author: GRIFFIS, J.,

text:
    Gary Dewayne ALLEN a/k/a Gary Wayne Allen, Appellant, v. STATE of Mississippi, Appellee.
    No. 2004-KA-00906-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.
    Rehearing Denied April 10, 2007.

      Thomas M. Matthews, Jr., Thomas M. Matthews, III, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Gary Dewayne Allen was convicted of sexual battery and sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections. On appeal, Allen claims that the statute of limitations bars his prosecution. We disagree and affirm.

FACTS

¶ 2. In November of 2002, Michael Miles was a guest in Allen’s home. While there, Miles looked around for a videotape to watch. Miles discovered a videotape that depicted Amanda, Allen’s stepdaughter, performing oral sex on Allen. The tape was turned over to the George County Sheriffs Department several days later. On December 4, 2002, a warrant was issued for Allen’s arrest.

¶ 3. On July 1, 2003, Allen was indicted for sexual battery in violation of Section 97-3-95(2) of the Mississippi Code Annotated (Rev.2000). The original indictment charged:

That Gary Wayne Allen in George County, Mississippi, during the year 2002, did willfully, purposely, unlawfully and felo-niously commit Sexual Battery upon a child who was at the time in question 14 years of age or more, but less than 18 years of age, to wit: [Amanda], 16 years of age, by engaging in the act of sexual penetration, while in a position of authority, to-wit: stepfather, by placing the penis of Gary Wayne Allen in the mouth of [Amanda], contrary to the form of the statute in such cases and provided, and against the peace and dignity of the State of Mississippi.

¶ 4. Allen filed a “Demurrer or in the Alternative Motion to Dismiss.” This pleading, in part, alleged that the language in the indictment, which read “during the year 2002,” was not specific enough to allow Allen to properly defend the charges against him. On February 13, 2004, the circuit judge entered an order denying in part and granting in part the motion to dismiss. The circuit judge denied the motion and found that “[o]nly bare allegations as to the necessity of more specific allegations have been made by the Defendant. Dates alleged by indictments are subject to amendments in criminal matters.... Being subject to amendment, the motion to dismiss is denied.” However, the circuit judge granted the motion as to the charge of unlawful photographing or filming of another because it was barred by the statute of limitations. Miss.Code Ann. § 99-1-5 (Rev.2000).

¶ 5. On March 29, 2004, the circuit judge entered an order amending the indictment. The order, which states it was an ore tenus motion by the State and was agreed to as to form by Allen, amended the indictment to change the date of the alleged criminal acts. Thus, the language in the original indictment that charged the offenses occurred in “the year 2002” was amended to read that the criminal acts allegedly occurred “between July 31, 2000 and November 1, 2000.”

¶ 6. After the jury was sworn, Allen’s counsel made a motion to dismiss on the ground that the amended indictment was barred by the statute of limitations. Simply stated, Allen’s counsel argued that because the criminal act occurred last on November 1, 2000, and the prosecution began with the issuance of a warrant on December 4, 2002, the two year statute of limitations under Mississippi Code Annotated Section 99-1-5 barred the prosecution of the sexual battery charge against Allen.

¶ 7. During the hearing on the motion, the State offered testimony of the victim that this conduct continued to occur, every other weekend and more often during the summer months, until shortly before Allen’s arrest. The State argued and the trial court agreed to classify the offense as a continuing course of conduct. Alternatively, the State alleged that the statute was tolled because Amanda was “scared she would be taken away from her mother.” The circuit judge determined that the statute was unclear and agreed with the State, and the court denied the motion.

¶ 8. At the conclusion of the trial, the jury returned a verdict of guilty. The circuit judge denied Allen’s post-trial motions.

ANALYSIS

¶ 9. Allen argues that the statute of limitations, Mississippi Code Annotated Section 99-1-5, expired prior to the indictment and barred his prosecution. Our review centers on the interpretation of Section 99-1-5, as it existed on the date of the alleged offense, i.e. “between July 31, 2000 and November 1, 2000.”

¶ 10. In 2000, on the date of the alleged offense, the statute of limitations for criminal acts in Section 99-1-5 (Rev.2000) provided:

A person shall not be prosecuted for any offense, with the exception of murder, manslaughter, aggravated assault, kidnaping, arson, burglary, forgery, counterfeiting, robbery, larceny, rape, embezzlement, obtaining money or property under false pretenses or by fraud, felonious abuse or battery of a child as described in Section 97-5-39, touching or handling a child for lustful purposes as described in Section 97-5-23, sexual battery of a child as described in Section 97-3-95(c) or exploitation of children as described in Section 97-5-33, unless the prosecution for such offense be commenced within two (2) years next after the commission thereof, but nothing contained in this section shall bar any prosecution against any person who shall abscond or flee from justice, or shall absent himself from this state or out of the jurisdiction of the court, or so conduct himself that he cannot be found by the officers of the law, or that process cannot be served upon him.
Any prosecutions for felonious abuse or battery of a child as described in Section 97-5-39, touching or handling a child for lustful purposes as described in Section 97-5-23, sexual battery of a child as described in Section 97 — 3—95(c), or exploitation of children as described in Section 97-5-33, shall be commenced on or before the child’s twenty-first birthday.

(emphasis added).

¶ 11. Allen argues that the statute of limitations expired before he was charged with a crime. Allen begins with the amended indictment, which alleged that the crime occurred “between July 31, 2000 and November 1, 2000.” He then argues that the prosecution began on December 4, 2002, with the issuance of a warrant. Thus, he claims that the prosecution began more than two years after the date of the crime. He concludes that since he was charged with sexual battery, under Mississippi Code Annotated Section 97-3-95(2) (Rev.2000), then he was not charged with a crime that was specifically excluded from the statute of limitations in Section 99-1-5.

¶ 12. The State counters with two arguments. First, the State alleged that Allen engaged in a continuing course of conduct of sexual abuse against Amanda that did not terminate until shortly before his arrest. Second, the State argued that the statute of limitations should be tolled by concealment by one in parental authority over the child. The parties’ briefs to this Court centered on these two issues.

¶ 13. During oral argument, this Court questioned the statutory exclusion contained in Section 99-1-5 that referred to the offense of “sexual battery of a child as described in Section 97-3-95(c).” A simple review and comparison of Section 99-1-5 and Section 97-3-95, effective in 2000, reveal that Section 97-3-95 did not have a subparagraph (c).

¶ 14. In 2000, Section 97-3-95 read:

(1) A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person;
(c) A child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child; or
(d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.
(2) A person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child’s teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

Allen was charged under 97-3-95(2), which is also referred to as sexual battery by a person in a position of trust.

¶ 15. In 2000, the use of the language “sexual battery of a child as described in Section 97-3-95(c)” in Section 99-1-5 caused an ambiguity in what conduct was excluded from the operation of the statute of limitations. “It is a well recognized principle of law in this State that ambiguity must exist in the language used by the Legislature in a statute before resort will be had to any rules of statutory construetion or interpretation.” Forman v. Carter, 269 So.2d 865, 868 (Miss.1972). Here, such an ambiguity clearly exists. We must attempt to discern the meaning of this language as applicable in 2000.

¶ 16. While it is not determinative, we note that this would not be a dilemma today. In 2003 and 2004, the Legislature amended Section 99-1-5 to exclude “sexual battery of a child as described in Section 97 — 3—95(l)(c), (d) or (2).” Miss.Code Ann. § 99-1-5 (Supp.2006). Nevertheless, we must attempt to understand and interpret what the legislature excepted from the two year statute of limitations when it enacted Section 97-3-95.

¶ 17. The history of Section 97-3-95 indicates that the Legislature enacted the present statutory structure in 1993. Prior to that legislative amendment, Section 97-3-95 read:

A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person; or
(c) A child under the age of fourteen (14) years.

Considering this history, we are left with the clear sense that Section 99-1-5 and Section 97-3-95 were consistent prior to the 1993 legislative amendment. There is no doubt that Section 99-1-5 excluded from the statute of limitations the crime under Section 97 — 3—95(c), i.e. sexual battery with a child under the age of fourteen years.

¶ 18. Here, Amanda was born on November 30, 1986. The amended indictment alleges that the offense occurred “between July 31, 2000 and November 1, 2000.” Thus, at the time of the alleged offense, Amanda was younger than fourteen years of age. Therefore, we interpret Section 97-3-95 to exclude from the operation of the statute of limitations the crime of sexual battery that was allegedly committed against Amanda.

¶ 19. After oral argument, this Court invited the parties to provide supplemental briefing concerning the statutory interpretation of sexual battery of a child as described in Mississippi Code Annotated Section “97-3-95(c)” and the application of the time limitations on prosecution of Mississippi Code Annotated Section 99-1-5. The Court also asked the parties to discuss whether this Court may consider the interpretation of Section 99-1-5 if this issue was not raised and considered by the trial court. Both parties submitted supplemental briefs.

¶ 20. Allen responded by quoting extensively from the case State v. Traylor, 100 Miss. 544, 56 So. 521 (1911). We find the following language persuasive:

The court cannot create a law. Its sole power is to enforce the statute as written by the legislature. The court has no right to add anything to or take anything from a statute, where the meaning of the statute is clear. It is only in cases where the statute is ambiguous that any rule for the determination or construction of statutes can be resorted to. The word “such” is not a synonym of the word “other.” It is difficult to conceive of where the words can be used interchangeably.
We know of no rule of law which will justify the court in convicting a person of any crime, unless the offense comes under the letter of the statute. The law is that criminal statutes must be strictly construed. Such has been the law from time immemorial.

Traylor, 100 Miss. at 558-59, 56 So. at 522-23. However, we do not see our interpretation as the creation of law. Clearly, there was an ambiguity in the statute due to the fact that language in one statute, Section 99-1-5, was left unchanged when another statute, Section 97-3-95, was amended. The amendments to Section 97-3-95 did not change the fact that Allen was guilty of the same elements of the former crime previously contained in Section 97 — 3—95(c), sexual battery of a child under the age of fourteen.

¶ 21. Allen’s other argument is that. appellate courts have “consistently held that errors raised for the first time on appeal will not be considered, especially where constitutional questions are concerned.” Stockstill v. State, 854 So.2d 1017, 1023 (Miss.2003) (quoting Ellis v. Ellis, 651 So.2d 1068 (Miss.1995)). Indeed, this is a correct statement of the law. However, the State does not seek that we consider this issue for the first time on appeal. The question for our review is whether the trial court’s decision was in error. Thus, we look to Puckett v. Stuckey, 633 So.2d 978, 980,(Miss.1993), where the supreme court held:

While the circuit court erroneously hinged its decision on due process rights, we are not restricted to the court’s rationale or its reasons for the result it reached. On appeal, we will affirm a decision of the circuit court where the right result is reached even though we may disagree with the reason for that result. Stewart v. Walls, 534 So.2d 1033, 1035 (Miss.1988).

¶ 22. Therefore, we find that the trial court’s rationale for its decision may not have been the most persuasive. We find that it was not reversible error. Accordingly, based on our interpretation of Section 99-1-5, we conclude that the trial court • correctly decided that the charge against Allen was not barred by the statute of limitations.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF GEORGE COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. SOUTHWICK, JJ., NOT PARTICIPATING.

      . To protect her identity, we do not use her real name but refer to Allen's stepdaughter as "Amanda” in this opinion.

      . The Mississippi Code Annotated also contains the following "Historical and Statutory Notes:”
      At its May 16, 2002 meeting, pursuant to its authority under Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation ratified the correction of a typographical error in both paragraphs of the section. The words “Section 97-3-95(c)” were changed to "Section 97 — 3—95(1)(c) or (d)” in both paragraphs.
      The 2003 amendment deleted the second undesignated paragraph which provided "Any prosecutions for felonious abuse or battery of a child as described in Section 97-5-39, touching or handling a child for lustful purposes as described in Section 97-3-23, sexual battery of a child as described in Section 97-3-95(l)(c) or (d) or exploitation of children as described in Section 97-5-33, shall be commenced on or before the child’s twenty-first birthday”.
      The 2004 amendment substituted "97-3-95(l)(c), (d) or (2)” for "97 — 3—95(l)(c) or (d)”.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Earnestine RUSSELL, Individually and On Behalf of the Wrongful Death Beneficiaries of Dennis E. Wilson, Deceased; and George Jean Hayes, Individually and on Behalf of the Wrongful Death Beneficiaries of Mario Hayes, Deceased, Appellants, v. FORD MOTOR COMPANY, Appellee.
    No. 2005-CA-01299-COA.
    Court of Appeals of Mississippi.
    Oct. 17, 2006.
    Rehearing Denied April 17, 2007.

      Sara Bailey Russo, Deborah McDonald, David M. Read, Clarksdale, attorneys for appellants.
    J. Stephen Kennedy, Bradley S. Clan-ton, Walker (Bill) Jones, Barry W. Ford, Jackson, attorneys for appellee.
    Before LEE, P.J., CHANDLER, and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On February 24, 2002, Dennis Wilson and Mario Hayes were killed in a car accident on County Road 168 near Louin, Mississippi. Wilson lost control of his ve-hide, and the vehicle struck a tree after running off the road. The airbags in Wilson’s 1996 Ford Taurus did not deploy. A post-accident inspection revealed that the Taurus had no driver’s side airbag and the passenger’s side airbag was electronically detached and inoperable.

¶ 2. The Taurus had been previously owned by Carolyn Chestnutt, who bought the vehicle new on October 3, 1996. On March 17, 1997, Chestnutt rear-ended another vehicle, and both airbags properly deployed. In a deposition she testified that she did not have the airbags reinstalled. Instead she stuffed the driver’s side airbag back into the steering wheel and taped it with duct tape. Chestnutt also stuffed the passenger’s side airbag back into its compartment and clamped the cover back onto the dash. Chestnutt testified that the airbag warning light stayed illuminated after the wreck for the four remaining years she owned the vehicle. After falling behind on her payments under her bankruptcy plan, Chestnutt voluntarily relinquished ownership of the Taurus in February of 2001 to Ford Motor Credit Company (FMCC), which had financed the purchase of the vehicle.

¶ 3. FMCC took possession of the Taurus and then turned it over to Ford Motor Company (Ford) for sale at the Mississippi Auto Auction (Auction). FMCC did not perform or direct anyone to perform any work or repairs on the subject vehicle. Any repairs that would have been performed on the Taurus would have been determined by Ford’s area manager, Sherman Henderson. Henderson decided what repairs would be performed on each Ford vehicle that came through the Auction, in addition to approving the sale of vehicles during the auction process. Henderson based his decision on the condition reports prepared by Auction inspectors and on his own inspection of the car. If he found something worthy of repair, then he ordered the Auction to perform the work. The condition report prepared for the Taurus contained a legible notation stating “airbags deployed.” Henderson did not make the determination about whether to repair the Taurus. The Auction decided not to make any repairs to the Taurus. It was merely washed, vacuumed, and given three dollars worth of gasoline. FMCC was charged for the inspection, cleanup, and addition of gas to the vehicle.

¶ 4. Willie Overby, owner of Easy Ride Auto Sales, purchased the Taurus from the Auction on March 12, 2001. The auctioneer mentioned that the vehicle had frame damage and “airbag deployed” was written on the windshield of the vehicle. The bill of sale also contained notations about the frame damage and the deployment of the airbags. A sticky residue was still on the steering wheel from the duct tape Chest-nutt had used. Overby then sold the vehicle to Wilson on June 2, 2001.

¶ 5. On December 30, 2002, Earnestine Russell (Russell), individually and on behalf of the wrongful death beneficiaries of Wilson, filed suit in the Circuit Court of the Second Judicial District of Jasper County against Ford and Overby. George Jean Hayes (Hayes), individually and on behalf of the wrongful death beneficiaries of Mario Hayes, filed suit on the same day against Ford, Overby, and the estate of Wilson.

¶ 6. In their complaints Russell and Hayes asserted claims of strict liability, negligence, negligent misrepresentation, breach of implied warranties and gross negligence against Ford and Overby. The plaintiffs sought to hold Ford liable only for its conduct prior to the sale of the car. The complaints alleged that Ford should be held strictly liable for its defective design of the Taurus’s steering system, for not putting anti-lock brakes on the vehicle, and for not equipping the vehicle with a warning system to alert drivers to malfunctions in the airbag safety system. The complaints also alleged that Ford negligently designed and manufactured the vehicle and negligently misrepresented to the decedents that the vehicle was equipped with properly functioning airbag, braking, and steering systems. The breach of implied warranties and gross negligence claims were merely variations of the foregoing claims.

¶ 7. The two lawsuits were eventually consolidated. On March 31, 2004, Hayes filed an amended complaint adding FMCC as a defendant. On April 2, 2004, Russell also amended her complaint to add FMCC as a defendant. Russell and Hayes asserted claims of strict liability, negligence, negligent misrepresentation, breach of implied warranties, and gross negligence against FMCC for failing to properly inspect and repair the Taurus and for failing to adequately warn about the defects of the vehicle. The trial court granted the motions.

¶ 8. On February 4, 2005, Ford filed a motion for summary judgment. The trial court granted the motion for summary judgment and dismissed Ford from the case with prejudice on June 2, 2005. The trial court found that the plaintiffs’ claims against Ford only related to the vehicle at the time it was sold in 1996, not to the sale of the vehicle at the Auction. The court ruled that the plaintiffs, in opposing the motion, relied solely upon the allegations in their complaints and put forth no proof or sworn testimony in their response to Ford’s motion for summary judgment showing that the airbag warning system was defective. The court also held that the plaintiffs faded to bring forward any evidence during discovery demonstrating that the vehicle’s steering system or brakes were defective when the vehicle left Ford’s control.

¶ 9. However, on February 25, 2005, the day after the statutory period expired, the plaintiffs filed a motion for leave of court to amend their complaints to conform to the evidence. The plaintiffs were attempting to add new negligence claims against Ford for its role in the sale of the vehicle at the Auction. They asserted in their motions that Ford was negligent in failing to adequately inspect and repair the Taurus. They also contended that Ford failed to adequately warn the buying public about the inoperative airbags. The plaintiffs also sought to amend the claims in their complaint against FMCC, but the allegations in the motion regarding FMCC were virtually identical to those in their first amended complaints.

¶ 10. On July 22, 2005, the trial court entered an order granting the plaintiffs’ motions with respect to FMCC, but denying them with respect to Ford. The court found the new claim against Ford to be time-barred by the three-year statute of limitations. Miss.Code Ann. § 15-1-49 (Rev.2003). Moreover, the court held that this new claim the plaintiffs desired to assert against Ford did not arise out of the same “conduct, transaction or occurrence” set forth in the plaintiffs’ first amended complaints. See M.R.C.P. 15(c). The court reasoned as follows:

[T]he claims in the current amended complaints against Ford only concern the alleged condition of the subject Taurus at the time it originally left Ford’s control and was sold in October of 1996. On the other hand, the proposed second amended complaint seeks to hold Ford liable for negligence as to the treatment and sale of the subject Taurus at the Auction in June of 2001.... The facts underlying these events are in no way common, thus the new claims in the proposed second amended complaints present a unique and entirely different factual situation as to Ford than the current amended complaints.

¶ 11. The plaintiffs only appealed the trial court’s granting of Ford’s summary judgment motion. They did not appeal the trial court’s partial denial of their motions for leave to amend. However, they seek appellate review of this order and argue that the lower court abused its discretion in partially denying their motions for leave to amend. Accordingly we will address both assignments of error: (1) whether the trial court erred in granting Ford’s motion for summary judgment, and (2) whether the trial court erred in partially denying the plaintiffs’ motions for leave to amend.

DISCUSSION

I. DID THE TRIAL COURT ERR IN GRANTING FORD’S MOTION FOR SUMMARY JUDGMENT?

¶ 12. In reviewing a lower court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., 716 So.2d 543, 547(13) (Miss.1998). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). We will consider all of the evidence before the lower court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). The entry of summary judgment is mandated if the non-movant “fails to make a showing sufficient to establish an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987).

¶ 13. Russell argues in her brief that the trial court erred in granting Ford’s motion for summary judgment, but her argument is based on the evidence revealed during discovery of the negligence of Ford’s area manager, Henderson, in connection with the sale of the vehicle at the Auction. The trial court granted summary judgment in favor of Ford on the product liability claims Russell asserted against Ford in the amended complaints. Russell was denied leave by the trial court to amend the complaints and add these separate negligence claims against Ford. Russell’s sole argument on appeal discusses Ford’s negligence in failing to train Henderson properly, failing to inspect the Taurus properly at the auction facility, and failing to ensure the safekeeping of the Taurus at the auction facility. Since the trial court did not allow Russell to amend the complaint, the particular issues postulated in the proposed amended complaint were not substantively before the court. In the absence of meaningful argument or citation of authority, this Court generally will not consider the assignment of error. Brown v. Houston Sch. Dist., 704 So.2d 1325, 1327(¶ 12) (Miss.1997). Russell has waived this issue for appellate purposes.

¶ 14. Even considering this issue alternatively on the merits, we find it to be without merit. Russell has failed to bring forth any evidence or sworn testimony demonstrating that the airbag safety system, the steering system or brakes on the 1996 Taurus were defective in any respect. In fact, Russell’s own airbag expert tested the airbag warning system after the accident and found that it functioned properly. Establishing that one of these components was defective when it left Ford’s control in 1996 is an essential element of every one of Russell’s claims against Ford. Because Russell has failed to make a sufficient showing on this material fact the granting of summary judgment was appropriate.

II. DID THE TRIAL COURT ERR IN PARTIALLY DENYING RUSSELL’S MOTIONS FOR LEAVE TO AMEND?

¶ 15. We first note that Ford argues that Russell’s failure to file a notice of appeal of the trial court’s partial denial of their motions for leave to amend precludes appellate review of this issue. However, the denial of a motion by a trial court may be implied by the entry of a final judgment. Harrison v. B.F. Goodrich Co., 881 So.2d 288, 293(¶ 21) (Miss.Ct.App.2004). The trial court’s granting of Ford’s motion for summary judgment was a final judgment since it dismissed Ford from the case. The dismissal of Ford from the case was in effect a denial of the plaintiffs’ motion for leave to amend with respect to the negligence claims against Ford which Russell sought to add to the complaints. The trial court even mentioned in its order granting Ford’s motion for summary judgment that the negligence claims against Ford for its role in the sale of the vehicle at the Auction were barred by the three-year statute of limitations. Therefore, we will address this issue.

¶ 16. The standard of review for motions of leave to amend is abuse of discretion. Bracey v. Sullivan, 899 So.2d 210, 212(8) (Miss.Ct.App.2005). The trial court did not abuse its discretion in partially denying the motions for leave to amend based on the fact that the statutory period expired the day before the motions were filed. The amended complaints Russell was proposing would have been filed after the statutory period expired and, consequently, would have been time-barred.

¶ 17. The trial court also did not abuse its discretion in holding that Russell’s proposed amendments did not qualify under Rule 15(c) of the Mississippi Rules of Civil Procedure. Rule 15(c) states that “[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” M.R.C.P. 15(c). In other words, an amendment relates back to the time of the filing of the original pleading and suspends the running of the statute of limitations against the amendment, so long as the amendment does not create a new cause of action. Bracey, 899 So.2d at 213(¶ 12). The claims asserted in the amended pleading and the original pleading must arise out of “the same nucleus of common facts.” Kiddy v. Lipscomb, 628 So.2d 1355, 1357 (Miss.1993). Moreover, “ ‘[t]he standard for determining whether amendments qualify under Rule 15(c) is not simply an identity of transaction test; although not expressly mentioned in the rule, the courts also inquire into whether the opposing party has been put on notice regarding the claim or defense raised by the amended pleading.’” Parker v. Miss. Game & Fish Comm’n, 555 So.2d 725, 731 (Miss.1989) (quoting Wright & Miller, Federal Practice and Procedure: Civil § 1497 at 495 (1971)).

¶ 18. Russell’s proposed amendments fail the “identity of transaction test.” The “conduct, transaction or occurrence” that gave rise to Russell’s original claims against Ford was the designing and manufacturing of the 1996 Taurus, as well as the representations Ford made to the general public regarding the quality and safety of the vehicle. On the other hand, the “conduct, transaction or occurrence” that forms the basis of Russell’s proposed amendments was the failure of Ford’s area manager, Henderson, to inspect and repair the vehicle, as well as his failure to adequately warn the buying public about the inoperable airbags. These events are completely separate and distinct and, therefore, give rise to separate and distinct causes of action. Because the proposed amendments do not relate back to their original complaint we will not discuss whether Ford was put on notice regarding these separate negligence claims.

¶ 19. Russell had ample time to amend the complaints before the statutory period expired. Henderson’s deposition was taken on October 7, 2004, almost five months before the three-year statute of limitations ran on February 24, 2005. Russell was then aware that they had a potential claim against Ford for negligently failing to inspect and repair the vehicle, as well as for failing to adequately warn purchasers of the inoperable airbag safety system. Yet Russell waited until the day after the statutory period expired to file their motion for leave to amend their complaints and add these separate negligence claims.

¶ 20. For the reasons set forth above, this Court finds that the Jasper County Circuit Court did not err in granting summary judgment to Ford and did not abuse its discretion in partially denying the plaintiffs’ motions for leave to amend. Therefore, we affirm.

¶ 21. THE JUDGMENT OF THE JASPER COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.

      . FMCC received the money from the sale because it still owned the vehicle.

      . The motions are dated February 24, 2005, but they are stamped as having been filed on February 25, 2005.

      . The suit against FMCC is still pending in Jasper County Circuit Court.

      . Hayes did not submit a brief, but joined in Russell’s brief pursuant to Rule 28(i) of the Mississippi Rules of Appellate Procedure.


author: MYERS, P.J.,

text:
    The ARRECHEA FAMILY TRUST, John F. Arrechea and Lois M. Arrechea, Co-Trustees, David M. Reed and Katherine A. Reed, Appellants v. John Palmer ADAMS, Appellee.
    No. 2005-CA-01118-COA.
    Court of Appeals of Mississippi.
    Oct. 24, 2006.
    Rehearing Denied April 24, 2007.

      David A. Burns, attorney for appellants.
    Thomas J. Suszek, Stephan L. McDavid, Jonathan Masters, Clarksdale, attorneys for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. The Chancery Court of Lafayette County awarded John Palmer Adams a prescriptive easement across the property of the Arrechea Family Trust (Trust) for ingress and egress to the property he purchased from the Estate of Johnnie Jackson. The Trust, aggrieved by this judgment, appeals, raising several issues. We find no error in the judgment of the chancellor and affirm the lower court’s grant of Adams’ motion for summary judgment.

FACTS

¶ 2. This case commenced upon John Palmer Adams’ filing of a petition for easement naming the Arrechea Family Trust and David and Katherine Reed (Trust) as parties. By way of a warranty deed executed on March 31, 2004, Adams acquired his landlocked property, the dominant estate, from the Estate of Johnnie Jackson, which Johnnie Jackson initially purchased on June 9, 1959. In his petition, Adams asserted that for at least thirty years Jackson continuously used for ingress and egress a fifteen foot wide easement, running north to south, over the servient property presently owned by the Trust. The current record title owner of the ser-vient estate, the Trust, received the property by virtue of a quitclaim deed executed on October 5, 1996, and recorded shortly thereafter on October 18, 1996. Prior to the Trust’s ownership of the property, John and Lois Arrechea owned the ser-vient estate since January 5,1992. Earlier record title ownership was held by Lambert and Dorothy Hill from October 17, 1973 until January 5, 1992. The record also reflects that both the dominant and servient parcels of land were carved and derived from the same tract of land, Original City of Oxford Lot Number 601.

¶ 3. Adams contends that while his predecessor, Jackson, held title to the dominant estate, he accessed the public street, University Avenue, by crossing the Trust’s servient estate from 1959 until Jackson’s death in 1999. Adams further contends that for more than three decades, Jackson traversed this property under claim of ownership, with actual possession, openly and notoriously, continuously and uninterrupted, which far exceeds the statutory requirement of ten years. Miss.Code Ann. § 15-1-13 (Rev.2003). However, the Trust contended that Jackson had used the easement by permission and consent of the Hills from 1973 and the Arrecheas since 1992.

¶ 4. The chancellor granted Adam’s motion for summary judgment, finding that upon review of the pleadings, taken together with numerous affidavits, plats, photographs and other evidence, there existed no genuine issue of material fact disputing whether a prescriptive easement existed across the Trust real property to the landlocked property of Adams. Jackson had fulfilled the ten year requirement for prescription from 1959 through 1969. Therefore, although the Trust presented evidence regarding consent to the use of the driveway in the years of 1973 and 1992, this consent was inconsequential to the easement already vested with Jackson pri- or to these years.

¶ 5. Finding that the lower court did not err, we affirm the grant of summary judgment and find that a prescriptive easement exists over the servient property of the Trust and Adams is entitled to a judgment as a matter of law.

STANDARD OF REVIEW

¶ 6. This Court’s standard of review for a grant or denial of a motion for summary judgment is well-established:

Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court’s grant or denial of a summary judgment and examines all the evidentiary matters before it— admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000).

DISCUSSION

¶ 7. There exists three methods of creating easements: by prescription, by implication, or by grant. Simcox v. Hunt, 874 So.2d 1010, 1017(¶ 32) (Miss.Ct.App.2004). An easement may be acquired by ten years possession, just as may a fee simple title. Rutland v. Stewart, 630 So.2d 996, 999 (Miss.1994). A prescriptive easement is created when there has been ten years of use that is (1) open, notorious, and visible; (2) hostile; (3) under a claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted. Myers v. Blair, 611 So.2d 969, 971 (Miss.1992). Each of these aforementioned elements are discussed below. Consent for use of property from the record title owner will make the use permissive and not adverse, as required for a prescriptive easement. Id.

(1) Open, notorious and visible

¶ 8. Neither Adams nor his predecessor in title, Jackson, attempted to hide the use of the driveway as a means of ingress and egress to the property. Jackson used the easement from 1959 until his death in 1999, and most importantly between the years of 1959 and 1969 without consent from the record title owner. Several affidavits attested that the owners of the servient property, including the Arre-cheas’ predecessors in title, the Hills, were aware of Jackson’s open and visible use of the drive. Additionally, an excerpt from the Minute Book of the City of Oxford confirms the city’s recognition of the easement to both the Hills and Jackson for access to University Avenue, therefore establishing that Jackson’s use was notorious. The evidence shows that Jackson’s use was sufficiently open, notorious and visible.

(2) Hostile

¶ 9. “[U]se by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription since adverse [or hostile] use is lacking.” Myers v. Blair, 611 So.2d 969, 971 (Miss.1992). The Trust claims that there is no proof that Adams’ or Jackson’s use of the driveway was adverse or hostile to the Trust’s predecessor in title. Adams maintains that neither he nor his predecessor, Jackson, requested permission from the Trust or their predecessors in title. Case law mandates that Adams is not required to prove the negative: that his predecessor, Jackson, was not given permission to use the easement, but that the Trust was to prove that Jackson was given permission for use. Morris v. W.R. Fairchild Const. Co., 792 So.2d 282, 284(¶ 9)(Miss.Ct.App.2001). The Trust was unable to prove that consent was given to Jackson during the years between 1959 and 1969. No evidence was presented that demonstrated that Jackson or Adams made a request for permission to use the easement for ingress and egress to the property during the applicable periods of time for prescription. Hostility is further evinced by proof that an antiquated chain-link fence is positioned between the dominant and servient estates crossing the easement.

¶ 10. “Where ... a use of the lands of another for roadway purposes has been open, visible, continuous, and unmolested since some point in time anterior to the memory of the aged inhabitants of the community, such use will be presumed to have originated adversely.’” McCain v. Turnage, 238 Miss. 44, 117 So.2d 454, 455 (1960). Reviewing the record, we find that the Trust offered no evidence which would rebut this presumption that the easement was created hostilely. The parties do not dispute any material fact concerning a request for permission for use of the property during the significant period of time, 1959 until 1969, when the possession ripened into title. Thus, because the Trust has not alleged that permission for use of the property was granted during the applicable time periods for prescription, the Trust cannot divest Adams’ of title which had already ripened during the period of time necessary to create a prescriptive easement.

(S) Under claim of ownership

¶ 11. At trial, the evidence showed that Jackson had used the easement as his own by giving permission to others to use the easement in order to reach his home. This use by Jackson gave a reasonable inference to the community that the driveway was owned by him. The Trust presented no evidence to the contrary. Therefore, we find the evidence sufficient to support a claim of ownership.

(Jf) Exclusive

¶ 12. The evidence presented through testimony, survey plats, and other observations to the lower court concerning the use of the easement support the conclusion that the easement was used strictly by Adam’s predecessor, Jackson, and presently by Adams as a driveway and not for public use. There is no other purpose for the easement than to enter and leave the property of Adams. Therefore, the evidence presented is sufficient to support a finding of exclusive use.

(5) Peaceful

¶ 13. The mere existence of a dispute over the use of land does not present an obstacle to satisfy the element of peaceful use. Simple disputes often arise between neighboring landowners, but do not rise to the level of destroying the peaceful existence between them. Dieck v. Landry, 796 So.2d 1004, 1009(¶ 15) (Miss.2001). No evidence is presented establishing a non-peaceful existence between the Trust and Adams and their respective predecessors in title. Therefore, this element of prescription is satisfied.

(6) Continuous and uninterrupted use for ten years

¶ 14. The evidence clearly demonstrated that the easement had been in use for a ten year period. Jackson began to use the easement in 1959 when he purchased the property. This use continued well in excess of the statutorily proscribed time period. Although the record reflects that permission for use was granted in the years of 1973 and 1992, the prescriptive time period had already been satisfied and the easement had vested in 1969.

CONCLUSION

¶ 15. We agree that the lower court was correct in finding that a prescriptive easement existed prior to 1992 when the Arre-cheas purchased the property now titled to the Trust. Adams presented adequate proof that the use of the easement was open, notorious and visible; hostile; under claim of ownership; exclusive; peaceful; and continuous and uninterrupted for ten years. Although Adams, himself, only owned the property for approximately one year before filing his petition, his use is tacked onto the use of his predecessor, Jackson. In reviewing this case in the light most favorable to the Trust, taking together admissions in pleadings, answers to interrogatories, depositions, affidavits, testimony presented at trial, etc., we find that no genuine issue of material fact exists. We, therefore, affirm the grant of summary judgment by the Chancery Court of Lafayette County in holding that a fifteen foot wide prescriptive easement exists over the Trust property for ingress and egress to the Adams property.

¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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


author: CHANDLER, J.,

text:
    Samuel Tyrone WILLIAMS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-01383-COA.
    Court of Appeals of Mississippi.
    Oct. 24, 2006.
    Rehearing Denied April 10, 2007.

      Lee County Circuit Court, Hon. Thomas J. Gardner, III, J.
    John Carl Helmert, attorney for appellant.
    Charles W. Maris, Jackson, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Samuel Tyrone Williams was indicted for aggravated assault and kidnaping in the Circuit Court of Lee County, Mississippi. On May 4, 2005, a jury found Williams guilty of simple assault and kid-naping. Williams was sentenced as a habitual offender. He was sentenced to serve six months in the county jail for simple assault and to serve a consecutive sentence of thirty years in the custody of the Mississippi Department of Corrections for kidnaping. Williams appeals, raising these issues:

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING THE 911 TAPE OF THE DEFENDANT’S WIFE IN VIOLATION OF CRAWFORD V. WASHINGTON
II. WHETHER THE DEFENDANT WAS PROPERLY SENTENCED AS A HABITUAL OFFENDER
III. WHETHER THE TRIAL COURT ERRED IN DISMISSING A JUROR FOR CAUSE

¶ 2. We affirm. We find that the court did not err in admitting the 911 tape, the defendant was properly sentenced as a habitual offender, and the trial court did not err in dismissing a juror for cause.

FACTS

¶ 3. On December 11, 2003, Williams approached Tonya Elliot in the parking lot of the Trace Inn motel in Tupelo, Mississippi. Williams saw Elliot and Williams’s wife, Tragelia Williams, emerge from one of the rooms of the motel. An argument between Williams and Elliot ensued. As Elliot attempted to open her car door, Williams leaned against it. Williams then punched Elliot and forced her into the car. Williams also got into the ear and drove away. Elliot attempted to leave the car, and Williams grabbed her by her shirt and pulled her back into the car. Williams continued to drive the car and beat Elliot.

¶4. While Elliot was in the car with Williams, Tragelia attempted to call Elliot’s cell phone. Tragelia did not speak directly to Elliot, but overheard Elliot speaking to Williams. Tragelia then called 911 to report the abduction, whereupon the police called Elliot’s cell phone. Williams answered Elliot’s phone and told the police that he had an altercation with Elliot earlier that day but had not seen her since.

¶ 5. Williams later stopped at a gas station to purchase fuel for the car. Williams made Elliot stand on the driver’s side of the vehicle while he pumped the gas. Williams gave money to a stranger to go inside and pay for the gas. Williams continued to drive around until they arrived at a trailer park. Williams took off his shirt and attempted to wipe his fingerprints off of the car. When Williams went into one of the trailers, Elliot escaped and drove away.

¶ 6. Elliot called 911 from her cell phone but was unable to tell the operator her location because she did not know where she was. The 911 dispatcher used a satellite locator to determine Elliot’s whereabouts, and relayed her location to the local police. At a nearby restaurant, Elliot was met by the police and taken to the hospital where she'was treated.

¶ 7. Williams was indicted for aggravated assault and kidnaping in Lee County, Mississippi. Prior to trial, Williams filed a motion to exclude the testimony of Trage-lia Williams based on the spousal privilege concerning the competency of a witness spouse. The trial court granted the motion and ordered that Tragelia was incompetent to testify pursuant to Mississippi Code Annotated § 13-1-5 (Rev.2002). A two-day jury trial began on May 3, 2005.

¶ 8. At trial, the State introduced a series of four 911 tape recordings into evidence. The State introduced a transcript of the fourth call into evidence. The remaining calls were not transcribed but were heard by the jury. At the time of the introduction, it was unclear what portion of the tape would be played because of the presence of the partial transcript. The portion of the tape played for the jury included the 911 call made by Tragelia in which she stated that she believed Williams had abducted Elliot.

¶ 9. On May 4, 2005, the jury found Williams guilty of simple assault and kid-naping. Williams filed a motion for a judgment notwithstanding the verdict or, in the alternative, a motion for a new trial. The trial court denied the motion.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING THE 911 TAPE OF THE DEFENDANT’S WIFE IN VIOLATION OF CRAWFORD V. WASHINGTON

¶ 10. Williams argues that the trial judge erred in allowing his wife’s 911 call to be played to the jury. The issues presented are whether the 911 telephone call made by Williams’s wife is testimonial, whether the admittance of such statements, if deemed testimonial, constitute harmless error, and whether Williams properly preserved this issue for appeal.

¶ 11. This Court reviews the lower court’s rulings on the admission or exclusion of evidence for abuse of discretion. Ladnier v. State, 878 So.2d 926, 933(¶ 27) (Miss.2004). An error in the admission or exclusion of evidence is not grounds for reversal unless the error affected a substantial right of a party. Id.

¶ 12. Williams argues that Tragelia’s statements were inadmissible pursuant to the Confrontation Clause. We disagree. Tragelia’s statements are not “testimonial,” and are therefore not barred by the Confrontation Clause. Even if the statements could be considered testimonial, their admission constituted harmless error due to the weight of the remaining evidence used to convict Williams.

¶ 13. Williams contends that the trial court erred in admitting the 911 tape because it violated the United State Supreme Court’s ruling in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford held that testimonial, out-of-court statements by witnesses are barred by the Confrontation Clause of the Sixth Amendment, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether the statements are deemed reliable by the court. Id. at 68, 124 S.Ct. 1354. Williams claims that Tragelia’s statements to the 911 operator are inadmissible because they are testimonial in nature. We do not agree.

¶ 14. Testimony is a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Davis v. Washington, — U.S. -, -, 126 S.Ct. 2266, 2274, 165 L.Ed.2d 224 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). Statements are nontestimonial when “made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency.” Id. at 2273. If the primary purpose is to prove past events or where there is no ongoing emergency, the statements will be testimonial and fall under the purview of Crawford. Id. at 2273-2274.

¶ 15. We find the Davis decision to be applicable to the current case. In Davis, the United States Supreme Court reviewed statements made by a victim to a 911 dispatcher during a domestic abuse altercation. When viewing the primary purpose of the call objectively, the court ruled that 911 calls are “interrogations in one sense, but not in a sense that ‘qualifies under any conceivable definition.’ ” Id. at 2274. The court noted that 911 calls typically describe “current circumstances requiring police assistance.” Id. at 2276. Such is the case at bar. Tragelia called 911 upon discovering Elliot was missing. Tragelia told the 911 operator she believed Williams abducted Elliot against her will. She made the call to initiate an investigation as to Elliot’s whereabouts, not to prove that Williams was in fact the kidnaper.

¶ 16. Moreover, the present case is notably different than Crawford. In Crawford, the wife was interrogated at the police station after the crime had already been committed. There, the formality of the interrogation was significant to finding that the statements were in fact testimonial. Yet in the current case, Tragelia was not a witness, nor did she recount a past crime. Tragelia called 911 in desperation to find her friend, whom she believed had been abducted by Williams. The statements illustrated the beginning of the search for Elliot and did not go to prove Williams’s guilt or innocence. Thus, the statements did not violate the spousal privilege as Williams asserts, nor did the statements violate the Confrontation Clause.

¶ 17. Even if this Court were to accept Williams’s argument that the statements were testimonial, it would be harmless error to admit them. Our supreme court has noted that “[a]n error is harmless when it is apparent on the face of the record that a fair-minded jury could have arrived at no verdict other than that of guilty.” McKee v. State, 791 So.2d 804, 810(1124) (Miss.2001). “Where the prejudice from an erroneous admission of evidence dims in comparison to other overwhelming evidence, this Court has refused to reverse.” Carter v. State, 722 So.2d 1258, 1262(¶ 14) (Miss.1998).

¶ 18. The victim, Tonya Elliot, testified that Williams kidnapped and beat her. Surveillance video from the gas station confirmed that Elliot was with Williams on the night in question. Police officers assisting Elliot that night testified that Elliot had been battered, and photographic evidence supports that fact. Tragelia’s phone call to 911 merely alerted the police to the situation. Even if the admission of her phone call could be considered error, the overwhelming cumulative evidence supports the jury’s finding of guilt. Thus, this Court holds that the trial court acted properly.

¶ 19. A further issue arises as to whether Williams properly preserved this issue for appeal. It is well settled that a defendant must preserve an error for review by making a contemporaneous and specific objection to the remarks. Rials v. Duckworth, 822 So.2d 283, 287(¶ 22) (Miss.2002). If no contemporaneous objection is made at trial, any error would be considered waived. Walker v. State, 671 So.2d 581, 597 (Miss.1995) (citing Foster v. State, 639 So.2d 1263, 1270 (Miss.1994)). Williams failed to object to the tape at trial, even after Tragelia’s call was played in the courtroom. Thus, Williams is procedurally barred as to this issue on appeal.

¶ 20. Yet Williams contends this Court should “indulge every presumption against the waiver of a constitutional right,” which would preserve his appeal notwithstanding the procedural bar. Brooks v. State, 903 So.2d 691, 695(¶ 10) (Miss.2005) (citing Vickery v. State, 535 So.2d 1371, 1377 (Miss.1988)). As we have stated, even if Tragelia’s statements could be considered testimonial, it was harmless error to admit them. The weight of the cumulative evidence could support the jury’s finding of guilt. Therefore, this argument has no merit.

II. WHETHER THE DEFENDANT WAS PROPERLY SENTENCED AS A HABITUAL OFFENDER

¶21. Williams contends that the court erred in sentencing him as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2000), which states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

¶ 22. Williams alleges that the State did not present sufficient evidence to establish him as a habitual criminal because the only evidence the trial judge reviewed was certified copies of two previous indictments and sentencing orders. At the sentencing phase of the trial, the judge noted that the certified copies were sufficient evidence to establish habitual offender status because each of the dates on the sentencing orders was different, and the sentences were imposed and served at different times.

¶ 23. “Certified copies of a defendant’s commitment papers are competent evidence of previous convictions for purposes of proving that a defendant is an habitual offender.” Harper v. State, 887 So.2d 817, 828(¶ 49) (Miss.Ct.App.2004) (citing Estelle v. State, 558 So.2d 843, 848 (Miss.1990)). “Likewise, certified copies of indictments and sentencing orders are competent evidence of previous convictions.” Id. citing Duplantis v. State, 708 So.2d 1327, 1347 (¶ 101) (Miss.1998). Therefore, the trial judge had sufficient evidence to sentence Williams as a habitual offender.

¶ 24. Williams further asserts that the trial court did not conduct a full bifurcated sentencing hearing. “When habitual offender status is alleged and where the accused goes to trial, the trial court must hold a separate hearing without a jury to determine whether habitual status should be imposed.” Nathan v. State, 552 So.2d 99, 106 (Miss.1989).

¶ 25. We find the trial court did adhere to this standard. Once the jury was excused, the judge announced that the sentencing hearing would take place immediately following the jury decision. The judge followed the proper procedure to address Williams’s habitual offender status. Moreover, the judge did not exceed the bounds of the sentencing guidelines, but rather administered the maximum sentence as required by the statute. Thus, there was no error in sentencing Williams as a habitual offender.

III. WHETHER THE TRIAL COURT ERRED IN DISMISSING A JUROR FOR CAUSE

¶ 26. Williams contends the trial court erred in dismissing juror number one, John Short, for cause. A trial court has substantial discretion when ruling on challenges to excuse a juror for cause. Berry v. State, 703 So.2d 269, 292(85) (Miss.1997). When this Court examines the conduct of voir dire, the standard of review is whether the trial court abused its discretion. Billiot v. State, 454 So.2d 445, 457 (Miss.1984). This Court will not disturb the decision of the trial court unless it is “clearly erroneous.” Langston v. State, 791 So.2d 273, 282(25) (Miss.Ct.App.2001). Further, Williams must demonstrate an obvious prejudice resulting from undue lack of constraint on the prosecution or on the defense. Davis v. State, 684 So.2d 643, 652 (Miss.1996).

¶ 27. In the present case, the prosecution questioned the potential jurors. The prosecution asked if anyone could think of a reason that would make it permissible to hit a woman. Juror number one, John Short, responded by inquiring about self defense. Short then proceeded to speak about a woman’s size affecting an argument with a man. None of Short’s comments pertained to the case at hand.

¶ 28. Once the voir dire questioning was over, the trial judge dismissed five jurors for cause including Short. Counsel for Williams inquired as to why the court dismissed Short. The court responded that Short went off on a tangent. The court stated, “He wasn’t answering questions, he was voir diring [sic] the attorney, and it all had to do with self-defense, which has nothing to do with this case so far as I’m concerned.”

¶29. Mississippi Code Annotated section 13-5-79 (Rev.2002) states “[a]ny juror shall be excluded ... if the court be of the opinion that he cannot try the case impartially, and the exclusion shall not be assignable for error.” Our supreme court has noted that due to his presence during voir dire, a trial judge is in a better position to evaluate jurors and determine whether or not they should be excluded for cause. Wells v. State, 698 So.2d 497, 501 (Miss.1997). The record reflects that the court reporter may not have been able to include all of Short’s comments in the record. However, the judge noted that he did hear all of the comments and, therefore, could sufficiently evaluate whether or not Short should be stricken for cause.

¶30. The Mississippi Supreme Court has held, “Once the judge exercised his discretion and determined that the jurors probably could not be impartial, then the determination may not be assigned on appeal as error.” Coverson v. State, 617 So.2d 642, 646 (Miss.1993). Williams did not prove an obvious prejudice by the trial judge, and there is no evidence that the trial court abused its discretion in excusing juror number one for cause. Therefore, this issue is without merit.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF COUNT I, SIMPLE ASSAULT AND SENTENCE OF SIX MONTHS IN THE CUSTODY OF THE LEE COUNTY SHERIFF’S DEPARTMENT AND OF COUNT II, KID-NAPING AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER, SAID SENTENCES TO RUN CONSECUTIVELY TO EACH OTHER AND CONSECUTIVELY WITH THE SENTENCE IMPOSED IN LEE COUNTY CR03-647 COUNT I AND COUNT II, AND TO PAY A FINE OF $500, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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


author: KING, C.J., SOUTHWICK, J.,

text:
    Phillip Michael SEYMOUR, Appellant, v. Karen Ellen SEYMOUR, Appellee.
    No. 2005-CA-00668-COA.
    Court of Appeals of Mississippi.
    Oct. 31, 2006.
    Rehearing Denied April 3, 2007.

      William E. Tisdale, attorney for appellant.

      Thomas Wright Teel, Biloxi, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. The Harrison County Chancery Court granted Karen Ellen Seymour a fault-based divorce from Phillip Michael Seymour on the grounds of adultery. Phillip appeals the judgment, raising the following issues, which we quote verbatim.

I. THE TRIAL COURT ERRED AND EXCEEDED THE STATUTORY GUIDELINES FOR CHILD SUPPORT BY REQUIRING THE APPELLANT TO PAY CHILD SUPPORT AND ONE-HALF OF THE MINOR CHILDREN’S PAROCHIAL SCHOOL TUITION.

II. THE TRIAL COURT ERRED BY NOT DIVIDING THE SEYMOUR & SONS SEAFOOD, INC. STOCK EQUALLY AS PER THE STIPULATION OF THE PARTIES.

III. THE TRIAL COURT ERRED IN VALUING THE SEYMOUR & SONS SEAFOOD, INC. STOCK AND ASSIGNING THE FULL VALUE OF SAME TO THE APPELLANT WHEN DIVIDING THE MARITAL ASSETS.

IV. THE TRIAL COURT ERRED IN DIVIDING THE MARITAL ASSETS OF THE PARTIES.

V. THE TRIAL COURT ERRED BY GRANTING EXCESSIVE PERIODIC ALIMONY TO THE APPELLEE.

VI. THE TRIAL COURT ERRED IN AWARDING ATTORNEY’S FEES TO THE APPELLEE.

FACTS

¶ 2. Karen and Phillip were married on December 9, 1989. Karen gave birth to their first child in 1991. In 1994, the Seymours welcomed twin daughters. All three girls attend parochial school.

¶ 3. Phillip is treasurer and part owner of Seymour & Sons Seafood, Inc. (Seymour & Sons), a seafood processing business in D’Iberville, Mississippi. He also earns extra income as a plumber. The chancellor found that Phillip earns in excess of $50,000 per year. Karen is a homemaker and a secretary at Sacred Heart Elementary School, where she earns $18,000 per year. Sacred Heart is also where the twins attend school.

¶ 4. Phillip admitted to having affairs with two different women in 1997. Thereafter, he and Karen began attending marriage counseling. However, in 2003, Phillip began having another affair with his best friend’s wife, which resulted in his separation from Karen. On November 3, 2003, Karen filed for divorce. The divorce hearing was held on November 15 and 16, 2004, and the judgment of divorce was entered on February 22, 2005. The chancellor awarded Karen legal and physical custody of the three minor children and ordered Phillip to pay $800 per month in child support. Phillip was also ordered to pay one-half of the children’s tuition and to maintain their health insurance. The court divided and distributed the marital property, awarded Karen $1,000 per month in periodic alimony, and awarded Karen $2,000 in attorney’s fees.

ANALYSIS

Standard of Review

¶ 5. A chancellor’s findings, especially in the areas of divorce and child support, will not be disturbed on appeal unless manifestly erroneous. Fancher v. Pell, 831 So.2d 1137, 1140(¶ 15) (Miss.2002).

I.THE TRIAL COURT ERRED AND EXCEEDED THE STATUTORY GUIDELINES FOR CHILD SUPPORT BY REQUIRING THE APPELLANT TO PAY CHILD SUPPORT AND ONE-HALF OF THE MINOR CHILDREN’S PAROCHIAL SCHOOL TUITION.

¶ 6. Phillip argues that the court’s order requiring him to pay $800 per month in child support plus one-half of the children’s parochial school tuition, $262 per month, exceeds the statutory guidelines. The child support guidelines provide that twenty-two percent of the non-custodial parent’s adjusted gross income is an appropriate award for the support of three children. Miss.Code Ann. § 49-19-101(Rev.2003). The chancellor determined that Phillip’s adjusted gross income was $3,637 per month based on his 2004 tax filings. This figure does not include the unreported income Phillip earns from plumbing jobs, but was the figure used to calculate child support in the amount of $800 per month.

¶ 7. School tuition is considered a part of child support. Halle v. Harper, 869 So.2d 439, 441(¶ 8) (Miss.Ct.App.2004) (citing Southerland v. Southerland, 816 So.2d 1004, 1006(¶11) (Miss.2002)). An order requiring school tuition payment must be reasonable in light of the parents’ income. Id. Since Phillip was ordered to pay twenty-two percent of his reported adjusted gross income plus one-half of the girls’ parochial school tuition, the chancellor was required to make specific findings of fact to justify deviation from the child support guidelines. Id. (citing Miss.Code Ann. § 43-19-101(2) (Rev.2004)). In the order denying the Phillip’s motion to reconsider, the chancellor made the following findings to support deviation from the child support guidelines: (1) Phillip earns in excess of $50,000 per year when bonuses and cash income received from plumbing jobs are included, (2) the order to pay $800 per month in child support was based only on Phillip’s reported income from Seymour & Sons Seafood, (3) the children had always attended parochial school, and (4) Phillip’s mistress is a teacher at the public school where the twins would attend if they were taken out of parochial school. The chancellor found that were the twins required to attend the same school in which Phillip’s mistress taught, it would cause undue stress and conflict for them.

¶ 8. We find that the chancellor’s findings were sufficient to support an award of twenty-two percent of Phillip’s reported adjusted gross income plus one-half of the children’s parochial school tuition. This issue fails.

II. THE TRIAL COURT ERRED BY NOT DIVIDING THE SEYMOUR & SONS SEAFOOD, INC. STOCK EQUALLY AS PER THE STIPULATION OF THE PARTIES.

III. THE TRIAL COURT ERRED IN VALUING THE SEYMOUR & SONS SEAFOOD, INC. STOCK AND ASSIGNING THE FULL VALUE OF SAME TO THE APPELLANT WHEN DIVIDING THE MARITAL ASSETS.

¶ 9. Seymour & Sons was incorporated in 1984. Phillip owns 11,000 shares of stock in Seymour & Sons. Although Phillip is the treasurer of Seymour & Sons, he presented no evidence at trial to show the value of the company, the value of company stock, nor the number of outstanding shares. However, in his Rule 8.05 financial statement, Phillip estimated that his 11,000 shares were worth $157,500. At the beginning of trial, Phillip testified that he was willing to give Karen one-half of the stock regardless of its value. Karen’s attorney then stated that if Phillip was stipulating that he would given Karen half of the shares, they would accept. The court then asked whether Phillip was stipulating that he would give Karen half of the shares, and Phillip answered in the affirmative. A photocopy of Phillip’s stock certifícate was later entered into evidence at trial. The second page of the exhibit stated that transfer of the certificate was governed by provisions of an agreement dated December 26, 1987. The agreement had not been located by the time of trial. It was subsequently determined that Seymour & Sons was a closely held corporation, and that a restriction on the transfer of shares existed. It was also determined that family member shareholders receive salary but no dividends. Since Phillip obtained the stock prior to the marriage, and no evidence was available to determine whether the value of the stock had increased during the course of the marriage, the chancellor ruled that the stock was Phillip’s non-marital property. Phillip argues on appeal that the chancellor erred in failing to enforce the “stipulation” of the parties to divide the Seymour & Sons stock equally.

¶ 10. Black’s Law Dictionary defines stipulation as, “A voluntary agreement between opposing parties concerning some relevant point.” Black’s Law Dictionary 1427 (7th ed.1999). However, the supreme court has stated, “Parties cannot by stipulation affect any right but their own[,] and persons not parties to the stipulation are not bound by it.” Roberts v. James Mfg. Co., 197 So.2d 808, 811 (Miss.1967) (citing 83 C.J.S. Stipulations § 14 (1953)). Additionally, stipulations may be set aside for several reasons, including material mistake of fact, misrepresentation, inadvertence and improvidence. 83 C.J.S. Stipulations § 35 (1953). The restrictions placed on the transfer of Seymour & Sons stock included a right of first refusal in favor of the family member shareholders. Accordingly, Phillip’s oral “stipulation” at trial was invalid because, if enforced, it would have affected the rights of third parties. The “stipulation” was also properly set aside by the trial court as a mistake of fact, since Phillip incorrectly believed that he could freely transfer half of his shares to Karen. Therefore, Phillip’s assertion that the trial court erred in failing to enforce the stipulation is without merit.

¶ 11. Phillip also asserts that the trial court erred in assigning a value of $157,500 to his 11,000 shares of stock. “[I]t is incumbent upon the parties, and not the chancellor, to prepare evidence touching on matters pertinent to the issues to be tried.” Jackson v. Jackson, 922 So.2d 53(¶ 14) (Miss.Ct.App.2006) (quoting Dunaway v. Dunaway, 749 So.2d 1112, 1118(114) (Miss.Ct.App.1999)). The only evidence presented at trial regarding the stock’s value came from Phillip’s Rule 8.05 financial declaration. Therefore, we decline to find that the chancellor erred in using Phillip’s own submission of evidence to determine the stock’s value.

112. Phillip also claims that the chancellor erred in assigning the full value of the stocks to him in the equitable distribution analysis. Since Phillip obtained the Seymour & Sons stock prior to the marriage, the chancellor was correct in classifying the stock as his separate property. Hankins v. Hankins, 866 So.2d 508, 511(¶ 13) (Miss.Ct.App.2004) (citing Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)). Any increase in the value of the stock that was realized during the course of the marriage could have been deemed marital property. Johnson v. Johnson, 877 So.2d 485, 493(¶ 34) (Miss.Ct.App.2003) (citing A & L, Inc. v. Grantham, 747 So.2d 832, 838-39 (¶¶ 16-25) (Miss.1999)). However, no evidence was presented to determine whether the value of the stock had increased during the course of the marriage. This issue is without merit.

IV. THE TRIAL COURT ERRED IN DIVIDING THE MARITAL ASSETS OF THE PARTIES.

¶ 13. The chancellor determined that the Seymours’ marital property consisted of the marital home and adjoining lot, two vehicles, one investment account, tools, and household furnishings. The chancellor assigned value to the marital property, the total of which was $155,400. Karen was awarded the marital home and adjoining lot, one vehicle, the investment account, and the household furnishings for a total amount of $152,900. Phillip was awarded one vehicle and all of the tools for a total award of $4,500. Additionally, Phillip was ordered to pay the $11,000 mortgage on the marital home. Phillip asserts that the disparity in the award of marital property illustrates an abuse of discretion.

¶ 14. This Court reviews a chancellor’s division of marital property under an abuse of discretion standard. Shoffner v. Shoffner, 909 So.2d 1245, 1250(¶ 11) (Miss.Ct.App.2005). The chancellor conducted a Ferguson analysis and addressed all applicable factors. The most relevant findings which support the chancellor’s division of marital property concern the value of the non-marital property, the needs of the parties, and each party’s income and earning capacities. While Phillip’s non-marital property consists of the Seymour & Sons stock, Karen owns no non-marital property. There will be four people in Karen’s household as opposed to only one in Phillip’s. Phillip earns more than $50,000 per year, while Karen, a homemaker with minimal work force experience, earns only $18,000. Regarding the final Ferguson factor, “any other factors which in equity should be considered,” the court found that Phillip’s adultery should be considered since it was the admitted cause of the break down of the marriage.

¶ 15. “Equitable distribution does not mean equal distribution.” Lauro v. Lauro, 924 So.2d 584, 590(¶ 23) (Miss.Ct.App.2006) (citing Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss.1994)). As stated by the Ferguson court, the goals of equitable distribution are a fair division of marital property based on the facts of each case and termination of the legal relationship in a manner which each party may realize self-sufficiency. Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). We find that although Phillip received a very small portion of the marital estate, the chancellor did not abuse his discretion.

V. THE TRIAL COURT ERRED BY GRANTING EXCESSIVE PERIODIC ALIMONY TO THE AP-PELLEE.

¶ 16. An award of alimony should only be considered if one party will suffer a deficit after the marital property has been equitably divided. Lauro v. Lauro, 847 So.2d 843, 848(¶ 13) (Miss.2003). “Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.” Id. (quoting LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983)). The factors which a chancellor must consider when determining whether to award periodic alimony are,

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). The chancellor made the following findings with regard to the Armstrong factors. Karen has significantly less income from her employment and more expenses as the custodial parent. Both parties are in good health. Phillip earns in excess of $50,000 per year, while Karen earns $18,000 per year. Both parties have the ability to earn more income than they are currently earning and therefore should be able to maintain a decent standard of living for themselves and their children. Karen should not have significant obligations outside necessary living expenses since Phillip has been ordered to pay the outstanding debt of approximately $11,000 on the marital home. The Sey-mours were married for fourteen years, a factor which weighs in favor of alimony, particularly under the circumstances of this ease. The fact that Karen will have three minor children in her household for whom she must provide childcare also weighs in favor of alimony. Phillip’s misconduct was the cause of the divorce.

¶ 17. The record also indicates that Karen’s total monthly intake, comprised of her salary, alimony and child support, is nearly equal to her total monthly expenses. A review of Phillip’s reported income contrasted with his total monthly expenses, reveals that his expenses slightly exceed his reported income. However, the chancellor was aware that Phillip received more than his reported income, although he was less than forthcoming about the amount of money he receives from plumbing jobs. The record is clear that Karen’s income along with her share of marital property and child support would not cover the basic monthly expenses for herself and her children. The addition of $1,000 per month in alimony leaves Karen with only a moderate surplus after paying the basic monthly expenses for her and her children. We find that the chancellor did not abuse his discretion.

VI. THE TRIAL COURT ERRED IN AWARDING ATTORNEY’S FEES TO THE APPELLEE.

¶ 18. It is within the chancellor’s discretion whether to award attorney’s fees in a divorce hearing. Deen v. Deen, 856 So.2d 736, 739(¶16) (Miss.Ct.App.2003). However, where a party has not demonstrated their inability to pay their own attorney’s fees, such an award is inappropriate. Id. The party requesting attorney’s fees has the burden of proving his inability to pay. Id. There is no evidence in the record to show that Karen is unable to pay her own attorney’s fees. As discussed above, Karen’s total monthly intake covers her monthly expenses and leaves her with a surplus. Furthermore, Karen received an investment account worth $16,000, which could be liquidated. Since Karen has not shown an inability to pay her own attorney’s fees, we reverse and render the award.

¶ 19. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. THE APPELLANT SHALL PAY 75% OF THE COST OF THIS APPEAL, AND THE APPELLEE SHALL PAY 25% OF THE COST OF THIS APPEAL.

MYERS, P.J., CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. SOUTHWICK, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J., IRVING, AND GRIFFIS, JJ.

SOUTHWICK, J.,

Dissenting:

¶20. With respect for the majority’s analysis on the several issues in this case, I find myself disagreeing as to the equitable distribution. Therefore I dissent.

¶ 21. The majority is certainly correct that equitable distribution has never been interpreted to require an equal distribution. Yet I venture to conclude that never in a situation in which some significant marital property exists, has equitable distribution meant nonexistent distribution to one of the spouses. That is in essence what occurred here, with ninety-seven percent of the marital property being allocated to the former wife.

¶ 22. I find that the chancellor abused his discretion in giving an overwhelmingly disproportionate percentage of the marital property to one spouse. True, there are reasons in this record to justify an unequal distribution. I would reverse and remand for the issue of equitable distribution to be reconsidered.

¶28. Since the various decisions that impact on the finances of the former spouses are interrelated such that increase in one component might require diminution in another, I would leave the issue of the amount of alimony open for re-evaluation after a new decision is made on equitable distribution.

LEE, P.J., IRVING AND GRIFFIS, JJ., JOIN THIS OPINION.

      . The December 26, 1987 agreement containing the restriction on the transfer of Seymour & Sons stock is not contained in the record. However, during a hearing on Phillip’s motion to reconsider, his attorney stated that one of the restrictions on the transfer of stock was the family member shareholders’ right of first refusal.


text:
    Patrick Evans CLARK, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01977-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Rehearing Denied March 20, 2007.

      Patrick Evans Clark, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., CHANDLER, GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Patrick Evans Clark appeals the denial of a motion for post-conviction relief. Clark raises three issues on appeal: (1) whether his plea of guilty was involuntarily given, (2) whether he suffered from lack of ineffective assistance of counsel, and (3) whether the trial court imposed an illegal sentence. We find no error and affirm.

FACTS

¶ 2. Clark has twice been before this Court, and we have twice rejected his arguments. See Clark v. State, 898 So.2d 687 (Miss.Ct.App.2004); Clark v. State, 834 So.2d 747 (Miss.Ct.App.2003). The prior opinions notwithstanding, we will briefly review the facts.

¶ 3. On February 23, 1999, Clark pled guilty to capital murder. He was sentenced to life in prison as an habitual offender. On March 30, 2001, Clark filed his first motion for post-conviction relief. He argued that he received ineffective assistance of counsel and that his guilty plea was not entered knowing and voluntarily. Id. at 748(¶2). This Court affirmed the lower court’s decision. Id. at 750(¶ 21).

¶ 4. On August 29, 2003, Clark filed a second motion for post-conviction relief. The circuit court denied Clark’s motion as an impermissible successive attempt at post-conviction relief and as time-barred. This Court once again affirmed the lower court’s decision. Clark, 898 So.2d at 689(¶ 7).

¶ 5. On September 12, 2005, Clark filed a third motion for post-conviction relief, which is the subject of the present appeal. The trial court denied the motion and held, once again, that it was barred as a successive writ and was time-barred. From this order, Clark appeals.

STANDARD OF REVIEW

¶ 6. In reviewing a trial court’s decision to deny a motion for post-conviction relief, the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

¶ 7. “The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this chapter.” Miss.Code Ann. § 99-39-27(9) (Supp.2005). In addition to this motion being barred as successive writ, the time to file a motion for post-conviction relief is within three years after the entry of the judgment of conviction. Miss.Code Ann. § 99-39-27(2) (Supp.2005). Since Clark’s guilty plea was entered on February 12, 1999, over six years passed before the filing of the current motion for post-conviction relief on September 12, 2005. Therefore, unless the motion can fall within one of the legislative or judicial exceptions it is procedurally barred as a successive writ, as well as, time-barred.

¶ 8. Of the applicable legislative exceptions, Section 99-39-27(9) excepts from the statutory bar:

those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.

Clark does not cite any intervening cases or newly discovered evidence which would provide an exception to the procedural bar. All three allegations of error fall within one or more of the procedural bars.

¶ 9. There appears to be one judicial exception to the procedural bar mentioned above that may apply in this case. It has been long held “errors affecting fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit their consideration.” Kennedy v. State, 732 So.2d 184, 186(¶ 8) (Miss.1999) (citing Luckett v. State, 582 So.2d 428, 430 (Miss.1991)). The supreme court has held that it is a fundamental right to be free from an illegal sentence. Sneed v. State, 722 So.2d 1255, 1257(¶ 11) (Miss.1998). Here due to the successive writ bar mentioned above, this exception only applies to the alleged error of an illegal sentence, since this is the first time Clark has raised it. • Therefore, we address Clark’s motion on this issue.

¶ 10. Clark alleges that the trial court erred by sentencing him as an habitual offender, under Mississippi Code Annotated Section 99-19-81 (Supp.1998), when he was indicted as an habitual offender under Mississippi Code Annotated Section 99-19-83 (Supp.1998). The trial court found the State had failed to prove Clark was an habitual offender under Section 99-19-83 and then sentenced him under Section 99-19-81 to life imprisonment without the possibility for parole. Clark argues that while it would have been permissible for the State to move to amend the indictment to charge Clark properly under Section 99-19-81, the trial judge abused his discretion in sentencing Clark without such a motion.

¶ 11. We will discuss this issue but do not find an abuse of discretion that would require reversal. “Habitual offender status is but one route to a prison term without possibility of parole. Another method is to commit certain crimes of violence.” Booker v. Bailey, 839 So.2d 611, 612(¶ 7) (Miss.Ct.App.2003). As in Booker, Clark was convicted of a crime that provided for life imprisonment without parole. Clark was convicted of capital murder under Mississippi Code Annotated Section 99-19-101 (Supp.1998), which carries a sentence of either life imprisonment, life imprisonment without eligibility for parole, or death. Mississippi Code Annotated Section 47 — 7—3(1)(f) (Supp.1998) provides that “no person shall be eligible for parole who is charged, tried, convicted and sentenced to, life imprisonment under the provisions of Section 99-19-101.”

¶ 12. Clark was indicted for capital murder in violation of Mississippi Code Annotated Section 97-3-19 (Supp.1998). Clark executed a petition to enter plea of guilty, which indicated his desire to plead guilty to the charge of “capital murder.” The petition indicated that the possible sentence was death, life or life without parole. The petition further indicated that he had reached an agreement with the State that in exchange for a plea of guilty to capital murder the State would not seek the death penalty, but would recommend a sentence of “life without parole.” The petition reveals that his prior felony convictions are identified in the “State’s response to the motion for discovery.” According to the plea transcript, each of these issues were adequately and fully discussed. The trial court then entered a judgment that sentenced Clark as follows:

It is therefore ordered that for the offense of Capital Murder the Defendant, Patrick Evans Clark, is hereby sentenced to serve a term of Life Imprisonment in the Mississippi Department of Corrections pursuant to Section 99-19-101 and Section 99-19-81, Mississippi Code 1972 Annotated, .as amended, whereby this sentence shall not be reduced or suspended, nor shall Defendant be eligible for parole, probation, earned time,. good time, or any other administrative reduction of time or early release.

¶ 13. Clark was properly sentenced to life imprisonment without parole. Arguing a technical defect between the sentencing under Section 99-19-81 as opposed to Section 99-19-83 is of little or no effect. If any error were found, which is not, it would certainly not be reversible error. Clark received a legal sentence. Therefore, we find no reversible error and affirm.

¶ 14. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT DISMISSING POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.