author: MYERS, J.,

text:
    Eugene DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01057-COA.
    Court of Appeals of Mississippi.
    Oct. 25, 2005.

    Rehearing Denied Feb. 7, 2006.
    Pearson Liddell, Mississippi State, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for Appellee.
    Before LEE, P.J., MYERS and BARNES, JJ.
   MYERS, J.,

for the Court.

¶ 1. On February 5, 2004, Eugene Davis was found guilty of aggravated assault in the Circuit Court of Oktibbeha County. On February 6, 2004, the court sentenced Davis, in accordance with Mississippi Code Annotated § 99-19-83, to serve the remainder of his life without eligibility for parole or probation in the custody of the Mississippi Department of Corrections. On May 5, 2004, the court denied Davis’s motion for a new trial. Aggrieved by the trial court’s decision, Davis raises one issue on appeal:

I. WHETHER OR NOT THE TRIAL COURT PROPERLY DENIED DAVIS’S JURY INSTRUCTION ALLOWING THE JURY TO CONSIDER THE LESSER-INCLUDED OFFENSE OF RESISTING ARREST.

¶ 2. Finding no reversible error, we affirm the judgment of the circuit court.

FACTS

¶ 3. On November 24, 2003, Moultrie Lacey, an officer with the Starkville Police Department, escorted prisoners from city court to the Oktibbeha County Jail. As Officer Lacey was escorting the prisoners to his car, he saw Davis pick up a cigarette butt off of the ground and place it in his pants. After Officer Lacey arrived at the jail with the prisoners, he told the jailers that Davis should be searched, since the Oktibbeha County Jail is a smoke — free facility. One of the jailers, Ed Blasingame was attempting to search Davis when Davis attacked him. Blasingame then sprayed Davis with pepper spray, and Davis attempted to run from the room where he was being searched. Officer Lacey intercepted him. Blasingame and Lacey then tried to take Davis down to the padded cell. A fight ensued, and Davis began kicking and punching Lacey. Davis also grabbed another jailer’s asp baton and attempted to hit Lacey with it. The other jailers and a prisoner finally restrained Davis. Lacey was not hit by the baton but suffered injuries as a result of this attack. Davis was subsequently charged with aggravated assault. On February 5, 2004, a jury in Oktibbeha County Circuit Court found Davis guilty of the lesser-included offense of simple assault. On February 6, 2004, Davis was sentenced as a habitual offender under Mississippi Code Annotated § 99-19-83 (Rev.2000), to a life sentence in the custody of the Mississippi Department of Corrections.

LEGAL ANALYSIS

I. WHETHER OR NOT THE TRIAL COURT PROPERLY DENIED DAVIS’S JURY INSTRUCTION ALLOWING THE JURY TO CONSIDER THE LESSER-INCLUDED OFFENSE OF RESISTING ARREST.

¶4. Davis claims that the jury should have been instructed to consider the lesser-included offense of resisting arrest. Davis claims this exclusion was important since the crime of resisting arrest is a misdemeanor. Had Davis been convicted of this crime he would not have faced life in prison without the possibility of parole. The State asserts that there is no evidence that Davis was being arrested; therefore, the trial court’s ruling refusing the instruction was proper.

STANDARD OF REVIEW

¶ 5. This Court reviews jury instructions by reading the instructions as a whole in determining whether the trial court erred in granting or refusing to grant certain instructions. Collins v. State, 691 So.2d 918, 922 (Miss.1997). If the instructions create no injustice, and they fairly announce the law of the case, then no reversible error will be found. Id.

DISCUSSION

¶ 6. An instruction for a lesser-included offense may only be given by the trial court when there is an evidentiary basis for that instruction, and such instruction cannot be given based upon speculation. Reddix v. State, 731 So.2d 591, 594(¶ 15) (Miss.1999); see Taylor v. State, 763 So.2d 913 (Miss.Ct.App.2000); Lee v. State, 469 So.2d 1225, 1230 (Miss.1985). The facts presented need to support the lesser-included offense. Davis is asking this Court to rule that the instruction regarding resisting arrest should have been given to the jury. His argument is merit-less. Davis was in custody when this altercation occurred, not being arrested.

¶ 7. Davis’s reliance on Odem v. State, 881 So.2d 940 (Miss.Ct.App.2004) is misplaced. Davis relied on Odem in explaining that resisting arrest is a lesser-included offense of simple assault, which is what the jury found Davis guilty of. Id. at 944(¶ 11). Resisting arrest is considered a lesser-included offense of simple assault when the defendant is being arrested when the incident occurs. In Odem, the defendant was being arrested when the altercation occurred. Id. That is a crucial difference to the present case. According to Mississippi Code Annotated § 97-9-73 (Rev.2000), it is unlawful for any person to resist or obstruct by violence, force or in any other manner his lawful arrest. Davis had previously been arrested and was in police custody when this incident occurred. This statute therefore does not apply to him. Since there was no evidence shown that Davis was being arrested at the time the assault occurred, the denial of the jury instruction by the trial court was proper. See Henderson v. State, 758 So.2d 1047 (Miss.Ct.App.2000). Therefore, we do not find that the trial court abused its discretion in not granting Davis’s jury instruction regarding resisting arrest.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

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


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    James Edward O’CONNELL, II, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00399-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2005.
    Rehearing Denied April 18, 2006.
    Certiorari Denied June 29, 2006.

      Roger Wayne Woodall, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. A Harrison County jury convicted James O’Connell of possession of a controlled substance with intent to distribute. He was sentenced, as a habitual offender, to sixty years in the custody of the Mississippi Department of Corrections. Feeling aggrieved, O’Connell appeals his conviction, arguing that the inventory search of his vehicle violated the Fourth Amendment of the United States Constitution and the provisions of Article 3, Section 23 of the Mississippi Constitution of 1890.

¶ 2. Finding no reversible error, we affirm O’Connell’s conviction and sentence.

FACTS

¶ 3. Captain Sterling Beckham and Deputy James McMahan of the Harrison County Sheriffs Department went to O’Connell’s residence to serve a warrant for his arrest. Upon their arrival, the deputies knocked on the door but received no response from within the house. As the deputies proceeded to depart the premises, they noticed O’Connell driving past his home in a blue Chevrolet truck. They pursued O’Connell until they were able to make a traffic stop.

¶ 4. After stopping the vehicle, Deputy McMahan served O’Connell with the arrest warrant and placed him under arrest. Due to the fact that O’Connell was the only occupant of the vehicle, Deputy McMahan called for a tow truck to come and tow the vehicle. While waiting for the tow truck to arrive, Deputy McMahan performed a “vehicle inventory” and discovered a small amount of marihuana in the glove compartment of the truck and three pounds of marihuana concealed in a Ford automotive part box in the bed of the truck. Deputy McMahan placed the bags of marihuana in the front seat of his patrol car and telephoned the department’s narcotics unit, which advised him to have O’Connell’s vehicle towed to the department’s work center and to transport O’Connell there as well.

¶ 5. At the work center, O’Connell was given his Miranda rights. Afterwards, he allegedly told the deputies that the marihuana was his and had been given to him by a friend who owed him $10,000.

¶ 6. A pretrial suppression hearing was held regarding the marihuana seized from the bed of the truck. The court declined to suppress the evidence. At trial, O’Con-nell denied ever telling the deputies that the marihuana belonged to him. Deputy McMahan testified that he opened the box containing the marihuana because it is standard procedure to conduct an inventory search in situations where the arres-tee’s vehicle is being towed. He also testified that in conducting such searches, it is standard procedure to open containers which may contain items of value, as the purpose of conducting the inventory search is to protect the owner’s property and to protect law enforcement officers from subsequent claims of theft or damage.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. O’Connell argues that the inventory search of his vehicle violated the Fourth Amendment of the United States Constitution and the provisions of Article 3, Section 23 of the Mississippi Constitution of 1890. However, he acknowledges that law enforcement officers may conduct an inventory search of a vehicle impounded following the lawful arrest of the driver, provided the search is conducted pursuant to established policies which do not grant discretion to the law enforcement officer conducting the search to determine which areas of a vehicle to search. O’Connell also acknowledges that law enforcement officers conducting a proper vehicle inventory search may open packages found inside the vehicle, provided the search procedure is not used as a ruse for rummaging through the vehicle to discover incriminating evidence. Nevertheless, according to O’Connell, the search in his case was illegal because the Harrison County Sheriffs Department did not have appropriate written policies in place regarding inventory searches. Specifically, O’Connell contends that the Harrison County Sheriffs Department lacked standardized written policies regulating officer discretion in conducting inventory searches.

¶ 8. The State’s position regarding the circumstances under which vehicle inventory searches may be performed is not contrary to O’Connell’s. However, the State and O’Connell differ on the question whether the standardized policies must be in writing and whether an officer conducting the search may utilize a reasonable degree of discretion. The State contends that an agency’s standardized policies do not have to be in writing and may be established through testimony. The State maintains that the search in this case was not a ruse to look for incriminating evidence, but was conducted in accordance with the standard policy of the Harrison County Sheriffs Department to open containers reasonably expected to contain items of value in order to protect law enforcement officers from subsequent accusations of theft or damage.

¶ 9. The Fifth Circuit Court of Appeals has extensively addressed the validity of inventory searches. In United States v. Lage, 183 F.3d 374 (5th Cir.1999), a defendant challenged his conviction on the ground that the introduction of evidence discovered during the police’s inventory search of his freightliner violated his Fourth Amendment rights. The court held:

Under the Fourth Amendment, warrant-less searches are presumptively unreasonable. There is, however, an exception to the warrant requirement when a law enforcement officer conducts an inventory of seized property if that inventory is part of a bona fide police “routine administrative caretaking function.” Under these circumstances, the Fourth Amendment requires only that an inventory not be a “ruse for general rummaging in order to discover incriminating evidence”.... Thus, an inventory search of a seized vehicle is reasonable and not violative of the Fourth Amendment if it is conducted pursuant to standardized regulations and procedures that are consistent with (1) protecting the property of the vehicle’s owner, (2) protecting the police against claims or disputes over lost or stolen property, and (3) protecting the police from danger.

Id. at 380 (citations omitted). “Applying the Fourth Amendment standard of ‘reasonableness,’ state courts have overwhelmingly concluded that, even if an inventory is characterized as a ‘search,’ the intrusion is constitutionally permissible.” Robinson v. State, 418 So.2d 749, 754 (Miss.1982) (citing City of St. Paul v. Myles, 298 Minn. 298, 218 N.W.2d 697, 699 (1974)).

¶ 10. In a case that is factually similar to the case at bar, the Fifth Circuit held that “an inventory search is valid, provided it is conducted under an established police department inventory policy.” United States v. Como, 53 F.3d 87, 91 (5th Cir.1995) (quoting United States v. Seals, 987 F.2d 1102, 1107 (5th Cir.1993)). The court further held:

When the police acquire temporary custody of a vehicle, a warrantless search of the vehicle does not offend Fourth Amendment principles so long as the search is made pursuant to “standard police procedure's” and for the purpose of “protecting the car and its content” .... Police may lawfully conduct such searches while the vehicle is still on the highway awaiting towing.

Id. at 92 (citing United States v. Prescott, 599 F.2d 103, 105 (5th Cir.1979)).

¶ 11. The exercise of police discretion does not violate the Fourth Amendment “so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” Colorado v. Bertine, 479 U.S. 367, 375, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). “A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself.” Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990). Allowing an officer to exercise his judgment does not violate the Fourth Amendment. Id. “If there is no showing of bad faith or for the sole purpose of investigation, evidence discovered during an inventory search is admissible.” United States v. Gallo, 927 F.2d 815, 819 (5th Cir.1991).

¶ 12. Most importantly, the Fifth Circuit Court of Appeals has stated that there is no requirement that the prosecution submit evidence of written procedures for inventory searches; testimony regarding reliance on standardized procedures is sufficient. Como, 53 F.3d at 92 (citing United States v. Skillern, 947 F.2d 1268, 1275 (5th Cir.1991)).

¶ 13. After a thorough review of the applicable law and the facts here, we find that the inventory search of O’Connell’s vehicle did not violate the Fourth Amendment of the United States Constitution or the provisions of Article 3, Section 23 of the Mississippi Constitution. Deputy McMahan testified that it is the Harrison County Sheriffs Department’s standard procedure to inventory the contents of a vehicle that is about to be impounded. According to Deputy McMahan, this policy is used as a means of safeguarding the vehicle and its contents and to protect law enforcement officers from subsequent claims of theft or damage. That was the sole reason why Deputy McMahan performed the inventory search of O’Connell’s vehicle while waiting for the tow truck to arrive. The record is void of any evidence of bad faith on the part of Deputy McMa-han in conducting the search or of any evidence that the search was a “ruse for rummaging in order to discover incriminating evidence.” Thus, we affirm O’Con-nell’s conviction and sentence.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE AND SENTENCE OF SIXTY YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BARNES, J.,

text:
    Jason Kirby VEDE and Debra Vede, Appellants v. DELTA REGIONAL MEDICAL CENTER, Appellee.
    No. 2004-CA-01418-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.

      Philip Mansour, Greenville, J.E. Cullens, attorneys for appellants.
    Robert R. Stephenson, L. Carl Hag-wood, Jackson, attorneys for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Jason and Debra Vede appeal the Circuit Court of Washington County’s ruling in favor of Delta Regional Medical Center in a medical malpractice action brought pursuant to the Mississippi Tort Claims Act. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On January 12, 2000, Jason Vede was in an automobile accident in which he sustained burns to eighteen percent of his body, as well as a severe inhalation injury. He was originally admitted to Southwest Mississippi Regional Medical Center, but was transferred to the burn center at Delta Regional Medical Center (Delta) in Greenville, Mississippi, on January 13. He remained at Delta for two months before being transferred to the Methodist Rehabilitation Center in Jackson. During his stay at Delta, Jason developed a decubitus ulcer — commonly referred to as a bed sore — on his coccyx, or tailbone. In their complaint against Delta, the Vedes alleged that Jason developed the ulcer because Delta’s employees negligently failed to turn him at regular intervals. Specifically, the Vedes alleged that Delta turned Jason only seven percent of the time he was required to be turned up to the day he developed the ulcer, and that, overall, he was turned only eighteen percent of the required time.

¶ 3. At trial, the Circuit Court of Washington County, sitting as the trier of fact pursuant to the Mississippi Tort Claims Act, found that the Vedes failed to prove by a preponderance of evidence that Delta acted negligently, and further failed to prove that the alleged acts or omissions of Delta proximately caused Jason to develop the ulcer. On appeal, the Vedes challenge the circuit court’s findings of fact and conclusions of law.

STANDARD OF REVIEW

¶ 4. In an action brought pursuant to the Mississippi Tort Claims Act, the trial court sits as the finder of fact. Miss.Code Ann. § 11-46-13(1) (Rev.2002). “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 63(¶ 7) (Miss.2005). Questions of law, however, are reviewed de novo. Id.

ISSUE AND ANALYSIS

¶ 5. To establish a prima facie case of medical negligence, a plaintiff must prove that (1) the defendant has a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant’s breach of his duty was a proximate cause of the plaintiffs injury, and; (4) the plaintiff was injured as a result. Lyons v. Biloxi H.M.A., Inc., 925 So.2d 151, 154(¶ 14) (Miss.Ct.App.2006) (citing Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987)). Generally, these elements must be proven by expert testimony. Young v. Univ. of Miss. Med. Ctr., 914 So.2d 1272, 1276(¶ 15) (Miss.Ct.App.2005). Because a plaintiff must prove each of the above elements in order to prevail, the failure to prove a single element is fatal to the claim. Thus, in the present case, because we affirm the trial court’s finding that Delta did not breach the applicable standard of care, we need not examine whether Delta’s actions were the proximate cause of Jason Vede’s damages.

WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE EMPLOYEES OF DELTA COMPLIED WITH THE STANDARD OF CARE IN PREVENTING, AND LATER MANAGING, JASON’S ULCER.

¶ 6. Delta’s in-house protocols, as well as national guidelines, recommend that a patient at risk for skin breakdown be turned by hospital staff at least once every two hours; the Vedes assert that there was no reason for Delta to deviate from these guidelines. Using these standards as a benchmark, the Vedes claim that Jason was only turned seven percent of the time he was required to be turned up to the day he developed the ulcer, and that, overall, he was turned only eighteen percent of the required time. In support of these contentions, the Vedes assert that uncontradicted medical records from Delta make it clear that Delta was negligent in caring for him. Further, the Vedes argue that there was no valid reason for Delta to deviate from the turning guidelines in his case. However, we find substantial evidence in the record to the contrary.

¶ 7. Rita Wray, one of Delta’s experts, testified that the hospital’s turning “guidelines” are, by definition, suggestions, and not strict requirements. Therefore, she testified, Delta’s nurses and physicians have discretion to deviate from the guidelines if such a departure is warranted by a patient’s condition. Testimony from Wray and from Dr. Calvin Ramsey established that the severity of Jason’s injuries in fact justified such a deviation. First, Dr. Ramsey testified that upon admission to Delta, medical personnel established the following priorities for Jason, in order of importance: (1) the need for effective airway clearance; (2) pain management; (3) avoiding a fluid volume deficit; and (4) reducing the potential for infection. According to Dr. Ramsey, in order to keep Jason alive, addressing these priorities, especially Jason’s need for effective airway clearance, took precedence over managing Jason’s risk of developing an ulcer. Wray testified that when Jason was turned to his side, his airway clearance was obstructed and his oxygen saturation level would decrease to dangerously low levels. However, Wray testified, when Jason was returned to the supine position, his oxygen saturation level would return to a normal level. This correlation between Jason’s position and oxygen saturation level led Wray to conclude that, since placing Jason on his back provided him with the most effective airway clearance, keeping Jason in the supine position gave him the best chance to stay alive. Dr. Ramsey, realizing this to be the case, opined that the reason Jason was not turned as often as possible was because it more important that he remained in a position that afforded him more effective airway clearance. Additionally, the record shows that, after discovering Jason’s ulcer, Delta placed him in a state-of-the-art bed, which, according to Dr. Ramsey, provided the best possible defense against decubitus ulcers. Furthermore, Wray testified that, upon discovering the ulcer, the nurses at Delta took proper precautions to prevent the risk of further skin breakdown.

¶ 8. Taken as a whole, the testimony by Wray and Dr. Ramsey supports the trial judge’s ruling that Delta did not act negligently in caring for Jason. The evidence shows that Delta’s first priority was ensuring Jason’s survival, and that turning him compromised his ability to breathe. Turning Jason as often as he now suggests he should have been turned was incompatible with Delta’s primary mission of keeping Jason alive. While it is unfortunate that Jason developed an ulcer during the course of his stay at Delta, substantial evidence supports the trial court’s determination that Delta did not breach its duty of care.

¶ 9. We note further that the Vedes’ assertion that the “uncontradicted” medical records showed that Delta acted negligently in caring for Jason is, frankly, misguided. It is true that the medical records at issue in this case show that Jason was not turned every two hours. However, the fact that Jason was not turned once every two hours does not, alone, establish that Delta breached its duty of care to Jason. As stated earlier, it is clear that Delta’s decision to turn Jason less often than suggested by its internal guidelines was a product of reasoned medical analysis. Furthermore, it is clear from the record that there was a dispute as to what exactly constituted a “turn” by Delta’s employees. For example, the parties offered different opinions as to whether Jason was “turned” during his bed baths and physical therapy sessions: Delta’s witness, Rene Seidle, testified that Jason was actually turned during his bed baths twice a day, and often during his physical therapy. However, the Vedes’ expert, Rita Frantz, failed to count any of the bed baths as turnings.

¶ 10. It is clear from our review of the record that the trial court’s ruling in favor of Delta was supported by substantial, credible evidence. Accordingly, we affirm the ruling of the trial court.

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

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

      . Neither Wray nor Dr. Ramsey treated Jason during his stay at Delta, and Delta did not call as a witness anyone who did in fact treat him. The Vedes argue that Delta's failure to call a treating nurse or physician entitles this Court to presume that testimony from such a witness would have been unfavorable to Delta. We are not persuaded by this argument. The Vedes had every right to call the treating nurses and physicians as witnesses in order to develop their case, and failed to do so.


author: ROBERTS, J.,

text:
    Charles R. WALTERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-02176-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.

      Charles R. Walters, Appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Charles Walters was sentenced to two consecutive four-year mandatory sentences for armed robbery and attempted armed robbery. On October 12, 2004, Walters filed a document titled as a “Motion for Reduction of Sentence for Hardship” in the Marion County Circuit Court. Walters noted that, at the time he filed his motion, he had served four years and seven months of his sentence. Walters asked the circuit court to consider his time served and his work record and further requested that the circuit court lift the mandatory status from his sentence so that he could receive time off of his sentences for his good behavior. Walters attached a letter from the Marion County Supervisors to Governor Ronnie Musgrove in which the supervisors voiced their opinions of Walters’s rehabilitated status. Walters attached similar letters from Reverand John De La Fuente, signed petitions from the Marion County Sheriffs Department, the Marion County Neighborhood Watch Coordinator, the Marion County Circuit Clerk, and various citizens of Marion County. Those letters and petitions indicate that Walters was a model prisoner, had been extremely helpful and hard working during his incarceration, exhibited good behavior and attitude, and that the authors felt unequivocally that Walters was fit to reenter society. Walters also indicated that his family needed his support, financially and otherwise.

¶ 2. On October 22, 2004, the circuit court filed an order and found that it lacked jurisdiction to adjudicate Walters’s motion. Consequently, the circuit court denied Walters’s motion. Aggrieved, Walters appeals and claims that Section 47-1-15 of the Mississippi Code supports his early release.

ANALYSIS

¶ 3. A circuit court has no authority to modify sentences handed down during a prior term of court and, likewise, lacks authority to suspend sentences after the term of court. Mississippi Com’n of Judicial Performance v. Russell, 691 So.2d 929, 944 (Miss.1997). According to the circuit court clerk’s docket sheet, the circuit court sentenced Walters on May 4, 2000. Walters filed his motion for reduction of sentence on October 12, 2004. There is no question that the term during which the circuit court sentenced Walters expired in that four year time period. As such, the circuit court lacked authority to suspend Walter’s sentence.

¶ 4. Walters does not have a constitutional or common law right to appeal to this Court; instead, his ability to appeal is based entirely on statute. Shanks v. State, 906 So.2d 760(¶ 3) (Miss.Ct.App.2004). “There are two primary ways a criminal defendant may challenge a trial court proceeding: a direct appeal from conviction under Mississippi Code Annotated § 99-35-101 (Rev.2002) or a proceeding under the Post-Conviction Collateral Relief Act, Mississippi Code Annotated. § 99-39-1 to 99-39-29 (Rev. 2000 & Supp.2004).” Id. The circuit clerk’s docket sheet indicates that Walters pled guilty. As such, he is not entitled to direct review. Mississippi Code Annotated § 99-35-101 (Rev.2002). What is more, even if we treat Walters’s motion, filed four years after conviction, as a petition for post-conviction collateral relief, that too would be barred by the three year statute of limitations set forth in Mississippi Code Annotated § 99-39-5(2) (Rev.2000). Accordingly, we must dismiss Walters’s appeal for lack of jurisdiction.

¶ 5. THE APPEAL OF THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT IS DISMISSED WITHOUT PREJUDICE DUE TO LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. SOUTHWICK AND IRVING, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


text:
    Eric HULL, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00271-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.

      Eric Hull, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   BARNES, J.,

for the Court.

¶ 1. Eric Hull entered a guilty plea to manslaughter on July 6, 2002, and was sentenced to twenty years in prison. Hull subsequently filed a post-conviction motion which was denied by order filed on January 20, 2005, following a full evidentiary hearing. Aggrieved by the ruling, Hull perfected an appeal and raises the following issues, which we quote verbatim:

1. Appellant Eric Hull was denied effective assistance of counsel during the pretrial proceedings because of defense counsel’s failure to be abreast of the proceedings, the applicable law, and the fact that defense counsel advised Hull to plead guilty based upon a representation by counsel that Hull would receive a sentence of 10 years. Hull pleaded guilty on that information from counsel but was sentenced to twenty (20) years. The plea of guilty there is involuntary and violates the 6th amendment right to effective assistance of counsel.
2. Appellant Eric Hull was denied due process of law where defense counsel coerced and strong armed petitioner into pleading guilty by using spur of the moment tactics as well as abusive and threatening language to force a plea of guilty and waiver of the constitutional right to trial. Defense counsel further used trickery and false information regarding a sentence of 10 years in order to influence the plea of guilty by petitioner. Such actions violate the provisions of the 5th and 14th amendments to the United States Constitution.
3. Appellant was denied due process of law where he was convicted of the offense of manslaughter without having admitted a sufficient factual basis to demonstrate guilt of such crime. The admission made in open court by Appellant Hull does not constitute satisfaction of the elements of manslaughter.
4. That the trial court erred in allowing the Assistant District Attorney who prosecuted Appellant to commit prose-cutorial misconduct in allowing such Assistant District Attorney to appear at evidentiary hearing on post conviction motion and represent the State when the post conviction claims involved misconduct of such Assistant District Attorney.

¶ 2. We find that the issues are without merit and affirm the judgment of the circuit court.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 3. In December 1999, Hull was indicted for burglary of a dwelling house, capital murder, and grand larceny. The crimes arose out of the killing of Farnecia Armstrong while Hull was in the commission of the crime of kidnaping her. As a result of negotiations between Hull’s counsel and the office of the district attorney, an agreement was reached whereby, in exchange for Hull’s guilty plea to manslaughter, the charges of burglary and grand larceny would be dismissed.

¶ 4. At the plea hearing on July 6, 2002, Hull entered a guilty plea to manslaughter. His attorney stated “that Mr. Hull is offering his plea upon his best interest ... as opposed to that he is guilty.” Hull also stated that he was aware that the maximum penalty for manslaughter was twenty years and that the minimum penalty he could face was one year in the county jail, or two years in the penitentiary, as well as a fine of up to $500. Hull stated that he was satisfied with his attorney’s advice.

¶ 5. Nearly two years later, Hull filed a motion for post-conviction relief seeking to vacate his guilty plea and sentence. Hull argued that he had been denied effective assistance of counsel because his attorney advised him that he would receive a sentence of ten years. Hull argued that he was coerced and strong-armed into pleading guilty by trickery, false information, and abusive and threatening language. Hull also argued that he was convicted of manslaughter without a sufficient factual basis to demonstrate that he was guilty of the crime. Attached to the motion were affidavits from Hull’s relatives attesting to the use of strong-arm tactics by defense counsel.

¶ 6. Hull was granted an evidentiary hearing to prove his claims, and was represented by new counsel at the hearing. At the hearing, Hull and his brothers, Marcus and J. W., testified. The State offered the testimony of Frank Carlton, the district attorney, and Martin Kilpatrick, Hull’s lawyer at the time of the guilty plea. Hull and his witnesses claimed that Hull had bargained for a ten-year sentence. Carlton and Kilpatrick both denied that there was any representation made that, in exchange for a guilty plea to manslaughter, the prosecution would recommend a twenty-year sentence with ten years suspended and only ten years to serve. Both Carlton and Kilpatrick testified that twenty years to serve had been the only offer. Kilpa-trick testified that he had attempted to persuade the district attorney to agree to the recommendation that ten years of the proposed twenty-year sentence be suspended, but that he was unsuccessful. According to Kilpatrick, the only agreement reached was a recommendation of twenty years upon Hull’s guilty plea to manslaughter, with the burglary and grand larceny charges being dismissed.

ISSUES AND ANALYSIS

¶ 7. In reviewing the denial of a motion for post-conviction relief, this Court 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).

¶ 8. Hull’s central contention in all his arguments is that he wanted a sentence of twenty years with ten years suspended and ten to serve. There is, however, no evidence that this sentence was ever offered to Hull, or more particularly, that the court would have accepted a recommendation based on such an offer. The prosecution did agree to reduce the capital murder charge to manslaughter and to drop the charges of burglary and grand larceny.

1. Ineffective Assistance of Counsel

¶ 9. The standard of review for claims of ineffective assistance of counsel is the two-part test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing that (1) counsel’s performance was deficient and (2) that the deficiency prejudiced the defense. This test has also been applied to ineffective assistance of counsel claims arising out of guilty pleas. Riggs v. State, 912 So.2d 162, 164(¶ 5) (Miss.Ct.App.2005) (citing Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). In applying the two-pronged test “we are mindful of the ‘highly differential’ presumption that counsel rendered adequate assistance.” Riggs, 912 So.2d at 164(¶ 5) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

¶ 10. At the hearing, Hull sought to show that his attorney had provided ineffective assistance by failing to subpoena an alibi witness, Sharon Johnson. As the court pointed out in its ruling, Johnson was a longtime friend of Hull and his family. Hull’s attorney testified that Johnson had voluntarily come to his office and had been interviewed about her knowledge of the incident, and that it was his understanding that it would not be necessary to go to the additional expense to subpoena her. The trial court could not find that Hull would be prejudiced by the failure to subpoena this witness in the plea negotiation because the case did not go to trial.

¶ 11. In considering Hull’s claim that his plea not voluntary, the court looked to the plea colloquy. The following is found in the transcript of the plea hearing:

Q: [BY THE COURT] Other than the plea bargain, has anybody promised you anything in order to persuade you to enter this plea?
A: [HULL] No, ma’am.
Q: Has anyone threatened you with physical harm in any way or attempted to coerce you in any way to get you to enter your proposed plea?
A: No, ma’am.
Q: Have you fully discussed all these facts and circumstances surrounding your case with your attorney?
A: Yes, ma’am.
Q: Has your attorney explained to you and do you fully understand the nature of the charges against you?
A: Yes, ma’am.
Q: What does — is your understanding of what capital murder means?
A: Yes, ma’am. What is my understanding?
Q: Yes. What does — you have been indicted for the crime of capital murder. What does that mean?
A: If you get found guilty, you’re sentenced by death or life without parole.
Q: All right. And under you plea bargain agreement, you are entering your plea to what charge?
A: Manslaughter.
Q: And what does manslaughter mean? What is your understanding of that?
A: That it carry up to 20 years.
Q: All right. And my entering this plea, you know that you will not face the possibility of a death sentence; it that correct?
A: Yes, -ma’am.
Q: And has your attorney advised you of all possible defenses you may have in case you go to trial?
A: Yes, ma’am.
Q: Are you satisfied with the advice and help Attorney Kilpatrick has given you.
A: Yes, ma’am.
Q: After a full discussion of your case, was it your own decision, Eric Hull, was it your own decision to enter this plea of guilty.
A: Yes.

It was after this discussion that the State made its recommendation of the maximum sentence of twenty years for the offense. The court continued its examination of Hull:

Q: Now, you understand that this Court is not bound by any recommendation or agreement made by the State and your attorney. Do you understand that although the State may recommend the above sentence, the Court may decide not to follow the recommendation and that in the end it is the Court that will determine what the sentence will be?
A: Yes, ma’am.
Q: Knowing all this, is it still your desire and wish to enter this guilty plea?
A: Yes, ma’am.

After giving Hull an opportunity to withdraw or change his plea, the Court found that Hull had freely and voluntarily entered his plea “without any promises or hopes of more lenient treatment by the Court or other, without any threats or coercion of any sort, with full knowledge of the consequences of entering this plea and of the rights that he gave up by entering the plea....” The court accepted the State’s recommendation and sentenced Hull to twenty years. The State also recommended that the charges of burglary and grand larceny be dismissed.

Q: All right, Mr. Hull, do you understand what that means?
A: Yes, ma’am.
Q: All right, now, tell me what that means.
A: That it will be thrown out.
Q: And the plea bargain was what you and your attorney worked out. That’s what you all had agreed to; is that correct?
A: Yes, ma’am.

¶ 12. As is evident, the plea colloquy between Hull and the judge contradicts his argument that his guilty plea was not voluntary and that there was a different plea bargain agreement. At the post-conviction relief hearing, Hull testified that he was fully aware that he would get a twenty-year sentence prior to signing the plea petition. When given the opportunity to withdraw his plea at the hearing, Hull did not. He was asked and stated that the plea agreement, including the twenty year sentence, was what he and his attorney worked out with the State.

¶ 13. There is no indication that Hull did not receive effective assistance of counsel. This assignment of error is without merit.

2. Voluntariness of the Confession

¶ 14. Most of the issues of the voluntary of the confession were set out in the previous discussion on the effectiveness of counsel. Hull contends that his counsel coerced and strong-armed him into pleading guilty via trickery, giving false information, and using abusive and threatening language.

¶ 15. Even after reviewing the transcript of the hearing, it is unclear what techniques Hull contends that his counsel used to induce him to pleading guilty. The transcript of the plea hearing clearly shows that Hull had several opportunities to bring any such treatment to the attention of the court prior to the court accepting his guilty plea and sentencing him. Hull was specifically asked if “anyone threatened you with physical harm in any way or attempted to coerce you in any way to get you to enter your proposed plea”; Hull responded, “No, ma’am.” There is a strong presumption of the validity of an individual’s statements made under oath. Mowdy v. State, 638 So.2d 738, 743 (Miss. 1994). “A trial judge may disregard the assertions made by a post-conviction mov-ant where, as here, they are substantially contradicted by the court record of proceedings that led up to the entry of a judgment of guilt.” Hebert v. State, 864 So.2d 1041, 1045(¶ 11) (Miss.Ct.App.2004).

¶ 16. As the court found in its ruling on the post-conviction relief motion, throughout his plea hearing, Hull was given the opportunity to withdraw his plea but did not. The court also had the benefit of having Hull standing before it, explaining his understanding of his responses.

¶ 17. The court’s conclusion at the guilty plea hearing that Hull “freely and voluntarily entered this plea without any promises or hopes of a more lenient treatment by the Court or others, without coercion of any sort, with full knowledge of the consequences of entering this plea and of the rights that he gave up by entering this plea” is supported by the record. There is no merit to Hull’s second assignment of error.

S. Sufficient Factual Basis.

¶ 18. In this case, Hull entered a plea in which he did not admit to committing the crime. He contends that the guilty plea should not have been accepted without there being a sufficient factual basis of guilt.

¶ 19. At the plea hearing, the district attorney stated specific facts concerning the homicide — that Hull shot and killed Farnecia Armstrong during a domestic confrontation. As stated in Ray v. State, 876 So.2d 1032, 1035(¶ 12) (Miss.Ct.App.2004):

[A] guilty plea may be considered valid even though a defendant makes only a “bare admission of guilt,” so long as the trial court delves beyond that admission and determines for itself that there is substantial evidence that the defendant actually committed the crimes charged. Gaskin v. State, 618 So.2d 103, 106 (Miss.1993). In some cases, it is not necessary for a defendant to admit guilt in order for a guilty plea to be accepted by the trial court. Corley v. State, 585 So.2d 765, 767 (Miss.1991). A defendant’s guilty plea is sufficient if it is a voluntary and knowledgeable plea with an “independent evidentiary suggestion of guilt.” Reynolds v. State, 521 So.2d 914, 917 (Miss.1988). Therefore, a court may accept a plea if the court is satisfied that there is evidence spch that the State, if so required, could prove the defendant’s guilt of the crime charged. Corley v. State, 585 So.2d at 767....

See also North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Bush v. State, 922 So.2d 802 (Miss.Ct.App.2005).

¶ 20. Although Hull did not admit to killing Farnecia Armstrong, he did plead guilty to manslaughter and stated that it was in his best interest to enter the plea. The court had before it sufficient evidence of the crime to accept the plea. There is no merit to the allegation raised.

A Misconduct of the Prosecutor

¶ 21. Hull contends thát the district attorney who appeared at the evidentiary hearing was the same district attorney who set up the plea agreement in which Hull alleges that he was offered twenty years with ten years suspended and ten years to serve. In this assignment of error, Hull does not cite any authority in support of his position, and his citations to the record do not support his argument that any such plea agreement was offered by the district attorney. The district attorney was consistent in his testimony that no such plea agreement was offered. This Court cannot find any misconduct on the part of the prosecution.

¶ 22. There is no merit to Hull’s assignment of error.

CONCLUSION

¶ 23. Hull’s claim that he was promised that he would be sentenced to serve only ten years is totally refuted by the testimony, including Hull’s own, that, at best, he held out the hope that he would receive a lesser sentence. There is nowhere in the record any firm representation to Hull from his attorney or anyone else that this would be the sentence imposed in exchange for his plea of guilty. The court was clear in'explaining to Hull that the court did not have to accept any recommendation on sentencing. The court would not have been bound by this lesser sentence even if it had been offered. The Mississippi Supreme Court has emphasized that the mere expectation or hope, however reasonable, that a lesser sentence is likely in exchange for a guilty plea will generally not be sufficient to entitle a petitioner to relief. Sanders v. State, 440 So.2d 278, 287 (Miss.1983), superseded by statute on other grounds as recognized in Wallace v. State, 763 So.2d 909, 912-13 (¶¶ 14-15) (Miss.Ct.App.2000). For these reasons, we affirm the judgment of the trial court.

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

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


author: KING, C.J.,

text:
    Teresa T. DOTTS, Individually and as Mother and Personal Representative of Christopher Brad Holly, Deceased, Appellant v. PAT HARRISON WATERWAY DISTRICT, Appellee.
    No. 2004-CA-02279-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.

      Donald C. Doman, James F. Steel, Biloxi, attorneys for appellant.
    David L. Martindale, Laurel, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. On August 27, 2002, Teresa Dotts, filed a wrongful death action on behalf of herself and all other wrongful death beneficiaries of Christopher Brad Holly against the Pat Harrison Waterway District (PHWD), under the Mississippi Tort Claims Act (MTCA), seeking monetary damages for the death of her son, Holly. The Lauderdale County Circuit Court held a bench trial on August 3 and 4, 2004. On October 25, 2004, the court found that PHWD was immune from liability under Mississippi Code Annotated Section 11-46-9(l)(d)(g)(v) and (w)(Rev.2002). Aggrieved by the court’s findings, Dotts raises two issues on appeal:

1. WHETHER THE DISCRETIONARY PROTECTIONS OF MISSISSIPPI CODE ANNOTATED § 11-46-9(l)(d) WERE PROPERLY APPLIED IN THIS CASE; AND
2. WHETHER THE TRIAL COURT ERRED WHEN IT IGNORED SUBSTANTIAL, CREDIBLE, AND REASONABLE EVIDENCE THAT PARK RANGER RAFORD WILLIAMS KNEW OR SHOULD HAVE KNOWN THAT A DANGEROUS CONDITION EXISTED AT DUNN’S FALLS WATER PARK.

Finding no error in the court’s judgment, we affirm.

FACTS

¶ 2. PHWD is an agency of the State of Mississippi, created by Mississippi Code Annotated Section 51-15-101 (Rev.2003). Included in its permissible actions is the organization and maintenance of parks for recreational purposes. PHWD maintains nine parks for recreational purposes. Of those nine parks, eight have swimming areas, which include lakes or open waters. Two of the parks, Flint Creek Water Park and Okatibbee Creek Water Park, have water slides. Only the two parks with water slides employ lifeguards. None of the eight lakes employs lifeguards.

¶ 3. Dunn’s Falls Water Park (Dunn’s Falls) opened in 1985. The area includes a mill, spillway, and lake created by the flow of the Chunky River. Dunn’s Falls is one of the nine parks open to the public for recreation. The facilities include cabins, paddle boats, and a designated swimming area.

¶4. On July 2, 2001, Christopher Brad Holly and his family rented a cabin at Dunn’s Falls. While swimming across the Dunn’s Falls mill pond with his brother and cousins, Holly began to struggle and eventually drowned. Emergency personnel performed CPR, but were unable to revive Holly. Holly was pronounced dead at the Anderson Hospital in Meridian.

¶ 5. On June 25, 1999, PHWD published a policy delineating rules concerning its public swimming areas. In the policy, the Board of Directors recommended that all public swimming areas be maintained at a depth not to exceed four feet. The Board also prescribed buoys and ropes to be used in order to outline this recommended depth. At the time of Holly’s drowning, the signs at Dunn’s Falls did not state that the public should stay within the buoys. The back buoy line that enclosed the swimming area was also absent. There was also no reach pole, shepherd’s hook, ring buoy, or flotation device provided at Dunn’s Falls. Because PHWD did not employ lifeguards at Dunn’s Falls, and because Raford Williams, the park manager, did not possess lifeguard training, there was no lifeguard on duty the day of the accident. Dotts filed her complaint alleging that the PHWD was liable for Holly’s death.

¶ 6. At trial on August 3 and 4, 2004, the trial court considered arguments from PHWD and Dotts. In his memorandum opinion, the trial judge found PHWD immune from liability under Mississippi Code Annotated Section ll-46-9(l)(d)(g)(v) and (w) (Rev.2002), which reads:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;
(g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care; or
(w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning devise, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or construction notice.

Aggrieved by the trial court’s findings, Dotts appeals. Finding no error in the court’s decision, we affirm.

DISCUSSION

¶ 7. A circuit court judge sitting without a jury gets the same deference with regards to his findings as a chancellor; his findings are safe on appeal where supported by substantial, credible, and reasonable evidence. Davis v. Latch, 873 So.2d 1059, 1061(¶ 6) (Miss.Ct.App.2004) (citing Maldonado v. Kelly, 768 So.2d 906, 907(¶ 4) (Miss.2000)). The circuit court’s findings will not be disturbed unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. (citing City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000)). Errors of law, however, including the proper application of the MTCA, are reviewed de novo. Fairley v. George County, 800 So.2d 1159, 1162(¶ 6) (Miss.2001).

1. Whether the discretionary protections of Mississippi Code Annotated § 11-l/,9-6(l)(d) were properly applied.

¶ 8. The trial court found that PHWD was immune from liability pursuant to Mississippi Code Annotated Section 11 — 47—9(l)(d). Because Mississippi has no statutory requirements regarding the operation of swimming facilities, the trial court held that PHWD’s actions concerning the operation of Dunn's Falls were a discretionary function. When a governmental actor is required to use his own judgment or discretion in performing a duty, that duty is discretionary. Harris ex. rel Harris v. McCray, 867 So.2d 188, 191(¶ 12) (Miss.2003). If the duty is one that has been positively imposed by law and in a manner or upon conditions which are specifically designated, the duty to perform under those conditions is ministerial. Mosby v. Moore, 716 So.2d 551, 558(¶32) (Miss.1998). However, not all discretionary duties enjoy governmental immunity. Only those functions which are by nature policy decisions, whether made at the operational or planning level, are protected. Jones v. Mississippi Dept. of Transp., 744 So.2d 256, 260(¶ 10) (Miss.1999) (overruled on other grounds) (citing United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)).

¶ 9. In determining whether governmental conduct is discretionary so as to afford governmental entity immunity, we employ the two-part public policy function test. Id. at 260(¶ 11). The test requires a determination of (a) whether the activity involves an element of choice or judgment, and if so, then it must be determined (b) whether the choice or judgment involves social, economic, or political policy. Id. at 260(¶ 10) (citing Gaubert, 499 U.S. at 323, 111 S.Ct. 1267).

a. Whether the activity involved an element of choice or judgment

¶ 10. In its memorandum opinion, the trial court found that Mississippi has no statutory requirements regarding the operation of swimming facilities like that of Dunn’s Falls. Therefore, the trial court found that PHWD had discretion in making judgments regarding the exercise of its powers and functions in operating Dunn’s Falls. Because there are no statutory requirements for the operation of parks such as Dunn’s Falls, the trial court’s findings were not in error.

¶ 11. In exercising its discretionary function, PHWD adopted a policy on June 25, 1999, delineating rules concerning its public swimming areas, which in pertinent part reads:

(2) Once the swimming area buoys have been adjusted or 4 feet has been confirmed, a reference point from shore of those buoys should be made and known by other staff members as well. This will assist in monitoring the position of the buoys on a day-to-day basis. If it is determined the buoys have been inappropriately moved, efforts should be made as soon as possible to re-establish the 4-foot boundary.
If anyone is caught attempting to relocate the buoy line, please feel free to escort them to the gate. This activity hereafter should be considered extremely serious due to the threat toward the safety of others and the liability it creates for us.
(3) No one will be expected to adjust the buoy line out, as the result of a diminishing recreational pool brought on by periods of drought. It is likely that others will take it upon themselves to adjust the buoys as they see fit. Remember your reference points.
(5) The burden of enforcement will likely increase due to smaller swimming areas and the public’s desire to swim or float out beyond the buoy line. These areas will become more congested, and your authority will be tested. For those who are seen out beyond the buoy lines, the time to address this matter is then. Repeat offenders can be removed from the swimming area (s) for any length of time as you may see fit, or in some cases, they can be shown the gate as well.

¶ 12. The board also required that each swimming area maintain proper signage: no lifeguards, swim at own risk, stay within buoys, etc.

¶ 13. The park manager of Dunn’s Falls at the time of Holly’s accident was Raford Williams. He was the only employee on duty that day. Although the trial court found that the PHWD was utilizing a discretionary function, the court held that Williams did not have any discretion regarding the operation of Dunn’s Falls. Because of PHWD’s policy, Williams’ actions were ministerial. Therefore, any evidence of Williams’ knowledge that the back buoy line was missing or knowledge that the swimming area’s configuration had changed would be violations of the policies of PHWD that would trigger liability under the MTCA.

¶ 14. Williams died in or around February 2003. Since he died before a deposition was taken, the court was not able to determine whether Williams knew that the swimming area had been reconfigured. PHWD offered proof that the ropes and buoys could not be seen from the deck of Williams’ station, thus inferring that Williams probably did not have knowledge of the reconfiguration of the swimming area prior to the accident. Dotts offered proof that the buoys and ropes were missing before the children began to swim in the pond, thus inferring that Williams probably did have knowledge of reconfiguration before the accident. The judge found that since Williams was not questioned prior to his death, it could not be determined whether or not he had actual knowledge of the reconfiguration. Since Dotts failed to otherwise prove that Williams did have knowledge of the reconfiguration, it would be unfair to impute that knowledge. Therefore, the court found PHWD was not liable. A judge’s findings of fact upon conflicting evidence will not be reversed unless manifestly wrong. Voss v. Stewart, 420 So.2d 761, 765 (Miss.1982). Finding no error, this claim is without merit.

b. Whether the choice or judgment involves social, economic, or political policy

¶ 15. This prong of the discretionary exception test protects only those discretionary actions or decisions based on considerations of public policy. Elder v. United States, 312 F.3d 1172, 1176 (10th Cir.2002) (citing Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). The purpose is to “prevent judicial ‘second guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. (quoting Berkovitz, 486 U.S. at 536-37, 108 S.Ct. 1954). The pertinent inquiry, then, is whether the decision “implicates the exercise of a policy judgment of a social, economic, or political nature.” Id. at 1181 (quoting Duke v. Dep’t. of Agric., 131 F.3d 1407, 1411 (10th Cir.1997)).

¶ 16. The court also found that the decisions of PHWD about the enclosure of the swimming area, the signage at the pond, and the provisions concerning lifeguards and lifesaving equipment are all grounded in public policy. After weighing the costs and practicality of these provisions against the value to the public to have such provisions, the trial court found PHWD’s decisions to be grounded in public policy. Dotts claims that PHWD should incur liability because it appears that these issues were never discussed before the PHWD board of directors as a policy matter. Application of the public policy prong of the discretionary function test does not require proof of the thought processes of pertinent decisionmakers. Elder, 312 F.3d at 1182. Rather, the focus is on the nature of the actions taken, and whether they are susceptible to policy analysis. Id. Thus, this claim is also without merit. Because the actions of the PHWD were correctly determined to be discretionary, and grounded in social, economic, and political policy, PHWD is immune from liability pursuant to Mississippi Code Annotated Section ll-46-9(d). This issue is without merit.

2. Whether the trial court erred when it ignored substantial, credible, and reasonable evidence that park ranger Ra-ford Williams knew or should have known that a dangerous condition existed at Dunn’s Falls Water Park.

¶ 17. Dotts also claims that the trial court erred in determining that PHWD was granted immunity under Mississippi Code Annotated Section ll-46-9(v). Under this statute, PHWD will not be granted immunity if Dotts can prove (1) a dangerous condition, (2) on the governmental entity’s property, and (3) which the governmental entity caused by negligence or wrongful conduct, or of which it had actual or constructive notice and adequate time to protect from or warn against, and (4) the condition was not open and obvious. Lowery v. Harrison County Bd. of Supervisors, 891 So.2d 264, 267(¶ 12) (Miss.Ct.App.2004). Dotts claims that Holly’s accident was caused by PHWD’s negligence or wrongful conduct in not maintaining the swimming area with buoys, and that Williams knew of the missing buoy in enough time to reconfigure the swimming area before Dotts and her family began to swim there.

¶ 18. However, the trial court found that Dotts failed to prove that the missing buoy was the actual cause of Holly’s death. Master Sergeant Wilder with the Mississippi Department of Wildlife, Fisheries, and Parks testified that Holly’s drowning was caused by swimming in unknown waters and physical failure or exhaustion. Holly’s cousin also testified that Holly’s distress before his drowning could have been caused by his fear of snakes.

¶ 19. Further, Dotts failed to prove that Williams or PHWD had actual or constructive notice of the missing back buoy. Stone Barefield, the Division Director of Parks, testified that the swimming area was intact a month earlier when he visited Dunn’s Falls. Peggy McGinnis, an employee of Dunn’s Falls, as early as two days before the accident, was working at Dunn’s Falls and did not notice whether the back buoy was in place or not. As stated earlier, Williams was not deposed before his death, so there was no way to prove whether or not he knew of the missing back buoy. Although Dotts did offer testimony that the buoy was missing when her family began to swim in the designated area, she failed to prove that PHWD was aware of the missing buoy. Thus, the trial court did not err in determining that PHWD was immune from liability under Mississippi Code Annotated Section 11-46-9(v). This issue too is without merit. Therefore the judgment of the trial court granting PHWD immune from liability pursuant to the MTCA is affirmed.

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

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

      . Dunn’s Falls is owned and operated by PHWD. Dunn’s Falls was maintained by Park Ranger Raford Williams, who functioned as park manager.


author: SOUTHWICK, J„

text:
    David W. BURNS a/k/a David Wendell Burns, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01656-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.

      David W. Burns, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   SOUTHWICK, J„

for the Court.

¶ 1. David Burns sought to have clarification of two sentences that he had received, one when his post-release supervision for a prior felony offense was revoked and the other when he pled guilty to a new felony. The trial court treated his motion as a petition for post-conviction relief and dismissed it without a hearing. We affirm.

FACTS

¶ 2. Burns was indicted by a Pearl River County grand jury for the felony of a third offense of driving under the influence. Miss.Code Ann. § 63-11-30(2) (Rev.2004). In March 2002, he pled guilty and received a five-year sentence. He was required to serve one year in the Intensive Supervision Program, colloquially called “house arrest,” with the remaining four years suspended with post-release supervision. After completing the house arrest portion of his sentence and while on post-release supervision, Burns was arrested for a new DUI offense in July 2003.

¶ 3. Burns, at a hearing in August 2003, had his post-release supervision on the third DUI revoked. He was placed into house arrest for two more years, to be followed by two years on post-release supervision. On the same day Burns also pled guilty to the new charge, which we will sometimes refer to as the “fourth DUI” to distinguish it from the third DUI on which the revocation occurred. After Burns pled guilty, he was sentenced to five years, with one year to be served on house arrest. The remainder of the sentence was described in the court’s order this way:

if and when defendant successfully completes the Intensive Supervision House Arrest Program that the remaining FOUR (4) years be SUSPENDED, pending successful completion of a FOUR (4) year period of post-release supervision, pursuant to Mississippi Code 47-7-34.

The sentencing order on the guilty plea stated that the second sentence would be served consecutively to the sentence imposed on the earlier revocation.

¶ 4. Just short of two years later, Burns filed a “Motion to Clarify and Show Cause” with the court. The sentencing judge considered this to be a motion for post-conviction relief. No hearing was given. Relief was denied by an order of August 11, 2005. The order included some statements about the second sentence that we will discuss in our analysis.

¶ 5. On appeal, Burns argues that his motion was not a request for post-conviction relief, that the sentence exceeded the statutory maximum, and that his due process rights have been violated.

DISCUSSION

¶ 6. Generally, a prisoner may seek post-conviction relief only as to the crime on which he is then in custody. Miss.Code Ann. § 99-39-5(1) (Supp.2005). Moreover, a motion is limited to claims against only one judgment. Miss.Code Ann. § 99-39-9 (Supp.2005). Burns is seeking a clarification as to two sentences, which arise from two separate judgments of conviction. Burns’s second sentence is to follow his first; he is not presently in custody under both convictions.

¶ 7. Burns does not address these procedural questions except indirectly, in that he argues that he should not be forced into the post-conviction relief statutory scheme at all. All he allegedly wants is clarity as to the meaning of his sentence.

¶ 8. Errors and related problems regarding sentences are proper for post-conviction relief motions. Grounds for relief include the following:

(a) that the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(d) that the sentence exceeds the maximum authorized by law
(g) That the sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody.

Miss.Code Ann. § 99-39-5(1) (Supp.2005). An argument that the sentence violates law, either because it is clearly erroneous or because it is unredeemably ambiguous or incomplete, would be proper under the post-conviction relief procedures.

¶ 9. On the other hand, if the operation of the sentence is confusing to the petitioner, that is not necessarily due to any violation of law. Clarity is after all in the eye of the beholder. The inmate may simply not have sufficient knowledge to make clear to him what is legally clear. For many such questions regarding confusion about the operation of the state’s system of incarceration, the proper procedure is for a prisoner to seek relief through the administrative processes of the Department of Corrections. Miss.Code Ann. §§ 47-5-801 through 47-5-807 (Rev.2004). Certain matters of inmate sentencing, in-eluding removal from house arrest which is an inmate classification issue, are properly reviewed by agency procedures first, rather than by post-conviction relief motion. Lewis v. State, 761 So.2d 922, 923 (Miss.Ct. App.2000). We conclude that an inmate who is uncertain about the operation of his sentence and desires clarity should pursue the administrative review procedures before turning to court.

¶ 10. It was proper to convert Burns’s pleading into a motion for post-conviction relief to the extent he is claiming illegality in his sentence. It might also be proper to consider relief on the sentence that immediately follows the one he is now serving. The certainty of the future sentence is akin to the situation in which an inmate incarcerated in a different jurisdiction is allowed to challenge a Mississippi sentence that will begin as soon as release from the antecedent incarceration occurs. Unruh v. Puckett, 716 So.2d 636, 639 (Miss.1998). Even if Burns may challenge both sentences arising from two different convictions, he would need to file two motions for post-conviction relief. Miss.Code Ann. § 99-39-9(2) (Supp.2005). Nonetheless, as we next discuss, the possible error in the second sentence was corrected below. The two-motion issue is moot.

¶ 11. As we have quoted, Burns’s sentence on the fourth DUI provided that “if and when defendant successfully completes the Intensive Supervision House Arrest Program that the remaining FOUR (4)years be SUSPENDED.” That language is questionable but surplusage. The legislature created the house arrest program in 1993 but in 2000 added language at the end of the statute to make it clear that this was a Department of Corrections-administered program and not something for trial judges to manage or make a condition of probation: “courts may not require an offender to complete the intensive supervision program as a condition of probation or post-release supervision.” Miss. Code Ann. § 47-5-1003 (Rev.2004), adopted 1993 Miss. Laws ch. 576; amended 2000 Miss. Laws ch. 622, § 1. In ruling on Burns’s motion for clarification in 2005, the sentencing judge stated that the sentence given Burns on the fourth DUI “does not require the Petitioner to complete the intensive supervision house arrest program as a condition of probation or post-release supervision.” Thus, whatever the sentencing language most reasonably could be seen as meaning, the sentencing judge disclaimed that it was a condition. Section 47-5-1003 prevents successful completion of house arrest from being made a condition of post-release supervision. If the 2005 sentence did state such a condition, the condition was ineffective. Since the trial judge now says on post-conviction relief that there was no such condition, there is also no continuing issue.

¶ 12. When Burns seeks clarification of the operation of the two consecutive sentences, he has moved beyond challenging a possibly erroneous sentence and has raised a matter of ambiguity that is for the Department’s administrative remedy program to answer. The sentence on the third DUI after revocation in 2003 was two years of house arrest and two years of post-release supervision. The sentence on the fourth DUI will be served consecutively to that on the third. That fourth DUI sentence is one year of house arrest followed by four years of post-release supervision. The trial judge asked Burns at the 2003 hearing after the plea of guilty whether Burns understood that this amounted to three years of house arrest. Burns did. The sentencing order itself on the fourth DUI states that the sentence “was set to run consecutive” to the sentence on the third DUI.

¶ 13. This would appear literally to be sentences that amount to two years of house arrest, followed by two years of post-release supervision, followed by one year of house arrest, followed by four years of post-release supervision. Whether the actual service of these sentences would be in that manner is for the Department of Corrections in the first instance to address. Any joinder of the two separate pieces of house arrest, to be followed by a joinder of the two separate pieces of post-release supervision, would amount to a blended but perhaps logical pair of sentences. Whenever there are consecutive sentences that both provide for incarceration but in which the first has any suspension and probation or post-release supervision, this practical issue arises. The Department can provide the clarity on the matter if Burns wishes to pursue administrative remedies on what he believes is ambiguity. Judicial review after that time is available if Burns properly invokes it.

¶ 14. Besides ambiguity, Burns alleges that since the two sentences run together he has received a sentence longer than the statutory maximum for felony DUI, which is five years. Miss.Code Ann. § 63 — 11—30(2)(c) (Rev.2004). Burns misunderstands or misrepresents “consecutive” sentencing. He received two separate sentences for two separate offenses. That one follows immediately after the other is one of the costs of committing more than one felony DUI offense, but the statutory maximum was not exceeded on either separate offense.

¶ 15. Finally, Burns wants more detail about the conditions of house arrest. As noted, house arrest is a program administered by the Department of Corrections. House arrest is an “alternative form of confinement.” Moore v. State, 830 So.2d 1274, 1276 (Miss.Ct.App.2002). Burns is effectively in the custody of the Department of Corrections. The terms of his confinement are set by the Department’s statutes and regulations. No details from the circuit court were appropriate.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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


author: LEE, P.J.,

text:
    Marreco COOPERWOOD a/k/a Marreko Cooperwood, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00235-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.
    Marreco Cooperwood, Appellant, pro se.
    W.S. Stuckey, attorneys for appellant.
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On July 9, 2000, at approximately 11:30 p.m., Marreco Cooperwood and some friends arrived at Maco’s Sports Bar on Highway 49 in Humphreys County. At some point later a fight broke out between Cooperwood and Jeffrey Redmond just outside the bar. Redmond and Marcus Sims testified that Cooperwood pulled out a gun and shot at them. Redmond and Sims then ran from Cooperwood, who kept shooting at the two men. Redmond, who was unarmed, was shot in the back by Cooperwood. A security guard at the bar corroborated Redmond’s version of the assault. However, three other witnesses, including a friend of Cooperwood, testified that they did not see Cooperwood brandish a gun.

¶ 2. On November 1, 2004, a jury in the Humphreys County Circuit Court found Cooperwood guilty of one count of aggravated assault and one count of possession of a firearm by a convicted felon. Cooper-wood was sentenced to serve ten years on the aggravated assault charge and two years on the possession charge, both sentences to be served consecutively and in the custody of the Mississippi Department of Corrections. Cooperwood then filed his notice of appeal to this Court.

DISCUSSION

¶ 3. Cooperwood’s attorney, W.S. Stuck-ey, Jr., filed a brief with this Court which stated as follows:

1. It is the opinion of counsel for the Appellant that there are no arguable issues supporting Appellant’s appeal, and that he has reached this conclusion after scouring the record thoroughly, specifically examining:
(a) the reason for the arrest and the circumstances surrounding the arrest;
(b) any possible violations of Appellant’s right to counsel;
(c) the entire trial transcript:
(d) all rulings of the trail [sic] court;
(e) possible prosecutorial misconduct;
(f) all jury instructions;
(g) all exhibits, whether admitted into evidence or not; and
(h) possible misapplication of the law in sentencing.
2. Counsel for Appellant shall forward a copy of this Brief to Appellant that counsel could find no arguable issues in the record, but that he has the right to file a pro se supplemental brief, if he desires.
3. Counsel for Appellant requests this Court allow 30 days additional time for Appellant to file said supplemental brief.

¶ 4. These declarations were filed in conformity with Lindsey v. State, No.2003-KA-00331-SCT, — So.2d-, 2005 WL 613396 (Miss. Mar.17, 2005). Under Lindsey, should Cooperwood file a brief raising “any arguable issue” or if this Court should discover “any arguable issue” on our review of the record, if circumstances warrant, this Court must require counsel for the appellant to file supplemental briefing “regardless of the probability of the defendant’s success on appeal.” Id. at 5, at -(V18).

¶ 5. To date nothing has been received by this Court from Cooperwood. Additionally, the State agrees with Stuckey’s assertion that there are no arguable issues supporting an appeal.

¶ 6. This Court has reviewed the record, the clerk’s papers and the exhibits and has found no arguable issues on the merits of this case. As we find no issue warranting reversal, we affirm. See Eaton v. State, 913 So.2d 413, 416(¶ 6) (Miss.Ct.App.2005).

¶ 7. THE JUDGMENT OF THE HUM-PHREYS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS; COUNT II, POSSESSION OF A FIREARM BY A FELON AND SENTENCE OF TWO YEARS TO RUN CONSECUTIVELY TO SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HUM-PHREYS COUNTY.

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


text:
    Tommie Lee SKINNER a/k/a Tommie Skinner, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01464-COA.
    Court of Appeals of Mississippi.
    June 27, 2006.
    Tommie Lee Skinner, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On June 3, 2005, Tommie Skinner filed a motion for records and transcripts regarding cause number 93-OK-023 in the Chickasaw County Circuit Court. The trial court shortly thereafter denied Skinner’s request, stating that Skinner “has a history of having filed numerous baseless and frivolous petitions with this Court, including petitions requesting relief previously denied by this Court.” Skinner appeals to this Court asserting that he needs the records to prove that his guilty plea was involuntary. Skinner also argues that Mississippi Public Records Act allows him copies of his record at no charge to himself.

¶ 2. On October 12, 1993, Skinner pled guilty to one count of armed robbery and one count of second degree arson. The supreme court upheld his conviction in an opinion in the same cause number, 93-OK-023, in December 1995. See Skinner v. State, 665 So.2d 893 (Miss.1995). Some time later, this Court affirmed the denial of Skinner’s motion for post-conviction relief, finding the motion to be time-barred as well as successive-writ barred. See Skinner v. State, 864 So.2d 298 (Miss.Ct.App.2003).

¶ 3. Skinner cites to the Public Records Act for the proposition that he should be allowed a free copy of his trial transcript. Miss.Code Ann. § 25-61-1 to -17 (Rev. 2003). However, from the record it does not appear that Skinner followed the proper procedures to request a public record. We are also unpersuaded by this argument.

¶ 4. Furthermore, in Fleming v. State, 553 So.2d 505, 506 (Miss.1989), the supreme court found as follows:

[N]othing in the Uniform PosWConviction Collateral Relief Act or elsewhere gives a prisoner the right to institute an independent, original action for a free transcript or other documents, and then if dissatisfied with the trial court’s ruling, to directly appeal that ruling to this court as a separate and independent action. Fleming did not file his request for free transcript and other documents as part of a motion under the Act for post-conviction collateral relief, nor is this claim raised as part of a direct appeal from conviction.

There is no merit to Skinner’s appeal, thus we affirm.

¶ 5. THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CHICKASAW COUNTY.

KING, C.J., MYERS, P.J., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.