiently raised for review the issue whether in affirming the trial court’s judgment, the Court of Civil Appeals disregarded the treating physician’s testimony concerning the origin and extent of Shively’s injuries. I believe that if Shively’s position that the Court of Civil Appeals did ignore the treating physician’s testimony is supported by the record, her position would have merit; therefore, I would have granted the petition for a review of the record on that basis.