author: WICKER, Judge.

text:
    Carol RICE and Richard D. Rice v. MESA GENERAL CONTRACTORS, L.L.C. and Fred L. Mesa.
    No. 07-CA-545.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 2, 2007.
    Rehearing Denied Nov. 26, 2007.
    Alan P. Dussouy, Attorney at Law, Me-tairie, Louisiana, for Plaintiff/Appellee.
    Richard J. Tomeny, Jr., Attorney at Law, Metairie, Louisiana, for Defendant/App ellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKS HOMBERG WICKER, and GREG G. GUIDRY.
   WICKER, Judge.

Defendant, Mesa General Contractors, L.C.C. (“Mesa”), appeals a judgment of the trial court which awarded plaintiffs, Carol Rice and Richard D. Rice, $79,539.08 in damages for alleged negligent construction and breach of a construction contract. Mesa also appeals the denial of its recon-ventional demand. As such, Mesa seeks judgment in the sum of $6,668.34, interest, reasonable attorney’s fees, and costs for the alleged balance due under the contract. In addition, Mesa asks this court to recognize its claim of privilege. For the reasons that follow, we dismiss the appeal and remand for further proceedings.

The lien was at issue in the trial court. Plaintiffs sought the cancellation of a lien against their home. On the other hand, Mesa asked that its claim of privilege be recognized. This court cannot consider the lien issue in this appeal because the trial court has yet to rule on the issue.

| ¡¡After taking this bench-tried matter under advisement, the trial judge in a 10-day period rendered two judgments. The first judgment — -August 31, 2006 — is silent as to the reconventional demand and a ruling as to the lien. The second judgment — September 15, 2006 — is identical to the first but adds a ruling denying the reconventional demand. Still, the trial judge did not rule on the lien. Mesa has appealed the second judgment, which does not determine the lien issue.

La.C.C.P. art. 1915(B)(1) provides:

When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

La. C.C.P art. 1915(B)(2) states that in the absence of such a determination and designation, the judgment is not a final judgment for the purpose of an immediate appeal. Rather, the order may be revised at any time prior to rendition of the judgment adjudicating all of the claims. See also, La.C.C.P. art.1911.

In this case, the judgment does not dispose of all of the claims, demands, issues, or theories.

This Court has relied on La.C.C.P. art. 1915 in holding that a judgment, which does not adjudicate all of the claims of all of the parties, is not appealable as a final judgment absent the trial court’s designation of the judgment as a final judgment or the making of an express determination that there is no just reason for delay. B & P Construction, Inc. v. Harold, J.A., et. al, 05-403 (La.App. 5 Cir. 12/27/05), 920 So.2d 261, 262-263.

Thus, since the judgment at issue is not a final judgment under La. C.C.P. art.1915 and it has not been properly designated a final judgment as provided in La. C.C.P. art. 1915(B), it is not appealable as one “in which appeals are given by Llaw.” La. C.C.P. art. 2083(A). Pontchartrain Tavern, Inc. v. Johnson, 07-115 (La.App. 5 Cir. 8/28/07), 966 So.2d 1062.

As in Pontchartrain Tavern, Inc. v. Johnson, supra, we have no jurisdiction over the matter. Thus, we dismiss the appeal and remand the case to the district court for that court to rule on the lien issues and to render a final judgment that addresses all of the claims and issues raised in this proceeding. We reserve the parties’ rights to appeal this final judgment.

APPEAL DISMISSED; REMANDED.

      . The trial judge denied plaintiffs' claim of personal liability as to defendant, Fred L. Mesa.


source: Caselaw Access Project

author: RANDOLPH, Justice,

license: Public Domain

text:
    Anthony Wayne MURRAY v. STATE of Mississippi.
    No. 2006-KA-01950-SCT.
    Supreme Court of Mississippi.
    Nov. 8, 2007.

      Jason E. Tate, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorneys for appellee.
    Before SMITH, C.J., GRAVES and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. On April 9, 2004, Anthony Wayne Murray (“Murray”) was arrested in Lincoln County, Mississippi, and cited for possession of beer, DUI (third or subsequent conviction), and driving with a suspended license. On August 22, 2006, Murray was tried in the Circuit Court of Lincoln County and found guilty by a jury of felonious operation of a motor vehicle while under the influence of intoxicating liquor. As a habitual offender, Murray was sentenced to five years in the custody of the Mississippi Department of Corrections (“MDOC”) “to be served day for day.” After Murray’s “Motion for Judgment Notwithstanding the Verdict, or in the alternative, for a New Trial” was denied, he filed this appeal. Murray asserts the circuit court erred in denying his “Motion to Dismiss for Lack of Speedy Trial,” and insufficient evidence was presented to support his conviction (specifically, that he was driving or otherwise operating the truck).

FACTS

¶2. On April 9, 2004, Murray began drinking alcoholic beverages at approximately 5:00 p.m. Upon arriving at a pool hall in Summit, Mississippi, with his brother and sister-in-law, Murray realized he had forgotten his wallet. Murray testified that his cousin, Emmett Ervin (“Peanut”), was also at the pool hall and offered to “take me to get my billfold, and we was coming right back. In the meantime, we decided to go out to Kathy’s house.” According to Kathy Carr, Murray’s present girlfriend, Murray and Peanut arrived at her home in Murray’s truck and invited her to join them at a different pool hall, Armstrong’s. Carr accepted the invitation and “asked Peanut to let [her] drive because he was already drunk, and [she] had [her] license, [but] he wouldn’t let [her] drive.” Therefore, Carr decided to follow Murray and Peanut in her own vehicle.

¶ 3. According to Murray, after shooting-pool at Armstrong’s “for I don’t know how long ... we left [and] ... headed out to Sandra’s house ... my girlfriend at the time.” Murray testified that Peanut drove toward Sandra’s house. Carr testified that Peanut was driving and Murray was in the passenger seat when they left Armstrong’s.

¶ 4. A witness for the prosecution, Chasity Falvey, testified that she was driving “through downtown Summit where the residential area is, [and] there was [a] vehicle in front of us, and he was driving in the opposite lane of traffic, he was passing ears on ... double yellow lines and ... a few people had to get off the edge of the road to get out of his way.” In approaching within four car lengths of Murray’s truck, Falvey observed only one individual inside. Falvey attempted to call 911, but failed to acquire cell phone service. She lost sight of the truck.

¶ 5. Subsequently, Murray’s truck veered off the road and struck a tree. According to Murray, “[e]vidently I fell asleep or something on the way [to Sandra’s home] because I don’t remember much more after that.” Soon thereafter, Falvey arrived and noticed “beer cans strewn all out in the road. There were two ice chests out in the road behind the truck.” Falvey ran to the truck, and initially did not observe any occupants until she “lifted up the air bag, and that’s when I saw [Murray] down in the floorboard of the truck[,]” under the steering wheel on the driver’s side. Fearing that Murray was dead, Falvey called 911, having successfully acquired cell phone service. When Falvey attempted to take Murray’s pulse, he looked up at her and began climbing out of his truck against her protests. According to Falvey, “I said, ‘Well, the ambulance and the sheriffs department will be here in just a minute.’ And he said, ‘Oh, no, no, no ... I’ve got to leave. I’ve got to go.’ ” Falvey testified that Murray was the only person at the scene when she arrived.

¶ 6. Falvey testified that Murray had the scent of alcohol on his breath and said in a slurred fashion “that someone else was with him in the truck. And I repeatedly asked him who it was, and he never could give me a name. And so the first responders were walking out ... through the woods to make sure no one had been thrown out of the vehicle.... ” While the first responders were searching, Falvey testified that she asked Murray. “point blank was he driving the vehicle, and he told me yes, he was.” (Emphasis added).

¶ 7. At approximately 11:15 p.m., Deputy Robert Jason Cole of the Lincoln County Sheriffs Department arrived at the scene. Deputy Cole testified that “Murray was outside ... the ambulance talking with some ambulance personnel. When I walked up and spoke to [Murray] I ... could smell the strong odor of intoxicating beverage about his person and on his breath when he spoke to me.” Deputy Cole concluded that Murray had been driving the truck under the influence based upon the scent of alcohol on his breath, the presence of open beer cans, the statement of Falvey, and the fact that “there was nobody else at the scene that could have possibly been driving.”

¶ 8. Deputy Howard Chandler of the Lincoln County Sheriffs Department arrived approximately ten minutes later. Upon arrival, Deputy Chandler observed that a “small Dodge truck” had “hit a tree. There were several open and empty and full ... Budweiser cans laying around the vehicle and scattered in the road and inside the vehicle.” He likewise concluded that Murray was the driver based upon “the witness statements[,]” the fact that Murray was the only occupant at the scene, “[a]nd by the smell of an intoxicant coming from his breath and by the smell of an intoxicant coming from the vehicle and all ... the full and empty beer cans or bottles in the road and in the vehicle.” Moreover, Deputy Chandler testified that at the jail later that evening, Murray admitted to driving the truck. Murray was arrested and cited for possession of beer, DUI (third or subsequent conviction), and driving with a suspended license. Thereafter, Deputy Cole transported Murray to Kings Daughters Hospital in Brookhaven. Ervin testified that in the early morning hours of April 10, 2004, Peanut received a phone call from the hospital regarding the accident. She testified that Peanut was in no way involved in the accident.

¶ 9. At the hospital, Murray initially refused to sign the consent form for having his blood drawn but, according to Deputy Cole, then gave verbal consent after Deputy Cole read the consent form to him. In contrast, Murray testified that “I know I didn’t give them no permission [to draw blood], not verbal or signed.” At approximately 1:00 a.m. on April 10, 2004, medical laboratory technician Sheron Buckner received a blood specimen kit from Deputy Cole and performed the blood collection procedure on Murray. The blood tubes were then sealed by Buckner in the presence of Deputy Cole and placed in a container with a security seal label initialed by them both. According to Deputy Cole, that container was then placed into a box which was sealed before he left the hospital. At the conclusion of his shift, Deputy Cole submitted the box to Captain Steve Rushing of the Lincoln County Sheriffs Department. Murray was released later that morning by posting bond.

¶ 10. On June 10, 2004, Captain Rushing submitted Murray’s blood specimen kit to the Mississippi Crime Laboratory. Carmen Mclntire, a forensic toxicologist with the Mississippi Crime Laboratory, obtained custody of the sealed blood specimen kit on June 16, 2004. Based upon her June 18, 2004, examination, Mclntire determined that Murray’s blood alcohol level was 0.22%, well above the 0.08% legal limit. According to Mclntire, Murray’s blood specimens were disposed of on June 16, 2005, consistent with the policy of the toxicology section.

¶ 11. Murray was first indicted for the April 9, 2004, offense on August 3, 2004. On January 31, 2005, Murray was arraigned for the April 9, 2004, offense, but on February 17, 2005, the State filed a motion to nolle prosequi, which specifically stated that the State would seek re-indictment at the very next session of the Grand Jury. An order of nolle prosequi was entered on February 22, 2005. On March 4, 2005, Murray was re-indicted for “wilfully, unlawfully and feloniously operating] a motor vehicle in Lincoln County ... at a time when he ... was under the influence of intoxicating liquors on two (2) previous occasions within the last five (5) years ... contrary to and in violation of Section 63-11-30 of the Mississippi Code of 1972....” That same day, an arrest warrant was issued for Murray. On April 1, 2005, a National Crime Information Center (“NCIC”) entry on Murray was filed.

¶ 12. On March 31, 2006, Murray was arrested by the Jackson County Sheriffs Department following a routine traffic stop. Although he was employed by an electrical contractor at a Gulf Coast casino and was living on the coast at the time of his arrest, Murray told the booking officer that his residence was in Pike County. Following extradition to Lincoln County, Murray filed his “Waiver of Arraignment” in the circuit court on April 3, 2006. Murray was released nine hours later by posting a $5,000 bond.

¶ 13. On June 26, 2006, Murray filed a “Motion to Dismiss for Lack of Speedy Trial” arguing that “[t]he State’s delay in bringing [him] to trial exceeds the eight month delay determined to be ‘presumptively prejudicial’ and the State does not have a valid reason to justify this delay.” In a hearing on Murray’s motion to dismiss that same day, Murray contended that he suffered prejudice by having to pay for another bond on April 3, 2006, and losing his job. However, he admitted to being aware that when the original indictment was nolle prossed, on February 22, 2005, of the State’s intention to re-indict him before the following Grand Jury. In denying Murray’s motion to dismiss, the circuit court found that:

far from being in a posture to assert his right to a speedy trial ... [Murray] was not arraigned until ... January 31st of 2005. Within a month of arraignment, the case had been dismissed and then shortly thereafter was reindicted.... [T]he delay in proceeding on 05-087 was obviously occasioned by the absence of [Murray]_[T]he State is not responsible for providing a speedy trial for a Defendant who’s not surrendered himself or been surrendered to the State’s custody. Without the presence of [Murray], nothing could happen on Cause No. 05-087.... [E]ven with the passage of the time, there’s no allegation of prejudice so much as an allegation of hardship and inconvenience which is a different thing from prejudicing the defense of a case.... [T]he Court finds that the delay has not been unreasonable, that ... Cause' No. 04-217 was dismissed shortly after arraignment, in fact, before the omnibus date set in that case, and the case was reindicted shortly thereafter. Delay simply [being] that [Murray] wasn’t here.

¶ 14. On July 18, 2006, the State filed a “Motion to Amend Indictment to Allege Habitual Status” asserting that Murray “is a habitual criminal inasmuch as he has been convicted at least twice previously of felonies upon charges separately brought and arising out of separate incidents at different times and for which felonies he was sentenced to separate terms of one year or more.... ” Relying upon Murray’s guilty pleas in Cause Nos. 00-445-KA and 00-446-KA in the Circuit Court of Pike County, the circuit court granted the State’s motion.

¶ 15. On August 22, 2006, the jury trial commenced. After the State rested, Murray moved for a directed verdict, arguing that “the State has failed to make a prima facie case against [Murray] as to if he was driving the vehicle[,]” which was overruled. A jury found Murray guilty of felonious operation of a motor vehicle while under the influence of intoxicating liquor. At the sentencing hearing, the circuit court concluded that:

having previously entered the jury’s verdict of guilty and having previously granted the State’s Motion to Amend the Indictment to allege habitual status[, this court] sentences [Murray] according to the statute as an habitual offender to the statutory penalty of five years to serve in the custody of the [MDOC] to be served day for day.[]

¶ 16. On August 31, 2006, Murray filed a “Motion for Judgment Notwithstanding the Verdict, or in the alternative, for a New Trial” arguing, in part, that:

2. The trial court erred by failing to grant [Murray’s] motion for a directed verdict at the close of the State’s casein-chief.
3. The trial court erred by failing to grant [Murray’s] renewed motion for a directed verdict at the conclusion of [Murray’s] case-in-chief....
6. The evidence presented by the State was insufficient to support the jury’s verdict.
7. [Murray] was denied due process when a blood sample was drawn without [Murray] being advised of his right to refuse the test and without his written consent or without the benefit of a search warrant.

The circuit court denied Murray’s post-trial motion. Murray filed a timely notice of appeal.

ISSUES

¶ 17. This Court will consider:

(I) Whether Murray was denied due process when the circuit court denied his motion to dismiss for lack of speedy trial.
(II) Whether there was sufficient evidence to support Murray’s conviction.

ANALYSIS

I. Whether Murray was denied due process when the circuit court denied his motion to dismiss for lack of speedy trial.

¶ 18. This Court has stated that the:

[r]eview of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause. Under this Court’s standard of review, this Court will uphold a decision based on substantial, credible evidence. If no probative evidence supports the trial court’s finding of good cause, this Court will ordinarily reverse.

DeLoach v. State, 722 So.2d 512, 516 (Miss.1998) (emphasis added).

A. Statutory Right

¶ 19. Mississippi Code Annotated Section 99-17-1 states that, “[u]nless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss.Code Ann. § 99-17-1 (Rev.2007) (emphasis added). Murray inartfully suggests that this Court should consider the January 31, 2005, arraignment of the nolle prossed case as the applicable arraignment date. Should this Court concede this earlier arraignment date, which we do not, the time between that arraignment and the commencement of the jury trial on August 22, 2006, was 568 days. However, “[i]f the defendant is the cause of the delay, he cannot complain thereafter.” Simmons v. State, 678 So.2d 683, 685 (Miss.1996) (quoting Reed v. State, 506 So.2d 277, 281 (Miss.1987)). See also Herring v. State, 691 So.2d 948, 955 (Miss.1997) (“[a] defendant should not be allowed to control the justice system to his advantage.”). Therefore, any delay attributable to Murray would toll the running of the 270-day statutory period. See id. at 953. On March 4, 2005, Murray was re-indicted, an event which he admittedly expected, and an arrest warrant was issued. Murray was not located until his arrest in Jackson County on March 31, 2006. Like the circuit court, this Court attributes that delay to Murray, as he failed to surrender himself to the State’s custody. Therefore, the 270-day period was tolled during that time. See id. Under Murray’s suggested timeline, only 176 days elapsed between that arraignment and the trial, which would be attributed to the State.

¶ 20. However, a proper analysis applies the actual date of arraignment after re-indictment. Following Murray’s re-indictment on March 4, 2005, he filed a “Waiver of Arraignment” on April 3, 2006, after being extradited to Lincoln County. Between his “Waiver of Arraignment” on April 3, 2006, and the commencement of the jury trial on August 22, 2006, only 141 days passed. Therefore, the circuit court’s denial of Murray’s statutory speedy-trial claim was supported by “substantial, credible evidence.” DeLoach, 722 So.2d at 516.

B. Constitutional Right

1.

¶ 21. The constitutional right to a speedy trial exists separately from the statutory right. See Simmons, 678 So.2d at 686. The Sixth Amendment to the United States Constitution states, in pertinent part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.... ” U.S. Const. amend. VI. In Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), the United States Supreme Court held that the right to a speedy trial is “ ‘fundamental’ and is imposed by the Due Process Clause of the Fourteenth Amendment on the States.” Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101, 108 (1972) (quoting Klopfer, 386 U.S. at 223, 87 S.Ct. 988).

¶ 22. In Barker, the United States Supreme Court created a “balancing test” which:

necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: [Ijength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.

Barker, 407 U.S. at 530, 92 S.Ct. 2182. Regarding this “balancing test,” Barker-states:

[w]e regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.

Id. at 533, 92 S.Ct. 2182 (emphasis added). See also Herring, 691 So.2d at 955 (“[t]he weighing of the Barker factors is not a mechanistic weighing. We must look at the totality of the circumstances.”).

¶ 23. The following timeline summarizes relevant events for purposes of Murray’s constitutional speedy trial claim:

4/9/04: Murray initially arrested
4/10/04: Murray released on bond
8/3/04: Indictment
1/31/05: Arraignment
2/22/05: State nolle prosequi’s the 8/3/04 indictment as defective
3/4/05: Re-indictment
3/4/05: Arrest warrant issued for Murray
3/31/06: Murray arrested by Jackson County Sheriffs Department
4/3/06: Murray extradited to Lincoln County; files “Waiver of Arraignment;” and is released on bond
6/26/06: Murray' files “Motion to Dismiss for Lack of Speedy Trial”
6/26/06: Hearing on Murray’s “Motion to Dismiss for Lack of Speedy Trial”
8/22/06: Commencement of jury trial

“For constitutional purposes, the defendant’s right to a speedy trial attached at the time of arrest” Atterberry v. State, 667 So.2d 622, 626 (Miss.1995) (citations omitted) (emphasis added). “The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S.Ct. 2182 (emphasis added). This Court has previously stated “that any delay of eight (8) months or longer is presumptively prejudicial.” Noe, 616 So.2d at 300 (quoting Smith v. State, 550 So.2d 406, 408 (Miss.1989)) (emphasis added). Following re-indictment, Murray was not arrested until March 31, 2006. Between Murray’s arrest on March 31, 2006, and the commencement of the jury trial on August 22, 2006, 144 days passed. As this delay is less than eight months, it is not “presumptively prejudi-cially,]” id., and therefore, “there is no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S.Ct. 2182. As such, this Court finds that the circuit court’s denial of Murray’s constitutional speedy-trial claim was supported by “substantial, credible evidence.” DeLoach, 722 So.2d at 516.

2.

¶ 24. Murray also asks this Court to analyze his speedy-trial claim using April 9, 2004, as the date of arrest.

(1) Length of Delay

¶ 25. Between Murray’s arrest on April 9, 2004, and the commencement of the jury trial on August 22, 2006, 865 days passed. As this delay exceeds eight months by more than 600 days, it is deemed “presumptively prejudicial,” and this factor favors Murray. Noe, 616 So.2d at 300 (quoting Smith, 550 So.2d at 408). Therefore, the remaining Barker factors will be analyzed. See Herring, 691 So.2d at 955-56 (quoting State v. Ferguson, 576 So.2d 1252, 1254 (Miss.1991)) (“[o]nce we find the delay presumptively prejudicial, the burden shifts to the [State] to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of the[se] reasons.”).

(2) Reason for the Delay

¶ 26. In Barker, the United States Supreme Court stated:

different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

Barker, 407 U.S. at 531, 92 S.Ct. 2182 (emphasis added). See also Jenkins v. State, 607 So.2d 1137, 1139 (Miss.1992) (citations omitted) (“[w]here the defendant has not caused the delay and the State does not show good cause for that delay, this Court weighs this factor against the [State].... [A]ny delay unintentionally caused by the State will not be weighed as heavily against the [State] as where the delay was intended to hurt the defendant’s case.”). Furthermore, this Court has stated that “[d]elays which are attributable to one party count against that party.” Brengettcy v. State, 794 So.2d 987, 993 (Miss.2001). Therefore, delays “attributable to the defendant tol[l] the running of time.” Jenkins, 607 So.2d at 1138. See also Bailey v. State, 463 So.2d 1059, 1062 (Miss.1985) (“if the defendant causes the delay he will not be allowed to complain.”).

¶ 27. Between Murray’s arrest on April 9, 2004, and the State’s first indictment on August 3, 2004, 116 days passed. As no evidence was presented that this time period could be attributed to either Murray or an intentional delay by the State, this Court will weigh it against the State. See Jenkins, 607 So.2d at 1139. Between Murray’s first indictment on August 3, 2004, and the State’s decision to nolle pro-sequi that indictment on February 22, 2005, 203 days passed. Once again, no evidence was presented that this time period could be attributed to either Murray or an intentional delay by the State, therefore, this Court will likewise weigh it against the State. See id. A mere ten days passed between the State’s nolle pro-sequi on February 22, 2005, and its re-indictment of Murray on March 4, 2005. Even though Murray was aware of the State’s intention to re-indict, it still weighs against the State, which controls both events. Between issuance of an arrest warrant for Murray on March 4, 2005, and his subsequent arrest in Jackson County on March 31, 2006, 392 days passed. This Court attributes this delay to Murray’s absence from the jurisdiction, see Issue II.(A.) supra, and, therefore, does not count this period of delay against the State. See id. at 1138. Finally, between Murray’s arrest in Jackson County on March 31, 2006, and commencement of the jury trial on August 22, 2006, 144 days passed. No evidence was presented that this time period could be attributed to either Murray or an intentional delay by the State, therefore, this Court will weigh it against the State. In total, this Court finds that 473 days of the delay are attributable to the State, albeit with limited weight, given the absence of evidence indicating intentional delay. As that 473-day delay exceeds the “presumptively prejudicial” threshold of eight months, this Court finds this factor to favor Murray. See Noe, 616 So.2d at 300.

(S) Defendant’s Assertion of His Right

¶ 28. Barker provides that:

[t]he defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary tueight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

Barker, 407 U.S. at 531-32, 92 S.Ct. 2182 (emphasis added). See also Atterberry, 667 So.2d at 627 (citations omitted) (“failure to assert a right to a speedy trial should be given ‘strong evidentiary weight’ in the Barker analysis.”). While “[a]n accused has no duty to bring himself to trial[,] ... [s]till he gains far more points under this prong of the Barker test where he has demanded a speedy trial.” Perry v. State, 637 So.2d 871, 875 (Miss.1994) (quoting Jaco v. State, 574 So.2d 625, 632 (Miss.1990)) (emphasis added). This Court previously has distinguished the demand for dismissal for violation of the right to speedy trial from the demand for speedy trial. See Guice v. State, 952 So.2d 129, 141 (Miss.2007); Brengettcy, 794 So.2d at 994; Perry, 637 So.2d at 875-76. Specifically, Perry states that:

[i]n Adams [v. State, 583 So.2d 165, 169-70 (Miss.1991) ] we observed that a demand for dismissal for violation of the right to speedy trial is not the equivalent of a demand for speedy trial. Such a motion seeks discharge not trial. There we held that a demand for dismissal coupled with a demand for an instant trial was insufficient to weigh this factor in favor of the defendant, where the motion came after the bulk of the entire period of delay had elapsed. Id. Similarly, as the trial court observed, Perry never demanded trial; he demanded dismissal claiming that his speedy trial rights had already been violated. Although his June motion mentioned that trial was set for October, an earlier trial date was not a part of the relief requested, even in the alternative.

Perry, 637 So.2d at 875-76 (emphasis added).

¶29. This Court finds Murray’s “Motion to Dismiss for Lack of Speedy Trial” analogous to the motions filed by the defendants in Adams and Perry. Murray’s motion was not filed until the vast majority of the delay period had elapsed. Specifically, 808 days had passed from the time of Murray’s April 9, 2004, arrest to the filing of his motion, and the motion preceded the jury trial by only 57 days. Substantively, the June 26, 2006, motion was Murray’s first speedy-trial-related motion. In that motion, Murray never sought an instant trial, but solely moved for dismissal. As “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial[,]” Murray’s failure to make timely demand for a speedy trial leads this Court to find that this factor favors the State. Barker, 407 U.S. at 531-32, 92 S.Ct. 2182.

(ft) Prejudice to the Defendant

¶30. “The accused is not required to put forth an affirmative showing of prejudice to prove his right to a speedy trial was violated. Nevertheless an absence of prejudice weighs against a finding of a violation.” Atterberry, 667 So.2d at 627 (citation omitted) (emphasis added). Under the Barker test, prejudice “has two aspects: (1) actual prejudice to the accused in defending his case, and (2) interference with the defendant’s liberty.” Brengettcy, 794 So.2d at 994 (citing Perry, 637 So.2d at 876). In Barker, the United States Supreme Court determined that:

[prejudice ... should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (I) to prevent oppressive pretrial incarceration; (II) to minimize anxiety and concern of the accused; and (III) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past.

Barker, 407 U.S. at 532, 92 S.Ct. 2182 (emphasis added). An evidentiary demonstration of prejudice is necessary as this Court “will not infer prejudice to the defense out of the ‘clear blue.’ ” State v. Magnusen, 646 So.2d 1275, 1285 (Miss.1994).

¶ 31. Murray argues that he suffered prejudice from the delay because:

[h]is initial bond was lost after the bonding company went out of business, so Murray had to pay another bond. As a result of [Murray’s] absence from work, Murray was fired from his job. [Finally,] the State admitted [Murray’s blood] evidence was destroyed during the delay and did not refute Murray’s testimony regarding his employment[. As such,] this factor also weighs against the State.

The State responds that Murray’s complaints about paying for another bond and losing his job were personal and not prejudicial to his defense. Regarding Murray’s blood evidence, the State asserts:

[t]he original blood vials were destroyed in keeping with standard laboratory practice. The record reflects that Murray and his counsel were given photocopies of the blood vials as well as the written results of the test. His counsel cross[-]examined the lab technician who testified that Murray’s blood alcohol content was .22 per cent. In addition, in his own testimony, Murray admitted that he had been drinking from around 5:00 to around 11:00 to 12:00 P.M.

(Citations omitted).

¶ 32. As a preliminary matter, this Court notes that Murray’s prejudice argument is limited, as he makes no allegations of oppressive pretrial incarceration or anxiety. See Barker, 407 U.S. at 532, 92 S.Ct. 2182. This Court agrees with the circuit court that Murray’s allegations of prejudice in being fired following his March 31, 2006, arrest and being required to pay for another bond because Griffith Bonding went out of business, in no way impaired Murray’s defense. See Barker, 407 U.S. at 532, 92 S.Ct. 2182.

¶ 33. As to disposal of Murray’s blood specimens by the Mississippi Crime Laboratory, this Court concludes that the absence of this physical evidence is mitigated by eyewitness testimony and the testimony of expert forensic toxicologist Mcln-tire. Not only did Mclntire vouch for the untampered nature of the blood specimens upon receipt, her subsequent examination determined that Murray had a 0.22% blood alcohol level. Additionally, she testified that disposal of the blood specimens was consistent with Mississippi Crime Laboratory policy. As such, this Court concludes that Murray’s defense was not impaired by the disposal of the specimens. In total, this Court finds that “substantial, credible evidence” in the record supports the circuit court’s conclusion that Murray failed to establish prejudice. DeLoach, 722 So.2d at 516. As the “absence of prejudice weighs against a finding of a violation[,]” this Court finds that this factor favors the State. Atterberry, 667 So.2d at 627. Balancing Test

¶ 34. Assuming arguendo that the applicable date of arrest is April 9, 2004, a “presumptively prejudicial” 473-day period of the delay is attributable to the State. However, Murray’s failure to make timely demand for a speedy trial or to establish any prejudice to his defense from the delay leads this Court to the same conclusion as in Issue 1(B)(1). Specifically, “substantial, credible evidence” supported the circuit court’s denial of Murray’s constitutional speedy-trial claim. DeLoach, 722 So.2d at 516.

II. Whether there was sufficient evidence to support Murray’s conviction.

¶ 35. Murray maintains that he “never denied being intoxicated; however, he did deny driving the truck.” Murray and Carr testified that Peanut was driving the truck and “[t]he State was not able to provide any conclusive evidence that [he] was driving the truck when it ran off the road and hit a tree[,]” Murray argues that the circuit court should have granted his motion for directed verdict. The State responds that “[i]t was reasonable to infer from Falvey, Deputy Cole and [Deputy] Chandler’s testimony about what they saw before and after the accident that Murray was driving the truck.” Furthermore, Er-vin testified that she was sure that Peanut was at home with her the night of the wreck and took a call from the hospital about Murray being in a wreck. Taking this evidence “as true with reasonable inferences,” the State asserts that “there was more than sufficient, credible ... corroborated evidence in support of the jury’s verdict.”

¶ 36. As Murray made three separate motions for directed verdict and “each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). This Court previously has stated that:

[i]n judging the sufficiency of the evidence on a motion for a directed verdict ... the trial judge is required to accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant. If, under this standard, sufficient evidence to support the jury’s verdict of guilty exists, the motion for a directed verdict ... should be overruled.

Noe v. State, 616 So.2d 298, 302 (Miss.1993) (citations omitted) (emphasis added).

¶37. Mississippi Code Annotated Section 63-11-30(1) provides, in part, that:

[i]t is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person’s ability to operate a motor vehicle; (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law....

Miss.Code Ann. § 63-11-30(1) (Rev.2004) (emphasis added). Regarding the relevant penalty, Mississippi Code Annotated Section 63-ll-30(2)(c) states, in part, that:

for any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be guilty of a felony and fined not less than Two Thousand Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00), shall serve not less than one (1) year nor more than five (5) years in the custody of the Department of Corrections....

Miss.Code Ann. § 63-ll-30(2)(c) (Rev. 2004) (emphasis added). As Murray concedes being intoxicated, the only issue is whether sufficient evidence was presented that he was “driv[ing] or otherwise oper-at[ing]” the truck. Miss.Code Ann. § 63-11-30(1) (Rev.2004).

¶ 38. “When there is other sufficient evidence of impaired operation, no eyewitness testimony of impaired operation is needed to sustain a conviction.” Turner v. State, 910 So.2d 598, 601 (Miss.Ct.App.2005) (citing Holloway v. State, 860 So.2d 1244, 1246-47 (Miss.Ct.App.2003)). As in Turner, we conclude that “there was sufficient credible evidence from which it could be reasonably inferred” that Murray was operating the truck at the time of the accident. Turner, 910 So.2d at 601. First, Murray’s claim that Peanut was driving the truck conflicts with the testimony of Peanut’s wife, Ervin, who testified that Peanut was home with her during the entire evening of April 9, 2004, and was in no way involved in the accident. Next, when driving within four car lengths of the truck before the accident, Falvey observed only one individual inside. Upon arriving at the scene, Falvey testified that Murray was the only individual present. Furthermore, according to Falvey, Murray admitted that he was the driver of the truck at the scene. Both Deputies Cole and Chandler concluded that Murray was driving under the influence, based upon Falvey’s statement, the absence of any other occupants at the scene, the presence of scattered open beer cans, and the distinct scent of alcohol on Murray’s breath. Finally, Deputy Chandler testified that Murray admitted to driving the truck later that evening at the jail. “[A]ccept[ing] as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom,” this Court finds that there was “sufficient evidence” to support the jury’s verdict that Murray was driving or otherwise operating the truck, in finding him guilty of felonious operation of a motor vehicle while under the influence of intoxicating liquor. Noe, 616 So.2d at 302. Accordingly, this Court will not disturb the jury’s verdict and finds that the circuit court did not err in denying Murray’s motion for directed verdict.

CONCLUSION

¶ 39. Based upon the aforementioned analysis, this Court affirms the final judgment and sentence of the Circuit Court of Lincoln County as to Murray.

¶ 40. CONVICTION OF FELONIOUS OPERATION OF A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE WILL BE SERVED DAY FOR DAY WITHOUT CHANCE OF EARLY RELEASE OR PAROLE.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND LAMAR, JJ., CONCUR. DIAZ, P.J., AND GRAVES, J., CONCUR IN-RESULT ONLY.

      . Peanut died on November 19, 2005. Linda Ervin ("Ervin"), Peanut's wife, testified that Peanut had been home with her the entire evening of April 9, 2004, and had not gone to the pool hall.

      . Carr testified that she was not Murray’s girlfriend on April 9, 2004.

      . According to Murray, he was not driving his truck "[b]ecause I was drinking[,]” and had been drinking continuously from 5:00 p.m. until approximately 11:00 p.m.

      . Deputy Cole additionally testified that he never heard Murray assert that another individual had been driving the truck.

      . Deputy Chandler had no recollection of Murray calling out in the surrounding woods for the alleged driver.

      . Murray had pleaded guilty to the felonious operation of a motor vehicle while under the influence of intoxicating liquor on three prior occasions. Specifically, on February 23, 1999, Murray pleaded guilty to the felonious operation of a motor vehicle while under the influence of intoxicating liquor in Cause No. ' 98-077-KA in the Circuit Court of Pike County, Mississippi. As a result, Murray was sentenced to serve a term of five years in the custody of the MDOC. Thereafter, on August 15, 2000, Murray pleaded guilty to the felonious operation of a motor vehicle while under the influence of intoxicating liquor in Cause Nos. 00-445-KA and 00-446-KA in the Circuit Court of Pike County. In each of these causes, Murray was sentenced to serve a term of four years in the custody of the MDOC, to run concurrently with the alternative cause "and the remainder of the sentence imposed against [him] in Cause No. 98-077-KA.”

      . According to Murray, he "bonded out that same day.” While out on bond, on December 4, 2004, Murray once again endangered the public by driving under the influence and was arrested in Lincoln County and was cited for felony DUI, careless driving, possession of beer, driving with a suspended license, no insurance, and DUI (third or subsequent conviction), and was released again by posting bond.

      . According to Major Dustin Barfield of the Lincoln County Sheriff's Department, "[i]t's our general policy that we notify the bondsmen and that we attempt to locate here in Lincoln County before we enter them on NCIC[,]" and Murray would not have been placed on NCIC had he been found in Lincoln County. While Major Barfield admitted that the Lincoln County Sheriff's Department had a Pike County address for Murray in its booking computer, he stated that they did not check that address because it was located in a neighboring jurisdiction.

      . Murray was arrested after a "hit confirmation” on NCIC which Major Barfield testified was the first "hit confirmation” on Murray since his placement on NCIC.

      . According to Murray, he was fired "[b]e-cause I had to stay in jail for about four days before I could get back [to Lincoln County] to bond out again, and [I] missed too many days, so they terminated me.”

      .According to Murray, "I was bonded out the first time with Griffith Bonding, and they went out of business, and I didn't even realize it, and then I just had to bond out again. They wouldn't let me out on the same bond.”

      . Murray renewed his motion for directed verdict after resting and after the State rested finally. Both motions were overruled.

      . Additionally, a $2,500 fine, $1,000 in court-appointed attorney's fees, and court costs were imposed upon Murray.

      . Including Murray, who never denied being intoxicated.

      . Murray does not dispute that diis would be his third or subsequent offense within a period of five years under Mississippi Code Anno-lated Section 63-11-30(1), thereby rendering the penalty provisions of Mississippi Code Annotated Section 63-11 — 30(2)(c) applicable.


author: DICKINSON, Justice,

text:
    TREASURE BAY CORPORATION d/b/a Treasure Bay Casino and Fire Dog, Inc. d/b/a Adventures Bar and Grill v. Sheila RICARD, individually, and on behalf of the wrongful death beneficiaries of Phillip Robinson, Deceased.
    No. 2006-IA-00831-SCT.
    Supreme Court of Mississippi.
    Nov. 8, 2007.

      Walter William Dukes, Je’Nell Blocher Gustafson, Cynthia Dianne Burney, Donald Rafferty, Gulfport, attorneys for appellants.
    Tom P. Calhoun, III, Greenwood, Jaek-ye C. Bertucci, attorneys for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. This wrongful-death action alleges the defendants are liable for the wrongful death of Phillip Robinson. The suit is brought by Sheila Ricard, individually and on behalf of Robinson’s statutory wrongful death beneficiaries, pursuant to Mississippi’s Dram Shop Act, Mississippi Code Annotated Section 63-3-73 (Rev.2004). The defendants, Treasure Bay Corporation d/b/a Treasure Bay Casino and Fire Dog, Inc. d/b/a Adventures Bar and Grill, filed motions for summary judgment which the trial court denied in an order without opinion. This Court granted the defendants’ joint petition for interlocutory appeal to clarify several issues raised by the parties concerning summary judgment. We find that the trial court’s denial of summary judgment was proper.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. In the early morning hours of October 23, 2002, Joshua Dillmon was driving along Highway 90 in Ocean Springs when he struck and killed Robinson. Dillmon left the scene of the accident before police arrived, but returned less than an hour later. At approximately 6:41 a.m., Dillmon was administered an intoxilyzer test by police, which revealed his blood alcohol content (BAC) was 0.088%. Later that morning, Dillmon was given a blood test which indicated a BAC of 0.07%. Dillmon also gave an unsworn statement to police after being arrested.

¶ 3. Dillmon told police he had been awake since approximately 5 a.m. on October 22, 2002, to get ready to be at work at 6 a.m. Dillmon worked that day until approximately 3 p.m. That night, he went to the Pirate’s Den, a bar inside the Treasure Bay Casino, at approximately 10 p.m. Dill-mon stated that he drank four or five beers and left the Pirate’s Den at approximately 11:30 p.m.

¶ 4. He then drove from Treasure Bay to Adventures. He claims that, while at Adventures, he consumed three beers before leaving at approximately 3:30 a.m. Dillmon said that he then drove to Casino Magic, where he ate a hamburger but had nothing else to drink. He stated that he knew he should not have driven from Adventures to Casino Magic but that he was hungry and needed to sober up.

¶ 5. Next, Dillmon left Casino Magic and traveled eastbound on Highway 90 at roughly 45 miles per hour. When he approached the intersection of Martin Luther King and Highway 90, he said that he looked down for two or three seconds to change the radio station as he went through the intersection. While passing-through the intersection, he hit something that he thought was a construction barrel. After the collision, Dillmon pulled over into a parking lot approximately one-half mile away and stayed there for around one hour before returning to the scene. Upon returning and being administered the in-toxilyzer test, Dillmon was arrested.

¶ 6. After filing suit against Treasure Bay and Adventures, Ricard deposed two Pirate’s Den employees and three Adventures employees who worked during the time Dillmon claimed he was a patron at these establishments. None of the employees knew Dillmon or remembered serving Dillmon during the times in question.

¶ 7. Dr. Steven Hayne, Ricard’s expert, provided an affidavit in which he opined that Dillmon would have been visibly intoxicated when he was served alcohol at the Pirate’s Den and Adventures. When deposed by the defendants, Dr. Hayne confirmed his opinion that Dillmon was visibly intoxicated when he was served alcohol at the Pirate’s Den and Adventures. Dr. Hayne testified that he was qualified to give his opinions concerning visible intoxication because he was board certified in anatomic pathology, forensic pathology, and forensic medicine. He held himself out as an expert in the interpretation of the effects of ethyl alcohol in human beings. Dr. Hayne based his opinions on Dillmon’s intoxilyzer results indicating a BAC of 0.088%, his blood sample indicating a BAC of 0.07% and his statement to police.

¶8. In forming his opinion, Dr. Hayne accepted Dillmon’s statement that he drank no alcoholic beverages after leaving Adventures, but rejected Dillmon’s claim that he consumed only seven or eight beers between 10:30 p.m. and 3:30 a.m. Dr. Hayne opined that, if Dillmon were telling the truth about the amount of alcohol he consumed, he would have had a BAC of 0.00% when the intoxilyzer test was administered at 6:41 a.m. Dr. Hayne opined that because the intoxilyzer test administered to Dilhnon at 6:41 a.m. revealed that his BAC was 0.088%, his blood alcohol content earlier would have reached a level of 0.14% to 0.15%. Such high levels of BAC, according to Dr. Hayne, could not be produced with seven or eight beers, and would have rendered Dillmon visibly intoxicated.

¶ 9. After the incident, Dillmon was indicted for manslaughter, and has refused to testify in this civil proceeding, claiming the privilege against self-incrimination granted to him under the Fifth Amendment to the United States Constitution. Ricard relies exclusively on Dr. Hayne’s testimony in arguing the existence of a triable issue of material fact. Both defendants claim they are entitled to summary judgment because Ricard has failed even to establish that Dillmon was present and drinking at their respective bars.

DISCUSSION

I.

¶ 10. This Court reviews denials of summary judgment de novo. Davis v. Hoss, 869 So.2d 397, 401 (Miss.2004). Summary judgment is granted “if the pleadings, depositions and answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). The evidence must be viewed in the light most favorable to the nonmoving party. Flores v. Elmer, 938 So.2d 824, 826 (Miss.2006).

¶ 11. Ricard’s suit against Treasure Bay and Adventures was brought pursuant to Mississippi’s Dram Shop Act. Miss. Code Ann. § 67-3-73 (Rev.2004). Therefore, the claim must be analyzed under the statute. The Act provides limited immunity for those selling or furnishing intoxicating beverages and states, in pertinent part:

(1) The Mississippi Legislature finds and declares that the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or another person.
(2) Notwithstanding any other law to the contrary, no holder of an alcoholic beverage, beer or light wine permit, or any agent or employee of such holder, who lawfully sells or serves intoxicating beverages to a person who may lawfully purchase such intoxicating beverages, shall be liable to such person or to the estate or survivors of either, for any injury suffered off the licensed premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served.

Miss.Code Ann. § 67-3-73(l)-(2) (Rev. 2004).

¶ 12. The Act also creates a cause of action for those injured by someone who has been served intoxicating beverages while visibly intoxicated, stating:

the limitation of liability provided by this section shall not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol, or to any holder of an alcoholic beverage, beer or light wine permit, or any agent or employee of such holder when it is shown that the person making a purchase of an alcoholic beverage was at the time of such purchase visibly intoxicated.

Miss.Code Ann. § 67-3-73(4) (Rev.2004).

¶ 13. When analyzing the facts of this case under the statute, the trial judge properly denied the defendants’ motions for summary judgment. Ricard has presented sufficient evidence to create a genuine issue of material fact as to whether Dillmon was served alcohol by Adventures while he was visibly intoxicated. Accordingly, the trial court’s denial of summary judgment as to Adventures is affirmed. However, Ricard has provided insufficient evidence to create any genuine issues of material facts as to Treasure Bay. Nevertheless, because the plaintiff filed a Rule 56(f) motion stating that she cannot obtain needed testimony, the denial of summary judgment as to Treasure Bay also is affirmed.

II.

Expert opinions — credibility versus reliability.

¶ 14. To be consistent with the rule of law, this Court may not reject an expert’s opinion simply because the opinion is based in part on a statement of fact which the Court does not find credible. This Court must not invade the fact-finder’s province, and should not use the concepts of credibility and reliability interchangeably.

¶ 15. To determine whether summary judgment was appropriate, the precise issue is whether the record, when viewed in the light most favorable to Ricard, indicates that Treasure Bay and Adventures sold alcoholic beverages to Dillmon when he was “visibly intoxicated.” See Miss. Code Ann. § 67-3-73(4). As to Adventures, the record clearly contains such evidence.

¶ 16. Dillmon told the police he dank alcoholic beverages at Treasure Bay’s casino and bar from 10 p.m. until 11:30 p.m. and then drank additional alcoholic beverages at Adventures from shortly after 11:30 p.m. until about 3 a.m. Dillmon further stated that he consumed no alcoholic beverages after leaving Adventures. The accident took place between 5:14 a.m., and 5:44 a.m. Dr. Hayne testified that, given Dillmon’s statement to police,

he would have exhibited significant signs of visible intoxication including, but not limited to, marked alteration as to orientation of time, person and place, menta-tions, emotional stability, light reflex and motor coordination. One would expect significant loss of self control with impairment of judgment. One would expect to see impairment as to ability to ambulate or maintain balance and one would also expect to see diminished mentation in the performance of relatively simple tasks. The ability to perform a fine motor skill task would be rendered essentially highly diminished, if not impossible. The ability of an individual such as Dillmon to perform a standard task with such an elevated ethyl alcohol level would be markedly impaired.
I am of the opinion that any individual skilled or trained in the observation and monitoring of such signs of visible intoxication with minimal skill, and exercising should have recognized the significance of impairment exhibited by Mr. Dillmon secondary to his ethyl alcohol intoxication on the night and early morning in question.

¶ 17. There can be no dispute that, if Dr. Hayne’s testimony is considered, summary judgment is inappropriate as to Adventures. The defendants argue that the trial court improperly relied on Dr. Hayne’s opinion because it was partially based upon a statement by Dillmon, which, according to the defendants, lacks credibility. The defendants do not doubt Dillmon made’ the statement; they simply don’t believe it was truthful. Indeed, experts in many fields, including medicine, accident reconstruction and forensic pathology, frequently rely on histories provided by patients and witnesses. Thus, it would be unsettling for this Court abruptly to reject all expert opinion which relies on a historical account of the facts. Of course, whether or not the facts relied upon are credible is a matter for cross-examination and collateral attack at trial.

¶ 18. After a diligent search, this Court has been unable to locate a single decision from this jurisdiction or any other which holds that, to render an opinion, an expert must accept as true a witness’s entire statement. The truthfulness of a particular factual representation is a matter of credibility. Credibility is a question of fact that must be decided by the jury. Cousar v. State, 855 So.2d 993, 997 (Miss.2003). Evidence (including its credibility) must be viewed in favor of the non-moving party. Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995). Thus, for the limited purpose of reviewing the trial court’s denial of summary judgment, this Court accepts as true the statements made by Dillmon which are favorable to Ricard, and rejects those which are not, and this Court will not (for summary judgment purposes) reject Dr. Hayne’s opinions, simply because they rely on statements, the truth of which the defendant questions.

III.

¶ 19. This Court adopted the Daubert standard for the admission of expert testimony in Mississippi. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Federal Rules of Evidence, including Rule 702 which addresses expert-opinion testimony, were adopted in 1975. The version of Federal Rule 702, in effect in 1993, the year Daubert was decided, stated:

If scientific, technical, or other specialized testimony will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Fed.R.Evid. 702. In construing and applying Rule 702, the United States Supreme Court held that, when a party offers scientific, expert opinion, the courts must serve as “gatekeeper,” to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at 2795. Having announced the importance of a finding of reliability, the Court offered certain indicators of reliability which should be considered. These include whether the theory can be tested, whether it has been subjected to peer review, the error rate, and the general acceptance of the theory. Id. at 2796-97.

¶ 20. Early interpretations of Rule 702 focused on scientific theory. However, in the late 1990s, the United States Supreme Court expanded its Dauberi analysis to include a closer look at the reasoning employed by the expert in reaching conclusions and opinions to be offered at trial. See e.g. General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Kumho Tire Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Although these opinions closely scrutinize expert methodology, they neither address nor require any finding of credibility.

¶ 21. As a result of, and in order to comply with, these Supreme Court opinions, the Federal Rules of Evidence were modified in 2000. The new version of the rule states:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702. The language of this new version of Rule 702 focuses on the reliability of the expert’s methods and data, but makes no mention of the credibility of statements relied upon by experts who are following an accepted methodology-

¶ 22. By its 2003 amendment to Mississippi Rules of Evidence 702, this Court adopted the Dauberi standard, and established the “gate keeping responsibility of the trial court to determine whether ... expert testimony is relevant and reliable.” Comment, Miss. R. Evid 702. Neither the rule nor its comment mentions any requirement that statements relied upon by an expert using proper, reliable, methodology also be found credible.

¶ 23. To illustrate this Court’s position, suppose on a patient’s first visit to a doctor, the patient provided a history which included a claim that the patient had experienced back pain on a daily basis for more than a year. Further suppose that, although the patient told the doctor the severity of the pain prevented the patient from working, the patient was observed water skiing and playing golf. Finally, suppose that, based on the history of back pain, the doctor diagnosed the patient with nerve impairment. Under such circumstances, this Court would not hold that a trial court was justified in refusing to allow the doctor to testify as an expert.

¶ 24. An expert’s methodology must be reliable. To examine the reliability of an expert’s opinions and methods, we have held that courts must examine factors including:

whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.

Miss. Transport Comm’n v. McLemore, 863 So.2d 31, 37 (Miss.2003).

¶ 25. While the factors listed above are not exhaustive, this Court never has held that for an expert’s opinion to be reliable, it must rely on a statement that is truthful in its entirety. No evidence has been presented that ■ the plaintiff’s expert relied upon facts,- data, or procedures that are not generally accepted in the scientific community. Hughes v. State, 892 So.2d 203, 210 (Miss.2004). Indeed, the defendants do not argue that Dr. Hayne used an inappropriate or unreliable methodology— the current standard for exclusion under DauberL

Adventures

¶ 26. A factual basis exists for Dr. Hayne’s opinion that Dillmon was visibly intoxicated while at Adventures. When the testimony is viewed in the light most favorable to the plaintiff, Dr. Hayne could accept the statement that Dillmon did not drink alcohol after leaving Adventures and thus, must have consumed enough alcohol prior to leaving Adventures to cause his blood alcohol content to register 0.088% hours later. Dillmon’s consumption of alcohol prior to leaving Adventures would have, in Dr. Hayne’s opinion, caused Dill-mon to appear visibly intoxicated while at Adventures. Thus, if Dr. Hayne’s opinion is to be believed, Adventures served Dill-mon alcohol at a time when he was visibly intoxicated.

¶ 27. Dr. Hayne’s methodology was not challenged as improper, unreliable or unacceptable in the medical community in the record. Thus, his testimony was sufficient to present a material issue of triable fact as to whether Adventures is liable.

Treasure Bay

¶ 28. Because Dr. Hayne accepted that Dillmon did not continue to drink after leaving Adventures, he may fairly draw the conclusion that Dillmon took his last drink at Adventures. Thus, Dr. Hayne rendered an opinion that when Dill-mon ended his drinking at Adventures, he was visibly intoxicated. The same cannot be said, however, for Treasure Bay. “While Dr. Hayne may accept as true parts of Dillmon’s statement and reject others, he may not assume facts not supported by the record. We find no factual basis for Dr. Hayne’s opinion that Treasure Bay served Dillmon alcohol while he was visibly intoxicated. Because Dillmon continued to drink after leaving Treasure Bay, Dr. Hayne has no basis for opining as to Dill-mon’s level of intoxication at the time he left Treasure Bay.

¶29. Dillmon testified that he drank only a few beers while at Treasure Bay and that he did not consume alcohol before arriving at Treasure Bay. Nothing in the record indicates that Dillmon was visibly intoxicated when he left Treasure Bay to go to Adventures. Therefore, Dr. Hayne’s opinion that Dillmon was visibly intoxicated while at Treasure Bay is not based upon the facts and is therefore unreliable. Nevertheless, summary judgment as to Treasure Bay is inappropriate because, as discussed below, the plaintiff has not been given a fan- opportunity to complete discovery.

IV.

¶ 30. Ricard made several good-faith efforts to obtain testimony from Dill-mon. Unable to do so, she filed a motion pursuant to Rule 56(f), which provides:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

M.R.C.P. 56(f). Relying on his Fifth Amendment right not to make self-incriminating statements, Dillmon continually claimed he would not testify. Ricard asked the trial court to withhold summary judgment until Dillmon could be deposed. In its order denying the defendants’ motions for summary judgment, the trial court did not address the Rule 56(f) motion.

¶ 31. Although Ricard did not produce affidavits explaining why she was unable to produce Dillmon’s testimony, this Court has held that the need for additional discovery may be presented by Rule 56(f) motion. Prescott v. Leaf River Forest Prods., 740 So.2d 301, 307 (Miss.1999).

¶ 32. The plaintiff demonstrated that she was unable to produce Dillmon’s affidavit because, on numerous occasions, he claimed that — as to any question other than his name — he would invoke his Fifth Amendment privilege against self-incrimination. At the hearing on the motion for summary judgment, the plaintiff explained Dillmon’s unavailability for deposition and requested that his deposition be conducted in the presence of the court. Although the trial court took the request under advisement, it ultimately denied summary judgment without opinion. Thus, we do not know whether the trial court resolved plaintiffs Rule 56(f) motion one way or the other.

¶ 33. The numerous attempts to secure Dillmon’s deposition after his criminal trial repeatedly was postponed demonstrate the diligence required by the party seeking to avoid summary judgment under Rule 56(f). In addition, Dillmon’s testimony would allow the court to determine whether issues of fact remain regarding whether the defendants, specifically Treasure Bay, served Dillmon alcohol while he was visibly intoxicated. The importance of this testimony, coupled with the diligence demonstrated by the plaintiff in obtaining the testimony, demonstrate a valid, good-faith reason for further discovery.

Civil application of the Fifth Amendment privilege

¶ 34. Finally, the request that Dillmon’s deposition be taken in the presence of the court demonstrates additional good faith on the part of the plaintiff. A deposition before the court would avoid any delay that could result if Dillmon improperly invokes his Fifth Amendment privilege. The civil application of the Fifth Amendment privilege is not as broad as in the criminal context. In re Knapp, 536 So.2d 1330, 1334-5 (Miss.1988). The privilege against self-incrimination in a civil case must be applied on a question-by-question basis. Id. at 1334. When determining whether an individual must answer a specific question, the court must apply a two-step test. Id. “First, the Court must determine whether the answers to the questions might reveal that the witness is engaged in criminal activity. The witness must answer if the answer could hot be incriminatory.” Id. “Second, if the answers might incriminate, the court must then determine whether there is a remote risk that the witness will be prosecuted for the criminal activities.” Id.

¶ 35. To avoid answering the question of whether he was at Treasure Bay or Adventures on the night in question, Dill-mon would be required to demonstrate to the trial court how his answer might incriminate him.

CONCLUSION

¶ 36. Because Ricard has presented evidence establishing genuine issues of material fact concerning whether Dillmon was served alcoholic beverages while visibly intoxicated at Adventures; and because Ri-card properly filed a Rule 56(f) motion and is entitled to further discovery concerning Dillmon’s testimony, the trial court’s denial of summary judgment is affirmed and this case is remanded for further proceedings consistent with this opinion.

¶ 37. AFFIRMED AND REMANDED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . The Pirate’s Den is owned and operated by Treasure Bay.

      . There is a factual dispute as to the time of the accident. At the summary judgment hearing, tire attorneys represented that the accident occurred at 5:14 a.m. which, if true, would be more favorable to Ricard.

      . The same cannot be said for Adventures. According to Dillmon's statement, he did not drink after leaving Adventures. Thus, when he was served his last alcoholic beverage of the night at Adventures, his BAC (according to Dr. Hayne) was so high that he must have appeared visibly intoxicated. Dr. Hayne had no way to calculate Dillmon's BAC when he left Treasure Bay and went to Adventures to continue to drink.


author: CARLTON, J.,

text:
    Lawrence Wayne MINCHEW, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00485-COA.
    Court of Appeals of Mississippi.
    April 24, 2007.
    Rehearing Denied Nov. 6, 2007.

      Lawrence Wayne Minchew (Pro Se).
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., IRVING, BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This case comes before this Court from the February 10, 2006 order of the Circuit Court of Harrison County denying a motion for post-conviction relief. Finding no error, we affirm.

FACTS

¶ 2. Lawrence Wayne Minchew was indicted by the grand jury of Harrison County in two causes, both as an habitual offender under the provisions of Mississippi Code Annotated § 99-19-83 (Rev.2000). One indictment, cause number 835(835), charged Minchew with two counts, the first for possession of a controlled substance with intent, the second for possession of a controlled substance. The other indictment, cause number 504(504), charged him with possession of pseu-doephedrine. On November 5, 2002, Min-chew entered a plea of guilty to the charge under 504 and to the first count of 835. The State agreed to pass to the files four other charges, one being the second count of 835. The trial judge accepted Min-chew’s pleas and sentenced him to five years under 504 and seventeen years under 835. The sentences were to run concurrently for a total of seventeen years.

¶ 3. On November 3, 2005, Minchew filed a motion for post-conviction relief in the Circuit Court of Harrison County which was denied by order of the court on February 10, 2006. Aggrieved by the denial, Minchew appeals.

DISCUSSION

1. Untimely Appeal

¶ 4. The State asserts that this Court lacks jurisdiction to hear this appeal because Minchew’s notice of appeal was untimely filed. Mississippi Rule of Appellate Procedure 4(a) requires that a notice of appeal “[s]hall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” An appeal which is “not timely filed pursuant to Rule 4 or 5” shall be mandatorily dismissed. Rule (2)(a)(l). When challenging an appeal as untimely, the State bears the burden of proving that, under the terms of the prison mailbox rule, the prisoner’s notice of appeal was not “filed” within the thirty-day window of Rule 4. Sykes v. State, 757 So.2d 997, 1000—01(¶ 14) (Miss.2000); Vance v. State, 941 So.2d 225, 227(¶ 5) (Miss.Ct.App.2006) (citation omitted). Under the prison mailbox rule, a pro se prisoner’s notice of appeal is effectively “filed” under Rule 4 when the prisoner delivers his notice of appeal to the proper prison authorities for mailing. Sykes, 757 So.2d at 1000-01(¶ 14).

¶ 5. The order denying Minchew’s motion for post-conviction relief was entered on February 10, 2006. The thirty-day period for filing would have run on March 12, 2006, a Sunday. Consequently, he had until March 13, 2006 to timely file his appeal. Minchew’s notice of appeal was received and filed by the circuit court on March 23, 2006, ten days late. Further, as indicated in his certificate of service, Min-chew did not cause his notice of appeal to be mailed until March 20, 2006, seven days after the expiration of his thirty-day deadline. Thus, Minchew’s appeal was not timely filed under the prison mailbox rule, because, by his own admission, Minchew did not deliver his appeal to the prison authorities for mailing prior to the expiration of his thirty-day deadline. Consequently, there is no dispute as to whether Minchew’s notice was untimely filed.

¶ 6. In his reply brief, Minchew urges this Court to suspend the thirty-day time requirement. This Court has the authority to suspend the thirty-day time requirement “in the interest of expediting decision or for other good cause shown.” Rule 2(c); see also Rule 4 cmt. (time requirement may be suspended under Rule 4 in criminal cases, post-conviction cases included). Minchew asserts that the February 10, 2006 order denying his motion for'post-conviction relief was not stamped and mailed from the circuit court until February 15, 2006, and that he did not receive it from the clerk until several days later. He claims further that the “law clerk at Marshall County Correctional” told him that the thirty days started to run from the day he received notice of the order. Minchew argues in essence that this constitutes good cause and that his appeal should be heard notwithstanding its untimeliness.

¶ 7. Situations where a defendant receives late notice of the entry of an order are provided for in Rule 4(h). When a notice of appeal is filed more than thirty days after the entry of the order appealed from, the trial court may reopen the time for appeal “if it finds [] that a party entitled to notice of the entry of a judgement or order did not receive such notice from the clerk or any party within 21 days of its entry. ...” Rule 4(h) (emphasis added). “Reopening may be ordered only upon a motion filed within 180 days of the entry of a judgment or order or within 7 days of receipt of notice of such entry, whichever is earlier.” Id. cmt. According to his own statements, Minchew received notice within twenty-one days of the entry of the order, and, in any event, filed no motion to reopen the time for appeal with the trial court. We recognize that Min-chew also failed to file a motion for extension under Rule 4(g).

¶ 8. This Court has looked with care at Minchew’s situation, taking into consideration that he is a pro se litigant. We find that Minchew failed to utilize the options available to him and additionally conclude that he has not made a showing of good cause. Therefore we decline to exercise our discretion to suspend the time-requirement of Rule 4. Alternatively, should Min-chew’s appeal not be procedurally barred we further find that it is without merit. We will address the merits of Minchew’s individual claims in the interest of explanation with the understanding that “any subsequent review will stand on the bar alone.” Walker v. State, 671 So.2d 581, 587 (Miss.1995).

2. Due process

¶ 9. Minehew claims that he was denied due process of law because he was not given a separate recidivism hearing and that, as a result, he was improperly sentenced as an habitual offender. He contends that under Rule 11.03(3) of the Uniform Rules of Circuit and County Court, he was entitled to a hearing, separate and apart from his guilty plea hearing, to determine whether he should be sentenced as an habitual offender.

¶ 10. A separate recidivism hearing is required where the defendant is convicted by jui-y trial; however, a defendant who enters a plea of guilty is not entitled to a separate hearing. Keyes v. State, 549 So.2d 949, 951 (Miss.1989); Crouch v. State, 826 So.2d 772, 775(¶4) (Miss.Ct.App.2002). The requirement of a separate recidivism heax-ing is a measure protective in nature, whose purpose is to withhold from the jury knowledge of the defendant’s prior criminal convictions. Keyes, 549 So.2d at 951. In situations where the defendant enters a guilty plea, the need for a separate hearing does not arise; therefore, no separate hearing is required. Id. A defendant is propex-ly sentenced as an habitual offender if the defendant is sufficiently indicted as an habitual, the prosecution proves the prior convictions with competent evidence, and the defendant has a reasonable opportunity to contest the proof offered by the prosecution. Id.

¶ 11. Minehew filed a petition to enter a plea of guilty in which he acknowledged that he was indicted as an habitual and that the maximum punishment was life. He further acknowledged that he had previously been convicted of “several” felonies. Minehew was properly indicted as an habitual, he had ample opportunity to challenge the validity of his prior convictions yet declined to do so. Minehew was not denied due process as he was not entitled to a separate hearing. The trial court did not err in sentencing Minehew as an habitual.

¶ 12. Even if Minchew’s claim had substantive merit, the record does not reflect, nor does Minehew assert, that he requested a separate hearing at the time of sentencing. As a result, he is precluded from now raising the argument for the first time on appeal. Id. (citing Dalgo v. State, 435 So.2d 628, 630 (Miss.1983)).

¶ 13. Minehew’s argument also fails because the sentence he received was illegally lenient. A defendant who benefits from the receipt of a sentence more lenient than required by statute may not later be heard to complain that his sentence is illegal. Cook v. State, 910 So.2d 745, 747(¶ 10) (Miss.Ct.App.2005); Sykes v. State, 895 So.2d 191, 196(¶20) (Miss.Ct.App.2005). Minehew pled guilty and was sentenced as an habitual offender under Mississippi Code Annotated section 99-19-83, which requires a sentence of life imprisonment. However, the trial judge only sentenced him to seventeen years. Min-chew clearly benefitted from the sentence that he now challenges. This issue is without merit.

3. Ineffective Assistance

¶ 14. Minehew claims that his at-tox-ney induced him to plead guilty by misrepresentations which led him to believe that, if he pled guilty, the habitual portion of the indictment against him would be dropped and he would only receive a sentence of five years. Minehew also argues that his attorney’s performance was ineffective because he failed to subpoena witnesses and evidence.

¶ 15. As a preliminary matter, we note that Minchew offers to this Court only his bare assertions as proof that he was denied adequate representation. He provided no affidavits or proposed testimony of other witnesses to support his contentions. Post-conviction claims of ineffective assistance are properly dismissed where the defendant offers only his affidavit in support of his allegations. Vielee v. State, 653 So.2d 920, 922 (Miss.1995) (“Where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” (citations omitted)); Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990); Hargett v. State, 864 So.2d 283, 285(¶ 8) (Miss.Ct.App.2003); Coleman v. State, 772 So.2d 1101, 1102(¶ 7) (Miss.Ct.App.2000). Minchew’s claim of ineffective assistance is without merit and was properly dismissed by the trial court.

¶ 16. 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 rebutta-ble 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)).

¶ 17. Evaluating Minchew’s claim from the totality of the circumstances, we find that he was well-advised by his attorney that he should plead guilty. Minchew faced a maximum sentence of life imprisonment, yet under the advice and direction of his attorney, he was able to plead guilty and receive a sentence of only seventeen years. Minchew’s attorney also managed to get four charges retired to the files. In the trial court’s order denying his motion, it was noted that Minchew’s attorney “raised every credible pre-trial motion and was prepared to go forward.” We find that Minchew has failed to overcome the presumption that his attorney’s actions were reasonable and strategic, and has failed to show prejudice. This claim is without merit.

A Involuntary Plea

¶ 18. Minchew argues that his plea was involuntarily entered due to the erroneous advice of his attorney, namely, that if he pled guilty, the habitual portion of his indictment would be dropped and he would receive a sentence of only five years. For a guilty plea to be valid it must be made “voluntarily and intelligently.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). “A plea is deemed ‘voluntary and intelligent’ only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea.” Id. (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991)).

¶ 19. The record does not support Min-chew’s assertions. Minchew signed a petition to plead guilty in which he acknowledged that the maximum sentence was five years for cause number 504 and thirty years for cause number 835, for a total of thirty-five years. The petition further acknowledged that Minchew was indicted as an habitual offender which carried a maximum sentence of life. He represented in his petition that he had previously been convicted of “several” felonies, and admitted his guilt to the two charges under which he sought to plead guilty. The petition demonstrates that an open plea was intended, and states that “the court is not required to carry out any understanding [ ] with the district attorney” or accept any sentencing recommendation made by the State. Minehew also acknowledged in his petition that he was satisfied with the advice and help of his attorney and that any representations as to a lighter sentence made by his attorney were mere predictions and not binding on the court. The record does not contain the transcript of the plea hearing or sentencing hearing but does contain the sentencing order in which the trial judge stated that no recommendation was made by the State, and that the State agreed to pass to the files four charges. The only bit of evidence Min-chew offers to prove an agreement to drop the habitual portion of his indictment is the fact that paragraph sixteen of his petition to plead guilty is checked. We do not find this to be persuasive. Paragraphs sixteen and seventeen read:

[checked]. (check) 16. Habitual Criminal Paragraph. If not applicable
17. Registration of Sex Offenders Form. If not applicable [NA]. (cheek)

¶20. Sex offender status is clearly inapplicable to Minchew’s case and paragraph seventeen was appropriately marked “NA.” It seems logical then, that if habitual criminal status was also inapplicable, paragraph sixteen would have likewise been designated “NA.”

¶ 21. We find that the record demonstrates that Minehew was aware of the consequence of his plea. His claim is directly contradicted by his petition to plead guilty and was properly dismissed by the trial court. Sandifer v. State, 799 So.2d 914, 917(¶ 8) (Miss.Ct.App.2001) (citing Young v. State, 731 So.2d 1120, 1122-23(¶ 10) (Miss.1999)). Beyond all this, as previously noted, Minehew failed to provide the affidavits of others in support of his claims. This issue is without merit.

5. Breached Plea Agreement

¶ 22. Minehew vaguely argues that his plea agreement was breached. Again he asserts that pursuant to an alleged plea agreement, he would not be sentenced as an habitual offender. As determined above, Minehew has failed to show that there was any agreement under which he would not be sentenced as an habitual. At most, the record suggests that the State agreed to retire four charges to the files in exchange for Minchew’s guilty plea. This issue is without merit.

¶ 23. More importantly, Minehew directs us to no authority in support of this claim. “This Court will not review any issues where the party has failed to cite relevant authority.” Beene v. State, 910 So.2d 1152, 1154(¶ 7) (Miss.Ct.App.2005) (citing Williams v. State, 708 So.2d 1358, 1360-61(¶ 12) (Miss.1998)).

6. Ambiguous Sentence

¶24. Minehew claims that the sentencing order vras ambiguous. Once again, Minehew fails to cite any authority in support of this argument. However we will address it. The sentencing order provided that Minehew be sentenced under 835 to seventeen years “under the supervision of the Mississippi Department of Corrections [ (MDOC) ],” and under 504 to five years “in the MDOC.” Finally, the order stated that the sentences would run concurrently for a total of seventeen years “in the custody of the MDOC.” Minehew appears to argue that the words “under the supervision of” imply something less than incarceration such as house arrest or probation. We disagree. Although the trial court could have possibly been more consistent in the wording of the sentencing order, we find that the order was abundantly clear that Minchew would be incarcerated. This issue is without merit.

¶ 25. Minchew argues that the inconsistent wording of the sentencing order subjected him to double jeopardy. This argument is completely without merit and warrants no further discussion.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. All COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, P.J.,

text:
    Thomas BYRD, Appellant v. PAW PAW’S CAMPER CITY, INC., Appellee.
    No. 2006-CA-01894-COA.
    Court of Appeals of Mississippi.
    Sept. 18, 2007.

      Woodrow W. Pringle, III, Gulfport, attorney for appellant.
    Larry Gene Canada, Doris Theresa Bo-badilla, New Orleans, LA, Anna Kathryn Breard, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On August 16, 2004, Thomas Byrd purchased a 2004 model Holiday Rambler recreational vehicle (RV) from Paw Paw’s Camper City in Saucier, Mississippi. During the sale, Byrd asked twice for the warranty history on the RV. According to Byrd, the sales manager said that he would give a copy to Byrd’s wife, Kathleen, the next morning when the RV was delivered. The sales manager assured Byrd that the RV was fine and not to worry. Byrd completed the necessary paperwork to finance the RV. The warranty history was not received the next day. Almost a year passed before the Byrds learned that the RV had been previously damaged. Before Paw Paw’s took possession of the RV, the RV was damaged by a hit-and-run driver while in delivery transit damaging three cargo doors and the exterior paint. The transport company, Horizon Transport, was in possession of the RV at the time of the accident and paid the repair costs. The cost of repairs totaled $1,593.16. Byrd took the RV in for additional repairs after finding out about the previous damage. The repair shop determined that an additional $5,136.56 in repairs was needed.

¶ 2. Byrd filed a complaint against Paw Paw’s in the Circuit Court of Harrison County, First Judicial District, on August 16, 2005, citing misrepresentation, fraudulent inducement, breach of implied and express warranties, and breach of contract. Paw Paw’s filed a motion for summary judgment which was granted by the trial court on October 3, 2006.

¶3. On appeal to this Court, Byrd argues that the trial court erred in granting Paw Paw’s motion for summary judgment. Finding no error, we affirm.

STANDARD OF REVIEW

¶4. This Court applies a de novo standard of review to the grant or denial of summary judgment by a trial court. Leffler v. Sharp, 891 So.2d 152, 156(¶ 9) (Miss.2004). When the evidence is considered in the light most favorable to the non-moving party, there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. M.R.C.P. 56(c); Russell v. Orr, 700 So.2d 619, 622(¶ 10).(Miss.1997).

DISCUSSION

¶ 5. Byrd argues that the circuit court erred in granting summary judgment in favor of Paw Paw’s because Paw Paw’s used unfair and deceptive trade practices and violated implied and express warranties by selling him a previously damaged RV. Byrd also alleges fraud and material misrepresentation for the failure to disclose the vehicle’s history when it was specifically requested. Paw Paw’s argues that Regulation One issued by the State of Mississippi Motor Vehicle Commission did not require the disclosure of the prior damage to the RV. Regulation One governs damage disclosure; it states:

On any vehicle, corrected damage exceeding six percent (6%) of the manufacturer’s suggested retail price, as measured by retail repair costs, must be disclosed in writing prior to dealer transfers and consumer deliveries. Damage to glass, tires and bumpers and any damaged components or options which- can be replaced by identical components are excluded from the six percent (6%) regulation when replaced by identical manufacturer’s original equipment.
This regulation does not waive or alter any requirements or obligations which may be created by other Federal or State laws and regulations.

The Manufacturer’s Suggested Retail Price (MSRP) of the RV that Byrd purchased was $152,983. The damage caused by the hit-and-run was $1,593.16, approximately one percent of the MSRP. Since the damage was less than six percent, Paw Paw’s was not required to disclose the damage to the purchaser. Further, the damaged parts were replaced with original manufacturer’s parts and are excluded from the six percent. Even with the additional repair estimate of $5,136.56 that Byrd received when he discovered the RV’s history, the damage would have totaled $6,729.72, still falling short of six percent. In addition, the estimate does not suggest that the repairs needed nearly a year later related to any pre-existing-damage to the RV. We cannot find that Paw Paw’s breached any implied or express warranties or used unfair and deceptive trade practices.

¶ 6. Byrd next argues that regardless of the amount of the damage, Paw Paw’s was still required to disclose the prior damage under Mississippi Code Annotated Section 75-24-5(2)(f)-(g) (Rev. 2002). Section 75-24-5(2)(f)-(g), prohibited acts or practices, states in part:

Without limiting the scope of subsection (1) of this section, the following unfair methods of competition and unfair or deceptive trade practices or acts in the conduct of any trade or commerce are hereby prohibited:
(f) Representing that goods are original or new if they are reconditioned, reclaimed, used, or secondhand;
(g) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.

Paw Paw’s did not violate either of these subsections. The RV and the replacement parts used to repair the damage were new. The RV met all applicable standards and was merchantable and fit for ordinary use. We find that the trial court was Correct in finding that the issue of disclosure was answered without exceeding the confines of Regulation One.

¶ 7. Finally, Byrd asserts breach of contract. However, Byrd has not shown that he suffered an actual injury as the result of purchasing a previously damaged RV. Byrd asserts that the additional repair estimate of $5,136.56 is evidence of injury as well as any decrease in the resale value of the RV. However, no causal connection was made between Byrd’s repair estimate and the prior damage. Also, the RV as delivered was in new condition and no evidence was presented to show that the value of the RV would be diminished upon resale.

¶ 8. After reviewing the record, we can find no genuine issue of material fact. We find that the trial court correctly granted summary judgment in favor of Paw Paw’s.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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