author: LAMAR, Justice, for the Court. RANDOLPH, Justice,

text:
    Mark ALBERT, Individually and as Representative of the Wrongful Death Beneficiaries of Kyla Albert, Deceased v. SCOTT’S TRUCK PLAZA, INC., Incorrectly Named as Ronny Huddnal and Dorothy Huddnal, A Partnership, Doing Business as Scott’s Amoco, Longspur, L.P., and Burns and Burns, Inc.
    No. 2007-CA-00008-SCT.
    Supreme Court of Mississippi.
    Feb. 28, 2008.

      Jeffrey Dean Leathers, Tupelo, Attorney for Appellant.
    James Ryan Perkins, J. Wyatt Hazard, Carolyn Curry Satcher, Jackson, Attorneys for Appellees.
   LAMAR, Justice, for the Court.

¶ 1. In this wrongful-death case, Kyla Albert, Mark Albert’s wife, was struck and killed while crossing a public roadway en route from Scott’s Truck Plaza to the gravel parking area across the road where her truck was parked. Mark Albert (“Plaintiff’) filed suit against Scott’s Truck Plaza; Longspur, L.P., the owner of the property upon which Scott’s Plaza was situated; and Burns and Burns, Inc., the provider of the gas and gas equipment, (collectively, “Defendants”) for failure to keep the premises in a reasonably safe condition and failure to warn of the unsafe condition concerning the public roadway. The Circuit Court of Lauderdale County granted summary judgment in favor of the defendants. The dispositive premises-liability question is whether Defendants owed a duty to Kyla Albert at the time she was fatally injured while crossing a public highway abutting the truck stop. We affirm the trial court’s grant of summary judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Appellant Mark Albert was a truck driver. His wife, Kyla Albert, accompanied him on trips. On December 9, 2002, during a working trip, the Alberts stopped at Scott’s Truck Plaza in Meridian, Mississippi, for breakfast. They parked the truck in a gravel lot on the west side of Russell Mt. Gilead Road. Scott’s was across the road on the east side. The Alberts ate inside the truck stop. While crossing Russell Mt. Gilead Road to return to the truck, Kyla Albert was struck and killed by a vehicle driven by Terra Lanter-man McDonald. The accident occurred about 5:08 a.m., while it was still dark outside.

¶ 3. Mark Albert filed a wrongful-death suit against McDonald; Longspur, L.P., the landowner and lessor of the truck stop; and Ronny and Dorothy Huddnal, the operating partners and lessees of the truck stop. Mark Albert alleged that Scott’s acted negligently in that it: (1) failed to provide adequate lighting; (2) placed a propane tank and advertising in its parking lot, which obstructed the view of pedestrians and drivers of oncoming traffic; and (3) failed to warn of hidden dangers. He alleged that these failures amounted to a breach of the business’s duty to provide reasonably safe premises.

¶ 4. Defendants filed for summary judgment. The trial court granted summary judgment as to all defendants on November 27, 2006, finding that Albert failed to produce evidence which would establish a genuine issue of material fact concerning (1) whether the propane tank, advertising or alleged inadequate lighting was a proximate cause of the accident; or (2) whether the Defendants had a duty to provide adequate lighting or warn the decedent of the dangers associated with crossing Russell Mt. Gilead Road. From this judgment, Albert filed a notice of appeal.

DISCUSSION

¶ 5. This Court employs a de novo standard in reviewing a trial court’s ruling on a motion for summary judgment. Green v. Allendale Planting Co., 954 So.2d 1032, 1037 (Miss.2007). Such review entails examination of all the evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Id. The evidence must be viewed in the light most favorable to the non-movant. Id. The movant bears the burden of showing that no genuine issue of material fact exists. Id. The existence of a genuine issue of material fact will preclude summary judgment. Massey v. Tingle, 867 So.2d 235, 238 (Miss.2004). “The non-moving party may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there are genuine issues for trial.” Id. (citing Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss. 1997)). See also Mayfield v. The Hairbender, 903 So.2d 733, 735 (Miss.2005) (same); KBL Props., LLC v. Beilin, 900 So.2d 1160, 1163 (Miss.2005) (same).

¶ 6. Summary judgment is mandated where the non-movant fails to establish the existence of an essential element of that party’s claim. Smith v. Gilmore Mem’l Hosp., Inc., 952 So.2d 177, 180 (Miss.2007) (citing Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.l987)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986))). Mark Albert claims the defendants were negligent. Thus, for Mark Albert’s claim to survive summary judgment, he must have set forth specific facts sufficient to establish the existence of each element of negligence — duty, breach, causation and damages. Simpson v. Boyd, 880 So.2d 1047, 1050 (Miss.2004).

¶ 7. For a premises-liability claim, as in this case, duty is contingent on the status of the injured person. Thus, the first step in determining duty is to identify the status of the injured at the time of the injury. Massey, 867 So.2d at 239. Mississippi adheres to the invitee/licensee/trespasser trichotomy when analyzing the property owner’s duty of care. Corley v. Evans, 835 So.2d 30, 37 (Miss. 2003) (citing Hudson v. Courtesy Motors, Inc. 794 So.2d 999 (Miss.2001)). This Court has described the distinction, stating:

As to status, an invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage. A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner whereas a trespasser is one who enters upon another’s premises without license, invitation or other right.

Holley v. Int’l Paper Co., 497 So.2d 819, 820 (Miss.1986) (internal citations omitted). “The determination of which status a particular plaintiff holds can be a jury question, but where the facts are not in dispute the classification becomes a question of law.” Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760, 763 (Miss. 1989) (citing Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So.2d 646, 648 (Miss.1988); Adams v. Fred’s Dollar Store, 497 So.2d 1097, 1100 (Miss.1986)).

¶ 8. It is undisputed that Kyla Albert was an invitee when she was upon the premises of the truck stop. The issue this Court must resolve is whether Kyla Albert retained that invitee status upon entering the public roadway.

¶ 9. Scott’s argued in its motion for summary judgment that “[Kyla] Albert’s status as an invitee was lost as she entered Russell Mt. Gilead Road.... ” Mark Albert claimed he would show that “the parking lot across the road from the restaurant was an integral part of Defendant’s business and therefore, the decedent, in the moments immediately prior to crossing the road and [while] crossing the road itself, was a business invitee of [Scott’s].”

¶ 10. Mark Albert asserts that Kyla Albert retained her status as an invitee of Scott’s while walking across the street, since the gravel area was an integral part of Scott’s business. Indeed, a “tenant/lessee/occupier of premises owes a duty of reasonable care to its invitees for the demised property and such necessary incidental areas substantially under its control .... and which he invites the public to use.” Wilson v. Allday, 487 So.2d 793, 798 (Miss.1986) (emphasis added). However, this Court finds that Mark Albert failed to set forth specific facts sufficient to establish that the gravel area across Russell Mt. Gilead Road was an integral part of Scott’s business. Mark Albert merely directs the Court to deposition testimony in which Dorothy Huddnal of Scott’s and Dale Burns of Longspur and Burns and Burns admitted to knowing that patrons sometimes park across the road. Knowledge of patrons’ occasional use of the gravel area was insufficient to show that the area was a “necessary incidental area substantially under [the defendants’] control.” Albert likewise failed to show that the defendant invited the public to use the gravel area across the road. Therefore, Plaintiff was unable to establish a question of fact as to whether Defendants owed any duty to Kyla Albert after she left their premises and entered the public roadway, where she was fatally injured.

¶ 11. Establishing the status of the injured party is the first step in determining the property owner’s or lessee’s duty. Unable to accomplish this first step, Albert failed to establish the existence of a duty under the premises liability theory. Therefore, the inquiry of this Court is complete. The trial court properly granted summary judgment for the defendants.

CONCLUSION

¶ 12. Mark Albert failed to set forth specific facts sufficient to establish by affidavit, deposition, interrogatories, or other means acceptable for summary judgment purposes that there is a genuine issue of material fact as to whether the defendants owed a duty to Kyla Albert when she was fatally injured. Duty is an essential element of a negligence claim. Since summary judgment is mandated where the non-movant fails to establish the existence of an essential element of that party’s claim, summary judgment was appropriate in this case. The judgment of the Circuit Court of Lauderdale County is affirmed.

¶ 18. AFFIRMED.

SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, J., DISSENTS WITH SEPARATE OPINION JOINED BY DIAZ, P.J.; EASLEY, J„ JOINS IN PART.

RANDOLPH, Justice,

Dissenting.

¶ 14. The majority acknowledges that “Kyla Albert was an invitee when she was upon the premises of the truck stop.” (majority opinion at paragraph 8). The majority then frames the issue as “whether Kyla Albert retained that invitee status upon entering the public roadway!,]” (majority opinion at paragraph 8) and ultimately affirms the lower court’s grant of summary judgment for the defendants, finding that she did not. No disagreement lies regarding duty preceding Kyla Albert’s entry onto the public roadway. However, by narrowly framing the issue, the majority fails to consider whether the duty was breached preceding Kyla Albert’s entry onto the road, which proximately caused or contributed to the accident and her death. The trial court also failed to consider the aforementioned, but its error is compounded by concluding that neither the propane tanks nor inadequate lighting were the proximate cause of her death. In so doing, the lower court contravened the stated policy of this Court that:

[a]ll motions for summary judgment should be viewed with great skepticism and if the trial court is to err, it is better to err on the side of denying the motion. When doubt exists whether there is a fact issue, the non-moving party gets its benefit. Indeed, the party against whom the summary judgment is sought should be given the benefit of every reasonable doubt.

Mink v. Andrew Jackson Cas. Ins. Co., 537 So.2d 431, 433 (Miss.1988) (citing Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss. 1986)) (emphasis added). While summary judgment is a necessary and useful tool in an increasingly litigious society, that instrument must be exercised cautiously. See Mink, 537 So.2d at 433 (citation omitted) (“[s]ince a summary judgment serves to effectively terminate a lawsuit, they should only be ‘granted with great caution.’ ”). Moreover, “[t]he party moving for summary judgment bears the burden of persuading the trial court that no genuine issue of material fact exists, and that they are, based on the existing facts, entitled to judgment as a matter of law.” Daniels v. GNB, Inc., 629 So.2d 595, 600 (Miss.1993) (citing Skelton v. Twin County Rural Elec., 611 So.2d 931, 935 (Miss. 1992)) (emphasis added). Erring on the side of caution, it is my opinion that sufficient proof was offered, when viewed in the light most favorable to Albert, evidencing genuine issues of material fact to be decided by a jury regarding whether inadequate lighting and/or visual obstructions located on the premises were contributing factors to Kyla Albert’s death.

¶ 15. In his deposition, Mark Albert, the decedent’s husband, stated the parking lot on the Scott’s side of Russell Mt. Gilead Road was full when he arrived. Therefore, he parked across the road, alongside three other trucks, as he had done on previous occasions. The deposition testimony of Henry Dale Burns, Jr., the general partner of Longspur, was that the area across the street from Scott’s, owned by Burns Family Properties, “occasionally” had trucks parked there. Likewise, Terra Lanterman McDonald, the driver in the accident, testified that:

[t]here was trucks that parked across the road from the truck stop, and probably in all the years I’ve been driving I just never happened to come through there when there was somebody crossing across, maybe a few times. But I did know that there was trucks parked across the road from the truck stop.

Dorothy Nell Huddnal, operating partner and lessee of Scott’s, acknowledged that some tractor-trailers would park across the road. Nonetheless, Huddnal denied that Scott’s had any obligations or duties pertaining to that area.

¶ 16. According to the accident report, the area of impact occurred north of the propane tanks. If the accident report was correct, Kyla Albert entered the road to access the unpaved parking area from behind the propane tanks immediately before being struck. Although Mark Albert conceded in his deposition that one step beyond the tanks would not put an individual in the roadway, he noted that there are scenarios where the propane tanks “could possibly block” one’s vision of the roadway. (Emphasis added). As Albert argued in his Response to Scott’s Motion for Summary Judgment:

the mere fact of a seventeen and a half (17½) foot space between the propane tank and the road does not imply a lack of obstruction to view in respect to motorists or pedestrians. This amount of space has a varying effect and therefore is not determinative of visual ability when considering the distance from the tank of a pedestrian and/or motorist, angles of sight, and speed of a vehicle.

McDonald recalled “a liquid petroleum gas thing there ... by the road.... ”

¶ 17. Regarding the inadequate lighting issue, Huddnal testified that there were between ten and twelve security lights on the lot, erected prior to 1984 by East Mississippi Power Association (“EMPA”). According to her, Scott’s paid a monthly fee to EMPA for those lights, and they were in good working order, along with the canopy lights under the gasoline and diesel islands, at the time of the accident. McDonald testified that Scott’s itself is well-lit, “but out by the road it’s not[,T and the parking lot across the street “had either one or two night-lights.” (Emphasis added). She testified that while looking directly down the roadway, she “did not see [Kyla Albert] until she was on the hood of my truck[,]” and that “if it had been more lighting, it would’ve been better, ... if there was lighting compared to like the TA truck stop across the road, I could’ve possibly seen her.... ” (Emphasis added).

¶ 18. Unfortunately, the circuit judge accepted Scott’s Plaza, Inc.’s assertion in its motion for summary judgment that “the record is void of any scintilla of evidence that said lighting was ... inadequate[,]” and found, in part, that:

the Plaintiffs have failed to come forward with evidence which creates a genuine issue of material fact that must be resolved by a jury. The Court finds that the Plaintiff has not proven that the alleged obstructions, namely the propane tank and the alleged advertising, were a proximate cause of the accident. The Court finds that the tank itself was 17⅜ feet from the roadway. The Court further finds that the Plaintiff has not shown that the lighting was insufficient on the premises and thereby was a proximate cause of the accident.

(Emphasis added). That finding plainly ignored McDonald’s sworn statement that the property is well-lit, “but out by the road it’s not[.]” The circuit court improperly injected itself as the sole finder of fact in finding the “alleged obstructions” and inadequate lighting were not proximate causes. Proximate cause is a jury issue. Obviously, the circuit court failed to view the evidence “in the light most favorable” to the non-movant. Green v. Allendale Planting Co., 954 So.2d 1032, 1037 (Miss. 2007) (quoting Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006)). “Issues of fact sufficient to require a denial of a motion for summary judgment are obviously present where one party swears to one version of the matter in issue and another party takes the opposite position.” Green, 954 So.2d at 1037 (quoting Price, 920 So.2d at 483). The accident report and sworn testimony, discussed supra, viewed “in the light most favorable” to Albert, establish genuine issues of material fact for a jury to determine if inadequate lighting or visual obstructions, or the combination thereof, were proximate or contributory causes of Kyla Albert’s death. I would reverse the lower court’s decision to grant summary judgment.

DIAZ, P.J., JOINS THIS OPINION. EASLEY, J„ JOINS THIS OPINION IN PART.

      . The Huddnals rented the premises on which the truck stop was located from Longspur; however, there was no written lease agreement.

      . Mark Albert reached a settlement agreement with McDonald which resulted in McDonald’s release. Additionally, Burns and Burns, Inc., though not named in the style or the substance of either complaint, subsequently was added as a defendant. Burns sold gasoline to the truck stop and provided the gasoline-dispensing equipment.

      . This Court notes that the trial court also addressed the issue of proximate cause raised by the parties during summary judgment proceedings. The trial court found that Mark Albert failed to prove either that the alleged obstructions were a proximate cause or that the lighting was insufficient on the premises. The court further found that the danger of crossing a public roadway was not hidden but open and obvious, thus requiring no warning. Since this Court finds no genuine issue of material fact as to whether Defendants owed a duty, it is unnecessary to address the trial court’s findings concerning causation.

      . Huddnal also testified that the majority of tractor-trailers which stayed in the lot across the road would do business with Scott's. However, she qualified her testimony, noting that "[i]t probably happened within the last year or so[,]” as "they just started doing that on their own[,]” and business did "not really” pick up as "[i]t was about the same still.”

      . According to the deposition testimony of Burns, Jr., the Huddnals were responsible for "[w]hatever equipment they had in that building!,]” while Longspur was responsible for the four outer walls and the roof. This largely comported with the deposition testimony of Huddnal, who stated:
      [a]s far as all of the inside, we did all of the maintenance, changing lights out, and stuff like that. Or if we had a problem with the commodes, ... if we could handle it, we did that. If not, we reported it to Longs-pur. And as far as ... the canopy lights, we called Longspur and reported that and they would come and ... change out the light. Or if we had any problem with the pumps and as far as like CAT scales, ... we would call them....
      (Emphasis added).


source: Caselaw Access Project

author: SMITH, Chief Justice, for the Court. GRAVES, Justice, LAMAR, Justice,

license: Public Domain

text:
    Steven FINN v. STATE of Mississippi.
    No. 2006-CT-00393-SCT.
    Supreme Court of Mississippi.
    April 10, 2008.

      John Carl Helmert, Jr., attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   ON WRIT OF CERTIORARI

SMITH, Chief Justice, for the Court.

¶ 1. Steven Finn was charged with violating Mississippi Code Annotated Section 41 — 29—313(2)(c)(I) (Rev.2005) by possessing greater than fifteen grams of pseu-doephedrine, where he knew or should have known that the pseudoephedrine would be used to manufacture a controlled substance. Finn pleaded guilty and was sentenced to five years in the custody of the Mississippi Department of Corrections with three of those years to be suspended. Finn appealed, arguing that Mississippi Code Annotated Section 41 — 29—313(2)(c)(I) (Rev.2005) did not criminalize the possession of greater than fifteen grams of pseu-doephedrine when it was in dosage form. The trial court denied Finn’s request for post conviction relief. This Court assigned the case to the Court of Appeals. In a 6^1 decision, the Court of Appeals agreed with Finn and overturned the trial court’s judgment. Because we find that the plain language of the statute does, in fact, criminalize possession of greater than fifteen grams of pseudoephedrine, regardless of the form, we reverse the Court of Appeals and affirm the holding of the Lee County Circuit Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. At the time of his arrest, Steven Finn was in possession of 180 tablets of pseudoephedrine. The tablets were composed of more than fifty-five grams of pseudoephedrine. The grand jury subsequently indicted Finn under Mississippi Code Annotated Sections 41-29-101 through 187 for possession of greater than fifteen grams of pseudoephedrine, where he knew or should have known that the pseudoephedrine would be used unlawfully to manufacture a controlled substance. On July 7, 2005, Finn pled guilty. Finn was subsequently sentenced to five years in the custody of the Mississippi Department of Corrections, with three of those years suspended.

¶ 3. In August of 2005, Finn filed a motion for post-conviction relief, arguing that Mississippi Code Annotated Section 41 — 29—313(2)(c)(i) (Rev.2005) does not criminalize possession of greater than fifteen grams of pseudoephedrine if the pseudoephedrine is in dosage form. Accordingly, Finn asserts that he was charged with a nonexistent crime.

¶ 4. The trial court denied Finn’s relief. However, in a six-four decision, the Court of Appeals reversed and rendered the trial court ruling, using the rationale that dosage units are the preferred units of measure for ephedrine and pseudoephedrine. Finn v. State, 979 So.2d 1, 3, 2007 WL 1816472, 2007 MissApp. LEXIS 451, *5 (June 26, 2007). The Court of Appeals reasoned that only when the drug was not in “dosage unit” form was the weight of the drug to be considered. Id. The State of Mississippi seeks review by this Court.

¶ 5. The issue before the Court on appeal is:

WHETHER MISSISSIPPI CODE ANNOTATED SECTION 41-29-313(2)(C)(I) CRIMINALIZES THE POSSESSION OF GREATER THAN FIFTEEN GRAMS IN WEIGHT OF PSEUDOEPHEDRINE WHEN THE DRUG IS IN DOSAGE FORM.

STANDARD OF REVIEW

¶ 6. This Court applies a de novo standard of review to questions of statutory interpretation. Capital One Servs. v. Page, 942 So.2d 760, 762 (Miss.2006).

DISCUSSION

I. Plain Meaning.

¶ 7. The language of Section 41-29-313(2)(c)(i) is at the very core of this appeal. The statute in question makes it “unlawful to purchase, possess, transfer or distribute two hundred fifty (250) dosage units or fifteen (15) grams in weight (dosage unit and weight as defined in Section 41-29-139) of pseudoephedrine or ephedrine.” Miss.Code Ann. § 41-29-313(2)(c)(i) (Rev.2005) (emphasis added).

¶ 8. “It is well settled that when a court considers a statute passed by the Legislature, the first question before the Court is whether the statute is ambiguous. If the statute is not ambiguous, the court should interpret and apply the statute according to its plain meaning without the aid of principles of statutory construction.” Harrison County Sch. Dist. v. Long Beach Sch. Dist., 700 So.2d 286, 288-89 (Miss. 1997) (citing Miss. Power Co. v. Jones, 369 So.2d 1381, 1388 (Miss.1979)). The Court of Appeals recognized the statute lacked ambiguity when it stated: “this Court finds the Legislative intent in Section 41-29-313 is clear and unambiguous.” Finn, 979 So.2d at 3, 2007 MissApp. LEXIS 451, *5.

¶ 9. A plain-language reading of Section 41-29-313 does criminalize the possession of greater than fifteen grams of pseudoephedrine. The state points to the language in the statute highlighting the fact that the word “or” is a conjunctive used to link two or more alternatives. It appears that the provision for the weight measurement of fifteen grams is an alternative to the measure of 250 dosage units. Finn is attempting to insert a condition that is not stated in the law; he wants the weight of the drug only to be considered as an alternative when the drug does not appear in dosage form. To do so would be to tread on the domain of the Legislature, as it alone has the power to create and modify statutes. It is not the province of the Court to insert requirements where the Legislature did not do so. See Miss. Ethics Comm’n v. Grisham, 957 So.2d 997, 1003 (Miss.2007).

¶ 10. Finn argues that, because Mississippi Code Annotated Section 41-29-313(2)(c)(i) refers to Mississippi Code Annotated Section 41-29-139, weight is to be used only if the drug is not in the form of dosage units. We disagree.

¶ 11. Mississippi Code Annotated Section 41 — 29—139(c) states, “[f]or any controlled substance that does not fall within the definition of the term ‘dosage unit,’ the penalties shall be based upon the weight of the controlled substance.” Miss.Code Ann. § 41-29-139 (Rev.2005). This section specifically provides what is to be done when the controlled substance does not fall within the definition of dosage units. But the statute is silent as to those that do fall within the definition of “dosage units.” Here, the drugs Finn possessed did fall into the definition of “dosage unit,” and as a result, the above section is inapplicable. When the drug falls under the definition of “dosage unit,” the state has prosecutorial discretion under Mississippi Code Annotated Section 41-29-313 to base the charges on the dosage units or on the weight of the drug. Section 41-29-139 does provide guidance as to how to determine the weight of the drug when it says “[t]he weight set forth refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.” This portion of the statute does have direct application to the instant matter, as it governs how the weight of a drug is determined. We hold that, from a plain reading of the statute, it is clear that, in Section 41-21-313, the Legislature criminalized the possession, purchase, transfer or distribution of “two hundred fifty (250) dosage units or fifteen (15) grams of weight ... of pseudoephed-rine” and the state has prosecutorial discretion to choose between dosage unit or weight when the drug appears in dosage unit form. Section 41-29-139 does not alter the plain meaning; it only provides guidance as to how to proceed when the drug is not in dosage unit form.

CONCLUSION

¶ 12. Finn’s interpretation ignores the plain meaning of the statute. The Court of Appeals admitted in its opinion that there was no question of ambiguity in Section 41 — 29—213(2)(c)(I) but it did not adhere to the plain meaning of the statute. The Court of Appeals erred by reading too much into the “definition” section referenced in the statute. For the reasons stated above, this Court reverses the decision of the Court of Appeals and reinstates the decision of the Lee County Circuit Court.

¶ 13. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

WALLER, P.J., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, P.J. LAMAR, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, J.

GRAVES, Justice,

Dissenting:

¶ 14. The majority of this Court fails to apply the clear, plain language of the applicable statutes in this case. Moreover, the majority’s finding that the Court of Appeals should be reversed is erroneous. Because I would have denied the petition for writ of certiorari and would now dismiss the petition as improvidently granted, I respectfully dissent.

¶ 15. The majority cites the applicable statutory provisions and then ignores the plain language of the statute. Section 41-29 — 313(2)(c)(i) of the Mississippi Code Annotated states, in relevant part:

It is unlawful for any person to purchase, possess, transfer or distribute two hundred fifty (250) dosage units or fifteen (15) grams in weight (dosage unit and weight as defined in Section 41-29-139) of pseudoephedrine or ephedrine, knowing, or under circumstances where one reasonably should know, that the pseudoephedrine or ephedrine will be used to unlawfully manufacture a controlled substance.

Miss.Code Ann. § 41 — 29—313(c)(i) (Rev. 2005). Clearly, this language defers to Section 41-29-139, which states, in relevant part:

The penalties for any violation of this subsection (c) with respect to a controlled substance ... shall be based on dosage unit as defined herein or the weight of the controlled substance as set forth herein as appropriate:
“Dosage unit (d.u.)” means a tablet or capsule, or in the case of a liquid solution, one (1) milliliter....
For any controlled substance that does not fall within the definition of the term “dosage unit,” the penalties shall be based upon the weight of the controlled substance.
The weight set forth refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance.

Miss.Code Ann. § 41-29-139(c) (Rev.2005) (emphasis added).

¶ 16. Finn was in possession of 180 unaltered tablets of pseudoephedrine. Unaltered tablets clearly fall within the definition of “dosage units.” Despite the statutory language, the majority incredibly finds that “the statute is silent as to those that do fall within the definition of ‘dosage units.’ ” Such a finding is erroneous. The plain language of the statute quoted above requires that, in such case, the penalty “shall be based on dosage unit.” Moreover, the majority’s finding that because the tablets possessed by Finn “did fall into the definition of ‘dosage unit’ ” then “the above section is inapplicable” is erroneous, inexplicable and unsupportable by any rule of statutory construction. The majority opinion is incongruous. Further, without citation to any authority, the majority boldly declares that when “the drug falls under the definition of ‘dosage unit’ the state has prosecutorial discretion ... to base the charges on the dosage units or on the weight of the drug.” However, such a finding is contradictory to the plain language of the statute.

¶ 17. Ironically, the majority’s end result is to find that some provisions of Section 41-29-139 are applicable, while others are not. However, this logic is flawed. If the portion requiring penalties to be based on a dosage unit does not apply, then neither would the portion allowing weight to include the entire weight of any mixture containing a detectable amount of a controlled substance. Clearly, the evidence contained in the record pertaining to the weight of the pseudoephed-rine is highly suspect. The crime lab report indicates that 120 tablets weighed 18.05 grams, while sixty tablets weighed a whopping 37.52 grams, for a total of 55.57 grams. Clearly such amounts do not reflect merely the amount of pseudoephed-rine. Additionally, different types of medication can contain equal amounts of pseudoephedrine, but then vary greatly in the amounts of other ingredients, thereby causing significant fluctuations in the total weight of the tablets. To suggest that prosecutors should be allowed discretion to decide whether to prosecute based on the weight or the number of tablets, when the statute clearly states otherwise, would open the door for differing and unfair treatment of different defendants, who each possessed an equal amount of pseu-doephedrine and equal number of tablets, but happened to possess different brands containing differing amounts of other non-precursor ingredients. However, any alteration to the dosage unit would then require application of the weight requirement.

¶ 18. The Court of Appeals correctly found that Section 41-29-313 is clear, unambiguous, and does not provide any discretionary privileges to prosecutors concerning the unit of measurement that must be used in these cases. Furthermore, the Court of Appeals correctly found that Finn is entitled to post-conviction relief. Because I would dismiss the petition for writ of certiorari as improvidently granted, I respectfully dissent.

DIAZ, P.J., JOINS THIS OPINION.

LAMAR, Justice,

Dissenting:

¶ 19. We now have four opinions in this case — a majority and a dissent from the Court of Appeals and a majority and a dissent from this Court. All four opinions declare that the statutes in question, Mississippi Code Annotated §§ 41-29-313 and 41-29-139, are clear, plain, and unambiguous. The only problem is that they do not agree as to what the “plain and unambiguous” language of the statutes means. This is the very definition of ambiguity. Ambiguous means open to more than one interpretation, uncertain, open to several possible meanings, or lacking clarity of meaning. This Court should acknowledge the ambiguity of the statute, rather than ignoring it. The ultimate goal of this Court in interpreting a statute is to discern and give effect to legislative intent. Anderson v. Lambert, 494 So.2d 370, 372 (Miss.1986). Because I believe that the decision of this Court fails to do that, I respectfully dissent.

DICKINSON, J., JOINS THIS OPINION.

      . These calculations would indicate that the tablets contained more than 150 mg and 625 mg, respectively. The average over-the-counter tablet contains 30 mg of pseudoephedrine, meaning 180 tablets would contain 5,400 mg or 5.4 grams. Further, the average over-the-counter tablet contains 20-30 mg of other or inactive ingredients. Based on this, 250 tablets at a total weight of 60 mg each would weigh 15 grams. Clearly, this is the basis for the statute.


author: GRAVES, Justice, for the Court.

text:
    In re Hosea HINES.
    No. 2006-CA-02107-SCT.
    Supreme Court of Mississippi.
    April 10, 2008.

      Lisa Mishune, Ross Carlton Reeves, attorneys for appellant.
    Jason T. Zebert, Pearl, attorney for ap-pellee.
   GRAVES, Justice, for the Court.

¶ 1. Reverend Hosea Hines was held in civil contempt by the Pearl Municipal Youth Court of Rankin County. From this order he appeals to this Court, raising the following issues for review: (1) whether a youth court judge can compel a non-party’s attendance in court for a hearing to review a no-contact order in the absence of a written order duly served on the person whose presence is commanded; (2) whether a youth court judge abuses his discretion when he denies a non-party’s request to hold any contempt proceedings against the non-party in open court when the contempt matter to be tried does not require that any confidential matters pertaining to youths be divulged; (3) whether a youth court judge abuses his discretion when the youth court judge presides over a constructive contempt matter; (4) whether the youth court’s October 31, 2006, order barred Rev. Hines from communicating with his church members who are under the jurisdiction of the youth court; and (5) whether the youth court could bar Rev. Hines and his attorney from discussing the contempt proceedings where no matters pertaining to minors were discussed. Finding that a youth court judge cannot compel a non-party’s attendance in court for a hearing to review a no-contact order in the absence of official written notification commanding his presence in court, we reverse the order of the Pearl Municipal Youth Court of Rankin County.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 31, 2006, a shelter hearing was held in the Pearl Municipal Youth Court of Rankin County regarding three minor children. Rev. Hines was present at the hearing, at which time Judge John N. Shirley entered an order setting a shelter review hearing for November 14, 2006. Specifically, Judge Shirley ordered that “[n]o one except that GAL, DHS, law enforcement and CAC shall discuss issues with the children.” On November 8, 2006, for good cause shown, an order of no contact was entered, barring Rev. Hines from having contact with the minor children. Furthermore, the court set a hearing to review the order of no contact on November 14, 2006, the same day as the previously-set review hearing.

¶ 3. Detective James Thompson of the Pearl Police Department contacted Rev. Hines by telephone to inform him of the entry of the no-contact order, and to inform him that he was to be present in court on November 14, 2006. Det. Thompson testified that Rev. Hines indicated that he understood that he was to be present in court on November 14, 2006. However, Rev. Hines failed to appear in court on November 14, 2006. Thompson further testified that, before entering into the courtroom on November 14, 2006, he had the minor children’s mother call Rev. Hines from her cellular phone to request that Rev. Hines appear in court. However, she did not receive an answer and left a message for Rev. Hines.

¶ 4. A show-cause contempt warrant was issued for Rev. Hines for violating the court order of October 31, 2006. Rev. Hines was arrested on November 15, 2006, and was later released on a $1,000 bond and instructed by the bondsman to appear in Pearl Municipal Court, rather than the Pearl Municipal Youth Court, on November 30, 2006. Rev. Hines was later correctly directed to appear in the Pearl Municipal Youth Court of Rankin County on December 5, 2006, at 8:30 a.m.

¶ 5. On December 4, 2006, Rev. Hines filed a Motion to Recuse which stated, “Rev. Hosea Hines also objects to the Honorable John Shirley presiding over this matter on the ground that he was [sic] not received notice of the charge against him and has not be [sic] summoned to appear before this Court in the manner outlined in Rule 81(d)(2) and contemplated by the Mississippi Supreme Court in In the Interest of Holmes.” Also on December 4, 2006, a Motion for Contempt was filed by the prosecutor for the Pearl Municipal Youth Court. A show-cause hearing was held on December 5, 2006, and December 12, 2006. At the December 5, 2006, hearing Rev. Hines was served with a summons ordering him to appear before the court on December 12, 2006, for a contempt hearing.

¶ 6. On December 12, 2006, the youth court prosecutor moved to dismiss the allegations that Rev. Hines disobeyed the October 31, 2006, court order and the November 8, 2006, order, “leaving only his failure to show up for court as instructed.” Rev. Hines objected to the court proceeding on the contempt allegation, renewed his motion for recusal, and objected that he had not been summoned to appear before the court on November 14, 2006. Rev. Hines further requested that the hearing be held in open court. His request was denied.

¶ 7. Judge Shirley found Rev. Hines in civil contempt and ordered him to pay a fine of $500. A written order was entered on December 19, 2006, stating in part:

Even though this court originally ordered that Hosea Hines shall pay a fine, that order shall be amended to order that Hosea Hines may purge himself of contempt by appearing before this Court and sincerely informing the court that in the future he will follow orders of the Court even if he disagrees with any such order. If Hosea Hines has already paid a fine, such fine shall be returned to him upon purging himself of contempt as just described.

STANDARD OF REVIEW

¶ 8. This Court applies a de novo standard of review when examining questions of law. Miss. Transp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997). “This Court must reverse for erroneous interpretations or applications of law.” Id.

DISCUSSION

I. Whether a Youth Court Judge Can Compel a Non-Party’s Attendance in Court for a Hearing to Review a No-Contact Order in the Absence of a Written Order Duly Served on the Person Whose Presence Is Commanded.

¶ 9. The youth court found that “Hosea Hines willfully violated the order of the court to appear in youth court on the 14th day of November, 2006, and such conduct place[d] him in civil contempt.” In its ruling, the youth court held that Det. Thompson’s telephone conversation with Hines constituted sufficient notification of his need to appear in court under the Youth Court Act. Specifically, the youth court found:

.... [cjounsel for Hines suggests that a summons is required under Rule 81 of the Mississippi Rules of Civil Procedure to order someone to show cause. Rule 1 of the Mississippi Rules of Civil Procedure applies] only to circuit courts, chancery courts and county courts. Therefore, M.R.C.P. 81 is not applicable to youth courts. All that is required is reasonable notice....

¶ 10. On appeal, Rev. Hines asserts that the youth court erred by failing to serve him with a written notification commanding his presence in court on November 14, 2006. However, the state argues that because the youth court is empowered to use “reasonable oral or written notice” for children, parents, guardians, custodians, guardians ad litem, and counsel in detention and shelter hearings pursuant to Mississippi Code Annotated Section 43-21-309(2) (Rev.2004), then it also should be empowered to provide “reasonable oral or written notice” to non-parties who are to appear before the youth court.

¶ 11. We find both the youth court’s interpretation of the law and the state’s argument on appeal to be erroneous. The Youth Court Act clearly authorizes the youth court “to issue all writs and processes including injunctions necessary to the exercise of jurisdiction and carrying out the purpose of [the] chapter.” Miss. Code Ann. § 43-21-153 (Rev.2004). The youth court undisputedly had the power to enter the Order of No Contact with respect to Rev. Hines, and to require his presence in court on November 14, 2006. However, Rev. Hines should have received the due-process consideration of official written notification commanding his presence in court.

¶ 12. The record reflects that Rev. Hines was informed of his need to be present in court on November 14, 2006, only through a telephone conversation with Det. Thompson. Furthermore, neither Rev. Hines nor his attorney saw nor reviewed a copy of the Order of No Contact prior to the hearing held by the court on December 12, 2006. Even in the event that Rev. Hines had been properly served with a copy of the Order of No Contact, the order itself does not contain sufficient language to have informed Rev. Hines that he had to be present in court on November 14, 2006. The order entered by the youth court on November 8, 2006, contained only the following language with regard to Rev. Hines’s appearance in court on November 14, 2006: “IT IS, FURTHER, ORDERED AND ADJUDGED that HOSEA HINES may be served with a copy of this order. IT IS, FURTHER, ORDERED AND ADJUDGED that this matter shall be reviewed on Tuesday, November 14, 2006, at 8:30 a.m.”

¶ 13. Furthermore, Section 43-21-309(2) provides that “[rjeasonable oral or written notice of the time, place and purpose of the hearing shall be given to the child; his or her parent, guardian or custodian; to his or her guardian ad litem, if any; and to his or her counsel” when the youth court is holding a detention or shelter hearing. Miss.Code Ann. § 43-21-309(2) (Rev.2004). The state asserts that the youth court should also be empowered to provide “reasonable oral or written notice” to non-parties who are to appear before the youth court. This argument is not supported by the clear statutory language of Section 43-21-309(2). Miss.Code Ann. § 43-21-309(2) (Rev.2004). Clearly, Rev. Hines is not the parent, guardian or custodian, guardian ad litem, or counsel to the minor children and therefore, “reasonable oral notice” is not sufficient. Miss. Code Ann. § 43-21-309 (Rev.2004). Therefore, we find this argument to be without merit. Accordingly, we find that Rev. Hines should have received official written notification from the court commanding his presence in court on November 14, 2006.

CONCLUSION

14. This Court finds that a youth court judge cannot compel a non-party’s attendance in court for a hearing to review a no-contact order in the absence of official written notification commanding his presence in court. Because this issue is dis-positive, the remaining issues raised by Rev. Hines need not be addressed. Furthermore, Rev. Hines was ultimately held in contempt only for failing to appear at the November 14, 2006, hearing. We find that Rev. Hines cannot be held in contempt for failing to appear at a hearing of which he did not have written notice. Therefore, we reverse the judgment of the Pearl Municipal Youth Court of Rankin County.

¶ 15. REVERSED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON,

DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR.

      . Rev. Hines failed to appear at a hearing held by the youth court on November 14, 2006, the purpose of which was to review a no-contact order. Also, on November 14, 2006, the youth court held a shelter review hearing for the minor children involved in the case.

      . The no-contact order was not stamped filed.

      . Detective Thompson testified that he could not remember what day he had contacted Hines.

      . The Motion for Contempt filed by the prosecutor with the court moved the court to find Rev. Hines in contempt for (1) willfully violating the order of the court issued on October 31, 2006; (2) willfully violating the no-contact order issued by the court on November 8, 2006; and (3) for failing to appear before the court for the November 14, 2006, hearing to review the no-contact order.

      . The Court proceeded on the contempt motion only upon Rev. Hines's failure to appear in court on November 14, 2006. The following is from the December 12, 2006 hearing:
      The Court: Before we do this, I want to make sure we’ve got these issues narrowed down. The judge is responsible for making sure that issues — that we just deal with just the issues, and I understand the issue in this case is was he ordered to appear in court and did he fail to comply with that order. Is that correct?
      Mr. Zebert: Yes, sir.


author: ROBERTS, J., for the Court.

text:
    Bennie STROUD, Jr., a/k/a Bennie Stroud, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01908-COA.
    Court of Appeals of Mississippi.
    April 8, 2008.
    Bennie Stroud, Jr., appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J., for the Court.

¶ 1. On February 6, 2006, Bennie Stroud, Jr., filed a motion for post-conviction collateral relief in the Circuit Court of Jackson County. Stroud’s motion stemmed from his 1997 guilty plea to the charges of aggravated assault, possession of a firearm by a felon, and two counts of possession of a controlled substance. The trial court summarily denied Stroud’s motion as time-barred. Stroud now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Stroud pleaded guilty to the above charges on March 5, 1997. Stroud v. State, 839 So.2d 610, 610(¶ 2) (Miss.Ct.App. 2003). He later filed his first motion for post-conviction collateral relief in October 1997 pursuant to Mississippi Uniform PosWConviction Collateral Relief Act (the Act). The motion was subsequently denied by the trial court that same month. Id. at (¶ 3). Stroud filed his appeal from this denial in January 1998. Id. As his appeal was filed more than thirty days after the denial of his post-conviction motion, this Court dismissed Stroud’s appeal as time-barred. Id. at 611(¶ 6).

¶3. On February 6, 2006, Stroud filed his second motion for post-conviction collateral relief, stemming from his 1997 guilty pleas. The trial court denied his motion as time-barred pursuant to Mississippi Code Annotated section 99-39-5(2) (Rev.2007). From this denial, Stroud now appeals.

DISCUSSION

¶4. Mississippi Code Annotated sections 99-39-29 (Rev.2007) provide a defendant with a judicial vehicle to challenge his conviction or plea of guilt. However, section 99-39-5(2) requires that such a challenge be brought within three years of a defendant’s guilty plea. The three-year statute of limitations may be waived if the petitioner can demonstrate either that there has been a pertinent intervening decision of the United States Supreme Court or the Mississippi Supreme Court or newly discovered evidence that was not reasonably discoverable at the time of trial. Miss.Code Ann. § 99-39-5(2). However, Stroud makes no such claim. Furthermore, notwithstanding the time limitations of the Act, successive motions for relief are not allowed under the Act. Miss.Code Ann. § 99-39-23(6) (Rev.2007).

¶ 5. Thirty days after Stroud’s first motion for post-conviction collateral relief was denied, his ability to challenge the validity of his 1997 guilty pleas was exhausted. See Stroud, 839 So.2d at 610-11 (¶¶ 4, 6). In the case of his second motion for relief, such finality results not only from its timing, as it was filed well after the three-year limit mandated by the Act, but also from the fact that the February 2006 motion was Stroud’s second motion for post-conviction collateral relief, in violation of section 99-39-23(6). Therefore, pursuant to sections 99-39-5(2) and 99-39-23(6), Stroud’s current motion for post-conviction relief was properly denied by the trial court.

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

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

      . While Stroud correctly argues that certain errors affecting a defendant's fundamental constitutional rights may be raised notwithstanding the procedural prohibitions of the Act, see Weaver v. State, 785 So.2d 1085, 1088(¶11) (Miss.Ct.App.2001), such a situation is not the case currently presented to this Court.


author: CHANDLER, J., for the Court.

text:
    Edward D. FLOWERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01844-COA.
    Court of Appeals of Mississippi.
    April 8, 2008.

      Edward D. Flowers, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P J., CHANDLER and BARNES, JJ.
   CHANDLER, J., for the Court.

¶ 1. Edward D. Flowers filed a pro se motion for post-conviction relief (PCR) in the Circuit Court of Washington County. The PCR collaterally attacked Flowers’s conviction for armed robbery. Flowers argued that: (1) he was denied due process because the trial court failed to advise him of his right to appeal his sentence; (2) there was no factual basis for his guilty plea; (3) the indictment was defective because it failed to identify the judicial district; (4) he received ineffective assistance of counsel; and (5) he was denied due process because the State prosecuted him for the greater of the two offenses for which he was indicted. The circuit court found each of these issues to be without merit and dismissed Flowers’s PCR.

¶ 2. Flowers appeals, asserting the same errors assigned in his PCR. Because the record reflects that Flowers’s PCR is procedurally barred as a successive writ, we affirm the circuit court, but on different grounds.

FACTS

¶ 3. The circuit court accepted Flowers’s guilty plea to armed robbery on July 29, 1999. On October 12, 1999, the circuit court sentenced Flowers to twenty years in the custody of the Mississippi Department of Corrections, with five years suspended to be served on supervised probation. The record on appeal shows that Flowers timely filed a PCR seeking relief from this conviction; relief was denied, and Flowers appealed. This Court affirmed the denial of the PCR on January 22, 2002. The record on appeal also includes a copy of portions of a second PCR concerning the armed robbery conviction that Flowers filed on September 22, 2004.

¶4. Flowers filed the instant PCR on November 30, 2005. In the PCR, Flowers stated, “Petitioner has not previously filed any post-conviction [claim] in any state or federal court in regards to the same claims set out on this post conviction. These claims are based upon fundamental plain errors and are excepted from any procedural bar which would otherwise be applicable.” The circuit court addressed each of Flowers’s issues and found them to be without merit. The circuit court summarily dismissed Flowers’s PCR pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev.2007). Flowers now appeals.

STANDARD OF REVIEW

¶ 5. The circuit court may summarily dismiss a PCR “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2). On appeal, this Court will affirm the summary dismissal of a PCR if the petitioner has failed to demonstrate “a claim procedurally alive substantially showing [the] denial of a state or federal right....” Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999) (quoting Myers v. State, 583 So.2d 174, 176 (Miss.1991)).

LAW AND ANALYSIS

DID THE CIRCUIT COURT ERR BY DISMISSING FLOWERS’S PCR?

¶ 6. The record reflects that the PCR that is the subject of this appeal was Flowers’s third PCR attacking his armed robbery conviction. Mississippi Code Annotated section 99-39-23(6) (Rev.2007) states that: “any order dismissing the prisoner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” The statute provides exceptions to the successive pleadings bar, stating:

Excepted from this prohibition is a motion filed pursuant to Section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict’s supervening insanity prior to the execution of a sentence of death.... Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

Miss.Code Ann. § 99-39-28(6).

¶ 7. Flowers’s PCR does not fall within any of these statutory exceptions. Flowers did not raise the issue of his supervening insanity pending the execution of a sentence of death. Nor did he seek to demonstrate that an intervening decision of the Mississippi Supreme Court or the United States Supreme Court would have actually adversely affected the outcome of his conviction or sentence. Flowers did not assert newly discovered evidence, and he did not claim that his sentence has expired or that his probation, parole, or conditional release has been unlawfully revoked. Therefore, Flowers’s PCR was procedurally barred as a successive motion.

¶ 8. Flowers argues that the PCR was not subject to the successive pleadings bar because the State waived the defense of the successive pleadings bar by failing to raise it before the circuit court. He contends that because of the State’s waiver, the circuit court could not have applied the bar, and neither can this Court on appeal. He also argues that two of his issues raise the violation of his fundamental rights, which are not subject to procedural bars. We discuss each of Flowers’s contentions in turn.

¶ 9. The State’s failure to raise the successive pleadings bar in no way impeded the circuit court’s ability to apply the bar to Flowers’s PCR. It is the role of the circuit court to conduct a facial review of the motion, any exhibits, and the prior proceedings in the case to determine whether the PCR is sufficient to survive summary dismissal. Miss.Code Ann. § 99-39-11(2). Under Mississippi Code Annotated section 99-39-11(3) (Rev.2007), it is only if the PCR has survived summary dismissal that the circuit court “shall order the state to file an answer or other pleading.” The statute clearly establishes a procedure whereby the circuit court, without input from the State, must conduct an initial evaluation of the procedural viability of the PCR. Miss.Code Ann. § 99-39-11. This evaluation necessarily includes the circuit court’s consideration of the applicability of the successive pleadings bar.

¶ 10. The supreme court has held that “[ejrrors affecting fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit their consideration.” Luckett v. State, 582 So.2d 428, 430 (Miss.1991). Flowers argues that two of his issues raise due process violations not subject to a procedural bar. These issues are: (1) that the circuit court failed to inform him of the right to directly appeal his sentence and (2) that the State prosecuted him for the greater of the two offenses for which he was indicted when the law allowed his prosecution only for the lesser offense.

¶ 11. Concerning Flowers’s first issue, Mississippi Code Annotated section 99-35-101 (Rev.2007) states that: “Any person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.” At the plea hearing, the circuit court informed Flowers that a guilty plea waives the right to appeal. Flowers argues that this advice was error because he had the right to appeal from his sentence. It is true that, while section 99-35-101 prevents a defendant from appealing his guilty plea itself, a defendant may pursue a direct appeal asserting the illegality of the sentence imposed pursuant to his guilty plea. Jennings v. State, 896 So.2d 374, 377(¶ 16) (Miss.Ct.App.2004). However, Flowers does not assert that he received an illegal sentence from which he would have appealed had he possessed the requisite knowledge. Therefore, Flowers has not substantially shown a violation of a fundamental right that would except this issue from the procedural bar. See id. at 377(¶ 17).

¶ 12. In Flowers’s second issue, he avers that he was indicted for aggravated assault and armed robbery in a multi-count indictment. He argues that, pursuant to Cunningham, v. State, 478 So.2d 308 (Miss.1985), the State was only allowed to prosecute him for the lesser crime of aggravated assault.. Again, Flowers’s allegations do not substantially show any violation of a fundamental right. A review of Flowers’s indictment reveals that he was charged with a single count of armed robbery. And, Cunningham does not stand for the proposition urged by Flowers. Cunningham holds that, when facts constituting an offense may violate two statutes and the indictment is ambiguous as to under which statute the defendant is charged, the court must apply the statute that imposes the lesser punishment. Id. at 310. There was no ambiguity in Flowers’s charge of armed robbery, and Cunningham is wholly inapplicable to his situation. Flowers’s argument that his PCR should be excepted from the procedural bar is without merit.

¶ 13. Flowers’s PCR was barred as a successive pleading. Though the circuit court dismissed the PCR on different grounds, it is customary for an appellate court, in the interest of judicial economy, to affirm a decision of the circuit court that reached the right result, but for the wrong reason. Jackson v. State, 811 So.2d 340, 342(¶ 6) (Miss.Ct.App.2001) (citing Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993)). Therefore, we affirm the dismissal of Flowers’s PCR.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


author: LEE, P.J., for the Court.

text:
    Vernell SAGO a/k/a Varnell Sago a/k/a Vernall Sago, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01881-COA.
    Court of Appeals of Mississippi.
    April 8, 2008.

      Vernell Sago, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On or about August 1, 2005, Vernell Sago pleaded guilty in the Hinds County Circuit Court to the crime of business burglary. Sago was sentenced to serve a term of five years in the custody of the Mississippi Department of Corrections with two years supervised probation. On February 17, 2006, Sago filed a motion for post-conviction relief. The trial court subsequently denied Sago’s motion for relief. Sago now appeals, asserting the following issues: (1) his guilty plea was not voluntary because he was promised a lighter sentence; (2) the trial court erred in granting the State’s motion to amend the indictment; (3) the trial court erred in sentencing him to two years probation because, as a convicted felon, he was not eligible for probation; and (4) his counsel was ineffective. Finding no error, we affirm.

STANDARD OF REVIEW

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

DISCUSSION

I.WAS SAGO’S PLEA INVOLUNTARY BECAUSE HE WAS PROMISED A LESSER SENTENCE?

¶ 3. In his first issue on appeal, Sago claims that his plea was involuntary because he was promised a lesser sentence. The record before us does not contain a transcript of Sago’s guilty plea proceeding or his petition to enter a guilty plea, which we note was Sago’s responsibility to provide. “[A]n appellant is responsible for bringing to our attention and presenting to this Court a record of trial proceedings sufficient to undergird his assignments of error.” Winters v. State, 473 So.2d 452, 457 (Miss.1985). “Our law presumes that the judgment of the trial court is correct, and the appellant has the burden of demonstrating some reversible error to this Court.” Buice v. State, 751 So.2d 1171, 1173(¶ 8) (Miss.Ct.App.1999) (citing Pierre v. State, 607 So.2d 43, 48 (Miss.1992)). Sago contends that his attorney informed him that the district attorney had offered Sago a sentence of five years, with three years to serve and two years suspended. In return, Sago claims, he would not be tried as a habitual offender, which he was charged as in the indictment. Sago includes an affidavit from his wife in which she also states he was offered five years with only three years to serve. It is clear from the record that Sago was indicted as a habitual offender with two prior felonies, but he was ultimately sentenced as a non-habitual offender. However, the result of Sago’s failure to present a full record here is that the presumption of correctness stands unrebut-ted — Sago fails to carry his burden of proof. Smith v. State, 572 So.2d 847, 849 (Miss.1990).

II. DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND THE INDICTMENT?

¶ 4. In his second issue on appeal, Sago argues that the trial court erred in allowing the State to amend the indictment to charge him with business burglary rather than house burglary. The law is well settled that “[a] valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment....” Reeder v. State, 783 So.2d 711, 720(¶ 36) (Miss.2001). This issue is without merit.

III. DID THE TRIAL COURT ERR IN SENTENCING HIM TO PROBATION?

¶ 5. In his third issue on appeal, Sago argues that the trial court erred in sentencing him to two years probation because, as a convicted felon, he was not eligible for probation pursuant to Mississippi Code Annotated section 47-7-33(1) (Rev.2004). In his ruling the trial court noted that, although section 47-7-33 does limit the power of the trial court to suspend a sentence and order probation for previously convicted felons:

[I]n this instance the error benefits the Petitioner in the form of a lenient sentence which is harmless. Chancellor v. State, 809 So.2d 700 (Miss.Ct.App.2001). The right to be free from illegal sentences applies to sentences where the defendant suffers a greater sentence rather than the luxury of a lesser sentence. Id.

We find no error in the trial court’s finding; thus, this issue is without merit.

IV. WAS SAGO’S TRIAL COUNSEL INEFFECTIVE?

¶ 6. In his final issue on appeal, Sago argues that his trial counsel was ineffective. To prevail on this issue Sago must demonstrate that his trial counsel’s performance was deficient and the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of a guilty plea, Sago must demonstrate that his counsel’s performance fell below the range of competence demanded of attorneys in criminal cases and that, but for the attorney’s substandard performance, he would have insisted on going to trial. See Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992). Although the plea colloquy was not included in the record, we note that the trial court found Sago’s plea to be valid. Sago claims that his attorney was not working in his best interest, but rather his counsel was working with the State. As stated above, Sago was indicted as a habitual offender, but he was ultimately sentenced as a non-habitual offender. We fail to see how Sago’s counsel was ineffective when his sentence was less than if he had been sentenced as a habitual offender. This issue is without merit.

¶ 7. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


author: KING, C.J., for the Court. IRVING, J.,

text:
    Steven FINN, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CA-00393-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.
    Rehearing Denied Oct. 23, 2007.
    John Carl Helmert, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   KING, C.J., for the Court.

¶ 1. Steven Finn appeals the Lee County Circuit Court’s decision denying his post-conviction relief motion. On appeal, Finn argues that he is serving an illegal sentence because his underlying conduct had not been declared criminal by the appropriate statute. Finding error in the trial court’s denial of post-conviction relief, we reverse and render.

FACTS

¶ 2. On February 7, 2004, Steven Finn was indicted by a Lee County grand jury for the unlawful possession of pseu-doephedrine in a quantity greater than fifteen grams, and where he knew or should have known that the pseudoephed-rine would be used to unlawfully manufacture a controlled substance, in violation of the Uniform Controlled Substance Act of the State of Mississippi, Mississippi Code Annotated Sections 41-29-101 to -187 (Rev.2005). Finn possessed 180 commercially manufactured and unaltered tablets of pseudoephedrine at the time of his arrest.

¶ 3. On July 7, 2005, the circuit court conducted a guilty plea and sentencing hearing. At the hearing, Finn pled guilty and the court sentenced him to five years in the custody of the Mississippi Department of Corrections with three of those years suspended.

¶ 4. Finn filed his petition for post-conviction relief on August 16, 2005. He argued that his sentence was illegal because the specific statute he was charged under, Miss.Code Ann Section 41 — 29—313(2)(c)(ii) (Rev.2006), does not criminalize the possession of greater than fifteen grams of pseudoephedrine if the pseudoephedrine is solely in dosage form. The trial court ordered the State to file a written response to the post-conviction motion. The State responded by asserting Section 41-29-313 grants prosecutors discretion in the unit of measurement used to prosecute the pseudoephedrine possession, whether in grams or tablets. The circuit court, after reviewing both Finn’s motion and the State’s response, found that Finn had been sufficiently informed of his rights and the consequences of entering a guilty plea. The court agreed with the State’s position and summarily dismissed Finn’s motion for post-conviction relief without addressing the legal application of Section 41-29-313. On March 8, 2006, Finn filed his notice of appeal of the circuit court’s decision.

STANDARD OF REVIEW

¶ 5. This Court will not disturb a trial court’s factual findings in its decision to deny a petition for post-conviction relief unless the findings are clearly erroneous. King v. State, 936 So.2d 481, 485(¶ 13) (Miss.Ct.App.2006). However, where questions of law exist, the review is de novo. White v. State, 940 So.2d 958, 960(¶ 7) (Miss.Ct.App.2006). The issue before this Court is one of law.

ANALYSIS

Whether the trial court erred in dismissing Finn’s post-conviction relief motion.

¶ 6. Finn asserts that the trial court erred in dismissing his post-conviction relief motion because he is serving an illegal sentence. Finn was charged with unlawful possession of pseudoephedrine under Section 41-29-313(2)(e)(i), which reads as follows:

It is unlawful for any person to purchase, possess, transfer or distribute two hundred fifty (250) dosage units or fifteen (15) grams in weight (dosage units and weight as defined in Section 41-29-139) of pseudoephedrine or ephedrine, knowing, or under circumstances where one reasonably should know, that the pseudoephedrine or ephedrine will be used to unlawfully manufacture a controlled substance.

¶ 7. At issue is in this case is whether Section 41-29-313 grants prosecutors discretion in determining the measurement units (either dosage units or weight in grams) that are used to prosecute pseu-doephedrine possession cases or whether, as Finn asserts, there is a statutory preference for prosecutors to use particular measurement units.

¶ 8. Finn was arrested while in possession of one hundred eighty unaltered tablets of pseudoephedrine. After Finn’s arrest, the Tupelo (Mississippi) Crime Lab analyzed the drugs and concluded that one hundred twenty tablets of the pseu-doephedrine weighed 18.05 grams and the remaining sixty tablets of the pseu-doephedrine weighed 37.52 grams. The total weight of the drugs was 55.57 grams. Finn’s possession of one hundred eighty tablets falls below Section 41-29-313(2)(c)(i)’s prohibition of possessing two hundred fifty dosage units but above the prohibition of possessing fifteen grams in weight. The State charged Finn with possession of greater than fifty-five grams. The State argues that it is within the discretion of the prosecutors as to whether the State will use dosage units or weight in grams in prosecuting defendants who unlawfully possess pseudoephedrine.

¶ 9. This is a case of first impression in the State of Mississippi. The Court bears in mind that criminal statutes must be strictly construed, and any ambiguous interpretations must be resolved in favor of leniency. United States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973).

¶ 10. This Court finds that the legislative intent in Section 41-29-313 is clear and unambiguous. The law criminalizes the unlawful purchase, possession, transfer, or distribution of “two hundred fifty (250) dosage units or fifteen (15) grams in weight (dosage unit and weight as defined in Section 41-29-139) of pseu-doephedrine or ephedrine.... ”

¶ 11. The statute’s interpretation turns on the definition of the measuring units “dosage unit and weight.” Section 41-29-139(c) (Rev.2006) defines dosage units and weight, in pertinent part, as the following:

“Dosage unit (d.u.)” means a tablet or capsule, or in the case of a liquid solution, one (1) milliliter. In the case of lysergic acid diethylamide (LSD) the term, “dosage unit” means a stamp, square, dot, microdot, tablet, or capsule of a controlled substance. For any controlled substance that does not fall within the definition of the term “dosage unit, the penalties shall be based upon the weight of the controlled substance. (emphasis added).

The legislature has established that dosage units are to be considered the standard form of measuring unlawful possession of pseudoephedrine or ephedrine. The weight of the drug is considered a default measurement for those cases where the drug is not found in a “dosage unit” form.

¶ 12. The State asserts that Section 41-29-313 clearly allows prosecutors discretion as to how to charge defendants under the statute. Prosecutors are generally afforded discretion regarding a range of decisions, such as what charges to file against defendants and whether or not to prosecute a defendant at all. Watts v. State, 717 So.2d 314, 320(¶ 14) (Miss.1998). Section 41-29-313, however, does not provide any discretionary privileges to prosecutors concerning the unit of measurement that should be used in prosecuting these drug cases.

¶ 13. It is well-settled law that a defendant’s right to be free from an illegal sentence is a fundamental right. Alexander v. State, 879 So.2d 512, 514-15(¶ 9) (Miss.Ct.App.2004). The trial court erred in denying Finn’s post-conviction relief motion. Finn has sufficiently proved, by the preponderance of the evidence, that he is entitled to post-conviction relief. McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989). In the interest of justice, this Court is required to act accordingly, and reverse and render the trial court’s decision that denied Finn’s post-conviction relief request.

¶ 14. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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

IRVING, J.,

Dissenting:

¶ 15. The indictment against Finn charged:

That Steven Finn ... on the 17th day of November, A.D., 2004, did willfully, unlawfully, and feloniously have in his possession a quantity of pseudoephedrine, said quantity being greater than 15 grams, knowing or under circumstances where one reasonably should know, that the pseudoephedrine or ephedrine will be used to unlawfully manufacture a controlled substance, in violation of the Uniform Controlled Substances [Law] of the State of Mississippi.

¶ 16. The majority finds that the indictment did not charge a crime. I disagree; therefore, I respectfully dissent. It is clear to me that the indictment charged Finn with violating Mississippi Code Annotated section 41 — 29—313(2)(c)(i) (Rev.2005), which reads:

It is unlawful for any person to purchase, possess, transfer or distribute two hundred fifty (250) dosage units or fifteen (15) grams in weight (dosage unit and weight as defined in Section 41-29-139) of pseudoephedrine or ephedrine, knowing, or under circumstances where one reasonably should know, that the pseudoephedrine or ephedrine will be used to unlawfully manufacture a controlled substance.

¶ 17. There is no dispute that Finn possessed more than fifteen grams of pseudoephedrine. The report of the chemical analysis of the pseudoephedrine tablets indicates that Finn possessed a total of 55.7 grams of pseudoephedrine which was contained in 180 tablets. One hundred twenty of the tablets contained 18.05 grams of pseudoephedrine, and the other sixty tablets contained 37.52 grams of pseudoephedrine.

¶ 18. The majority reasons that, since Finn possessed the pseudoephedrine in tablet form, he had to possess at least 250 tablets to be in violation of the law, or more specifically, to be in violation of section 41 — 29—313(2)(c)(i). In my judgment, this is a misreading of the plain meaning of the aforesaid code section. It is not debatable that section 41-29-313(2)(c)(i) is written in the disjunctive, meaning that one violates this section if he possesses either 250 dosage units or fifteen grams in weight of the prohibited precursor. The majority rejects the plain wording of the statute, explaining that the statute does not prohibit fifteen or more grams of pseudoephedrine as long as it is comprised of less than 250 tablets or capsules. The majority further explains that “[t]he weight of the drug is considered a default measurement for those cases where the drug is not found in a 'dosage unit’ form” and that “[t]he legislature has established that dosage units are to be considered the standard form of measuring unlawful possession of pseudoephedrine or ephedrine.” As support for this view, the majority relies upon a provision in section 41-29-139(c) which states: “For any controlled substance that does not fall within the definition of the term ‘dosage unit,’ the penalties shall be based upon the weight of the controlled substance.” It is interesting that the majority relies on this provision, because the plain wording of the provision shows that it implicates the penalties to be applied, not the standard for adjudging illegal possession.

¶ 19. According to the majority’s reasoning, not only is it not illegal to possess fifteen grams of pseudoephedrine or ephedrine, but it is not illegal to possess any amount greater than fifteen grams as long as the pseudoephedrine or ephedrine is comprised of less than 250 tablets or capsules. Again, considering the plain, unambiguous wording of section 41-29-313(2)(c)(i), it is mystifying to me that the majority concludes that the container is more important than the drug.

¶ 20. Beyond looking at the plain meaning of section 41 — 29—313(2)(c)(i), in an effort to decipher the legislature’s intent, it is perhaps helpful to consult a pertinent portion of the succeeding subsection, 41-29 — 313(2)(c)(ii), which states: “Except as provided in this subparagraph, possession of one or more products containing more than twenty-four (24) grams of ephedrine or pseudoephedrine shall constitute a re-buttable presumption of intent to use the product as a precursor to methamphetamine or another controlled substance.” If the legislature did not intend to criminalize possession of less than 250 dosage units of pseudoephedrine or ephedrine, no matter the gram weight, how could the presumption ever apply to possession of dosage units? Further, why would the legislature provide for a presumption for possessing pseudoephedrine or ephedrine in some form other than dosage units but not provide for a presumption as to possession of dosage units? Such a choice would lack rationality and would be nonsensical, unless the legislature believed that by the very nature of the number of capsules or tablets possessed, a reasonable inference of unlawful use would follow. Therefore, it appears to me that the more logical explanation is that the legislature intended, as indicated by the choice of language employed, to criminalize the possession of fifteen or more grams of pseudoephedrine or ephedrine, no matter the form it may be in, and the possession of 250 dosage units of pseudoephedrine or ephedrine, even if the units do not amount to fifteen grams by weight. Such a construction of the statute makes sense in light of the fact that the legislature used the weight measure, not the dosage unit measure, in establishing the presumption. It is an entirely reasonable assumption that the legislature may have believed that possession of large quantities of tablets would naturally lead to a reasonable inference (therefore no need for a statutory presumption) that the possession was not for a lawful purpose.

¶21. Even though I would affirm the trial court on the basis of the reasons just discussed, I mention one other point of interest. This case has its genesis in a plea bargain. As I have already stated, Finn was charged with possession or more than fifteen grams of pseudoephedrine or ephedrine. He pleaded guilty and received a five-year sentence with three years suspended, although no part of the sentence should have been suspended because, at the time of sentencing, Finn was a prior convicted felon. Miss.Code Ann. § 47-7-33(1) (Rev.2004). In sentencing Finn, the trial judge deviated from the State’s recommendation that Finn be sentenced to a five-year suspended sentence. Aggrieved by the trial court’s action, Finn filed the motion for post-conviction relief out of which this appeal emanates. In support of his PCR motion, Finn attached an affidavit containing the following paragraph:

Originally, on the advice of counsel, I considered filing a Motion to Quash the Indictment based on the theory that even if all of the facts in the indictment were true, no crime was alleged. However, after plea negotiations concluded, I had been offered a probationary sentence as the recommendation of the State of Mississippi After weighing my options, and with the advice of counsel, I decided that a Motion to Quash the Indictment was too risky in the face of a probationary sentence. Thus, I elected to enter a guilty plea to this indictment. However, at no time did I consider my actions to be criminal. I decided to enter a plea based upon the recommendation that would be offered by the State of Mississippi, purely as a practical decision to avoid the risk of having the trial court deny my Motion to Quash the Indictment.

(emphasis added).

¶22. It is clear that Finn engaged in plea discussions and extracted a very good plea deal from the State. While the record does not indicate that the status of Finn’s indictment was a part of the plea discussions, it would seem logical that it was discussed, particularly considering the fact that, at that time, Finn did not believe that the indictment charged him with a crime.

¶ 23. A strong and plausible argument could be made that Finn should be es-topped from pursuing the issue of the sufficiency of the indictment in his post-conviction proceedings since he made a conscious decision not to pursue this issue at the trial court level. Additionally, he may have leveraged this issue during his plea discussions with the prosecutor to gain a very favorable plea deal. If so, it would be inherently unfair to allow him to first reap the benefit of his bargain and later allow him to assail a key underlying fact which may have given rise to the bargain in the first place. Nevertheless, for the reasons discussed regarding the proper construction and interpretation of the statute, I would affirm the trial court, as I find that Finn was properly indicted under section 41-29-313(2)(c)(I).

LEE, P.J., GRIFFIS AND BARNES, JJ„ JOIN THIS OPINION.

      . Section 41-29-139(c) defines a dosage unit of pseudoephedrine as a tablet or capsule. This section also provides that ''[t]he weight set forth [in the control substances statutes] refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substances.” Further, this section provides that "[f]or any controlled substance that does not fall within the definition of the term 'dosage unit,' the penalties shall be based upon the weight of the control substance.”