author: •LAMAR, Justice,

text:
    Reverend Mitchell HEDGEPETH and Catherine Hedgepeth v. Melody JOHNSON, Individually and as an Agent of State Farm; and State Farm Fire & Casualty Insurance Company.
    No. 2006-IA-01991-SCT.
    Supreme Court of Mississippi.
    Feb. 21, 2008.

      Christopher C. Van Cleave, Clyde H. Gunn, III, W. Corban Gunn, Biloxi, attorneys for appellants.
    B. Wayne Williams, Dan W. Webb, Tu-pelo, J. Douglas Foster, Vincent J. Castig-liola, Jr., John A. Banahan, Pascagoula, attorneys for appellees.
    Before WALLER, P.J., DICKINSON and LAMAR, JJ.
   •LAMAR, Justice,

for the Court.

¶ 1. This case comes before the Court on interlocutory appeal from the Circuit Court of Jackson County. The central issue is venue. Mitchell and Catherine Hedgepeth filed a complaint in Jackson County against Melody Johnson, individually and as an agent of State Farm Fire and Casualty Insurance Company, and State Farm Fire and Casualty Insurance Company. Plaintiffs assert causes of action inter alia for negligence, negligent misrepresentation, fraud, bad faith breach of contract, and infliction of emotional distress. The complaint followed State Farm’s denial of coverage for property damage incurred as a result of Hurricane Katrina. The trial court granted Defendants’ Motion for Change of Venue from Jackson County to Madison County (Johnson’s county of residence), finding that Mississippi Code Annotated Section 11-11-3 mandates that an individual defendant be sued-only in his or her county of residence. This Court granted interlocutory appeal pursuant to Mississippi Rule of Appellate Procedure 5.

FACTS

¶ 2. In June 2004, Rev. Mitchell Hedge-peth and his wife Catherine moved into the parsonage of St. Paul United Methodist Church in Ocean Springs. They purchased renter’s insurance from State Farm Fire and Casualty Company through agent Melody Johnson to cover their personal property. Johnson’s office is located in Hinds County, but she resides in Madison County. On August 29, 2005, much of the Hedgepeths’ personal property was destroyed by Hurricane Katrina.

¶ 3. According to the Hedgepeths, most of their personal property on the first floor of the parsonage was lost as a result of storm surge. The insurance claims on the personal property lost due to storm surge were denied because the Hedgepeths’ renter’s insurance did not include a separate flood insurance policy. The Hedge-peths allege that they requested Johnson procure flood insurance on the parsonage in addition to regular renter’s insurance because the parsonage was near a bayou. When the Hedgepeths made this request, Johnson told them that flood insurance was unavailable to them because they were renters, not homeowners.

¶ 4. Before Hurricane Katrina made landfall, the Hedgepeths evacuated to Jackson. After being informed by a relative that the parsonage had sustained flood damage, the Hedgepeths contacted Johnson to place her on notice of their impending insurance claim. According to the Hedgepeths, Johnson stated that if there was water damage to their property, they should “make sure some windows were blown out as a result of the hurricane.” Upon returning home, the Hedgepeths informed Johnson that water had damaged or destroyed most of the property on the first floor of the parsonage but that all of the windows were still boarded up and intact. According to the Hedgepeths, Johnson replied, “Mrs. Hedgepeth, I don’t want you to think bad of me, but you really need to make sure that the water entered your home through broken windows ... if you know what I mean.”

¶ 5. In September 2005, State Farm adjuster Larry Miller inspected the Hedge-peths’ home and told them that because they did not have flood coverage, their claim would be denied. Another adjuster, Randy Pillafant, went to the Hedgepeths’ home in October and informed them that their claim would not be covered. Johnson and another State Farm representative, David Haddock, went to the Hedgepeths’ home in November for an inspection. While there, Johnson allegedly urged the Hedgepeths to list some of the damaged personal property from the Hedgepeths’ home as being located on the second floor and not the first, even though the Hedge-peths already had told Johnson that all of the damaged property was located on the first floor. Johnson also admitted that she did not make flood insurance available to the Hedgepeths when they requested it.

PROCEDURAL HISTORY

¶ 6. On February 13, 2006, the Hedge-peths filed a complaint in the Circuit Court of Jackson County against Melody Johnson, State Farm, and eight “John and Jane Does.” The Hedgepeths asserted that venue was proper pursuant to Mississippi Code Annotated Section 11-11-3 because “a substantial event that caused or contributed to the injuries and damages of the plaintiffs occurred in Jackson County, Mississippi.” The defendants filed a Motion to Dismiss Pursuant to Rule 12 and Alternatively Motion for Change of Venue and Severance on March 20. Special Circuit Court Judge Edward C. Prisock entered an Order Transferring Venue, and Staying Execution of Order, and Staying All Proceedings, Pending Resolution of The Petition for Interlocutory Appeal Filed by the Plaintiffs. This Court granted the petition for interlocutory appeal.

ANALYSIS

I. Whether the trial court erred in its interpretation of Mississippi Code Annotated Section 11 — 11— 3(l)(a)(i).

¶ 7. “The standard of review for a change of venue is abuse of discretion. The trial judge’s ruling thereon will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case.” Hayes v. Entergy Miss., Inc., 871 So.2d 743, 746 (Miss.2004). However, the interpretation of a statute is a question of law requiring this Court to apply a de novo standard of review. Champluvier v. State, 942 So.2d 145, 150 (Miss.2006). The statute in question reads:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, OR, if a corporation, in the county of its principal place of business, OR in the county where a substantial alleged act or omission occurred OR where a substantial event that caused the injury occurred.

Miss.Code Ann § 11-11-3(1)(a)(i) (Rev. 2004) (emphasis added). This current version of the statute became effective on September 1, 2004. In making their motion for change of venue, the defendants argued that this code section requires that an individual defendant be sued only in the defendant’s county of residence.

¶ 8. The defendants argue that it was the intent of the Legislature to require an individual defendant to be sued only in his or her county of residence. That intent, according to the defendants, is illustrated by the evolution of the venue statute. Considering both the legislative context and judicial construction of prior versions of the statute, the trial court agreed with the defendants’ position, stating, “[i]t appears to this court that the legislature did not intend, nor does the statute show that the legislature ever intended to create a situation where a resident defendant would be deprived of his right to be sued in the county of his residence.” The trial court’s reliance on legislative intent in interpreting this statute is misplaced and unnecessary.

¶ 9. “It is only when a statute is unclear or ambiguous that we look beyond the language of the statute to determine its meaning.” Coleman v. State, 947 So.2d 878, 881 (Miss.2006). “We have long held that where a statute is plain and unambiguous, there is no room for construction.” Ruhl v. Walton, 955 So.2d 279, 282 (Miss.2007) (quoting Callahan v. Leake County Democratic Executive Comm., 773 So.2d 938, 940 (Miss.2000)). “When the words of a statute are plain and unambiguous there is no room for interpretation or construction, and we apply the statute according to the meaning of those words.” Coleman, 947 So.2d at 881. Mississippi Code Annotated Section 11-11-3(1)(a)(i) is such a plain and unambiguous statute.

¶ 10. “Of right, the plaintiff selects among the permissible venues, and his choice must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue.” Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss.1992). Clearly, Section 11—11—3(1)(a)(i) lays out four venue options from which plaintiffs can choose when filing a lawsuit. The first two are based on the status of the defendant; that is, if the defendant is a resident defendant, the suit may be filed in his county of residence; or, if the defendant is a corporation, the suit may be filed in the county of its principal place of business. The latter two venue options focus on the alleged acts or omissions of the defendants; that is, the suit may be filed where a substantial alleged act or omission occurred; or, finally, suit may be filed where a substantial event that caused the injury occurred. According to the clear language of the statute, “[cjivil actions of which the circuit court has original jurisdiction shall be commenced in” one of these four places.

¶ 11. Because the language of Mississippi Code Annotated Section 11 — 11— 3(l)(a)(i) is plain and unambiguous, we need not look to past versions of the statute to ascertain the legislative intent behind it. The trial court erred in its holding that this statute requires resident defendants to be sued only in their county of residence. As such, under the circumstances of this case, the trial court abused its discretion in granting defendants a change of venue to Madison County. While Madison County is one of the permissible venues, the Plaintiffs choice of venue in Jackson County must be sustained if it is a proper venue pursuant to Mississippi Code Annotated Section 11-11-3.

II. Whether venue is proper in Jackson County.

¶ 12. The defendants claim that even if we reject their interpretation of Section 11—11—3(1)(a)(i), the transfer of venue to Madison County still was proper, as Jackson County does not qualify under any of the four options laid out in the statute.

¶ 13. In addressing the question as to whether venue is proper in Jackson County, we note that Jackson County is neither Johnson’s county of residence nor State Farm’s principal place of business. Therefore, we must examine the facts of this case to determine whether either “a substantial alleged act or omission” or “a substantial event that caused injury” occurred in Jackson County. The defendants point to Medical Assurance Co. of Mississippi v. Myers, 956 So.2d 213 (Miss.2007), to support their proposition that venue was improper in Jackson County. In Myers, Dr. Myers, a Holmes County resident, sued his insurance company, which had its principal place of business in Madison County, for failure to renew coverage. Myers, 956 So.2d at 214-15. The trial court listed the following factors supporting Myers’s claim that venue was proper in Holmes County: (1) Holmes County is where Myers had completed his application; (2) the policy had been issued to Myers in Holmes County; (3) the premiums were mailed from Holmes County; (4) there were communications by mail and phone between Holmes County and Madison County; (5) one of Myers’s clinics was in Holmes County; and (6) Holmes County is where Myers chose to file suit. Id. at 218.

¶ 14. Applying in Myers the same version of Section 11-11-3 as in the current case, this Court held that venue was proper in Madison County. Id. at 220. No “substantial event that caused injury” to Dr. Myers occurred in Holmes County. Therefore, in order to obtain proper venue in Holmes County, Myers needed to show that a substantial alleged act or omission occurred there. Obviously, the facts laid out by the trial court in Myers were not enough to tie venue to Holmes County. “The venue statute does not allow the piling of acts or events to establish venue. It specifically requires a substantial alleged act, omission, or injury-causing event to have happened in a particular jurisdiction in order for venue to be proper there.” Id. at 219. The mere fact that Holmes County is the place where Myers had “experienced” being uninsured was not enough to meet the venue requirements of Section 11-11-3. In other words, the “alleged act or omission,” which was the failure to renew Myers’s insurance policy, occurred at the insurance company’s office in Madison County, and that is where venue was proper.

¶ 15. While it is clear that this Court was correct in its application of Section 11-11-3 to the facts in Myers, the Hedge-peths’ claims clearly are distinguishable. The Hedgepeths’ claims are based, at least in part, on actual losses suffered due to Hurricane Katrina, as their complaint alleges the loss of thousands of dollars in personal property as a result of the defendant’s failure to provide flood insurance. In addition to their claims for failure to procure flood insurance on their property, the Hedgepeths also allege that Johnson urged them to commit insurance fraud. Johnson was in Jackson County at the Hedgepeths’ home when she allegedly told Mrs. Hedgepeth to list some of the property which had been destroyed on the first floor as having been located on the second floor. The Hedgepeths allege that this outrageous conduct caused them mental anguish and emotional distress. State Farm also had two representatives inform the Hedgepeths in person in Jackson County that their claim would be denied because they did not have flood coverage. Jackson County is one of the proper venues for this suit and therefore, the Plaintiffs choice of venue must be sustained.

CONCLUSION

¶ 16. Mississippi Code Annotated Section 11 — 11—3 (1) (a) (i) is plain and unambiguous. Therefore, we apply the clear meaning of the words of the statute, laying out four venue options for a plaintiff filing a lawsuit. Because “substantial alleged acts,” as well as “a substantial event that caused injury” occurred in Jackson County, Jackson County is a proper venue for this case. The holding of the trial court transferring venue to Madison County is reversed, and this case is remanded to the Circuit Court of Jackson County for further proceedings consistent with this opinion.

¶ 17. REVERSED AND REMANDED.

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

      . The Hedgepeths purchased insurance on the Jackson County parsonage from State Farm's Hinds County office because the Hedgepeths had an existing relationship with the Hinds County office.

      . The trial court based its assertion in part on this Court’s holding in Capital City Insurance Co. v. G.B. “Boots" Smith Corp., 889 So.2d 505 (Miss.2004). However, “Boots" Smith addressed the issue of plaintiffs joining nonresident defendants in order to use the "venue good for one is good for all” rule to fix venue in the plaintiff’s county of residence. The Hedgepeths are seeking to have venue in Jackson County not because it is their county of residence, but because substantial acts, omissions, or injury-causing events took place in Jackson County which make it the proper venue for this case. Therefore, the trial court's reliance on "Boots" Smith is misplaced.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Jeffery Thomas LASTER a/k/a Jeffrey Thomas Laster, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CA-01677-COA.
    Court of Appeals of Mississippi.
    Jan. 9, 2007.
    Rehearing Denied Feb. 19, 2008.

      James D. Minor, Oxford, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   KING, C.J.,

for the Court.

¶ 1. On August 15, 2002, Jeffery Thomas Laster was indicted by a DeSoto County grand jury on two counts of sexual battery. On September 10, 2002, Laster pled guilty to both counts and was sentenced to serve concurrent twenty-year sentences in the custody of the Mississippi Department of Corrections. On March 29, 2005, Laster moved for post-conviction relief, which was denied by the trial court on July 26, 2005. Laster appeals the denial of post-conviction relief, raising the following issues, which we quote verbatim:

I. THE PROSECUTION OF THE PETITIONER WAS TIME BARRED AND THE PLEA TO THE TIME BARRED OFFENSE WAS NOT A WAIVER IN AN ATTEMPT TO AVOID ANOTHER CHARGE OR A MORE SEVERE SENTENCE. APPELLANT WAS NEVER ADVISED OF THE STATUTE OF LIMITATIONS.

II. DID AMENDMENTS TO STATUTES OF LIMITATIONS MAINTAIN THE VIABILITY OF THE CHARGES AGAINST APPELLANT UNTIL THE 2002 COMPILATION OF THE MISSISSIPPI CODE?

Finding no error, we affirm the trial court’s denial of post-conviction relief.

ANALYSIS

¶ 2. In reviewing a trial court’s denial of post-conviction relief, this Court will not disturb the trial court’s findings of fact unless the findings are clearly erroneous. Felder v. State, 876 So.2d 372, 373(¶ 4) (Miss.2004). Questions of law, however, are reviewed de novo. Id. As Laster’s appeal raises only questions of law, we proceed with a de novo review.

¶ 3. The indictment which charged Last-er with two counts of sexual battery against a child under the age of fourteen was returned on August 15, 2002. The indictment alleged that the illegal acts occurred between January 1, 1988 and December 31, 1997. The applicable statute of limitations provides that prosecution for the crime of sexual battery against a child under the age of fourteen must be commenced on or before the victim’s twenty-first birthday. Miss.Code Ann. § 99-1-5 (Rev.2000). The record reveals that the victim was six months shy of her twenty-first birthday upon commencement of Laster’s prosecution. Laster, however, insists that the illegal acts occurred no later than'1990, and that the applicable statute of limitations provided that prosecution must be commenced within two years from the commission of the crime. Laster’s assertion is based on an offhand remark made by the prosecutor at the plea hearing where she stated her “math puts [the victim] at between the ages of six and eight when the acts that occurred in Count II happened.”

¶ 4. Laster argues that his prosecution was barred by the applicable statute of limitations, and that his plea was involuntary because he was not advised of the applicable statute of limitations. Because the two issues raised by Laster are so intertwined, we address them as one.

¶ 5. “A valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment or information against a defendant.” White v. State, 921 So.2d 402, 408(¶ 20) (Miss.Ct.App.2006) (quoting Reeder v. State, 783 So.2d 711, 720(¶ 36) (Miss.2001)). Our supreme court has held that the statute of limitations in a criminal case is not jurisdictional. Conerly v. State, 607 So.2d 1153, 1158 (Miss.1992). Rather, it is an affirmative defense that may be waived. Id. Therefore, so long as Laster entered a valid guilty plea, his statute of limitations argument is barred for consideration on appeal. Id.

¶ 6. A criminal defendant has the burden of proving that his guilty plea was not voluntarily, knowingly and intelligently given. State v. Santiago, 773 So.2d 921, 925(¶ 15) (Miss.2000). A plea is considered voluntarily, knowingly and intelligently given when a defendant is advised of the nature of the charge against him and the consequences of entering a guilty plea. Harris v. State, 806 So.2d 1127, 1130(¶ 9) (Miss.2002). In examining the thirty page plea colloquy, it is clear that the trial court ascertained that Laster was aware of the nature of the charges against him, knew the minimum and maximum sentence he could receive on the charges against him, and understood all of the constitutional rights he waived by pleading guilty. Accordingly, we find that the Laster’s plea was voluntarily given. Likewise, since Laster entered a valid guilty plea, his statute of limitations argument is barred.

¶7. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . However, the trial judge then asked the prosecutor if she was referring to the earliest time period in which the acts occurred, to which the prosecutor responded in the affirmative. Furthermore, the language of the indictment controls, and Laster had already pled guilty to the charges in the indictment before the prosecutor made the offhand remark about her calculation of the victim's age at the time the crimes occurred.


author: ROBERTS, J., CARLTON, J.,

text:
    Olan CALLINS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00071-COA.
    Court of Appeals of Mississippi.
    April 17, 2007.
    Rehearing Denied Sept. 18, 2007.

      Olan Callins, appellant, pro se.
    Office of the Attorney General by W. Daniel Hincheliff, for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. This is an appeal from an order of the Circuit Court of Alcorn County summarily denying a motion for post-conviction relief. Aggrieved by the lower court’s disposition, Olan Callins now appeals and raises the following issues, listed verbatim:

I. DID THE TRIAL COURT SENTENCING JUDGE HON. PAUL S. FUNDERBURK IMPROPERLY DENY CALLINS POST-CONVICTION MOTION WHEN THE PLEA OF GUILTY WAS BASED ON STATE RECOMMENDATION AND COUNSEL’S ADVICE TO FORFEITED PROPERTY?

II. DID THE TRIAL COURT SENTENCING JUDGE HON. PAUL S. FUNDERBURK EXCEED THE MAXIMUM SENTENCE AUTHORIZED BY LAW?

III. WHETHER THE APPELLANT WAS ENTITLED TO AN EVIDEN-TIARY HEARING.

Finding that the issues raised on appeal are sufficient to justify an evidentiary hearing, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. Callins was indicted on January 10, 2003 for wilfully, unlawfully and feloniously having in his possession a quantity of methamphetamine, a schedule II controlled substance, being more than ten grams but less than thirty grams, in violation of Mississippi Code Annotated section 41-29-139(c)(l)(D) (Rev.1999). On July 26, 2004, he pled guilty before Circuit Judge Sharion Aycock to the charge against him after entering into a plea bargain with the State stipulating that the State would recommend that Callins be sentenced to ten years with the Mississippi Department of Corrections, given credit for the time already served with the balance of his ten year sentence suspended, placed on three years post-release supervision, forfeit money and property seized the day of his arrest totaling approximately $30,000 in value, pay $100 to the Mississippi Crime Lab, pay $100 to the Mississippi Crime Victims’ Compensation Fund, and pay court costs. On July 26, 2004, the agreed upon recommendation of the State was voiced during Callins’s plea hearing before Judge Aycock, however Callins was not sentenced at the conclusion of the plea hearing at the request of the State in order to allow Callins time to forfeit the property in question before being sentenced. At the time of the plea, a final forfeiture had not been ordered in the collateral forfeiture proceeding because of competing claims by other parties. On August 5, 2004, once most of the competing claims over the items were settled, Judge Paul Funderburk did not honor the negotiated plea bargain but instead sentenced Callins to twenty years in the custody of the Mississippi Department of Corrections with twelve years suspended, five years post-release supervision, a fine of five thousand dollars and court costs.

¶ 3. On September 29, 2004, Callins filed a “motion to clarify sentencing order, conduct due process hearing, or in the alternative, to grant relief under post conviction relief act.” Within his motion, Callins stated that he pled guilty with the expectation that the State recommendation would be followed. He also stated that both his attorney and the prosecutor for the State would testify that they also expected the recommendation to be followed. Following a discussion of the record surrounding Callins’s guilty plea, the Circuit Court of Alcorn County denied his motion for relief. Callins now appeals. Finding that the lower court erred in denying Callins an evidentiary hearing, we reverse.

STANDARD OF REVIEW

¶ 4. “When reviewing a lower court’s decision to deny a petition for post conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo.” Lambert v. State, 941 So.2d 804(¶ 14) (Miss.2006) (quoting Brown v. State, 731 So.2d 595(¶ 6) (Miss.1999)).

ANALYSIS

I. WHETHER CALLINS GUILTY PLEA WAS FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.

¶5. Rule 8.04 of the Uniform Circuit and County Court Rules states in pertinent part:

3. Voluntariness. Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntary and intelligently made must appear in the record.

URCCC 8.04(A)(3). In order to determine if a plea is voluntary, we look to see if “the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea.” Spry v. State, 796 So.2d 229(¶ 6) (Miss.2001) (quoting Wilson v. State, 577 So.2d 394, 397 (Miss.1991)). Additionally, the defendant must be informed “that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination.” Id. (quoting Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)).

¶ 6. In his September 29, 2004 motion, Callins stated that he, along with his attorney and the assistant district attorney, expected the sentencing court to follow the recommendation of the State. In essence, Callins is at odds with the fact that the sentencing judge elected not to follow the recommendation contained in the plea bargain. However, in most cases, “such a recommendation or request will not be binding upon the court.” URCCC 8.04(B)(2)(b); Neal v. State, 936 So.2d 463(¶ 9) (Miss.Ct.App.2006). The record plainly shows that Callins was asked all required questions and expressed his understanding of the charges against him, the rights he was waiving in pleading guilty and the fact that the court, was not bound by the recommendation of the State, although in Callins’s case this oft-stated principle of law is not completely or totally accurate. Specifically, the trial court asked Callins,

Q. Do you understand that even though the State is making a recommendation that this Court is not bound to accept the State’s recommendation and could impose the maximum sentence of 24 years, the maximum fine of half a million dollars and/or both?
A. Yes.

While members of this Court have expressed discomfort with the current state of the law surrounding plea bargains, sentencing recommendations and surprising a defendant with a sentence outside the bargained for recommendation, see Noel v. State, 943 So.2d 768 (¶¶ 12-18) (Miss.Ct.App.2006) (Roberts, J., concurring, joined by Lee, P.J., Southwick, Griffis and Barnes, JJ.), this issue is without merit.

II. WHETHER THE SENTENCING JUDGE ABUSED HIS DISCRETION IN SENTENCING CALLINS.

¶ 7. Callins claims that the sentencing judge improperly considered certain statements made by Callins in arriving at his sentence. Prior to entering a guilty plea, Callins submitted an affidavit of indigence in an effort to acquire the services of a court appointed attorney. Within the affidavit, dated September 18, 2003, he stated that he was unemployed. However, during his plea hearing on July 26, 2004, he stated that he had been gainfully employed with Millennium Cars, Incorporated, for the past seven years. Similarly, Callins stated during his plea hearing that he had been previously convicted of only one felony. In contrast to his claims, a pre-sentence investigation report listed the number of Callins’s prior felony convictions at six, but indicates that he had only been incarcerated for those convictions twice.

¶ 8. In sentencing Callins, the lower court mentioned the facts that Callins had perjured himself concerning his employment and prior convictions, but also took into consideration the nature of the charge against him, the minimum and maximum sentences provided by statute for the crime to which Callins pled guilty and his previous felony history. However, “sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Isom v. State, 928 So.2d 840(¶ 41) (Miss.2006) (quoting Wall v. State, 718 So.2d 1107(¶ 29) (Miss.1998)). As the sentence imposed upon Callins is within statutory limits, this issue is without merit.

III. WHETHER CALLINS WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS MOTION FOR POST-CONVICTION RELIEF.

¶ 9. Callins next argues that he should have been afforded an evidentiary hearing on his motion for post-conviction relief. In all motions for post-conviction relief, the prisoner must inform the court of information not within his personal knowledge that supports his grounds for relief, and must supply the court with affidavits of the witnesses that will testify to such information. Miss.Code Ann. § 99-39-9(1)(e) (Supp.2006). Mississippi Code Annotated section 99-39-19 (Rev.2000) states, in pertinent part, that:

If the motion is not dismissed at a previous stage of the proceeding, the judge, after the answer is filed and discovery, if any, is completed, shall, upon a review of the record, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition on the motion as justice shall require.

Miss.Code Ann. § 99-39-19(1). This Court has held that no evidentiary hearing is required when the sworn testimony of the defendant during the plea hearing is in complete contradiction to the allegations made in a motion for post-conviction relief. Rodolfich v. State, 858 So.2d 221(¶ 8) (Miss.Ct.App.2003) (citing Taylor v. State, 682 So.2d 359, 364 (Miss.1996)).

¶ 10. In dismissing Callins’s motion, the trial court found that it did not substantially comply with the requirements of section 99-39-9. Additionally, the trial court found that Callins’s allegations were completely contradicted by his sworn testimony in the record. In his motion, Callins indicated that both his attorney and the assistant district attorney that prosecuted his case would testify that they, as Callins did, expected the judge to follow the State’s recommendation. However, Cal-lins failed to supply the trial court with affidavits from those individuals stating as such. Nevertheless, the record contains sufficient evidence to warrant an evidentia-ry hearing.

¶ 11. The supreme court has “squarely held that agreements between the State and defendants must be upheld by the trial court where a criminal defendant has detrimentally relied upon the agreement.” Moody v. State, 716 So.2d 592(¶ 16) (Miss.1998); see also, Boyington v. State, 389 So.2d 485, 491 (1980). In order to show detrimental reliance, the defendant must show some “additional servitude to the government.” Christie v. State, 915 So.2d 1073(¶ 6) (Miss.Ct.App. 2005). This additional obligation must be performed before the trial court sentences the defendant. Moody, 716 So.2d at (¶ 17). As part of Callins’s plea bargain, he agreed to forfeit approximately $30,000 of personal property. During Callins’s sentencing hearing, his attorney informed the trial court that Callins had fully cooperated with the State concerning the forfeiture. Additionally, he stated that Callins and all other parties with competing claims on the property had agreed to forfeit their rights, although obtaining the signature of Callins’s estranged wife was proving difficult. We find that the record clearly shows that an evidentiary hearing is required in order to determine whether Cal-lins satisfied his obligations with respect to the plea agreement.

¶ 12. Additionally, Boyington, a case cited in support by the Moody court, also supports our holding under the facts before this Court. In Boyington, the defendant was indicted and arrested for the sale of marijuana, but agreed to work as an informant for the Mississippi Bureau of Narcotics in exchange for a'recommendation of probation. Boyington, 389 So.2d at 488. Following the completion of Boy-ington’s bargained for assistance, which the trial court, all the while, had full knowledge of, the district attorney recommended probation, but the trial court refused. Id. The district attorney then recommended a sentence of two years, the next lesser sentence, which the trial court accepted, but Boyington refused to plea guilty with a two year recommendation and went to trial. Id. Following the jury’s finding of guilt, Boyington was sentenced to eight years, and appealed. Id. at 487. The supreme court vacated the judgment of the trial court sentencing Boyington to eight years and stated “where the appellant, with the knowledge of the trial court, worked for the Mississippi Bureau of Narcotics as an undercover informant, and was promised by the Bureau and district attorney that they would recommend probation, which led appellant to believe he would be placed on probation” the agreement must be honored. Id. at 491.

¶ 13. Though there was no actual plea in Boyington, the case is still applicable to the case sub judice as, at the request of the State, the trial court did not immediately sentence Callins after accepting his guilty plea, but granted a continuance so that the property forfeiture could be completed. It is clear that Judge Aycock was fully aware of the agreement between the State and Callins when she agreed to delay sentencing in order to allow Callins to complete his end of the bargain. Judge Funderburk, Callins’s sentencing judge, was informed of the agreement as well. Therefore, in addition to Callins’s detrimental reliance upon the plea bargain, which Moody instructs requires enforcement of the agreement if Callins completed his part of the bargain before rejection of his agreement, the trial court also involved itself in the process by allowing a continuance of Callins’s sentencing for the sole purpose of granting him additional time to complete his end of the agreement. As such, if the trial court determines that Callins has substantially complied with his obligations under the plea agreement to his detriment, then, pursuant to Moody and Boyington, the trial court is duty bound to sentence him consistent with his bargain.

¶ 14. The dissent argues that Moody is not controlling. In support, the dissent states that the Moody court “found that the trial judge impermissibly involved himself in the plea bargaining process by usurping a prosecutorial function, specifically, to decide whether the death penalty will be pursued.” However, the Moody court, in no way, based its decision upon the trial court’s involvement in the plea bargaining process because the trial court in Moody was not involved in the plea bargain. A thorough review of Moody would be beneficial.

¶ 15. In Moody, the defendant was charged with two counts of capital murder and one count of simple murder. Moody, 716 So.2d at (¶ 2). Moody agreed to plead guilty to the three counts if the State would recommend two consecutive life sentences without the possibility of parole and agree not to seek the death penalty. Id. Pursuant to the agreement, Moody agreed to cooperate fully with the State regarding the murders, to include testifying against his co-defendants. Id. Additionally, the agreement required Moody to take a polygraph examination regarding his disclosures, as well as share with the State information concerning a separate, unsolved murder, and other crimes. Id. at (¶¶2-3). Moody fulfilled his obligations under the plea bargain, and the State recommended the above sentence, however, the trial court refused to accept Moody’s guilty pleas. Id. at (¶ 4). In refusing to accept the plea, the trial judge stated, “The District Attorney exceeded his discretion in entering into the [agreement] without consulting with the Court,” and indicated its desire to leave the death penalty an option. Id. On interlocutory appeal, Moody argued that the trial court erred in not honoring the agreement for two reasons. Id. at (¶ 6). First, he argued that his guilty pleas were induced by the promised absence of the death penalty, and second, Moody argued that he detrimentally relied on the agreement. Id. The State responded that the trial court should not have been compelled to abide by the agreement as it was not a party to it. Id. at (¶ 7). In reversing the trial court, the supreme court stated that Moody was “entitled to have the plea agreement enforced for two reasons.” Id. at (¶ 8). First, the supreme court reasoned that the trial court abused its discretion in refusing to accept Moody’s pleas of guilt. Id. The second reason expressed by the supreme court as to why Moody’s agreement should have been enforced was that he,

did indeed detrimentally rely on the agreement by substantially performing many of the terms of the agreement before the trial court refused to accept the guilty pleas and enforce the agreement. As Moody argues, his detrimental reliance and performance of the terms of the agreement mandate that the agreement be enforced.

Id. (emphasis in original).

¶ 16. In holding that the trial court abused its discretion in failing to accept Moody’s pleas, the supreme court stated that the trial court did not have any sentencing options as Moody was charged with capital murder and it was “a prosecu-torial function to choose whether to seek the death penalty.” Id. at (¶¶ 12-13). The supreme court continued that the trial court abused its discretion, not by imposing itself in the plea bargaining process, but by seeking to usurp that function and having no reasonable basis for rejecting the pleas. Id. at (¶¶ 13-14). The supreme court then stated that, “In addition to the fact that the trial court abused its discretion, Moody correctly argues that he detrimentally relied upon the agreement by fulfilling several of its terms and is therefore entitled to have the agreement enforced.” Id. at (¶ 15).

¶ 17. As in Moody, Callins detrimentally relied upon his agreement with the State in entering his guilty plea. Also, as in Moody, if Callins substantially performed his part of the agreement, he is entitled to have the agreement enforced. The supreme court’s holding in Edwards v. State, 465 So.2d 1085 (1985), a case cited by the Moody court, also supports such a holding. In Edwards, the defendant agreed to resign his position as Leake County constable in exchange for the State’s promise to drop a pending indictment for extortion. Id. Subsequent to Edwards’s resignation, he was nonetheless indicted by the grand jury on its own initiative, and the State failed to move the trial court to enter a nolle prosequi Id. at 1085-86. Edwards then filed a motion to quash the indictment based upon the agreement, however, it was denied. Id. at 1086. In reversing Edwards’s conviction, the supreme court noted that, in accordance with Mississippi Code Annotated section 99-15-53 (1972), while the State did not have the authority to enter into such an agreement without court approval, there were other considerations to consider, stating that “in addition to the [State’s] promise, we also have affirmative acts on the part of the defendant in reliance upon that promise.” Id. The supreme court then held, in spite of the trial court’s denial of Edwards’s motion to quash, that “In light of Edwards’ detrimental reliance on the agreement, we are compelled to hold that the circuit court abused its discretion in not quashing the indictment and thereby forcing the state to comply with its obligation under the agreement.” Id. While the prosecutor in Edwards did not have authority to enter into such an agreement without court approval, in its denial of Edwards’s motion, the court exercised its discretion not to approve the agreement, albeit after-the-fact. As a result of Edwards’s detrimental reliance, the supreme court, despite the trial court’s decision not to honor the agreement, held that the agreement must be fulfilled.

¶ 18. The dissent next argues that Callins is not entitled to an evidentiary hearing for two reasons. First, Callins’s motion for post-conviction relief did not contain supporting affidavits from those individuals whom he intended to testify. Second, Callins’s allegation of detrimental reliance was contradicted by his statements during the plea hearing. It is true that Callins’s motion for post-conviction relief did not contain affidavits of other individuals who would testify, but the trial judge is required to examine “all files, records, transcripts and correspondence relating to the judgment under attack.” Miss.Code Ann. § 99-39-11(1) (Rev.2000). Notwithstanding the absence of supporting affidavits, the record alone is sufficient to warrant an evidentiary hearing on Callins’s claims.

¶ 19. While Callins did respond affirmatively when asked if he understood that the trial court was not bound by the State’s recommendation, it is of no moment. The same may well be a misstatement of the law where detrimental reliance exists and a defendant has performed his part of the plea agreement. Additionally, inherent in the question itself are two logical interpretations. First, “I understand that the judge is not a ‘rubber stamp’ for the district attorney in sentencing.” Second, “Even though I understand the judge is not a ‘rubber stamp’ for the district attorney in sentencing, I truly believe the judge will honor his request, and this belief is a significant inducement to my plea of guilt.” Each interpretation is equally logical.

¶ 20. A circuit judge has the most solemn duty to make absolutely certain, to the very best of his or her ability, that a defendant is making a truly free and voluntary plea. A much more telling colloquy of the impact the plea bargain recommendation had on Callins’s, or would have on any defendant’s, decision to plead guilty would be, “Mr. Callins, I do not intend to honor your plea bargain with the State. I do not care if you have agreed to forfeit your claim to $30,000 worth of property. At your sentencing hearing, I do not intend to suspend your sentence and place you on post-release supervision. Instead, I intend to sentence you to serve twenty years in the penitentiary. Mr. Callins, do you still wish to plead guilty?” It is only when we can say with confidence from the record before us that Callins’s answer would have been “yes,” evincing a lack of detrimental reliance upon the recommendation, should we deny an evidentiary hearing. Today, we are not so prepared.

¶ 21. THE JUDGMENT OF THE AL-CORN COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR AN EVIDENTIARY HEARING. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ALCORN COUNTY.

KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE OPINION, JOINED BY MYERS, P.J. IRVING, J., NOT PARTICIPATING.

CARLTON, J.,

Dissenting:

¶ 22. I disagree with the majority’s determination that Callins is entitled to an evidentiary hearing on the issue of whether he detrimentally relied upon the plea agreement by virtue of his cooperation with the forfeiture proceedings. A trial judge is not bound to accept the sentencing recommendation of the State where he does not involve himself in the plea bargaining process. Moreover, Callins’s claim was properly dismissed without a hearing as it was unsupported by the affidavits of others and directly contradicted by his sworn testimony at the plea hearing.

1. Detrimental Reliance

¶ 23. The majority cites Moody v. State, 716 So.2d 592, 595(¶ 16) (Miss.1998) for the proposition that a trial judge is bound to sentence a defendant in accordance with the State’s recommendation where the defendant has detrimentally relied on the agreement by performing an additional servitude for the State. The Moody court held that it was an abuse of discretion for the trial judge to refuse the defendant’s guilty plea “simply because the court does not wish to see the defendant sentenced to something less than death in exchange for valuable information about the charged offenses and other crimes.” Id. at 594(¶ 11). In holding that the trial court abused its discretion, the supreme court found that the other reasons relied on by the trial judge in rejecting the agreement were unreasonable; the court stated that the trial judge was incorrect in his assertion that the prosecutor exceeded his authority in entering into the agreement without first seeking the consent of the court. Id. The court stated that the trial court impermis-sibly overreached its authority by usurping a prosecutorial function, specifically, to decide whether to pursue the death penalty. Id. at 595(¶ 13). The supreme court went on to find that Moody detrimentally relied on the plea agreement by providing the State with information concerning the crime he committed and a separate murder of which he possessed knowledge before the trial judge rejected his guilty plea. Id. at 595(¶ 17). The Moody court ultimately reversed the lower court’s decision “[bjecause the trial court abused its discretion in rejecting the agreement, upon which Moody had detrimentally re-lied. . . .” Id. at 595(¶ 19). Additionally, the supreme court deemed it necessary to point out that as a result of the sentencing scheme for capital murder “the trial judge was not vested with any sentencing options[,]” and that Moody’s case “[was] not, then, a case where the defendant seeks to bind the [trial] court to a recommended sentence.” Id. at 595(¶ 12).

¶ 24. Moody is inapplicable to the facts of the instant case. The trial court in Callins’s case did not abuse its discretion. In sentencing Callins, the trial judge relied on the pre-sentence investigation, which revealed six prior felonies. The sentencing judge also considered the fact that Callins was dishonest in his sworn affidavit of indigency for court appointed counsel. Prior to the entry of his guilty plea, Callins was informed by the trial judge that the court was not bound to accept the recommendation made by the State.

¶ 25. I agree with the majority to the extent that Moody requires the State to honor its agreement, thus giving the defendant the benefit of his bargain. However, I am not of the opinion that a trial judge is bound to accept a sentence recommendation made by the State. An examination of prior case law should assist in bringing much needed clarity to the muddled issue presented by the case at bar.

¶ 26. First, prior case law establishes that the prosecution is required to fulfill its promises under a plea agreement. Where the district attorney reneges on its promises, the trial court may be required to ratify the State’s agreement if the defendant has detrimentally relied on it. This principle has largely been applied to a prosecutor’s agreement to nol pros a charge. See, State v. Adams County Circuit Court, 735 So.2d 201, 204-05 (¶¶ 6-13) (Miss.1999) (trial court erred in refusing to dismiss additional charges despite prosecutor’s failure to first gain court approval where defendant testified for the State pursuant to the agreement); Danley v. State, 540 So.2d 619, 621-22 (Miss.1988) (where the State unilaterally rescinded plea agreement after defendant testified for the State as agreed, the trial court was required to grant defendant’s motion to quash in order to honor the prosecution’s agreement to grant immunity for the charge of murder); Edwards v. State, 465 So.2d 1085, 1085 (Miss.1985) (prosecutor’s refusal to move the trial court for dismissal of extortion charge required the trial court to grant defendant’s motion to quash the indictment where defendant resigned from public office in reliance on agreement).

¶ 27. In the instant case, the prosecution did not renege on its promise under the plea agreement; rather, the State completely fulfilled its promise to Callins by making the agreed upon recommendation to the trial court, thereby discharging its duty under the plea agreement. Consequently, Callins received the benefit of his bargain.

¶ 28. - Second, precedent holds that the trial court is not bound to accept a recommended sentence unless the trial court has participated in the plea bargaining process. Martin v. State, 635 So.2d 1352, 1354-57 (Miss.1994) (“In order to renege on a deal, you must be a part of the deal.”); Moore v. State, 394 So.2d 1336, 1337 (Miss.1981). On several occasions, a trial court’s involvement in the plea bargaining process has been deemed sufficient to bind the court to the terms of a plea agreement.

¶ 29. In Boyington v. State, 389 So.2d 485, 490-91 (Miss.1980), the district attorney agreed to make a recommendation of probation in exchange for the defendant’s agreement to work as an undercover informant. Id. at 488. For the next six months, with the knowledge of the trial court, the defendant worked for the State developing ten cases. Id. At Boyington’s plea hearing, the trial judge refused to accept the recommendation of probation, but offered to accept an alternative recommended sentence of two years, which the defendant declined. Id. Boyington then proceeded to trial where he was found guilty and sentenced to eight years. Id. On appeal, the supreme court required the trial judge to vacate the eight-year sentence and place the defendant on probation. Id. at 491. The court reasoned that “[wjhile a trial judge must control the sentencing phase of a criminal trial and has the responsibility and duty of approving or disapproving a recommendation by the prosecutor, he should never become involved, or participate, in the plea bargaining process. He must remain aloof from such negotiations.” Id. at 490 (quoting Fermo v. State, 370 So.2d 930, 933 (Miss. 1979)). The court held that “under the peculiar facts of this case” Boyington should be placed on probation in accordance with the plea agreement reached between the defendant and the State. Id. at 491.

¶ 30. In Salter v. State, 387 So.2d 81, 82-83 (Miss.1980), the trial judge accepted the defendant’s guilty pleas and the State’s motion to nol pros eight existing charges, pursuant to a plea agreement, and sentenced the defendant in accordance with the State’s recommendation. Id. The defendant subsequently filed a petition for writ of error corum nobis challenging the voluntariness of his guilty pleas. Id. The trial court denied Salter’s motion holding his pleas voluntary, yet ordered sua sponte, that the eight nol prossed indictments be reinstated. Id. On appeal, the supreme court bound the trial judge to the terms of the agreement which he had previously accepted, stating that “[a] plea bargain was agreed upon between [the defendant], the district attorney and the trial judge that he would plead guilty to two of the indictments and the other eight would be nol prossed.” Id. at 83. I note that Salter is also a case where the State reneged on its promise, leaving the defendant without the benefit of his bargain.

¶ 31. As distinguished from Boyington and Salter, the trial judge in the case at bar did not involve himself in the plea bargaining process and there is no evidence that any representation was made to Callins that it would be bound by the State’s recommendation. To the contrary, Callins was clearly informed that the trial court was not bound to accept any recommendation made by the State. The judge accepting his guilty plea also informed Cal-lins that a different judge would preside over his sentencing and the record reflects that the defendant agreed to be sentenced by a different judge.

¶ 32. I find that Callins’s case does not fall within the ambit of prior “detrimental reliance” cases which bind a trial court to the terms of a plea agreement for three reasons. First, the trial judge did not abuse his discretion in rejecting the State’s recommendation. “The imposition of sentence is within the sound discretion of the trial court, and this Court will not review the sentence so imposed, if it is within the prescribed limits of the statute.” Yazzie v. State, 366 So.2d 240, 244 (Miss.1979) (citing Ainsworth v. State, 304 So.2d 656 (Miss.1975)). Second, the prosecutor did not renege on its promise under the agreement. Third, the trial judge did not im-permissibly participate in the plea bargaining process or represent that he would be bound by the State’s recommendation.

¶ 33. Callins’s case is closely analogous to Martin v. State, 635 So.2d 1352, 1354-57 (Miss.1994). In Martin, the defendant agreed to plead guilty and to testify against his co-defendants in exchange for the State’s recommendation that he receive a five year sentence. Id. At his plea hearing, the State made the agreed upon recommendation and Martin was informed by the trial judge that the court was not bound to accept the State’s recommendation. Id. The trial court accepted Martin’s guilty plea but refused to follow the State’s recommendation. Id. On appeal, Martin argued that he should be re-sentenced in accordance with the State’s recommendation because his agreement was “more than a mere plea-bargain.” Id. Martin asserted that, under the holding of Boy-ington, the trial judge was bound to sentence him in accordance with State’s recommendation because he had performed an additional duty to the State by testifying against his co-defendants. Id. The supreme court refused to bind the trial court to the recommended sentence finding that trial court did not participate in plea bargain discussions and never bound itself to accept the State’s sentence recommendation. Id. The court in Martin also noted that the prosecutor fulfilled his promise by making the recommendation to the trial court. Id. (“[T]he district attorney’s recommendation was just that — a recommendation only — and that the court was in no wise bound by it.” (citing Moore, 394 So.2d at 1337)).

¶ 34. Just as in Martin, Callins agreed to plead guilty and perform an additional service for the State in exchange for the prosecution’s recommendation of a more lenient sentence. The State fulfilled its promise by making the recommendation, unfortunately for Callins, the trial judge, acting well within its discretion, refused to follow it. Callins was informed that the trial court was not bound by the State’s recommendation. He had the opportunity during his plea hearing to express that he believed the court would be bound by the State’s recommendation, yet he affirmatively stated that he understood the court was not so bound.

¶ 35. In light of the facts of the case sub judice and law as currently situated, I would prefer to follow the holding in Martin. I find that holding in accordance with Martin is consistent with the Mississippi Uniform Rules of Circuit and County Court. Nothing in the rules binds a trial court to sentence a defendant to the term recommended by the State. Pursuant to 8.04(B)(2), in reaching a plea bargain agreement, the prosecuting attorney may “[mjove for a dismissal of other charges” and/or “[m]ake a recommendation to the trial court for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court.” (emphasis added). After an agreement has been reached between the defendant and the prosecution “it may be made known to the court along with the reasons for the recommendation, prior to the acceptance of the plea.” URCCC 8.04(B)(2). In addition, Rule 8.04(B)(4) provides that “[the] trial judge shall not participate in any plea discussion.” Id.

¶ 36. In conformity with the rules, the prosecutor was well within his authority to make a non-binding sentence recommendation which included his reasons for making it, namely, that Callins cooperated in the forfeiture action. To this end, Callins understandably possessed a hope of leniency, a hope that his cooperation would be considered favorably in his behalf as mitigating evidence. However, in sentencing Cal-lins, the trial judge relied on the pre-sentence investigation, which revealed six prior felonies. The sentencing judge also considered the fact that Callins was dishonest in his sworn affidavit of indigency for court appointed counsel. I find the trial judge’s decision to reject the recommended sentence was well within his discretion and I reject the majority’s determination that the trial court may be bound to sentence Callins in accordance with the State’s recommendation.

2. Evidentiary Hearing

¶ 37. I disagree with the majority’s determination that Callins is entitled to an evidentiary hearing. The trial judge, in his order dismissing Callins’s motion, provided two proper grounds for dismissal without an evidentiary hearing. First, the judge found that the allegation made by Callins in his motion was completely contradicted by the transcript of the guilty plea hearing. Second, the judge stated that Callins’s motion did not meet the pleading requirements of Mississippi Code Annotated section 99-39-9 (Rev.2000) and was also dismissed for this reason. I am of the opinion that, under familiar, well-established case law of our State’s reviewing courts, Callins’s motion may have been properly dismissed without an evidentiary hearing on either of the two grounds given by the trial judge. I find that the trial judge was eminently correct in summarily dismissing Callins’s motion for post-conviction relief.

¶ 38. A motion for post-conviction relief must meet the pleading requirements set forth in Mississippi Code Annotated section 99—39—9(1)(e), which mandates, inter alia, that the motion contain “a specific statement of the facts which are not within the prisoner’s personal knowledge” and further, that affidavits of other persons who will testify as to these facts be attached to the motion. Miss.Code Ann. § 99 — 39—9(1)(e) (Supp.2006). The trial judge, upon receipt of a motion for post-conviction relief, is required to promptly make an initial examination of the original motion, together with all documents associated with the judgment under attack. Miss.Code Ann. § 99-39-11(1) (Rev.2000). After conducting this examination, the trial judge may dismiss the motion without an evidentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss.Code Ann. § 99-39-11(2) (Rev.2000). “A trial court has considerable discretion in determining whether to grant an evidentiary hearing.” Meeks v. State, 781 So.2d 109, 114(¶ 14) (Miss.2001); White v. State, 818 So.2d 369, 370(¶ 4) (Miss.Ct.App.2002).

¶ 39. This Court and our supreme court have repeatedly held that a motion for post-conviction relief is properly dismissed without an evidentiary hearing where the defendant’s allegations are directly contradicted by the transcript of the guilty plea hearing. See, e.g., Taylor v. State, 682 So.2d 359, 364 (Miss.1996) (holding that defendants claim of involuntary plea was properly dismissed without an evidentiary hearing where his assertions that he did not understand the charges against- him and the “trial process” were refuted by his sworn testimony at the plea hearing); Roland v. State, 666 So.2d 747, 751 (Miss.1995) (holding summary dismissal proper where plea hearing transcript showed that defendant was advised of the rights of which he later claimed to be unaware); Harveston v. State, 597 So.2d 641, 643 (Miss.1992) (concluding that defendant’s claim of involuntary plea was manifestly without merit where plea transcript contradicted his claims); Dawkins v. State, 919 So.2d 92, 95(¶ 5) (Miss.Ct.App.2005) (“When claims are contradicted by the record of the plea acceptance, they may be labeled as a ‘sham’ by the court, and be disregarded.” (citations omitted)).

¶ 40. It is well-settled that a defendant’s claims unsupported by the affidavits of others are properly dismissed where they are directly contradicted by the record. See, e.g., Gable v. State, 748 So.2d 703, 706(¶ 11) (Miss.1999) (“The transcript of Gable’s guilty plea hearing belies his current contentions. Furthermore, Gable produced no affidavits other than his own contradicting his earlier sworn statements.”); Young v. State, 731 So.2d 1120, 1123(¶ 12) (Miss.1999) (“[WJhen the only support offered by a convict is his own affidavit, and his affidavit is contradicted by his own sworn statement, an evidentia-ry hearing is not required.” (citation omitted)); Marshall v. State, 680 So.2d 794, 795 (Miss.1996) (“[Defendant’s] petition is only supported by his affidavit. There is no affidavit from his attorney or anyone else involved with his plea. [He] did not make the requisite showing for an eviden-tiary hearing.”); Wilson v. State, 760 So.2d 862, 864 (¶¶ 5 & 6) (Miss.Ct.App.2000) (When the prima facie showing that is a necessary prerequisite to an evidentiary hearing consists solely of the assertions of the movant himself, the trial court may disregard such assertions when they are substantially contradicted by the court record of the proceedings that led up to the entry of the judgment of guilt.” (citing Fielder v. State, 749 So.2d 1248, (¶¶ 12 & 15) (Miss.Ct.App.1999))).

¶ 41. Our reviewing courts have also held on numerous occasions that a motion unsupported by the affidavits of others fails to meet the pleading requirements of Mississippi Code Annotated section 99-39—9(1)(e), and is properly dismissed without an evidentiary hearing solely for this reason. See, e.g., Robertson v. State, 669 So.2d 11, 13-14 (Miss.1996) (holding that motion was deficient due to defendant’s failure to satisfy the pleading requirements of Miss.Code Ann. § 99-39-9, thus no evidentiary hearing was required); Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990) (stating that because defendant’s allegations in motion for post-conviction relief were not supported by affidavits other than his own, his claim of ineffective assistance was “without merit for this reason if for no other.”); Winston v. State, 893 So.2d 274, 276(116) (Miss.Ct.App.2005) (summary dismissal proper where defendant failed to provide the statutorily required affidavits and failed to demonstrate good cause to excuse such failure).

¶42. The majority’s finding of detrimental reliance is undermined by Callins’s own sworn testimony in the record. The transcript of the plea colloquy reflects that Callins stated under oath that he understood that the trial court was not bound to accept the State’s recommendation and could impose the maximum sentence even though the State was recommending a lesser sentence. He indicated that he understood the maximum penalty, a term of twenty-four years and a fine of $500,000. The majority relies on the validity of these statements to determine that Callins’s claim of involuntary plea is without merit, yet refuses to acknowledge that they equally discredit the idea that Callins detrimentally relied on the plea agreement. In this regard, I find the reasoning of the majority to be self-contradicting and inherently inconsistent.

¶ 43. In conclusion, the contentions made by Callins are directly contradicted by his own sworn statements in the record. Additionally, Callins provided no affidavits other than his own to support his claims, nor did he attempt to make a showing of good cause to excuse their absence as required by Mississippi Code Annotated section 99 — 39—9(1)(e). Accordingly, I find that the trial judge was correct in dismissing Callins’s motion without an evidentiary hearing.

¶ 44. The majority’s holding undermines the purpose and validity of the guilty plea colloquy. Where the transcript of the plea colloquy reflects that a defendant was fully informed regarding a certain consequence of his guilty plea, he should not later be heard to claim that he was unaware of the consequence. Accordingly, I respectfully dissent.

MYERS, P.J., joins this Opinion.


author: MYERS, P.J.,

text:
    ROBINSON PROPERTY GROUP, LIMITED PARTNERSHIP, d/b/a Horseshoe Casino and Hotel, and Insurance Company of the State of Pennsylvania, Appellants v. Carrie NEWTON, Appellee.
    No. 2006-WC-01288-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2007.
    Rehearing Denied Feb. 19, 2008.

      George E. Dent, Tupelo, for appellants.
    Carrie J. Newton, pro se.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. At issue in this appeal is whether the Tunica County Circuit Court erred in affirming the decision of the Mississippi Workers’ Compensation Commission, which awarded benefits to Carrie Newton, relying in part on certain medical record evidence not properly admitted into evidence. Carrie Newton was granted workers’ compensation benefits during two different periods of time for focal dystonia, a condition allegedly aggravated by her work as a card dealer. Horseshoe Casino and Hotel (Horseshoe) argues that the Commission improperly relied upon the unauthenticated medical records of Dr. Alan Nadel as a basis for awarding benefits for Newton’s focal dystonia, and seeks reversal of this portion of the lower court’s order. We find that as a result of the Commission’s departure from its own procedural rules, certain medical records were entered into evidence that erroneously provided medical causation relating Newton’s focal dystonia to her work as a card dealer for Horseshoe. Without the consideration of the aforementioned unauthenticated medical records, there was not substantial evidence presented upon which the Commission could find that Robinson was entitled to temporary or permanent disability benefits for focal dystonia. Therefore, we find the circuit court’s affirmance of the Commission’s award was in error. We reverse and render Newton’s award relating to a finding of work-related focal dystonia.

UNDERLYING FACTS AND PROCEDURAL HISTORY

¶ 2. Carrie Newton was initially hired by Horseshoe Casino in December 1996 and was employed during her first stint of employment with Horseshoe through January 26, 1998. During this employment period, Newton filed a petition to controvert, alleging that her card dealing duties caused carpal tunnel syndrome. Horseshoe admitted compensability for the carpal tunnel injury and provided medical benefits and temporary total disability benefits, but denied permanent disability benefits and Newton’s claim of loss of wage-earning capacity. After Newton’s carpal tunnel treatment ended and she was released to work without restrictions, she claimed she continued to experience pain. She returned to her treating physician with these complaints; however, he opined that the continuing problem was not related to her carpal tunnel and referred her to a neurologist, Dr. Alan M. Nadel.

¶ 3. Dr. Nadel diagnosed Newton with focal dystonia of unknown cause, a neurological condition affecting an isolated body part. Dr. Nadel found on February 27, 1998, that card dealing would “exacerbate Newton’s symptoms,” but he opined that her focal dystonia was not caused by her work. Thereafter, an independent medical examination was ordered by the administrative judge. The independent medical examiner also diagnosed Newton with focal dystonia, but concluded that the condition was not work related.

¶ 4. Approximately three years later, Dr. Nadel saw Newton again, on January 12, 2001. At that time, he found that Newton’s focal dystonia was aggravated by her work, stating “there is no doubt that the symptom is aggravated by her card dealing.” However, the record reflects that at the time that Dr. Nadel made this medical opinion, Newton had not dealt cards since 1997. In fact, during the interim between Dr. Nadel’s 1998 medical assessment and his 2001 medical opinion, Newton had been discharged from Horseshoe for failing to report, was employed as an appointment clerk for a medical facility, had undergone rotator cuff surgery due to an unrelated problem, had been re-employed as a dispatcher by Horseshoe, and discharged again for failure to report. It is from this discrepancy contained within the medical records of Dr. Nadel from which this appeal arises.

¶ 5. The administrative judge admitted Dr. Nadel’s medical records into evidence at the hearing on the matters, and based on these records, as well as the 2004 medical records of Dr. Donald Sullivan, awarded Newton temporary total disability benefits covering several time periods and permanent disability benefits for a period of fifty weeks. The Commission and circuit court subsequently adopted the administrative judge’s findings and affirmed. Horseshoe appeals the award related to the finding of work-related focal dystonia, requesting review of several issues involving the award of temporary and permanent disability based on the determination that Newton’s work with Horseshoe related to her condition of focal dystonia.

STANDARD OF REVIEW

¶ 6. We follow the direction of our supreme court in stating our standard of review,

This Court is bound by the decision of the Mississippi Workers’ Compensation Commission if the Commission’s findings of fact are supported by substantial evidence .... Stated differently, this Court will reverse the Commission’s order only if it finds that order clearly erroneous and contrary to the overwhelming weight of the evidence. A finding is clearly erroneous when, although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.

Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461(¶ 27) (Miss.2005) (quoting Hardaway Co. v. Bradley, 887 So.2d 798, 795 (Miss.2004) (citations omitted)).

DISCUSSION

I. WHETHER THE COMMISSION’S RELIANCE ON IMPROPERLY ADMITTED EVIDENCE IN VIOLATION OF ITS OWN PROCEDURAL RULES WAS ERROR MANDATING REVERSAL

¶ 7. Horseshoe argues that the Commission erroneously relied on medical record evidence not properly introduced into the record in awarding Newton workers’ compensation benefits. Newton agrees that the medical records at issue were introduced improperly, but argues that the benefits were not awarded in error. Our review of the record adduces that during the hearing the administrative judge admitted the medical records of Dr. Nadel into evidence without proper authentication, despite Newton’s noncompliance with the Mississippi Workers’ Compensation Commission (MWCC) Procedural Rule 9. Horseshoe objected to the introduction of these records. The administrative judge overruled Horseshoe’s objection, citing a “special situation,” but did not describe that situation, and stated “a copy was in the Commission file, so I’ll allow it.” On appeal, Horseshoe argues that a copy of the second set of Dr. Na-del’s records from January 12, 2001-the records evidencing that Dr. Nadel assumed Newton had been card dealing for Horseshoe since 1997 and relating the focal dystonia to her card dealing-actually were not located in the Commission’s file. Furthermore, Horseshoe argues that even if Dr. Nadel’s 2001 medical records had been properly authenticated and introduced into evidence at the hearing, they should not have been relied upon to formulate an award because Dr. Nadel was under a mistaken impression that Newton had been working as a card dealer for Horseshoe since 1997, and his medical opinion in 2001 was based on that mistaken fact. Horseshoe points out that the testimony at the hearing revealed that during the time the disability award covered, Newton had not been card dealing, and had been working for other employers, but Dr. Nadel was apparently unaware of these facts. Horseshoe requests this Court to review whether the Commission’s abandonment of its own procedural rules regarding the admission of medical evidence requires a reversal.

¶ 8. The Mississippi Workers’ Compensation Commission has the procedural authority to promulgate and enforce its own rules for the administration of compensation claims, Mississippi Code Annotated section 71-3-61 (Rev.2000), and has the “discretion to enlarge the scope of the record and relax rules of discovery applicable to hearings.” Bermond v. Casino Magic, 874 So.2d 480, 484(¶ 11) (Miss.Ct.App.2004); see also Mid-Delta Home Health, Inc. v. Robertson, 749 So.2d 379, 387(¶ 29) (Miss.Ct.App.1999) (quoting Delta Drilling Co. v. Cannette, 489 So.2d 1378, 1380-81 (Miss.1986)). However, while the Commission is to be given deference in applying and interpreting its own rules, the concern of ensuring due process still remains. Bermond, 874 So.2d at 485(¶ 11). Due process dictates that the Commission is to follow its own procedural due process principles in conducting its duties of administering workers’ compensation claims. Id. In this case the Commission accepted unauthenticated medical records that were derived as a result of faulty information, without proper introduction as required by MWCC Procedural Rule 9, and utilized the records as a basis for awarding compensation.

¶ 9. The Commission has implemented its authority and relaxed the general rules of evidence, which are technically only applicable to circuit, chancery, and county courts in civil suits, “so as to permit the introduction of any relevant and competent evidence.” MWCC Proc. R. 8. Utilizing this authority to relax the Mississippi Rules of Civil Procedure, the Commission promulgated MWCC Procedural Rule 9, which provides for the introduction of evidence, in pertinent part:

The party wishing to introduce such medical records shall notify opposing parties and the Commission by written notice served at least thirty (30) days prior to the scheduled hearing.
The medical records of examining or treating physicians ... shall be submitted with ... a sworn statement of either the physician or the physician’s medical records custodian stating that the attached medical records are a true and correct copy of the medical records of the physician as kept in the regular course of the physician’s medical practice.

The introduced medical records of Dr. Na-del dated in 2001 did not comport with MWCC Procedural Rule 9. Nonetheless, the administrative judge allowed the medical records into the record. While we recognize that MWCC Procedural Rule 14 allows the Commission or administrative judge to deviate from the procedural rules “insofar as compliance therewith may be found to be impossible or impracticable,” in this case, we are unable to ascertain the “special situation” to which the administrative judge referred. The unauthenticated medical records of Dr. Nadel dated in 2001, which contained the opinion that Newton suffered focal dystonia as a result of her work, were grounded on the mistaken belief that Newton was currently and had been dealing cards for Horseshoe since 1997, and did not account for Newton’s intervening employment elsewhere. It was these records upon which the administrative judge based part of Newton’s compensation award, finding Newton’s focal dystonia was incurred as a result of her work with Horseshoe.

¶ 10. This Court has stated before that “[i]t is a rare day when we will reverse the Commission for an action taken in the implementation and enforcement of its own procedural rules.” Mid-Delta Home Health, Inc., 749 So.2d at 387(¶ 30). However, giving the Commission all the discretion in disregarding its own procedural rule, we still cannot uphold its decision in awarding the temporary total disability and permanent disability benefits for a condition improperly causally connected to the claimant’s work. We, therefore, reverse and render the disability awards based on the finding that Newton suffered focal dystonia as a result of her work with Horseshoe.

II. WHETHER THE COMMISSION’S FINDING OF TEMPORARY TOTAL DISABILITY FROM JANUARY 4, 2004 TO JUNE 7, 2004 WAS BASED ON THE CORRECT LEGAL STANDARD AND SUPPORTED BY SUBSTANTIAL EVIDENCE

¶ 11. Horseshoe additionally appeals the temporary total disability benefits awarded for focal dystonia relating to Newton’s treatment sought and received in 2004. In January 2004, nearly seven years after Newton worked as a card dealer for Horseshoe, she began injection treatment for her focal dystonia with Dr. Sullivan. Dr. Sullivan opined that Newton’s condition was static and recommended injections several times per year indefinitely. The Commission awarded temporary total disability benefits during the 2004 time period that Newton was treated by Dr. Sullivan, and Horseshoe argues that this part of the disability award was entered in error. Horseshoe points out that during the period of January 4, 2004 to June 7, 2004, for which Newton was awarded benefits for her focal dystonia condition, Newton was not, nor had been employed with Horseshoe for some time. In fact, Horseshoe points out that Newton had been employed by another casino, Grand Casino Resort, around that same time period and was card dealing-the activity that she had been previously medically restricted from performing by Dr. Nadel. Furthermore, evidence introduced at the hearing showed that prior to her treatment with Dr. Sullivan in 2004, Newton had worked in several different positions with several different employers and had incurred other physical injuries during that interim.

¶ 12. We can find no basis for the award of temporary total disability benefits during 2004 relating to injuries incurred as a result of Newton’s employment with Horseshoe. The slim evidence supporting the Commission’s finding that Newton’s treatment in 2004 was related to a condition of focal dystonia incurred as a result of her card dealing for Horseshoe in 1997 pales in comparison to the overwhelming weight of the evidence to the contrary. Thus, the award for temporary total disability for the period in 2004 was granted in error. Therefore, we reverse and render.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANTS AND THE AP-PELLEE.

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


author: CHANDLER, J.,

text:
    Angela Ruth (Hancock) WILSON, Appellant v. William Franklin WILSON, Appellee.
    No. 2005-CA-02096-COA.
    Court of Appeals of Mississippi.
    Oct. 9, 2007.
    Rehearing Denied Feb. 19, 2008.

      Mary Lynn Williams Damare’, attorney for appellant.
    John Stannard Farese, Ashland, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The Chancery Court of Desoto County granted Angela Wilson a divorce from Frank Wilson based on adultery and divided the marital property between the parties. Aggrieved by the property division by the court, Angela appeals. She asserts that the court (1) erred in classifying Frank’s corporation, Tri-State Underground, Inc., as nonmarital property, and (2) awarded an insufficient amount of alimony for Angela to continue her lifestyle.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Angela Hancock Wilson and William Franklin “Frank” Wilson married on October 12,1987. Angela brought two children into the marriage, but she and Frank did not have any children of their own during the marriage. They remained together until April 2004, at which time Frank moved out of the marital home, and Angela discovered he had been seeing another woman. She filed for divorce on the grounds of adultery, and a trial was held in the Chancery Court of Desoto County on May 5, 2005.

¶ 4. Prior to the trial, Angela sought to join Tri-State, Inc. as a party to the suit so that the court could potentially divide its assets. The chancellor denied this motion as well as Angela’s motion for a continuance and for an independent accounting of Tri-State. In the motion, she argued that Frank had failed to turn over all the necessary financial information for the corporation and that more time was needed to properly value Tri-State for the purposes of property division.

¶ 5. At trial, Angela presented evidence as to the value of Tri-State. While the chancellor accepted the value of the company as the value represented on a balance sheet introduced by Angela, she argued that it was not an accurate valuation because the supporting documents were lacking. The accountant Angela called to testify to the value of Tri-State stated that in March 2005, there were over four hundred deleted transactions in the accounting file that he examined. He testified that he could not properly value the company from the information he had been given.

¶ 6. Angela rested her case without calling Frank to the stand after the chancellor said she would not be allowed to call him because she had exceeded her time by fourteen minutes. Immediately after Angela rested, Frank rested his case without putting on any witnesses.

¶ 7. During the trial, Frank stipulated to the grounds for divorce as being adultery, so the only remaining issue was the division of the marital property. The chancellor granted a divorce based on uncondoned adultery and made the following property division: (1) the ownership of 'M-State Underground, Inc. to Frank, (2) the leasehold in Hernando County and all its furnishings to Angela, (3) the 2004 Yukon, or like vehicle, to Angela free and clear, and (4) the marital home to be sold and its proceeds and debts divided evenly. Angela also received an alimony award of $4,000 per month to continue until the court ordered otherwise and attorney’s fees in the amount of $19,813.72.

STANDARD OF REVIEW

¶8. The scope of review in a domestic relations case is limited by the substantial evidence/manifest error rule. Mizell v. Mizell, 708 So.2d 55, 59(¶ 12) (Miss.1998). We will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 59(¶ 13). However, we will conduct a de novo review for questions of law. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002).

ISSUES AND ANALYSIS

I. Whether the court erred in classifying and valuing Tri-State Underground, Inc. and, thereby, ordered an inequitable distribution of marital property

¶ 9. Angela’s first argument is that the chancellor erred in the divorce decree by finding Tri-State to be the separate property of Frank. She goes on to argue that the valuation of the corporation was improper, and that these errors resulted in an inequitable distribution of marital property in favor of Frank. We will first address the chancellor’s classification of TriState.

¶ 10. Marital property is “any and all property acquired or accumulated during the marriage.” Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). “Assets so acquired or accumulated during the course of the marriage are marital assets and are subject to an equitable distribution by the chancellor.” Id.

¶ 11. In the final decree of divorce, the chancellor determined that equitable division of the following property was necessary: “ownership of Tri-State Underground, Inc., personal vehicles, residence in Tate County, Mississippi, a leasehold interest in Lot 1 Phase 1 of the Lakes of Cedar Grove situated in Hernando, Mississippi, and household furnishings.” He then ordered that Frank “is found to be the sole owner of said corporation free and clear of any claims by the plaintiff.”

¶ 12. While Angela argues that the chancellor erred in classifying Tri-State as separate property, we do not find this to be the case. Contrary to Angela’s assertions, the chancellor did not find that the corporation was separate property. As seen in the language quoted above, the chancellor properly found that the ownership interest in Tri-State was an asset to be equitably divided. He then refused to divide the ownership of Tri-State and ordered Frank to be its sole owner. His reasoning was that Angela’s contributions to the corporation were minimal. Considering the value of the corporation, this award is essentially an award of $10,000 of the marital property, the ownership interest in Tri-State, to Frank.

¶ 13. Ultimately, Frank received all of the ownership interest of Tri-State but not because the chancellor treated it as separate property. Even though the chancellor awards the entirety of an asset to one party, it does not mean he treated it as separate. Collins v. Collins, 722 So.2d 596, 600(¶ 14) (Miss.1998). In Collins, the wife alleged that the chancellor treated the equity in the marital home as separate by awarding it all to her husband. Id. The supreme court, however, found that the chancellor fashioned an equitable division by considering the home as well as the remaining assets. Id. We find the issue at hand is identical to the issue in Collins. The chancellor properly classified the ownership of Tri-State as marital property.

¶ 14. As far as the valuation of TriState, the $10,000 taken from the balance sheet was the only value of the corporation offered by either party. In his opinion, the chancellor noted that the assets and income of the corporation were unclear but found that there was no evidence beyond the balance sheet that reflected its value. We have previously upheld a. chancellor’s valuation based on less than ideal proof when the valuation had some evidentiary support and it was the responsibility of the parties to produce evidence of value. Dunaway v. Dunaway, 749 So.2d 1112, 1121(¶ 28) (Miss.Ct.App.1999).

¶ 15. Furthermore, the chancellor found that the financial status of Frank’s companies had been precarious. The record supports this conclusion as the first company went bankrupt and resulted in a lien on the marital home. Testimony from Angela also revealed that Frank had credit cards in various names of other individuals to support his spending.

¶ 16. Angela briefly argues that the chancellor should have granted her pretrial motion for a continuance to value Tri-State. However, the trial court has broad discretion in deciding whether to grant a continuance, and we will not reverse that decision unless it resulted in manifest injustice. Profilet v. Profilet, 826 So.2d 91, 93(¶ 6) (Miss.2002). Angela had over a year from the date she filed for divorce to value the corporation, and there was a month remaining before trial when she filed her motion.

¶ 17. Having dealt with the classification and the valuation of Tri-State,- we now address whether the chancellor properly divided the marital property., Angela’s sole complaint with the division of property was that Tri-State was not properly divided. Because we have found, however, that the chancellor properly dealt with the corporation, we do not find his award of Tri-State, valued at $10,000, to be in error.

¶ 18. Angela received the 2004 Yukon, free and clear, the leasehold interest to the Hernando residence, one-half of the value of the marital home, and personal property in her possession, which she valued at $50,000 in her financial statement. Frank received sole ownership of Tri-State, two encumbered vehicles, one-half of the value of the marital ■ home, and any personal property in his possession. Based on these facts, we find the assets of the marriage were equitably divided, and proper application of the Ferguson factors supports this result. Ferguson v. Ferguson, 639 So.2d 921, 928-29 (Miss.1994).

¶ 19. The chancellor properly classified the interest in Tri-State as marital, and he was within his discretion in valuing the company according to the only figures that were in evidence. The division of assets is equitable in light of the Ferguson factors in evidence. Id. This issue is without merit.

II. Whether the court awarded adequate alimony

¶ 20. Angela’s second argument is that the award of alimony was inadequate. She argues that she should receive at least the $10,000 per month that Frank paid her in the temporary support order.

¶ 21. A chancellor has discretion in making an award of alimony, and his decision will not be overturned absent an abuse of discretion or manifest error. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). In determining an award of alimony, the trial court considers a number of factors. Id.

¶ 22. In the present case, the chancellor made the following findings under Armstrong:

(1) Angela had no income, while Frank made over $8,000 per month,
(2) Frank’s earning capacity far exceeds Angela’s, who worked little during the marriage,
(3) Frank’s needs should amount to approximately $4,000 per month when temporary support is deducted, and Angela’s expense estimate of over $9,000 per month is greatly exaggerated,
(4) Angela should receive most of the personal property of the marriage to offset Frank’s receipt of the business and its corresponding assets and liabilities,
(5) The marriage lasted seventeen years,
(6) The parties had no children from the marriage,
(7) Frank is forty-five, and Angela is fifty,
(8) The standard of living for each party has been far beyond his or her means,
(9) There was nothing on tax consequences,
(10) Frank is at fault for the divorce because of his adultery,
(11) Both parties equally overspent assets, and
(12) There were no other factors.

¶ 23. It seems then that the chancellor considered and made findings on each of the factors enumerated in Armstrong. Based upon these findings, he awarded Angela alimony payments of $4,000 per month. While this may have been below the standard of living to which she was accustomed, it was an award of approximately fifty percent of Frank’s reported income.

¶ 24. Angela had been receiving temporary support of $10,000 per month until approximately February 2005. After reviewing her expense estimates, the chancellor found them to be greatly exaggerated. Specifically, he found “discrepancies or gross overspending with respect to [Angela’s] living expenses in the areas of property taxes and insurance, food and household supplies, electricity, telephone, clothing, entertainment, incidentals, gasoline and oil, charitable donation[s], Christmas gifts, cable TV, yard and maid expenses. He had also previously noted the parties’ long history of living beyond their means.

¶ 25. Angela, nevertheless, argues that she should continue to receive at least the $10,000 per month that she was receiving for temporary support. However, it is not always financially feasible for one party to provide the amount of alimony that the other party seeks. Bridges v. McCracken, 724 So.2d 1086, 1088(¶ 10) (Miss.Ct.App.1998). It may be, as it was in Bridges, that both parties will be subject to a reduced standard of living following a divorce. Id. In the case before us, Angela argues that Frank’s temporary payments of $10,000 indicate his ability to pay that much. She neglects, however, to reconcile the fact that, at the time of trial, Frank had failed to pay the full amount of temporary support for a number of months, he had outstanding loans from Tri-State, and she had testified about how Frank would establish credit in others’ names.

¶ 26. We do not find the chancellor abused his discretion in his award of alimony to Angela. The chancellor considered each of the Armstrong factors and fashioned an award that took into consideration the needs of Angela as well as the ability of Frank to pay. This issue is without merit.

¶ 27. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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