author: LAMAR, Justice,

text:
    Frederick GORDON, et al. v. HONEYWELL INTERNATIONAL, INC., et al. Curtis Bush, et al. v. Honeywell International, Inc., et al. Johnnie Spann, et al. v. Honeywell International, Inc., et al. Willie Spann, et al. v. Honeywell International, Inc., et al. Jimmy King, et al. v. Honeywell International, Inc., et al.
    Nos. 2005-CA-02064-SCT to 2005-CA-02068-SCT.
    Supreme Court of Mississippi.
    Aug. 9, 2007.

      J. Richard Davis, Jr., Jackson, Wilbur 0. Colum, for appellants.
    Edward J. Currie, Jackson, F. Keith Ball, Rocky W. Eaton, Hattiesburg, Lawrence M. Coco, III, T. Hunt Cole, Jr., Jackson, for appellees.
   LAMAR, Justice,

for the Court.

¶ 1. This appeal comes to us from the Circuit Court of Noxubee County, where the claims of numerous plaintiffs were dismissed without prejudice pursuant to Mississippi Rule of Civil Procedure 41(b) for failure to comply with a court order directing the plaintiffs to perfect transfer of the cases to their respective proper venues. Plaintiffs appeal, arguing that: (1) the circuit court erred in dismissing their claims; (2) it was not the responsibility of the plaintiffs to copy and transfer the eases; and (3) the trial court’s dismissal of the claims was contrary to the procedures prescribed for transfer. Finding no abuse of discretion, this Court affirms the ruling of the circuit court.

FACTS AND COURSE OF PROCEEDINGS

¶2. Late in 2002, five separate actions were filed by five separate groups of plaintiffs against multiple defendants in the Circuit Court of Noxubee County. All of these actions alleged damages due to exposure to asbestos-containing products. In each of these five cases, defendants made a Motion for More Definite Statement, to Sever and Transfer, and for Other Specific and General Relief. Following a hearing on these motions, the trial court applied this Court’s decisions in 3M Company v. Hinton, 910 So.2d 526 (Miss.2005), and Amchem Products v. Rogers, 912 So.2d 853 (Miss.2005), and required the plaintiffs’ attorneys to provide the defense with more specific factual information about each of the plaintiffs’ claims so the court could determine whether venue was proper in Noxubee County.

¶ 3. Following responses from the plaintiffs, on June 24, 2005, the trial court entered an Order of Severance, Transfer, and/or Dismissal in each of the five cases. These orders directed: (1) severance of each claim into an individual cause of action; (2) transfer of each plaintiffs claim to a proper venue in Mississippi, or if no proper venue in Mississippi existed, dismissal of those claims without prejudice; (3) dismissal without prejudice of the claims of non-resident plaintiffs who had not been exposed in Mississippi and who were not alleging a claim against a Mississippi defendant; (4) perfection of each transfer to a proper venue in Mississippi within thirty days of the date of the order; and (5) as a means of initiating transfer, filing of a civil action cover sheet and an amended complaint by each plaintiff in the transferee county.

¶ 4. The plaintiffs failed to perfect transfer of the remaining fifty-seven cases to proper venues in Mississippi within the thirty-day period prescribed by the trial court’s order. A hearing was held on August 12 to discuss, inter alia, the plaintiffs’ failure in this regard. At that hearing, plaintiffs’ counsel specifically requested that the deadline for the transfer of these cases to be perfected be extended to September 30. The trial judge agreed and orally granted the plaintiffs an extension of time until September 30, 2005, to perfect the transfers.

¶ 5. The trial court scheduled a hearing for September 30, 2005, to discuss discovery issues in the remaining cases. At this hearing, it came to light that the plaintiffs had again failed to perfect the transfers and that amended complaints and civil action cover sheets had not been filed in the transferee courts as directed by the trial court’s previous order. Showing obvious frustration, the trial court dismissed without prejudice the cases in which the plaintiffs had failed to perfect transfer:

So that in review and the court will know and I think the record will reflect the number of times that we have met on those issues, the number of times that I’ve ruled on this issue, and the number of times that I thought that I made it very clear what was to be done in light of some of the recent Supreme Court cases that have indicated what I have to do should the transfer not be done timely. I think that I have to do what I said I was going to do. And that is in those cases that are — that were to be transferred, that have not been done so by today’s date, I will sign orders dismissing those cases.

Plaintiffs’ counsel attempted to get the trial judge to reconsider his ruling by attributing the delay to the circuit clerk’s office:

BY MR. COLOM: Your Honor, ... I don’t copy the files and send them.
BY THE COURT: Have you filed cover sheets or anything in those jurisdictions where these cases were going to be transferred?
BY MR. COLOM: I can’t file a cover sheet, Your Honor, until the file actually gets there.
BY THE COURT: I believe that you can. I believe that that can be done. I’m not so far removed from filing civil litigation.

Upon a request by plaintiffs’ counsel that an evidentiary hearing be held on the transfer issue, the court went on to say:

BY THE COURT: I asked — or I ruled that this was to be done by the 30th, I ruled that. There was no application in there for additional time because of some catastrophic problem. I had begun the process and had ruled in June that they were to be done and I’ve expanded it to September 30th that it was to be done. And now it’s September 30th and they’re still not done.
Finally, I have to do what I say I’m going to do or what I say means nothing. And I’m at that point.

The trial judge then allowed plaintiffs’ counsel to call and examine the Circuit Clerk of Noxubee County for the record.

¶ 6. The crux of the circuit clerk’s testimony was that it was the responsibility of his office to actually copy and mail the files to the transferee courts. He testified that the records were very large and that he had insufficient time to get them done. On cross examination, it was brought out that plaintiffs’ counsel did not begin to “push” the clerks office to get these files transferred until August 12, 2005, which was after the original deadline for having the transfers perfected. However, the circuit clerk went on to testify that there was nothing that plaintiffs’ counsel could have done to expedite the situation.

¶ 7. That same day, the trial court entered an order pursuant to M.R.C.P. 41(b) dismissing without prejudice the cases of fifty-seven plaintiffs whose case files had not been transferred from Noxubee County to their proper venues. Aggrieved by the trial court’s decision to dismiss these cases, the plaintiffs appeal.

STANDARD OF REVIEW

¶ 8. It is well-settled that when reviewing a trial court’s dismissal pursuant to Mississippi Rule Civil Procedure 41(b), this Court may reverse only if it finds that there was an abuse of discretion on the part of the trial court. Miss. Dep’t of Human Servs. v. Guidry, 830 So.2d 628, 632 (Miss.2002).

ANALYSIS

¶ 9. While the plaintiffs present their argument through three separate assignments of error, this appeal can be fully addressed through the analysis of one issue:

Whether the circuit court acted properly in dismissing without prejudice the cases which had not been transferred.

¶ 10. The plaintiffs argue that the circuit court’s dismissal of their cases without prejudice was improper. However, a recent case from this Court has established a procedure for dealing with cases, such as this one, where the Plaintiffs’ claims were misjoined, and it is controlling.

¶ 11. Confronted with a set of facts similar to those presented by this appeal, this Court in Canadian National/Illinois Central Railroad v. Smith, 926 So.2d 839 (Miss.2006), addressed a question of first impression: “Whether the lawsuits of mis-joined plaintiffs-after severance-should be dismissed and refiled as new cases.” Canadian Nat’l, 926 So.2d at 842. Justice Dickinson’s very thorough analysis outlined the holdings in recent cases dealing with Rule 20 of the Mississippi Rules of Civil Procedure. Id. at 843-45. Pointing out that Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss.2004), and Harold’s Auto Parts, Inc. v. Mangialardi, 889 So.2d 493 (Miss.2004), “placed the burden upon the trial court to determine appropriate venues and, where appropriate, to transfer the severed cases,” Justice Dickinson asserted that this Court had provided trial courts no guidance in this process. Canadian Nat’l, 926 So.2d at 844. Speaking for the Court, he declared, “We now find it appropriate to provide further clarification as to the disposition of the claims and cases of misjoined plaintiffs, following severance.” Id.

¶ 12. It is obvious that this trial court, this circuit clerk, and these attorneys were experiencing the very problems contemplated by this Court when deciding Canadian National. When discussing the transfer of severed plaintiffs’ claims, the Court stated that there were “numerous problems” which included the procedure itself having no definition or guidelines. Nor was it made clear by the Court’s previous decisions exactly what should be “transferred” to the proper venue. Id. at 844.

For instance, assuming arguendo the trial court in Armond determined that fifty of the fifty-six plaintiffs should be “transferred” to fifty different jurisdictions, we cannot say how these “transfers” should have taken place. One could argue that, under this hypothetical transfer of fifty cases, the circuit clerk in the jurisdiction where Armond was filed was required to make fifty copies of the Aimond file and deliver them to the fifty respective jurisdictions.

Id. This case presented just such a problem as the one considered in Justice Dickinson’s example.. The Circuit Clerk of Noxubee County even testified that he was overwhelmed by the task of getting these cases copied and transferred. It is also apparent from the hearings conducted in this case that there was an issue as to what should be transferred and what the cost of that transfer would be.

¶ 13. Seeing the problems which would arise under the “sever and transfer procedure,” this Court adopted a new rule: Where plaintiffs are misjoined and severance is required, the trial court shall (1) allow a plaintiff whose case is properly before the court, and all properly joined plaintiffs, to proceed in the filed action, (2) allow misjoined plaintiffs who are properly before the trial court to proceed with separate actions in the forum court, and (3) sever and dismiss all misjoined plaintiffs who lack proper venue in the forum court, allowing each severed plaintiff to file a new complaint in an appropriate venue selected by the plaintiff. Canadian Nat’l, 926 So.2d at 845. Because the statute of limitations is tolled while a misjoined plaintiffs case is pending, there should be no resulting prejudice to a severed and dismissed plaintiff. Id.

¶ 14. While the events of this case occurred prior to this Court’s decision in Canadian National, the trial court’s actions were perfectly in accord with the rule prescribed therein. The trial court severed each of the improperly-joined plaintiffs and determined whether there existed a proper venue in Mississippi for the severed claims. The claims which were properly brought in Noxubee County were continued in Noxubee County. Those severed cases which were not properly in Noxubee County were dismissed without prejudice, affording those plaintiffs an opportunity to refile in a proper venue. The fact that these claims were dismissed pursuant to Mississippi Rule Civil Procedure 41(b) is of no consequence.

CONCLUSION

¶ 15. The Circuit Court of Noxubee County did not abuse its discretion in dismissing without prejudice the claims of severed plaintiffs which were not properly filed in Noxubee County. In fact, the trial court’s actions were in conformity with a procedure later prescribed by this Court. For that reason, the ruling of the Circuit Court of Noxubee County is affirmed.

¶ 16. AFFIRMED.

SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ. CONCUR. DIAZ, P.J., CONCURS IN RESULT ONLY. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, J., NOT PARTICIPATING.

      . The actions were styled Gordon, et al., v. Honeywell Int’l, Inc., et al.; Bush, et al., v. Honeywell Int'l, Inc., et al.; (Johnnie) Spann, et al., v. Honeywell Int’l, Inc., et al.; (Will) Spann v. Honeywell Int’l, Inc., et al.; and King, et al., v. Honeywell Int'l, Inc., et al. These five actions have been consolidated under the name Gordon v. Honeywell Int'l, Inc. for the purposes of this appeal.

      . Specifically, the order required the plaintiffs’ counsel to provide the defense with the name of each defendant against whom each plaintiff alleged a claim, the time and location of the exposure, and the medical condition caused by the exposure.

      . Prior to these orders, the trial court already had dismissed the claims of 437 non-resident plaintiffs who did not allege either exposure in the State of Mississippi to a defendant’s asbestos-containing product or claims against a Mississippi resident defendant.

      . There is no dispute that severance of the claims involved in this appeal was appropriate, nor is there a dispute over the respective venues to which each severed claim was to be transferred. The sole issue in this appeal is the trial court's dismissal of these claims for failure to perfect transfer.


source: Caselaw Access Project

author: DICKINSON, Justice,

license: Public Domain

text:
    Gladys GILL, Edward F. “Red” Graham, Glenn Hopkins, Lonnie Meadows and David Tucker v. STATE of Mississippi, et al.
    No. 2006-CA-01687-SCT.
    Supreme Court of Mississippi.
    Aug. 16, 2007.
    Richard Barrett, for appellants.
    Office of the Attorney General by Billy L. Gore, Charles Willis Pickering, Sr., attorneys for appellee.
    Before SMITH, C.J., DICKINSON and LAMAR, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. This is an appeal of a trial court’s refusal to permit intervention. The question presented is whether a private citizen should be allowed to intervene in a criminal case and challenge the trial court’s exoneration of Clyde Kennard who, many years ago, was convicted of burglary and died in jail.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. In 1960, a Forrest County grand jury indicted Kennard and Johnny Lee Roberts for burglary. Kennard v. State, 242 Miss. 691, 128 So.2d 572 (1961), cert. denied, 368 U.S. 869, 82 S.Ct. 111, 7 L.Ed.2d 66 (1961). Roberts (who entered a guilty plea) testified for the State and, based solely on this testimony, Kennard was convicted and sentenced to prison, where he died in 1963.

¶ 3. In January 2006, Roberts came forward, admitting by sworn affidavit that he gave false testimony against Kennard, and that Kennard was innocent of the crime for which he had been convicted. As a result of Roberts’s affidavit, and in an effort to right what they considered a substantial injustice, several persons sought to file with this Court a Motion Amicus Curiae to Vacate Judgment pursuant to Rule 60(b)(1) for fraud, misrepresentation and other misconduct of the adverse party. In re Clyde Kennard, No.2006-M-00053 (Feb. 17, 2006). This Court dismissed the motion for lack of jurisdiction, explaining that the relief requested under the post-conviction relief statute was inapplicable. Chief Justice Smith noted in the Order dismissing the petition, however, that alternative avenues might exist for the relief sought.

¶ 4. Thereafter, sixteen persons filed a Petition for Exoneration in the Circuit Court of Forrest County, requesting the court to “correct the injustice perpetrated against Clyde Kennard and ... enter an order exonerating Clyde Kennard, adjudicating that he was innocent, and declaring his conviction null and void.”

¶ 5. On May 17, 2006, the motion was heard by Circuit Judge Robert Helfrich. After a presentation by Hon. Charles W. Pickering and Hon. William Winter, District Attorney Jon Marc Weathers, on behalf of the State, informed the court that the State of Mississippi had joined the motion, and asked the court to consider petitioners’ request “and exonerate Mr. Kennard of this conviction.”

¶ 6. Judge Helfrich ruled from the bench, stating that he was “compelled to do the right thing, and that is to declare Mr. Kennard innocent and to declare that the conviction of Mr. Kennard is hereby null and void.” Thereafter, Judge Helfrich entered a Judgment of Exoneration and Declaration of Innocence, wherein he stated: “Clyde Kennard was innocent of the charge of burglary for which he was convicted. Clyde Kennard was prosecuted to prevent his enrollment as the first African-American to be enrolled at Mississippi Southern College, now the University of Southern Mississippi.” Judge Helfrich also entered an Order of Nolle Prosequi for the State’s criminal case against Ken-nard.

¶ 7. On May 23, 2006, attorney Richard Barrett filed a motion to intervene, alleging that the exoneration was wrongfully obtained, and that he wished to “redress an erroneous application of law or violation of constitutional rights and miscarriage of justice and/or to protect the rights of the public and himself, as a citizen of the State of Mississippi.” On the same day, Barrett filed a Motion to Reconsider and Vacate Judgment, and another motion to intervene on behalf of Gladys Gill, Edward F. “Red” Graham, Glenn Hopkins, Lonnie Meadows, and David Tucker.

¶ 8. The petitioners who sought Ken-nard’s exoneration responded to Barrett’s motion by stating that neither Barrett nor his clients should be allowed to intervene and, on June 15, 2006, the circuit judge denied Barrett’s motion to intervene.

¶ 9. Thereafter, Barrett and his clients (“Applicants”) filed a motion, asking the circuit judge to reconsider his denial of intervention. Both the petitioners, represented by Pickering, and the State of Mississippi, by and through District Attorney Jon Marc Weathers, responded to Applicants’ motion, stating that the only issue before the court was whether Barrett and his clients had standing to intervene, arguing they clearly did not.

¶ 10. The trial court agreed and refused to reconsider its ruling, holding that the Applicants did not have the right to intervene in a criminal matter. It is from this ruling that Barrett’s clients appeal, asserting that the trial court did not have authority to exonerate Clyde Kennard and, even if it did, that they were entitled to intervene based on their standing as concerned citizens.

ANALYSIS

¶ 11. The difficulty in reviewing this case is caused almost exclusively by the passage of time. Were it not for the forty-six years that passed between the jury verdict against Clyde Kennard and the request of Petitioners to throw out the jury verdict, all parties involved would recognize Petitioners’ action for what it was— an amicus request by several citizens and joined by the State of Mississippi, for a judgment notwithstanding the verdict. The sole issue for our determination is whether Applicants have standing to appeal the trial court’s actions.

¶ 12. A judgment notwithstanding the verdict, or judgment non obstante ve-redicto (J.N.O.V.), is a “judgment entered for one party even though a jury verdict has been rendered for the opposing party.” Black’s Law Dictionary, 860 (8th Ed.2004). Procedurally, motions for judgments notwithstanding the verdict must be asserted within ten days of the entry of judgment. URCCC 10.05. However, this Court has stated, “[r]ules are made to secure justice, not defeat it.” Brewer v. Browning, 115 Miss. 358, 366, 76 So. 267 (1917). Moreover, “[a]ll courts have the inherent power to correct and make their judgments speak the truth.” Turner v. State, 212 Miss. 590, 594, 55 So.2d 228 (1951). This Court has additionally held that the power to correct an error in the record of a judgment rendered by it at a former term is inherent in the court system. See Claughton v. Ford, 202 Miss. 361, 30 So.2d 805 (1947).

¶ 13. According to the State and the trial court, Clyde Kennard was an innocent man who fell victim to the time in which he lived. After many years, his sole condem-nor recanted his testimony in an effort to, as far as possible, make right the evils of his past. We find that, under the extraordinary circumstances which exist here, the trial court was well within its discretion to hear the Petitioner’s petition, particularly since it was joined by the State of Mississippi.

¶ 14. The only proper parties to a J.N.O.V. in a criminal case are the defendant and the State. Normally, upon grant of J.N.O.V., the State would be entitled to appeal. See In Re: Attorney General Mike Moore, 722 So.2d 465 (Miss.1998) (noting that the district attorney and attorney general were-proper representatives of the State and the only parties able to appeal a circuit judge’s suspension of a prisoner’s sentence). The State, through the district attorney, joined the petition, and the trial judge granted the requested relief.

¶ 15. Applicants bring to our attention numerous alleged errors in the proceedings before the trial court. However, a trial court’s disposition of a matter is presumed correct unless and until a proper party brings a successful appeal. Robinson v. State, 345 So.2d 1044, 1045 (Miss.1977). Since the State of Mississippi is the only proper party to bring an appeal, and since the State does not appeal but, indeed, applauds Judge Helfrich’s decision, we have no need to address any of the errors alleged by Applicants, who have no standing in this matter.

CONCLUSION

¶ 16. Judge Helfrich’s order exonerating Kennard may be appealed only by the State of Mississippi. Since the State, through District Attorney Weathers, joined in the petition seeking the court’s order, and since the State of Mississippi neither brought nor joined in this appeal, we hold that the appeal must be dismissed.

¶ 17. APPEAL DISMISSED.

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

      . It was argued at the hearing on Appellants’ motion to intervene, that the indictment and prosecution were an effort to prevent Ken-nard’s enrollment as the first African-American student at the University of Southern Mississippi.

      . The Mississippi Uniform Post-Conviction Collateral Relief Act provides relief only for prisoners in custody at the time the petition to vacate conviction is filed. Miss.Code Ann. § 99-39-5(l)(Rev.2000).

      . Original Petitioners were Charles W. Pickering, Sr., Barry W. Ford, William F. Winter, Reuben V. Anderson, Dr. Shelby Thames, Dol-phus Weary, Dr. Aubrey Lucas, Ellie J. Dah-mer, Vernon Dahmer, Jr., Frank Montague, Deborah J. Gambrell, Judge Johnny Williams, W.O. (Chet) Dillard, Charles E. Lawrence, Jr., and Dr. Alvin J. Williams. The Petition was later joined by numerous others, including Governor Haley Barbour, Lt. Col. Rylawni Branch, Dr. Joyce Ladner, and Dorie Ladner-Churnet.


author: RANDOLPH, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Darrin J. WESTFAUL.
    No. 2007-JP-00279-SCT.
    Supreme Court of Mississippi.
    Aug. 16, 2007.
    Luther T. Brantley, III, Darlene D. Ballard, attorneys for appellant.

      Appellee, pro se.
   RANDOLPH, Justice,

for the Court.

FACTS AND STATEMENT OF THE CASE

¶ 1. On April 1, 2006, Darrin Westfaul (“Judge Westfaul”), Municipal Judge Pro Tem of Batesville, Municipal Judge of Pope, and Municipal Judge of Courtland, was charged with driving under the influence, first offense, in violation of Miss. Code Ann. Sect. 63-ll-30(l)(a) (Rev.2004). Judge Westfaul pleaded guilty to the charge and was fined $1,043; ordered to attend Mississippi Alcohol Safety Education Program classes; ordered to attend a victim’s impact panel session; and sentenced to two days in jail, suspended on two years good behavior. The fine was paid in full and Judge Westfaul attended all programs as ordered.

¶ 2. Judge Westfaul self-reported his charge to the Mississippi Commission on Judicial Performance (“The Commission”). The Commission then filed a Formal Complaint, charging Judge Westfaul with violating Canons 1 and 2A of the Code of Judicial Conduct. The Commission further found Judge Westfaul’s conduct to be prejudicial to the administration of justice which brings the judicial office into disrepute, causing Judge Westfaul’s conduct to be actionable pursuant to Article 6, Section 177A of the Mississippi Constitution. Judge Westfaul did not file a response in anticipation of an agreement for sanctions being reached between himself and the Commission.

¶ 3. An Agreed Statement of Facts and Proposed Recommendation was filed by both counsel for the Commission and the Respondent. Both parties stated the Agreed Statement of Facts and Proposed Recommendation was being submitted in lieu of a formal hearing. In the Agreed Statement of Facts and Proposed Recommendation, counsel for the Commission and Judge Westfaul proposed that Judge Westfaul be publicly reprimanded and assessed the costs of the proceeding, $100. In its Findings of Fact, Conclusions of Law, and Proposed Recommendation, the Commission found by clear and convincing evidence that Judge Westfaul violated Canons 1 and 2A of the Code of Judicial Conduct and further found Judge West-faul’s conduct to be actionable pursuant to Article 6, Section 177A of the Mississippi Constitution. The Commission approved the recommendation that Judge Westfaul be publicly reprimanded and fined $100.

¶ 4. The Commission and Judge West-faul have now submitted the Commission’s recommendation before this Court in a Joint Motion for Approval of Recommendations.

STANDARD OF REVIEW

¶ 5. “We conduct de novo review of judicial misconduct proceedings, giving great deference to the findings, based on clear and convincing evidence, of the recommendations of the Mississippi Commission on Judicial Performance. While we do give great deference to the Commission’s findings, we are also charged to render an independent judgment.” Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 212 (Miss.2006) (internal citations omitted).

ANALYSIS

¶ 6. Judge Westfaul was charged with violating Canons 1 and 2A of the Code of Judicial Conduct. The Commission further asserted Judge Westfaul demonstrated conduct prejudicial to the administration of justice which brings the judicial office into disrepute, causing Judge Westfaul’s conduct to be actionable pursuant to Article 6, Section 177A of the Mississippi Constitution. Judge Westfaul admitted to committing these violations. The sanctions agreed upon by both the Commission and Judge Westfaul were that Judge Westfaul be publicly reprimanded and assessed the $100 cost of the proceedings.

¶ 7. This Court’s decision in Mississippi Commission on Judicial Performance v. Gibson set forth six factors to be considered when determining the appropriate punishment for violations of the judicial canons. See Mississippi Commission on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004). We will examine each factor as applied to Judge Westfaul.

¶ 8. 1) The length and character of the judge’s public service: Judge West-faul has been Municipal Judge Pro Tern of Batesville for eleven years, Municipal Judge of Courtland for five and a half years and Municipal Judge of Pope for five years. From 1999 to 2002, Judge Westfaul was a Youth Court Judge, Family Master and Special Master for Panola County. Judge Westfaul has served as an adjunct professor at Northwest Community College for eight years. He has presented and discussed legal topics to various community organizations, and is a former member of the Mississippi Bar Association’s committee on problems of the indigent. Further, Judge Westfaul was chairman and a member for many years of the Mississippi Bar’s committee on the unauthorized practice of law. Presently, Judge Westfaul is a member of various bar associations and civic organizations.

¶ 9. 2) Whether there is any prior case law on point: This Court has previously addressed this issue in Mississippi Commission on Judicial Performance v. Thomas, 722 So.2d 629 (Miss.1998).

¶ 10. The facts sub judice are similar to those in Thomas. Judge Thomas was charged and convicted of a first offense DUI. Judge Thomas, as did Judge West-faul, self-reported his violation and accepted responsibility for his actions and then accepted his conviction and punishment expeditiously. Id. at 631-32. However, unlike Judge Westfaul, Judge Thomas did not believe he should be subjected to public reprimand. Id. at 632. While this Court found that Judge Thomas “maturely accepted the consequences of his actions,” the Court held that he should be publicly reprimanded. Id. The Court ruled that the “position he enjoy[ed] as a sitting judge require[d] that the resolution of this matter be known to the public.” Id.

¶ 11. 3) The magnitude of the offense and the harm suffered: Driving under the influence is a serious offense and one not to be taken lightly. The facts of Judge Westfaul’s case are clearly analogous to those of Judge Thomas, wherein by accepting responsibility for his actions, Judge Westfaul “avoid[ed] a situation that could have further eroded the public’s confidence in the bench.” Id. The record indicated that as a result of Judge Westfaul’s offense, no one was physically harmed, nor was there any property damage.

¶ 12. 4) Whether the misconduct is an isolated incident or evidences a pattern of conduct: This is an isolated incident. No evidence of a pattern of misconduct is before this Court. Additionally, the Commission stated and the record reveals no prior disciplinary history involving Judge Westfaul.

¶ 13. 5) Whether moral turpitude was involved: The Commission asserted that no moral turpitude was involved. This Court has defined moral turpitude as “actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” Gibson, 883 So.2d at 1158 n. 2. This Court further defined moral turpitude in its ruling in Mississippi Commission on Judicial Performance v. Gordon. “The bottom line of this element is that we must determine whether a judge’s conduct crosses the line from simple negligence or mistake, to willful conduct which takes advantage of a judge’s position for greed or other inappropriate motives. If the conduct willfully subverts justice, more punishment is warranted.” Miss. Comm’n on Judicial Performance v. Gordon, 955 So.2d 300, 305 (Miss.2007).

¶ 14. The Court agrees with the Commission that first-offense driving under the influence is a serious matter. However, Judge Westfaul’s conduct did not willfully subvert justice and does not involve moral turpitude.

¶ 15. 6) The presence or absence of mitigating circumstances: Judge West-faul has no prior disciplinary history and he self-reported this violation to the Commission. Judge Westfaul has accepted responsibility for his actions and completed all punishment imposed upon him without delay.

¶ 16. The Commission and Judge West-faul have agreed on the recommendation for sanctions. Based on the foregoing factors, the sanctions imposed by the Commission are commensurate with the violation.

CONCLUSION

¶ 17. The Joint Motion for Approval of Recommendations is granted. Judge Westfaul was issued a public reprimand and assessed $100, which is a punishment consistent with this Court’s holdings in In Re Gibson and Thomas. Accordingly, the sanctions issued by the Commission are affirmed.

¶ 18. JUDGE DARRIN J. WEST-FAUL, MUNICIPAL JUDGE PRO TEM OF BATESVILLE, MUNICIPAL JUDGE OF POPE, AND MUNICIPAL JUDGE OF COURTLAND, SHALL BE PUBLICLY REPRIMANDED AND ASSESSED COSTS OF $100.00.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND LAMAR, JJ., CONCUR. DIAZ, P.J., NOT PARTICIPATING.


author: SMITH, Chief Justice,

text:
    John A. (Pap) MOORE v. Stacey W. PARKER.
    No. 2006-EC-00899-SCT.
    Supreme Court of Mississippi.
    Aug. 16, 2007.

      Samuel L. Begley, Gary Goodwin, Columbus, for appellant.
    Ronald D. Michael, Booneville, Billy Bronson Tabler, for appellee.
   SMITH, Chief Justice,

for the Court.

¶ 1. The motion to correct the record and the motion for rehearing filed by John A. (Pap) Moore are both granted. The previous opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. This is an appeal from an order of a Special Election Contest Tribunal with regard to the May 2005 Democratic mayoral primary in Houston, Mississippi. Stacey Parker, a mayoral candidate, filed a petition for judicial review of the primary in the Circuit Court of Chickasaw County. The winner of the primary, John Moore, intervened as a party defendant and filed a Motion to Dismiss and/or for Summary Judgment. The case was tried, and the Special Tribunal ordered a special, run-off primary election. Moore appeals that decision to this Court.

FACTS AND PROCEDURAL HISTORY

¶ 3. On May 3, 2005, the Democratic primary was held for the City of Houston, Mississippi. Seeking the nomination for mayor were Laverne Collins, John Fred Lancaster, Appellant John A. (Pap) Moore and Appellee Stacey W. Parker. The official returns certified by the City of Houston Municipal Democratic Executive Committee (Executive Committee) reflected that the winner was Moore, receiving 921 votes, 50.03% of the votes cast, and that Parker obtained the second-highest number of votes, receiving 552 votes, 29.98% of the votes cast. Had Moore received one less vote, a run-off election automatically would have taken place between Moore and Parker.

¶ 4. Immediately after the executive committee certified the returns, Parker submitted to the Houston City Clerk a handwritten note stating, “I, Stacey W. Parker, hereby contest the mayoral election of Houston, MS. May 3, 2005,” signed by Parker and dated May 4, 2005. Later that day the city clerk notified each of the other three mayoral candidates that Parker 1) had filed a notice of contest, 2) would have the right to examine the ballot boxes, and 3) had scheduled an examination for 9:00 a.m. on Monday, May 9, 2005. Moore’s representative, Ike Brown, attended the inspection.

¶ 5. On May 11, 2005, Parker personally served on one of the members of the executive committee a Petition to Contest the mayoral primary. Though the committee met twice, each time scheduling discussion of the election contest, the committee never addressed the petition. At the third meeting on June 7, 2005, the committee was informed by election division attorneys from the Mississippi Attorney General’s Office that the executive committee no longer had jurisdiction to consider matters relating to the May 3 primary.

¶ 6. On June 22, 2005, Parker filed a Petition for Judicial Review of Election Contest in the Circuit Court of Chickasaw County, Mississippi. On June 28, 2005, this Court entered an Order naming a special judge to preside over the election contest proceedings. On July 28, 2005, Moore moved to intervene as a defendant, attaching his answer, affirmative defenses, cross-claim and motion to dismiss and/or for summary judgment. On September 6, 2005, the circuit court entered an Order partially overruling Moore’s motion to dismiss and/or for summary judgment. After a trial in May 2006, the special judicial tribunal, made up of a circuit court judge from another district and three members of the Houston Election Commission, found unanimously that at least nine illegal votes were cast for Moore and consequently, on June 9, 2006, ordered a special primary run-off.

¶ 7. Moore appealed and filed with this Court an emergency motion to stay and for expedited appeal. A panel of this Court denied Moore’s motion to stay, but later, granted his motion for an expedited appeal.

DISCUSSION

¶ 8. As an initial matter, Parker disputes this Court’s authority to consider the issues raised on appeal. Parker cites Mississippi Code Annotated Section 23-15-933 (Rev.2001) for the proposition that the election order is not subject to review by this Court since the order was executed by the presiding judge and joined by all three of the Houston Municipal Election Commissioners, the four of whom comprised the special tribunal. Mississippi Code Annotated Section 23-15-933 reads:

The contestant or contestee, or both, may file an appeal in the Supreme Court within the time and under such conditions and procedures as are established by the Supreme Court for other appeals. If the findings of fact have been concurred in by all the commissioners in attendance, provided as many as three (3) commissioners are and have been in attendance, the facts shall not be subject to appellate review. But if not so many as three (3) of the commissioners are or have been in attendance, or if one or more commissioners dissent, upon review, the Supreme Court may make such findings as the evidence requires.

¶ 9. While the statute deems final the tribunal’s findings of fact, its legal conclusions are reviewable by this Court on appeal. Accordingly, the statute presents no bar to any issues in this case since all issues presented are questions of law. Moreover, the issues raised for this Court’s consideration do not require review of the findings of fact the tribunal made with regard to the nine fraudulently voted ballots.

¶ 10. All issues raised by Moore require this Court to interpret law, and thus, are reviewed de novo. Boyd v. Tishomingo County Democratic Executive Comm., 912 So.2d 124, 128 (Miss.2005).

I. Whether the Special Tribunal Had Jurisdiction to Consider Parker’s Petition for Judicial Review

¶ 11. Moore contends that the special tribunal lacked subject matter jurisdiction due to Parker’s failure to meet jurisdictional prerequisites enumerated in our election contest statutes. Moore alleges six procedural deficiencies.

A. Whether Parker Filed His Petition Contest with the Houston Democratic Executive Committee

B. Whether Parker’s Petition to Contest Provided Sufficient Grounds for Contesting the Election

¶ 12. The two errors raised alleging violation of Mississippi Code Annotated Section 23-15-921 are considered together. This code section provides the procedure for contesting a primary election. The contestant must “within twenty (20) days after the primary election, file a petition with the secretary, or any member of the county executive committee in the county in which the election was held, setting forth the grounds upon which the primary election is contested.” Miss.Code Ann. § 23-15-921 (Rev.2001).

¶ 13. Moore contends that Parker filed two petitions to contest, the handwritten note on May 4, 2005, and a more formal, more specific petition on May 11, 2005. Moore asserts that Parker did not “file [his May 4, 2005,] petition with the secretary, or any member of the county executive committee in the county in which the election was held ...” as required by Mississippi Code Annotated Section 23-15-921. Indeed, Parker filed his May 4, 2005, petition with the Houston City Clerk. However, on May 11, 2005, he personally served one of the members of the Houston Democratic Executive Committee with his second petition. Thus, while Parker did not file his May 4, 2005, petition with a member of the Houston Democratic Executive Committee pursuant to Mississippi Code Section Annotated 23-15-921, Parker filed a petition with the Houston Democratic Executive Committee.

¶ 14. Further, Moore contends that the May 4, 2005, petition did not set forth sufficiently specific allegations as required by Mississippi Code Section 23-15-921. The language of the contest or petition or complaint before the Executive Committee must be reasonably specific in its charges and may not be mere general language. Harris v. Stewart, 187 Miss. 489, 507, 193 So. 339 (1940) (citing Shaw v. Burnham, 186 Miss. 647, 191 So. 484, 486 (1939)).

¶ 15. Moore directs the Court to the handwritten document Parker submitted to the Houston City Clerk on May 4, 2005, which read “I, Stacey W. Parker, hereby contest the mayoral election of Houston, MS. May 3, 2005.” Parker responds and Moore concedes that Parker submitted a petition on May 11, 2005, containing more specific allegations. However, the parties further dispute the validity of the petition submitted on May 11, 2005. While Moore accurately notes that Section 23-15-921 does not provide for submission of a second petition, as Parker responds, the statute also does not prohibit submission of an additional petition. Therefore, Moore’s argument concerning the specificity of the May 4, 2005, petition is irrelevant since Parker submitted a more specific petition on May 11, 2005, the specificity of which Moore does not challenge.

C. Whether Parker Engaged in an Unlawful Inspection of the Ballot Boxes Prior to Filing His Petition to Contest

¶ 16. Moore alleges that Parker failed to meet the notice requirement of Mississippi Code Annotated Section 23-15-911 (Rev.2001) which requires three days’ notice to each candidate before a contestant can examine the ballot boxes after the primary. Parker replies that he complied by provision of his handwritten petition on May 4, 2005, to the city clerk, who in turn notified each of the candidates of Parker’s right to examine the boxes. The notice was signed by each of the four candidates on May 4, 2005, five days before Parker inspected the ballot boxes on May 9, 2005. Thus, this argument is without merit.

D. Whether the Two Attorneys Who Signed Parker’s Petition for Judicial Review Were Incapable of Independent Investigation Solely Due to Their Employment at the Same Firm

¶ 17. Mississippi Code Annotated Section 23-15-927 (Rev.2001), requires that two attorneys who have made an independent investigation certify the petition for judicial review. Moore asserts that Parker’s petition was certified by two attorneys who were incapable of “independent” investigation even though they were employees of the same firm. The question is to what and/or whom must the attorneys be independent — each other or the contest? Moore asserts that the attorneys must be independent from each other. However, to be “independent” an attorney only need be disassociated from the contest, not from the other certifying attorney.

¶ 18. The attorneys may not be associated with the contestant, as this Court has stated “that the certificate should be signed by unbiased lawyers; and that ‘such a purpose eliminates attorneys who represent a contestant at the time their investigation of the matter is made, or at the time his petition for judicial review is filed.’ ” Pearson v. Jordan, 186 Miss. 789, 192 So. 39, 40 (1939) (quoting Pittman v. Forbes, 186 Miss. 783, 191 So. 490 (1939)). Further, the attorneys may not be associated with the contest. “The right of a contestee to an office to some extent is tainted by the proceeding; and it is important that this independent investigation should be made by disinterested attorneys, having no connection with the case.” Id. Further, this Court has stated that “the only facts which would disqualify a certifying attorney are: Employment of the attorney, past, present, contingent or prospective, by or for the contestant as his attorney in respect to the matter involved in the contest, or such facts as would disqualify a judge.” Upton v. McKenzie, 761 So.2d 167, 171 (Miss.2000) (citing Harris, 187 Miss. at 504-05, 193 So. at 343).

¶ 19. On numerous occasions, this Court has illustrated the meaning and purpose of the independent investigation requirement as detachment of the attorneys from the contest, not from each other. Compare Esco v. Scott, 735 So.2d 1002 (Miss.1999) (an attorney who is “of counsel” of the firm representing the contestant is not independent) and McDaniel v. Beane, 515 So.2d 949 (Miss.1987) (a member of the law firm representing the contestant is not independent) with Upton v. McKenzie, 761 So.2d at 171 (certifying attorney is independent where he does not represent the contestant with respect to the election contest, is not associated with contestant’s counsel in any way, and is not precluded by Canon 3C of the Code of Judicial Conduct); Harris, 187 Miss. at 504, 193 So. at 343 (an attorney who is a close friend of the contestant’s attorney with whom he sometimes associates as counsel on cases and whose offices happen to be on the same floor of the building in which both work is independent). As indicated numerous times by this Court, whether each of the two certifying attorneys may perform an “independent” investigation is not determined by the nature of their relationship with each other but their association with the contest. We reject Moore’s argument that attorneys employed by the same firm are incapable of performing independent investigations.

E. Whether Parker Filed Forthwith His Petition for Judicial Review

¶ 20. As a predicate to a petition for judicial review the contestant must first present his grievance to the county, or in this case, municipal executive committee. Harris, 187 Miss. at 507, 193 So. at 343. Subsequently, if a contestant seeks judicial review, Mississippi Code Annotated Section 23-15-927 instructs:

[w]hen and after any contest has been filed with the county executive committee, or complaint with the State Executive Committee, and the said executive committee having jurisdiction shall fail to promptly meet or having met shall fail or unreasonably delay to fully act upon the contest or complaint, or shall fail to give with reasonable promptness the full relief required by the facts and the law, the contestant shall have the right forthwith to file in the circuit court of the county wherein ⅛: irregularities are charged to have occurred....

Parker filed his petition for judicial review on June 22, 2005. Moore asserts that the petition was not filed “forthwith” since June 22 was forty-nine days after the primary. Parker replies that “forthwith” is not defined by a particular amount of time, but is determined by the specific facts and circumstances surrounding each case.

¶ 21. As Parker notes, this Court recently held in Cook v. Brown, 909 So.2d 1075, 1079 (Miss.2005),

[tjhere has never been an exact number of days determined as a minimum to meet the “forthwith” requirement. Instead, this Court has upheld the well-established and long-standing principle ... ‘that the term “forthwith” connotes no specific fixed time limit. Rather, its meaning depends upon consideration of the surrounding facts and circumstances and varies with each particular case.’ Smith v. Deere, 195 Miss. 502, 507, 16 So.2d 33, 35 (1943); Turner v. Henry, 187 Miss. 689, 695-96, 193 So. 631, 632 (1940); Harris [v. Stewart,] 187 Miss. [489] at 502-04, 193 So. [339] at 342 [(1940)].

(quoting Pearson, 541 So.2d at 450). Moore directs the Court to measure the time from the date of the primary election. However, the reference point for the running of time is the date of the final action or decision by the party executive committee. See, e.g., Cook, 909 So.2d at 1079 (“In this instance, Cook’s filing of the petition 39 days after the Quitman County Democratic Executive Committee conducted the hearing on September 4, 2003 was not “forthwith” as required by the statute”) (emphasis added).

¶22. In Pearson, this Court deemed “forthwith” a petition filed thirteen days, nine working days, after the committee decision. 541 So.2d at 450. The committee never reached a decision in this case. Parker filed his petition for judicial review on June 22, 2005, fifteen days, eleven working days, after the last committee meeting on June 7, 2005, in which the contest was scheduled to be addressed. Filing within eleven working days is not a significant departure from the nine working days this Court found to be “forthwith” in Pearson. But see Turner, 193 So. at at 632 (holding that the filing of a petition twenty-six days after the final executive committee action “was stretching ‘forthwith’ too far”). In this case, the “forthwith” requirement is satisfied. We find this assignment of error to be without merit.

F. Whether the Special Tribunal in its Review Exceeded the Scope of Matters Alleged in Parker’s Petition to Contest

¶ 23. Moore asserts that the tribunal based its ruling for a special election entirely on matters not raised by Parker in his election contest petition, and thus the tribunal exceeded its scope of review. The special tribunal is limited in its review and examination to matters presented by the original contest petition brought before the executive committee. Waters v. Gnemi, 907 So.2d 307, 325 (Miss.2005); Darnell v. Myres, 202 Miss. 767, 773, 32 So.2d 684, 685 (1947) (citing Harr is, 187 Miss. at 507, 193 So. 339). The tribunal may, however, consider germane matters which happened during or since the hearing before the executive committee and matters merely explanatory or incidental to the matters originally raised. Id.

¶ 24. Parker complained of illegal and fraudulent votes, namely, legally insufficient affidavits, illegal affidavit voting, the counting of votes of deceased individuals, and insufficiencies in the contents of and documentation concerning ballot boxes. Parker further noted specific procedural deficiencies on certain absentee ballot envelopes, concerning items such as signatures and uncompleted blanks.

¶25. The special tribunal stated “[w]e find by clear and convincing evidence that there were at least nine illegal or fraudulent ballots cast by Ms. Gardner for Mayor Moore.” The tribunal found that David Douglas was assisted in voting in person and by absentee ballot by Martha Gardner. The tribunal also concluded that Gardner illegally delivered, voted, and returned an absentee ballot in Ottie Mae Criddle’s name. The tribunal further found that Gardner fraudulently voted ballots on behalf of Michael Sanders, Jason Wright, Lora Weeks Carter, Travis Dye, Alice Faye Carter, Troy Brasfield and Glendora Kendall. Based on its findings of illegally and/or fraudulently voted absentee ballots, in accord with Parker’s petition, which specifically alleged illegal affidavit voting, the special tribunal found enough illegal votes cast for Moore to change the outcome of the primary and warrant a run-off.

¶ 26. Thus, we find the tribunal based its order on grounds within the scope of the contest petition, and Moore’s assertion otherwise is without merit.

II. Whether the Order of the Special Tribunal Erroneously Relied on Inadmissible Hearsay Testimony of One of Parker’s Witnesses to Conclude That Nine Absentee Ballots Were in Fact Cast for Moore as the Basis for Calling a New Election

¶ 27. Moore asserts that, since the nine ballots found to be voted for Moore were never challenged at the polling place, there was no way to know directly how these votes were marked, unless some additional evidence was adduced. Moore asserts that “[t]he special tribunal exclusively relied upon irrelevant hearsay contained in uncorroborated testimony of David Douglas” to determine that the allegedly illegal votes were cast for Moore.

¶ 28. This Court consistently has stated that failure to object to hearsay constitutes a waiver of the issue on appeal. Rubenstein v. State, 941 So.2d 735, 764 (Miss.2006). Moore did not make a single objection when Douglas testified before the tribunal. Thus, this issue concerning admissibility of Douglas’s testimony is waived.

III. Whether the Circuit Court Erroneously Denied Moore’s Motion for Summary Judgment by Relying Upon Affidavits That Do Not Relate to Any Allegations That Were Set Forth in Parker’s Election Contest Petition

¶ 29. Moore asserts that the affidavits of Estelle Sullivan and Ottie Mae Criddle and the letter/affidavit of Tammy Chamblee on which the tribunal relied in denying summary judgment were not related to the allegations set forth in Parker’s contest petition.

¶ 30. This Court reviews de novo a trial court’s ruling on a summary judgment motion. Williams v. Bennett, 921 So.2d 1269, 1271 (Miss.2006). The evidence must be considered in the light most favorable to the non-moving party. Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983). “[T]he pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c).

¶ 31. Parker raised allegations of illegal affidavit voting, and each of the three affidavits which Moore asserts are unrelated describe facts indicative of fraudulent voting by Gardner. Tammy Chamblee relates from a conversation with her mother, Jean Eaves, how Gardner came to Eaves’s home with an unsolicited ballot, sat beside Eaves as she voted it and carried Eaves’s ballot with her when she left. The affidavits of Estelle Sullivan and Ottáe Mae Criddle each claim that Gardner brought a ballot to her, marked the ballot, and she never saw the ballot again. As for the question of whether the affidavits are related to the allegations Parker raises, the affidavits clearly concern the occurrence of illegal affidavit voting in the primary. Therefore, this issue is without merit.

IV. Whether the Special Tribunal Erroneously Ordered a Run-off of the Democratic Executive Committee When it Should Have in Fact Ordered a Special Election, to Be Called by the Governor and Conducted by the Municipal Election Commission under Miss.Code Ann. § 23-15-927 (Rev.2001)

¶ 32. The tribunal ordered a special primary run-off election between Moore and Parker. With regard to the decision of a special judicial tribunal, Mississippi Code Annotated Section 23-15-937 (Rev.2001) reads in pertinent part:

[I]f the said judgment be in favor of the contestant, the election of the contestee shall thereby be vacated and the Governor, or the Lieutenant Governor in case the Governor be a party to the contest, shall call a special election for the office or offices involved, if the contestee has already entered upon the term he shall vacate the office upon the qualification of the person elected at said special election, and may be removed by quo warranto if he fail so to do.

¶ 33. This Court has previously found in a similar situation that Mississippi Code Annotated Section 23-15-937 (Rev.2001) controlled and required a special election. In Smith v. Hollins, 905 So.2d 1267 (Miss.2005), Smith and Hollins were the only two candidates in the Democratic primary and in the entire county race for supervisor. Id. at 1269. Smith won the primary with 510 votes to Hollins’s 499 votes. Id. at 1270. The special tribunal cast out votes it found to be illegal and counted only the legal votes, resulting in Hollins being declared the winner with 519 votes to Smith’s 516 votes. Id. This Court held that Mississippi Code Annotated Section 23-15-937 (Rev.2001) governs special elections for contested primary elections. Smith, 905 So.2d at 1277. Pursuant to the statute, if the contestant prevails in an election contest and the contestee has already taken office, the appropriate remedy is that the Governor call a special election for the office. Id. The Court was reluctant to apply the statute for the reason Parker mentions, which is that only the primary winner’s name would have been on the general election ballot. Id. Despite its reluctance, the Court applied the statute, declaring Smith the winner of the primary election and ordering a special election to be called for by the Governor. Id. at 1278.

¶ 34. This case is distinguishable from Smith only in that Smith was the clear winner of the primary after the number of legal votes was determined by the tribunal and Smith was found to have the majority. The result of the tribunal findings in this case is that neither primary candidate has a majority and thus, that a special primary run-off election is necessary. This distinction does not prevent the application of Mississippi Code Annotated Section 23-15-937 (Rev.2001), and accordingly, the office of mayor of the City of Houston shall be vacated and a special election shall be called by the Governor. The special tribunal erred in ordering a special primary run-off election to be held when it is statutorily mandated that the Governor call such election.

CONCLUSION

¶ 35. Having found no jurisdictional, ev-identiary or other errors in the tribunal’s findings of fact, this Court affirms the tribunal’s judgment that nine illegal votes were cast for Moore. The tribunal erred, however, in ordering a special primary run-off election when a special election shall be called by the Governor pursuant to Mississippi Code Annotated Section 23-15-937 (Rev.2001). We reverse the tribunal’s judgment to the extent that it ordered a special primary run-off election, and we render judgment here that the Governor shall call a special primary runoff election for the office of Mayor of the City of Houston in accordance with Section 23-15-937 (Rev.2001) and other applicable law governing municipal special elections.

¶ 36. The Clerk of this Court is directed to mail a certified copy of this opinion to the Governor, the Attorney General, the Secretary of State, the City of Houston Election Commission and the City of Houston Clerk.

¶ 37. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

WALLER AND DIAZ, P.JJ., CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY AND LAMAR, JJ., NOT PARTICIPATING.

      . Mississippi Code Annotated Section 23-15-911 reads in pertinent part:
      At any time within twelve (12) days after the canvass and examination of the box and its contents by the election commission or executive committee, as the case may be, any candidate or his representative authorized in writing by him shall have the right of full examination of said box and its contents upon three (3) days’ notice of his application therefor served upon the opposing candidate or candidates, or upon any member of their family over the age of eighteen (18) years....

      . Mississippi Code Annotated Section 23-15-927 reads in pertinent part:
      such petition for a judicial review shall not be filed unless it bear the certificate of two (2) practicing attorneys that they and each of them have fully made an independent investigation into the matters of fact and of law upon which the protest and petition are based and that after such investigation they verily believe that the said protest and peti-lion should be sustained and that the relief therein prayed should be granted....

      . The trial court made no mention in its order denying summary judgment of either the affidavits Moore questions nor the substantive issues raised in Parker's petition. The court only ruled on procedural deficiencies raised by Moore, the same deficiencies addressed on appeal by this Court. The trial court held in abeyance ruling on the contention that “there [was] no evidence to demonstrate irregularities or fraud in the conduct of the election” until the submission of briefs by each side. The only order addressing summary judgment which was included in the record was that of September 6, 2005. On September 26, 2005, a three-justice panel of this Court denied Moore’s Petition for Interlocutory Appeal from the denial of summary judgment on September 6, 2005.


author: LEE, P.J.,

text:
    Eugene Turner WRIGHT, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00744-COA.
    Court of Appeals of Mississippi.
    May 9, 2006.
    Rehearing Denied Oct. 17, 2006.

      Eugene Turner Wright, Appellant, pro se.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On October 18, 1982, Eugene T. Wright pled guilty to two charges of burglary. He received two three-year sentences in the custody of the Mississippi Department of Corrections to run concurrently with each other. On February 7, 2005, Wright filed a motion for post-conviction collateral relief seeking invalidation of the guilty pleas from 1982. The trial court dismissed the motion without a hearing.

¶ 2. It is from this dismissal that Wright now appeals, arguing four issues which we have framed as follows: (1) whether his claims for post-conviction relief are procedurally barred, (2) whether he received ineffective assistance of counsel, and (3) whether his guilty plea was involuntary.

¶ 3. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. In reviewing the denial of a motion for post-conviction relief, we will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Townsend v. State, 892 So.2d 282, 283(¶ 3) (Miss.Ct.App.2004). However, where questions of law are raised the applicable standard of review is de novo. Id. The trial judge must review the “original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack,” in order to resolve the merits of the allegations. Miss.Code Ann. § 99-39-11(1) (Rev.2000). If it appears from the face of the motion and any accompanying exhibits that the movant is not entitled to any relief, the trial judge may dismiss the motion. Miss. Code Ann. § 99-39-11(2) (Rev.2000).

DISCUSSION OF ISSUES

I. ARE WRIGHT’S CLAIMS PROCEDURALLY BARRED?

¶ 5. We first note that Wright pled guilty in October 1982, some two years prior to the enactment of the Mississippi Uniform PosUConvietion Collateral Relief Act on April 17, 1984. The Act created a three year time period within which relief must be sought for crimes committed prior to its enactment. Odom v. State, 483 So.2d 343, 344 (Miss.1986); Truitt v. State, 878 So.2d 244, 245(¶ 3) (Miss.Ct.App.2004). Thus, Wright’s claim for post-conviction relief should have been filed no later than April 17, 1987.

¶ 6. Section 99-39-5(2) (Supp.2005) requires requests for post-conviction relief from guilty pleas to be filed within three years after entry of the judgment of conviction. The exceptions to this three year limitation are: (1) cases in which the prisoner can show that there has been an intervening decision of the Mississippi or United States Supreme Court which would adversely affect the outcome of his conviction; (2) cases in which he has new evidence, not discoverable at trial, that would have caused a different result in conviction or sentence; or (3) cases in which the prisoner claims his sentence has expired or his probation, parole or conditional release has unlawfully been revoked. Id.

¶ 7. Although Wright has failed to put forth any facts requiring consideration of his appeal outside the three year period of limitation, he does argue that his sentence was illegal. Generally, procedural bars under the Act do not apply when the sentence complained about is illegal. See Ivy v. State, 731 So.2d 601, 603(¶ 13) (Miss.1999). Despite his claim that the sentence was illegal, the post-conviction relief procedures for setting aside a conviction are only available while the prisoner is under the effect of the conviction he seeks to set aside. Gates v. State, 904 So.2d 216, 218(¶ 7) (Miss.Ct.App.2005).

¶ 8. It is well-settled law that “an inmate cannot use these procedures to challenge a sentence that has already been served even though he is in custody under a sentence for a different crime.” Weaver v. State, 852 So.2d 82, 85(¶7) (Miss.Ct. App.2003). As Wright has already served the sentence from which he seeks relief, dismissal of his petition was proper.

¶ 9. Because Wright may no longer use the Act to collaterally attack his convictions from 1982, we affirm the dismissal of his petition for post-conviction relief and decline to review Wright’s other contentions on appeal.

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

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


author: BARNES, J.,

text:
    Victor D. JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00196-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.
    Rehearing Denied Oct. 17, 2006.

      Victor D. Jones, Appellant, pro se.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
   BARNES, J.,

for the Court.

¶ 1. Victor DeWayne Jones appeals the judgment of the Circuit Court of Pike County dismissing his motion for post-conviction relief. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Jones pled guilty in the Circuit Court of Pike County to two counts of sexual battery. On June 29, 2004, the court sentenced him to two terms of twenty years to be served in the custody of the Mississippi Department of Corrections, with the sentences to run consecutively. On December 29, 2004, Jones filed his motion for post-conviction relief, alleging that (1) the indictment against him was faulty because it was founded upon hearsay evidence, (2) he received ineffective assistance of counsel, (8) his guilty plea was not voluntary, and (4) he was prejudiced because counsel was not appointed prior to his indictment. The trial court found that Jones, during his plea hearing, had stated in response to the court’s questions that his plea was voluntary and that the assistance of his counsel had been effective. The court also found that the use of hearsay evidence was lawful during grand jury proceedings, and Jones did not suffer untoward consequences because he did not have counsel prior to his indictment. Based on these findings, the court denied Jones’s motion without an eviden-tiary hearing. Jones timely appealed.

¶ 3. On appeal, Jones argues the same issues he argued at the trial court level, and further argues that the trial court erred by failing to grant an evidentiary hearing. We note that Jones failed to designate as part of the trial court record the transcript of his plea qualification hearing. Thus, we are left only with Jones’s motion, the trial court order, and the briefs of the parties for review. We find that the trial court order dismissing Jones’s complaint is devoid of clear error, and therefore we affirm.

STANDARD OF REVIEW

¶ 4. We will reverse a trial court’s denial of post-conviction relief only upon a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). When reviewing issues of law, the standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶6) (Miss.1999).

ISSUES AND ANALYSIS

¶ 5. Jones has not provided this Court with evidence to substantiate his claims on appeal. While he claims that his plea was involuntary, he has not provided this Court with a transcript of his plea hearing. To support his claim that he was coerced into pleading guilty by false promises and/or threats from his attorney, Jones attaches a purported “affidavit” from his mother stating that he had been coerced into entering a guilty plea. The document is not witnessed and therefore carries no more weight than the allegations of Jones’s brief. “It is elementary that a party seeking reversal of the judgment of a trial court must present this Court with a record adequate to show that an error of reversible proportions has been committed and that the point has been procedurally preserved.” Nelson v. State, 919 So.2d 124, 126(¶ 6) (Miss.Ct.App.2005) (quoting Hansen v. State, 592 So.2d 114, 127 (Miss.1991)). “This Court ‘must decide each case by the facts shown in the record, not assertions in the brief.’” Id. at (¶ 7) (quoting Burney v. State, 515 So.2d 1154, 1160 (Miss.1987)). Because Jones has not designated the plea colloquy as part of the record, we have no basis on which to evaluate his claims. In the absence of the record, the order of the trial court judge is entitled to a presumption of correctness. Id. (quoting Branch v. State, 347 So.2d 957 (Miss.1977)).

¶ 6. Jones argues that his attorney deceived him into believing that he would receive a lighter sentence if he pled guilty, and that his attorney instructed him to lie to the court by stating that he had not been promised anything in return for his guilty plea. The purported affidavit Jones submits makes the same contentions. The order of the trial court states that Jones was questioned by the court during his plea hearing as to whether his plea was voluntary and whether he received effective assistance of counsel. Jones answered that his plea was voluntary and that he was not coerced into entering the plea. He also stated that he was satisfied with the assistance of his attorney. This being the case, we accept the order of the trial court, and find that Jones’s plea was voluntary and that he received effective assistance of counsel. The trial court correctly denied his motion as to these two issues.

¶ 7. Jones also argues that his indictment was improperly obtained through the use of hearsay evidence, and that he was prejudiced by the fact that counsel was not appointed to him until after the indictment had been handed down against him. We find that, as with the other issues on appeal, Jones has failed to provide a factual record on which we could evaluate these issues. Furthermore, we find that, even assuming for the sake of argument he was able to prove these two issues, these are not grounds on which Jones could be provided relief. Jones’s criticism of his indictment is effectively waived by his entrance of a guilty plea. Smith v. State, 806 So.2d 1148, 1150(¶4) (Miss.Ct.App.2002). Also, we note that it is perfectly permissible for the prosecution to utilize hearsay testimony in obtaining an indictment during grand jury proceedings. Alexander v. State, 875 So.2d 261, 266(¶ 16) (Miss.Ct.App.2004). As to Jones’s claim that he was prejudiced by a lack of pre-indictment counsel, we find that the trial court correctly ruled that “denial of the entitlement to timely appointed counsel ‘will result in reversal of a subsequent conviction only where it is shown that the accused experienced some untoward consequence flowing directly from denial of counsel.’ ” (quoting Johnson v. State, 631 So.2d 185, 188 (Miss.1994)). In this case, Jones has not alleged that he suffered any untoward consequences because he did not have pre-indictment counsel, aside from the fact that he was indicted. He claims only that, if counsel had been available, counsel could have objected to the hearsay testimony introduced during the grand jury proceedings, and could have filed a motion to dismiss. As already stated, the introduction of hearsay testimony during grand jury proceedings is lawful, and, as the trial court observed, “Mr. Jones’s counsel could still file a motion to dismiss after the indictment was entered.” We therefore find that these issues raised by Jones do not provide a valid basis for relief.

¶ 8. Finally, we note that the trial court did not err in failing to grant an evidentiary hearing. Jones brought no evidence to the trial court’s attention, aside from his own unsupported assertions. See Turner v. State, 590 So.2d 871, 874 (Miss.1991) (holding that evidentiary hearing may be denied when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’). The one purported affidavit he offered in his motion was not witnessed and therefore was entitled to no more weight than Jones’s own assertions.

¶ 9. Accordingly, we affirm the order of the trial court denying Jones’s motion for post-conviction relief.

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

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