author: GRIFFIS, J., for the Court.

text:
    Mark Anthony COUGLE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00744-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.
    Rehearing Denied Oct. 16, 2007.

      Mark Anthony Cougle, Appellant, pro se.
    Office Of The Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Mark Anthony Cougle appeals the denial of his petition for post-conviction relief. On appeal, he alleges three errors: (1) his plea was involuntary and unintelli-gently entered; (2) there was no factual basis for the acceptance of the Alford plea; and (3) his attorney provided ineffective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. On June 4, 2003, Cougle was indicted in Calhoun County Circuit Court for grand larceny. On November 19, 2004, while maintaining his innocence and upon advice of counsel, Cougle filed a “Petition To Enter a Guilty Plea.”

¶ 3. At the plea hearing, Cougle’s attorney provided a brief recitation of the facts underlying the charged offense. He explained that Clinton T. Dishman spotted a Suburban pulling the stolen trailer of Terry Bounds. He followed the vehicle and took down its tag number. The tag number was traced back to the owner of the Suburban. Cougle and the owner had traded vehicles for the week. Cougle stated that the Suburban was in his sole possession at the time the Suburban was spotted by Dishman.

¶ 4. Cougle’s plea was an “open” plea, but he requested the trial court to allow for non-adjudication under Mississippi Code Annotated Section 99-15-26 (Supp. 2004). The trial court accepted the plea, rejected the request for non-adjudication, and gave Cougle a three year sentence with all three years suspended and probation for three years.

¶ 5. Thereafter, Cougle was found to have violated his probation. His suspended sentence was revoked, and he was ordered incarcerated for one year of his sentence with the remaining two years to be suspended. Cougle then brought his motion to vacate the judgment invoking the post-conviction relief act.

¶ 6. The trial court granted Cougle a hearing, where Cougle and his former attorney were the only witnesses. The trial judge denied Cougle’s motion.

STANDARD OF REVIEW

¶ 7. This Court is quite familiar with the standard of review for matters involving post-conviction relief. “The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Bush v. State, 922 So.2d 802, 804(¶ 3) (Miss.Ct.App.2005) (citing Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002)).

ANALYSIS

¶ 8. Cougle argues that the trial court should not have accepted his plea for several reasons. Prior to addressing those reasons, we must address Cougle’s reference to his plea as a plea of nolo contende-re. Mississippi does not allow the acceptance of a plea of nolo contendere in felony cases. Keyes v. State, 312 So.2d 7, 10 (Miss.1975). The record clearly shows that Cougle did not enter a plea of nolo contendere. Instead, Cougle insisted his innocence throughout the plea hearing while asking the trial court to treat him as guilty.

¶ 9. Thus, Cougle made an Alford plea in reference to the holding of the Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Alford held that there was no constitutional error in accepting a guilty plea even when the defendant maintains his innocence. Id. at 37, 91 S.Ct. 160. This Court further interpreted Alford to require that such a plea would be accepted when “the defendant knowingly and intelligently concluded that his best interests required entry of the guilty plea and the trial judge made a determination on the record that there was strong evidence of actual guilt.” Bush, 922 So.2d at 805(¶ 4) (citing Alford, 400 U.S. at 37, 91 S.Ct. 160).

I. Whether Cougle’s plea was involuntary and unintelligently entered

¶ 10. Cougle alleges that the plea was involuntary and unintelligently entered. Since a guilty plea must come from an accused’s informed consent, we look to the basis of this challenge. Myers v. State, 583 So.2d 174, 177 (Miss.1991).

A. Cougle’s plea was coerced by his attorney threatening to withdraw

¶ 11. Cougle’s primary allegation is that his attorney coerced him into entering the plea by threatening to withdraw as his counsel. A similar situation occurred in Grimes v. State, 812 So.2d 1094 (Miss.Ct.App.2001). In Grimes, during a plea colloquy, the trial court asked the defendant if he had committed the offense charged in the indictment, to which the defendant responded, “no.” Id. at 1095(¶ 4). Immediately, the trial court paused the proceedings to allow time for defendant and his counsel to discuss the matter. Id. Afterward, the attorney asked to withdraw, because the defendant would not accept the “good plea bargain” he had procured. Id. After that statement by counsel and further questioning of Grimes, especially regarding his desire to plead guilty, he entered a plea of guilty. Id. at 1096(¶ 6). Grimes later filed a motion for post-conviction relief and claimed that his guilty plea was coerced by his attorney’s threat to withdraw, as well as ineffective assistance of counsel. Id. at 1095(¶ 1). This Court held that:

[i]n view of the numerous times the trial judge queried Grimes regarding his desire to plead guilty, and in view of Grime’s statement that he understood that he did not have to plead guilty even though his attorney threatened to withdraw, Grime’s assertion that his attorney’s “coercion” rendered the plea involuntary is without merit.

Id. at 1096(¶ 6).

¶ 12. Here, Cougle stated that the morning before trial, his attorney told him that if he did not enter a plea he would withdraw as his counsel. During the post-conviction relief hearing, Cougle’s attorney testified that he never “threatened” to withdraw as Cougle’s counsel if he did not take the plea. Additionally, the attorney testified that the conversation that Cougle mentioned was not from the morning before trial, but merely the morning before he entered his plea. Trial would have started at a later date. The attorney further testified that he explained to Cougle that he could only petition the trial court to withdraw and that the trial court might allow it. At the plea hearing, the trial court went through a very thorough questioning of Cougle to ensure that Cougle understood that he could have counsel appointed for trial if he could not afford one. The judge even stated that if Cougle reached a disagreement with his current counsel, the judge could appoint new counsel in his stead.

¶ 13. While the threat to withdraw was not on the record as it was in Grimes, the potential for such a threat to have arisen existed. After reviewing testimony on the issue during the hearing for post-conviction relief, the plea colloquy, advice from counsel about the withdrawal process, and the thorough line of questioning by the trial court, this Court concludes that Cougle’s guilty plea was not coerced by threat of his counsel to withdraw. The same protections that were available in Grimes were afforded Cougle; primarily, a thorough examination by the trial court during the plea colloquy to assure no coercion existed. Id. Therefore, Cougle’s allegation that his plea was involuntary due to coercion is without merit.

B. Cougle knowingly and intelligently concluded that the plea was in his best interest

¶ 14. While Cougle does not specifically allege that the plea was not made in his best interest, he does allude to it. As stated before, our interpretation of Alford requires the Alford plea to have been made after the defendant has “knowingly and intelligently concluded that his best interests require entry of the guilty plea.” Bush, 922 So.2d at 805(¶ 4) (citing Alford, 400 U.S. at 37, 91 S.Ct. 160).

¶ 15. Cougle’s plea was an “open” plea, meaning that the trial court was only bound by the statutory mínimums and máximums for sentencing. There was no bargain or deal reached with the State to reduce the charges or to receive a recommendation on a sentence from the State. That does not mean that Cougle was not hoping for a light sentence. Cougle requested non-adjudication in his plea petition under Section 99-15-26. The trial court inquired whether the plea was conditioned upon non-adjudication and was informed by Cougle’s counsel that it was not. Further, the trial court informed Cougle that the only thing binding it in regards to sentencing were the statutory mínimums and máximums, to which Cougle responded that he understood.

¶ 16. This plea was well thought out by Cougle. He spent a number of days going back and forth,' debating whether to enter it or not. It is apparent from the eviden-tiary hearing that even on the morning before he entered the plea, he discussed it with counsel, as well as his wife. It is worth noting that this was not Cougle’s first criminal charge. The record shows that he had at least three previous charges, one in Alabama, Tennessee, and Mississippi, where he had received what appeared to be non-adjudication on some of the charges. Cougle entered his plea hoping for non-adjudication and mercy from the trial court. Under Section 99-15-26, if Cougle had received non-adjudication once before, he is not entitled to the same again. While he did not receive non-adjudication, he did receive a merciful sentence with all three years suspended and three years of probation. ■

¶ 17. After reviewing the thorough questioning by the trial court during the plea hearing, Cougle’s previous knowledge of the courts, and his constant evaluation of whether to enter the plea or not, this Court finds that the trial court did not abuse its discretion when it held that Cougle’s plea was entered after he knowingly and intelligently concluded' that it was in his best interests. Bush, 922 So.2d at 805(¶ 4) (citing Alford, 400 U.S. at 37, 91 S.Ct. 160).

II. Whether there was a factual basis for the acceptance of the Alford plea

¶ 18. Cougle alleges that there was no factual basis for the trial court to accept his guilty plea. He correctly states that a guilty plea must provide a trustworthy basis for believing that the defendant is in fact guilty. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Here, there was factual support for the acceptance of the guilty plea. Cougle’s counsel provided the brief recitation of the facts underlying the charge. Dishman stated that he saw the stolen trailer being pulled by a black Suburban and he took its tag number. The tag number was traced back to the owner of the Suburban. Cougle and the owner had previously traded vehicles for the week. Also, Cougle stated that he was in sole possession of the black Suburban with the matching tag number from Dishman’s description at the time Dishman spotted the black Suburban.

¶ 19. These facts were enough to provide a trustworthy basis for accepting Cougle’s plea of guilty. Cougle is not entitled to challenge the evidence here on post-conviction relief as he would in a trial. There exists a presumption that the trial court’s acceptance is correct, and it is the burden of Cougle to show some reversible error to this Court. Branch v. State, 347 So.2d 957, 958 (Miss.1977). Having failed to do so, we find there were sufficient facts to provide a trustworthy basis for accepting Cougle’s plea. This allegation is without merit.

III. Whether Cougle’s counsel was ineffective

¶20. Cougle alleges that his counsel was ineffective in violation of his right to counsel. Since Cougle was represented by counsel throughout these proceedings, being pro se only before this Court, we look to his counsel’s actions.

¶ 21. To prevail on a claim of ineffective assistance of counsel, Cougle must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Cougle, and we will measure the alleged deficiency within the totality of circumstances. Hiter v. State, 660 So.2d 961, 965 (Miss.1995); Carney v. State, 525 So.2d 776, 780 (Miss.1988). However, a presumption exists that the attorney’s conduct was adequate. Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001).

¶ 22. Following the filing of the motion to vacate the judgment, the trial court held a hearing to determine if post-conviction relief should be granted. At this hearing Cougle and his counsel were the only two witnesses. • Cougle stated that he entered the guilty plea because his counsel threatened to withdraw if he did not and that without the threat he would not have pled. The testimony from Cougle’s counsel suggests that there never was any such threat. Cougle’s counsel testified at the hearing that, from the beginning, that his agreement with Cougle was that he would only provide representation for everything up to trial. If Cougle wanted to take the matter to trial an additional retainer would need to be provided thirty days prior to trial. The retainer not having been paid, Cougle’s counsel informed him that if the matter were to proceed to trial, he would petition the trial court to withdraw. Cou-gle’s counsel testified that this payment schedule was contained in the contract representation which was fully explained to Cougle and to which Cougle agreed. He further testified that he explained the withdrawal process to Cougle and that the trial court could choose to accept or deny his petition to withdraw as counsel.

¶ 23. In addition, through various letters and conferences, Cougle’s counsel advised him that at trial the State could probably get a conviction, and Cougle would potentially face five years imprisonment, while the judge may be more lenient with a plea. Cougle’s attorney has “a duty to fairly, even if that means pessimistically, inform the client of the likely outcome of a trial based upon the facts of the case.” Daughtery v. State, 847 So.2d 284, 287(¶ 6) (Miss.Ct.App.2003). If the attorney believes that it is in his client’s best interest to plead guilty, it is his duty to inform him of that fact. Id. (citing Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981)). This is exactly what Cougle’s counsel did.

¶ 24. After reviewing the evidence, this Court finds that the Cougle’s counsel did not provide ineffective assistance. Further, the evidence in the record falls far short of overcoming the presumption that the attorney’s conduct is adequate. Burns, 813 So.2d at 673(¶ 14). Therefore, this allegation is without merit.

¶ 25. Finding no merit to any of Cou-gle’s allegations, this Court affirms the trial court’s decision to deny post-conviction relief.

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

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


source: Caselaw Access Project

author: ISHEE, J., for the Court.

license: Public Domain

text:
    William H. DURHAM, Appellant v. UNIVERSITY OF MISSISSIPPI, Appellee.
    No. 2006-CA-01388-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2007.

      L. Breland Hilburn, Jackson, Walter Jerome Blessey, Carroll Louis Clifford, Jackson, attorneys for appellant.
    Camille Henick Evans, Jackson, Peter H. Barrett, Robert C. Galloway, Gulfport, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. On November 27, 2001, William H. Durham filed his original complaint against Mississippi Space Commerce Initiative (MSCI) and Allan Falconer, in the Circuit Court of Harrison County, for damages that he suffered personally from an alleged breach of a commercial lease agreement purportedly entered into by MSCI and Gulfport Shopping Center, Inc. On July 15, 2005, Durham filed an amended complaint naming the University of Mississippi as a defendant in the place of MSCI. On May 1, 2006, the University filed a motion to dismiss, or in the alternative, a motion for summary judgment. A hearing was held on the motion on June 23, 2006, and on July 14, 2006, the trial court granted the dismissal, agreeing with the University of Mississippi that Durham did not have standing to proceed with his claim against them. On July 25, 2006, the court denied Durham’s motion to reconsider. Aggrieved by the court’s decision, Durham appeals ánd asserts the following issues for this Court’s review: (1) the trial court erred in applying the rule of Bruno as Durham’s cause of action was for personal injuries, not injuries to a corporation, and (2) that Durham does have standing to sue, as he was a third-party beneficiary of the lease executed between Gulfport Shopping Center, Inc. and the University of Mississippi. Finding no error, we affirm.

FACTS

¶ 2. MSCI operated under the Joint Sponsored Research Agreement (JSRA) between the National Aeronautics and Space Administration (NASA), the University of Mississippi, and the State of Mississippi, with its designated agent the Mississippi Department of Economic and Community Development, having a legal existence for a term of five years from April 7, 1998, to April 7, 2003. The purpose of MSCI was to increase Mississippi’s involvement in the remote sensing industry development at the national level.

¶ 3. According to the JSRA, MSCI would be managed by an Executive Management Council (EMC), consisting of Dr. Robert Khayat, Chancellor of the University of Mississippi; Roy Estess, Director of NASA’s Stennis Space Center; and James Heidelberg, Director of the Mississippi Department of Economic and Community Development. Dr. Allan Falconer was the Executive Director of MSCI. Under the JSRA, the EMC “shall provide executive direction and establish policy in the conduct of MSCI activities, operating under a full consensus model for decision-making.” Falconer, as the executive director, had the responsibility of “operation and management of MSCI.”

¶ 4. On March 10, 1999, Gulfport Shopping Center, Inc., of which Durham was a minority shareholder, proposed a commercial lease agreement to MSCI, by and through Falconer. The lease agreement was for improved real property owned by Gulfport Shopping Center, Inc., specifically the building previously occupied by Bruno’s, i.e., “Foodworld,” in Gulfport. The named landlord on the lease agreement was Gulfport Shopping Center, Inc. and the named tenant was MSCI. According to deposition testimony by Falconer, at the time he and Durham discussed the lease agreement, he communicated to Durham that “MSCI was not a competent legal entity ... it was a partnership or agreement between the parties.” Additionally, he testified he expressed that the lease agreement needed to be presented to MSCI’s Executive Management Council as quickly as possible, in an effort to “get things moving.” Also, Durham stated in deposition testimony that Chancellor Kha-yat informed him that the lease agreement would need the Board of Trustees of State Institutions of Higher Learning’s (IHL) approval to move forward.

¶ 5. The IHL’s minutes from April 15, 1999, reflect their approval of the lease agreement. However, the University of Mississippi maintained that IHL’s approval was subject to “(1) all funding for payments under the lease being provided by NASA, and (2) the approval of the terms of the lease by the Mississippi Attorney General.” Furthermore, the University asserts that because NASA never approved any funding for the lease agreement, the proposed agreement was not valid. On the other hand, Durham asserted that the University, of Mississippi was obligated on the lease agreement pursuant to Falconer’s signature and the IHL’s approval on April 15. On March 10, 2000, according to Durham’s deposition testimony, Tom Starling received a one sentence fax stating, “MSCI is no longer interested in pursuing this deal.”

¶ 6. On November 27, 2001, Durham filed his original complaint, naming MSCI and Falconer as defendants. The amended complaint, naming the University of Mississippi in the place of MSCI, was filed on July 15, 2005. The University filed a motion to dismiss it on July 29, 2005. The trial court held a hearing on the matter on June 23, 2006. On July 14, 2006, the court entered an order granting the University of Mississippi’s Rule 12(b)(6), motion to dismiss, finding that Durham- lacked standing to pursue his claim individually, rather, the claim for damages should be made in the name of the corporation, Gulfport Shopping Center, Inc. Durham’s motion for reconsideration was denied on July 31, 2006. He appeals arguing that the trial court erred in its interpretation of Bruno, finding Durham did not individually have standing to bring his damages claim.

STANDARD OF REVIEW

¶ 7. This Court reviews a Rule 12(b)(6) motion to dismiss with a de novo standard of review. Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893(¶4) (Miss.2006) (citing Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 513(¶ 9) (Miss.2005)). Under a de novo standard, we will affirm a grant or reverse a denial of a Rule 12(b)(6) motion to dismiss, where there are no set of facts that would afford relief to the opposing party. Gallagher, 926 So.2d at 893(¶ 4) (citing Lowe v. Lowndes County Bldg. Inspection Dep’t, 760 So.2d 711, 712(¶ 6) (Miss.2000)).

ISSUES AND ANALYSIS

(1) Whether the trial court erred in applying the rule of Bruno as Durham’s cause of action was for personal injuries, not injuries to a corporation.

¶ 8. Durham argues that the trial court erred in its application of Bruno when it granted the University’s motion to dismiss. He asserts that his action was for personal damages, not damages suffered by the corporation; therefore, he should be allowed to pursue his claim. We disagree.

¶ 9. It is a well settled Mississippi law that a corporation is a separate, distinct entity from its stockholders. Illinois Cent. R. Co. v. Miss. Cotton Seed Prods., Co., 166 Miss. 579, 589, 148 So. 371 (1933). In Bruno v. Southeastern Services, Inc., 385 So.2d 620, 622 (Miss.1980), Mississippi adopted the rule that

“an action to redress injuries to a corporation, whether in contract or in tort, cannot be maintained by a stockholder in his own name, but must be brought by the corporation because the action belongs to the corporation and not the individual stockholder whose rights are merely derivative. The rule applies even though the complaining stockholder owns all or substantially all of the stock in the corporation.” Id.

Bruno was a stockholder of a corporation and sought relief from Southeastern Services, Inc. for a breach of an oral agreement. Id. at 620. While the Bruno court stated an exception to this rule, where a claim may arise when the individual plaintiff can show that the opposing party owed him a duty directly, we are not persuaded that Durham has shown that to be the case for the University of Mississippi. Id. at 622. Therefore, Durham, as an individual shareholder of Gulfport Shopping Center, Inc., does not have standing to pursue his claim for damages from an alleged breach of the commercial lease.

¶ 10. According to the record, Durham personally made the mortgage payments for the subject matter property, sometime between Spring of 1998 and Spring of 1999 until Spring of 2000. Durham asserts that because his claim was brought to redress injuries personally incurred by him, not damages the corporation incurred, that Bruno is not the controlling law in this matter. Durham points out that in his amended complaint he made it clear that his claim was for damages he personally suffered. The complaint states, “In reliance upon the lease agreement, the plaintiff personally undertook to make the payment of mortgage and other obligations of Gulfport Shopping Center, Inc.” The complaint further states that there was “no injury to the corporation, the injury was personal to the Plaintiff....” However, the commercial lease agreement was between Gulfport Shopping Center, Inc. and MSCI; therefore, we do not find that the University of Mississippi owed any duty directly to Durham. Additionally, if there were a duty owed by the University of Mississippi at all, then it would be to Gulf-port Shopping Center, Inc., the corporation named as the landlord to the purported commercial lease agreement.

¶ 11. Furthermore, we agree with the University’s contention that Durham’s payments of the mortgage, as a shareholder in Gulfport Shopping Center, Inc., were additional investments in the corporation. We are not persuaded by Durham’s contention that he “invested his own money to pay the mortgage payments and other necessary payments in order to maintain the property,” in reliance on representations by the University of Mississippi to the extent that such representations created a direct duty to Durham. In Vickers v. First Mississippi Nat’l Bank, 458 So.2d 1055, 1061-62 (Miss.1984), the court addressed the exception stated in Bruno regarding when a shareholder can pursue a claim for damages he has suffered personally. Id. The court affirmed the circuit court’s granting of summary judgment, as to the Bruno portion of the claim; however, it reversed and remanded Vickers’s third-party beneficiary claim. Id. at 1062. We find the facts in Durham’s claim to be very similar to the portion of Vickers where the court affirmed the grant of summary judgment based on the rule of Bruno. Specifically, Durham’s claim for losses suffered as a result of his voluntarily assuming payments of the mortgage on the property is much like Vickers’s claims for recovery of “damages from the loss of income from and the profits of Toche Enterprises, Inc., the loss of his investments, loss of sums due to the United States Internal Revenue Service....” Id. at 1061. “Under the law of Bruno, these are in law claims of the corporation for damage to the corporation with respect to which redress must be sought in the form of a stockholder’s derivative suit.” Id. (citing Bruno, 385 So.2d at 622). Durham maintains that his claim is for damages personally incurred and not for damages suffered by the corporation; however, this argument is not well taken. Durham voluntarily undertook the duty to make the mortgage payments, which were a benefit to the corporation, Gulfport Shopping Center, Inc. We do not agree that the University of Mississippi violated a duty owed directly to Durham from the alleged commercial lease agreement; therefore, the dismissal of Durham’s claim for lack of standing was proper. The Vickers court affirmed the circuit court’s grant of summary judgment as to this portion of the claim. We find that Durham’s claim for recovery of losses suffered to be similar in nature and affirm the circuit court’s grant of dismissal for lack of standing. This issue is without merit.

(2) Whether Durham does have standing to sue, as a third-party beneficiary of the lease executed between Gulfport Shopping Center, Inc. and the University of Mississippi.

¶ 12. Durham asserts that he has standing to bring his claim as third-party beneficiary of the alleged lease agreement between Gulfport Shopping Center, Inc. and MSCI. He relies on the court’s ruling in Burns v. Washington Savs., 251 Miss. 789, 795, 171 So.2d 822 (1965), which states “a third person may sue on a contract made for his benefit between others to the consideration of which he is a stranger.” In other words, the Bums court recognized a third-party beneficiary cause of action. However, after reviewing the record before us and the arguments presented, we disagree that the facts support this assertion. Additionally, we find that Durham did not present his third-party beneficiary claim before the circuit court, and it is not proper for us to review the alleged error when this is the first time the issue has been raised. Ory v. Ory, 936 So.2d 405, 409(¶ 9) (Miss.Ct.App.2006). Durham argues that his complaint and amended complaint were sufficient to put the University of Mississippi on notice that he would claim standing as a third-party beneficiary to the proposed commercial lease agreement. However, we are not persuaded by this fact and do not find anywhere in the record where Durham asserted his claim as a third-party beneficiary to the proposed lease agreement other than in his principal appellant brief. Therefore, this issue is procedurally barred from our review.

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

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

      . The lease agreement states the tenant as "Mississippi Space Commerce Initiative, a Mississippi Corporation.”

      . Durham that he had met with Tom Starling to discuss this matter because he was a lawyer in Jackson who worked on another real estate transaction that Durham was involved with. After they talked, Durham said Starling wrote "some letters to Khayat, maybe Jimmy Heidel, Mary Ann Connell....”

      .The March 10, 2000 fax was sent by Jim Steel, who according to Durham’s deposition testimony retired soon after that correspondence.

      . Durham’s brief states that he personally undertook the mortgage payments from March 10, 1999 until March 10, 2000. The University of Mississippi's brief states that Durham began making the mortgage payments in May 1998, when Bruno’s stopped leasing the property.


text:
    Napoleon L. EDWARDS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-01699-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2007.
    William C. Bristow, Tupelo, attorney for appellant.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. On September 1, 2006, Napoleon Edwards was convicted in the Circuit Court of Lee County of possession of a weapon by a felon. The jury found him guilty and he was sentenced to serve three years in the custody of the Mississippi Department of Corrections and pay a fine of $5,000. Edwards filed motions for a judgment notwithstanding the verdict and for a new trial, which the court denied. Aggrieved, Edwards timely appealed and argues that the trial court erred by denying his motions for a directed verdict and a judgment notwithstanding the verdict.

FACTS

¶ 2. Napoleon Edwards was arrested on July 18, 2005, following an altercation with Bernard Strong. The altercation took place at the Tupelo residence of Timmy Holliman, with whom Edwards was living at the time.

¶ 3. There were three different sequences of events that were presented at trial. Bernard and his wife, Pamela Strong, presented one, Edwards gave another, and the State also introduced a statement signed by Edwards that contradicted his testimony at trial.

¶ 4. Edwards’s statement indicated that Bernard threw a bag to him when he came up to the house. According to the statement, the bag belonged to Edwards, and it contained the gun, which Bernard was supposed to give to Edwards as payment. The statement also indicated that Edwards removed the gun from the bag and shot it into the ground because Bernard had threatened him. This was similar to the account presented by Bernard and Pamela, who testified that Edwards removed the gun from the bag and fired it into the ground. At trial, however, Edwards denied that he possessed or fired the gun. He also testified that he did not make the statement at the police station.

¶ 5. Nevertheless, it is uncontradicted that on July 18, police arrested Edwards after they responded to the scene of Holli-man’s residence because of a 911 call reporting shots fired. Officers apprehended Edwards, and, from a nearby house, they also recovered the bag containing a loaded revolver with one spent shell and a box of ammunition.

ISSUES AND ANALYSIS

¶ 6. Edwards’s two points of error are that the trial court should have granted his motions for a directed verdict and his motion for a judgment notwithstanding the verdict. Both of these issues involve the same analysis, so we will discuss them together.

¶ 7. Review of a motion for a directed verdict or judgment notwithstanding the verdict tests the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 15) (Miss.2005). The court must ask whether the evidence shows “beyond a reasonable doubt that the accused committed the act charged and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. at 843(¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Taking the evidence in the light most favorable to the verdict, the question is whether a rational trier of fact could have found all the elements beyond a reasonable doubt. Bush, 895 So.2d at 844(¶ 16) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 8. Section 97-37-5(1) of Mississippi Code Annotated (Rev.2006) states, “It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm . The State must prove that the defendant, “as a prior convicted felon, willfully possessed a firearm.” Jones v. State, 920 So.2d 465, 473(¶ 23) (Miss.2006). Similarly, to satisfy its burden in the present case, the State needed to put on evidence that Edwards was a convicted felon and that he willfully possessed a firearm.

¶ 9. We find that, contrary to Edwards’s assertions, there was sufficient evidence for the jury to find all of the elements of the crime existed. First, Edwards’s prior felony conviction was not at issue as both the State and the defense stipulated to it. This established the first element of the crime, that Edwards be a convicted felon.

¶ 10. As for the second element, there was testimony from multiple witnesses that Edwards not only possessed a gun but fired it into the ground. This alone is more than sufficient evidence since witness testimony may be sufficient to convict a defendant of possession of a weapon by a felon. Hope v. State, 840 So.2d 747, 750(¶ 11) (Miss.Ct.App.2003). This is so even if no weapon is recovered. Id.

¶ 11. In the present case, however, authorities also found the weapon that Edwards was alleged to have wielded, and the State introduced it at trial. Additionally, the State presented a statement signed by Edwards. In that statement, Edwards admitted he fired the gun into the ground, but he said he did so to protect himself. At trial, he denied that the statement was true and claimed that he just signed the papers that were given to him. Nevertheless, it was for the jury to judge the credibility of the evidence presented. Jones, 920 So.2d at 472(¶ 22).

¶ 12. Ultimately, we find that there was sufficient evidence from which the jury could find all the elements of the crime, possession of a firearm by a felon, existed beyond a reasonable doubt. Edwards’s issues are without merit.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF POSSESSION OF A WEAPON BY A FELON AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A $5,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Section 97-37-5(1) does contain exceptions for anyone who is pardoned, obtains relief pursuant to Section 925(c) of Title 18 of the U.S.Code, or receives a certificate of rehabilitation. None of these apply to Edwards, however.


text:
    Otha HORTON, Appellant v. Christopher EPPS, Margaret Bingham and Michelle Taylor, Appellees.
    No. 2006-CP-01833-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2007.

      Otha Horton, appellant, pro se.
    Jane L. Mapp, Jackson, attorney for appellees.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Otha Horton filed an action titled “Habeas Corpus or/alternative motion to show cause.” The circuit judge dismissed Horton’s claim for lack of “venue jurisdiction.” On appeal, Horton argues that venue was proper or, in the alternative, the trial court should have transferred the petition to the proper venue. The State concedes error. Therefore, we reverse and remand this case for further proceedings.

¶ 2. On May 8, 2006, Horton filed his petition in the Circuit Court of Rankin County, Mississippi. The basis of Horton’s petition surrounded an amendment to Mississippi Code Annotated Section 47-5-138.1 (Rev.2004) which became effective on April 28, 2004. The amendment specifically excluded certain offenders from being able to receive trusty earned time allowance. Id. One of the new exclusions applied to offenders convicted of selling a controlled substance. Id. Prior to the amendment, there was no such exclusion.

¶ 3. On January 29, 2004, Horton committed the crime of sale of cocaine. On September 14, 2005, Horton pled guilty before the Attala County Circuit Court. The dates are significant because Horton committed his crime before the amendment became effective, yet was sentenced after the amendment took effect. Since Horton committed the crime prior to the amendment, he argues that it would constitute an ex post facto law if it applied to him and that he should be eligible for trusty earned time. Most important to this appeal, Horton did not challenge the validity of his conviction or the resulting sentence.

¶4. The trial court found that it lacked “venue jurisdiction” over the matter. Horton argues and the State concedes that venue for the matter was proper in Rankin County, where the action was filed. It appears that the trial court considered this matter as a motion for post-conviction relief and thought it should have been brought in the county of the conviction, Attala County. However, “[p]ost-conviction matters address issues related to the prisoner’s conviction that were not addressed at the time of judgment.” Guy v. State, 915 So.2d 508, 510(¶ 5) (Miss.Ct.App.2005) (emphasis added). Horton does not take issue with his conviction or sentence, merely whether he is entitled to trusty earned time. Therefore, venue should be governed by Mississippi Code Annotated Section 11-11-3 (Rev.2004) and not the Mississippi Post-Conviction Relief Act.

¶ 5. Section 11-11-3(a) provides that venue is proper in the county where a defendant resides or in the county where the act or omission occurred. Horton was incarcerated at the Central Mississippi Correction Facility located in Rankin County. Two of the defendants worked at the facility and the actions that denied Horton trusty earned time. occurred in Rankin County. Therefore, it appears that Rankin County was the appropriate county for Horton’s petition.

¶ 6. Even if Rankin County were not the appropriate county for venue, the trial court should not have dismissed the matter. Rule 82(d) of the Mississippi Rules of Civil Procedure states that “[w]hen an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein.” (emphasis added). Therefore, the trial court should have at the very least transferred the matter to the court where it thought venue was proper..

¶7. Finding that the dismissal was in error, we reverse and remand this case for further proceedings consistent with this opinion.

¶ 8. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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


text:
    1999 BUICK CENTURY, VIN # 2G4W552M9X1530091, Appellant v. STATE of Mississippi and/or Tylertown Police Department and Mississippi Bureau of Narcotics, Appellee.
    No. 2006-CA-02046-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2007.

      Vanessa J. Jones, Hattiesburg, attorney for appellant.
    Thomas P. Welch, Jr., attorney for ap-pellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J., for the Court.

¶ 1. On July 27, 2006, Smith was arrested for the sale of crack cocaine to a confidential informant. The actual sale took place on April 10, 2006. On July 28, 2006, Smith received a notice of intention to forfeit seized property, a 1999 Buick Century. Both parties agree that the notice of forfeiture was sufficient.

¶ 2. On August 25, 2006, Smith’s attorney filed a petition to recover seized property and contest forfeiture. The petition was signed by Smith’s attorney. The petition was not signed by Smith. On September 7, 2006, the attorney for the State filed a response to the petition and a motion for summary judgment. The motion for summary judgment argued that Smith had failed to file a statutorily sufficient petition to contest the forfeiture. The motion claimed that the petition was insufficient because Smith had not signed the petition as required by statute.

¶ 3. On September 27, 2006, Smith’s attorney filed an amended petition which Smith had signed. On November 6, 2006, a hearing was held on the motion for summary judgment. The trial court then granted the motion for summary judgment on November 17, 2006. It is from this judgment that Smith appeals.

ANALYSIS

I. Whether Smith is procedurally barred for failure to make a motion to reconsider the summary judgment.

¶4. The State argues that Smith waived his right to appeal when he failed to file a motion to reconsider after entry of the summary judgment. The State’s authority for this proposition is Rule 52(b) of the Mississippi Rules of Civil Procedure and Concannon v. Reynolds, 878 So.2d 107 (Miss.Ct.App.2003). There is no merit to this argument.

¶ 5. This Court has stated that Rule 52 applies “only to decisions made after some proceeding in which contested facts need to be evaluated. It does not apply to a summary judgment.” Estes v. Bradley, 954 So.2d 455, 466(¶ 36) (Miss.Ct.App.2006). Further, this case is easily distinguished from Concannon. This case deals with a summary judgment where the court actually made no findings of fact. Instead, the court merely restated the facts that were not in dispute. In Concannon, we considered the award of attorney’s fees following a full trial. Concannon, 878 So.2d at 108(¶ 3). The analysis from Con-cannon does not provide any guidance for this case.

¶ 6. After the entry of Rule 56 summary judgment which decides all issues between all parties involved, the party seeking to appeal need only file a notice of appeal within the appropriate time to preserve his appeal. The parties are not precluded from filing post-judgment motions, but they are not required to file further documents to preserve the appeal.

II. Whether the grant of summary judgment was in error.

¶ 7. Smith argues that the trial court erred when it granted summary judgment for the State. Specifically, Smith claims that a hearing should have been granted, and the State should have been required to prove that the property was subject to forfeiture.

¶ 8. Mississippi Code Annotated Section 41-29-153(a)(4) (Rev.2005) provides that a vehicle is subject to forfeiture if it is “used, or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of property described in paragraph (1) or (2) of this section_” The property referenced in paragraphs (1) and (2) of the section includes controlled substances and the raw materials, products and equipment used to make controlled substances.

¶ 9. The administrative proceedings to obtain a forfeiture of property less than the amount of $10,000 are set forth in two statutes. Miss.Code Ann. §§ 41-29-176 and -179 (Rev.2005). Section 41-29-176(5) provides:

[a]ny person claiming an interest in property which is subject of a notice under this section may, within thirty (30) days after receipt of the notice or of the date of the first publication of the notice, file a petition to contest forfeiture signed by the claimant in the county court, if a county court exists, or otherwise in the circuit court of the county in which the seizure is made....

(Emphasis added). If a petition to contest the forfeiture is not timely filed, the attorney for the seizing agency shall prepare a written declaration of forfeiture and the property will be disposed or distributed.

¶ 10. Section 41-29-179(1) provides that the “owner of property ... that has been seized shall file an answer within thirty (30) days after the completion of service of process. If an answer is not filed, the court shall hear evidence that the property is subject to forfeiture and forfeit the property [to a law enforcement agency].” Further, Section 41-29-179(2) provides that if an answer is not filed the notice of intent shall be prima facie evidence that the property is subject to forfeiture.

¶ 11. Here, the only issue is that the only petition submitted within the thirty day period was not signed by Smith, the claimant. This Court has previously held in Shannon v. North Mississippi Narcotics Unit, 815 So.2d 1255, 1260(¶ 13) (Miss.Ct.App.2002), that a petition signed only by the attorney and not the claimant is “statutorily insufficient.” Smith acknowledges in his brief that his petition was deficient.

¶ 12. Nevertheless, Smith argues that by filing an amended answer after the thirty days passed cured the deficiency, and, therefore, a hearing should have been held. Smith cites Shannon for the proposition that a hearing should have been granted even with the deficient petition. Smith is mistaken as to the holding of Shannon. While a hearing was granted in Shannon, it was granted by the county court in error. A hearing was held in county court, and the court ordered that the seized property should be returned to its previous owners. Id. at 1258(¶ 9). However the circuit court reversed the decision, and this Court agreed that the county court’s judgment was in error. Id. This Court found that the petition to contest forfeiture was statutorily insufficient and the hearing was not needed since the petition should have been struck. Id. at 1260(¶ 13). Therefore, Shannon actually supports the circuit court’s entry of a summary judgment on the basis that the petition was insufficient.

¶ 13. Smith also argues that there was no evidence in the record to uphold this forfeiture. That allegation is untrue. Section 41-29-179(2) states that the notice of intention to forfeit seized property shall constitute prima facie evidence for forfeiture in the event an answer is not filed. Since Smith failed to file a statutorily sufficient petition within the thirty days, the circuit court could consider the notice as a prima facie case for forfeiture.

¶ 14. Accordingly, we find no error in the trial court’s grant of summary judgment. We therefore affirm.

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

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


author: CHANDLER, J., for the Court.

text:
    Curtis HARDIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00068-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2007.

      Curtis Hardin, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J., for the Court.

¶ 1. Curtis Hardin pled guilty to armed robbery, conspiracy to commit armed robbery, and aggravated assault. He filed a motion for post-conviction relief (PCR) in the Circuit Court of Pike County, which denied the motion. Hardin, pro se; appeals, raising the issues of: (1) whether his plea was intelligently and voluntarily made and (2) whether he received ineffective assistance of counsel.

FACTS

¶ 2. Curtis Hardin was indicted on February 21, 2003, for Count I, burglary of a residence, Count II, armed robbery, Count III, conspiracy to commit armed robbery, and Count IV, aggravated assault. The charges stemmed from events on the night of September 5, 2001, when Hardin, his wife, and' Danny Brown broke into the home of Danny’s uncle, Ottis Brown, in McComb, Mississippi. The group stole various items from Ottis and severely beat him with a pool stick and baseball bat, leaving him for dead.

¶ 3. Hardin initially pled not guilty to all charges. However, on June 13, 2003, he withdrew his not guilty plea and pled guilty to counts II, III, and IV. Count I was dismissed by the State. The court sentenced Hardin to serve a term of forty-five years on Count II, five years on Count III, and fifteen years on Count IV, with all sentences to run consecutively. It was further ordered that Hardin serve the first twenty years on Count II with the remaining twenty-five years to be served on post-release supervision, with five years to be served on a supervised, reporting basis and twenty years to be served on an unsupervised, non-reporting basis. On Count III, the court ordered Hardin to serve the first two years, with the remaining three years to be served on post-release supervision, and on Count IV, to serve the first ten years, with the remaining five years to be served on post-release supervision.

¶ 4.' Hardin filed his PCR on December 5, 2005. Ten days later, the court denied the motion.

STANDARD OF REVIEW

¶ 5. This Court will not disturb the trial court’s findings on post-conviction relief unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). However, where questions of law are raised, our review is de novo. Id.

LAW AND ANALYSIS

I. WHETHER HARDIN’S PLEA WAS INTELLIGENTLY AND VOLUNTARILY MADE.

¶ 6. A criminal defendant’s plea of guilt is binding when it is made voluntarily and knowingly. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). When a defendant has been informed of the nature of the charges against him and the consequences of entering a guilty plea, the plea is considered voluntary. Id. The trial court must inform the defendant of the minimum and maximum prescribed penalties and the constitutional rights forfeited by entering a guilty plea. Id. The defendant must also be told that his guilty plea waives several constitutional rights including the right to trial by jury, the right to confront adverse witnesses and the right to protection against self-incrimination. Id. The burden of proof is on the petitioner to prove that his plea was not voluntarily, knowingly and intelligently given. Gardner v. State, 531 So.2d 805, 810 (Miss.1988).

¶ 7. Hardin argues that he was entitled to a speedy trial and that the court failed to inform him that his guilty plea would waive that right. Hardin is correct that a defendant is constitutionally guaranteed the right to a speedy trial. However, when a defendant pleads guilty, he waives the right to a trial. Jones v. State, 747 So.2d 249, 251(¶ 8) (Miss.1999). The record reflects that, at the plea hearing, the court informed Hardin that his guilty plea would waive his right to a trial and that Hardin stated that he understood the waiver.

¶ 8. Hardin also claims that he was not advised of the consequences of entering a guilty plea. The record contradicts this claim and shows that the lower court properly informed Hardin of the nature of the charges against him as well as the consequences of entering the plea. The court advised Hardin of the maximum and minimum penalties that each charge against him carried, and Hardin stated that he understood those penalties. Hardin also stated that he understood the judge was not bound by any plea bargain arrangements made with the State. When asked if he was making the plea of his own free will, Hardin responded in the affirmative. When asked if he had been threatened or promised anything in exchange for his plea, Hardin answered in the negative.

¶ 9. Because the record clearly shows that Hardin entered a voluntary and knowing guilty plea, we find his argument to be without merit.

II. WHETHER HARDIN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 10. Hardin next argues that his attorney did not advise him of the right to a speedy trial and failed to raise a speedy trial violation. In Hardin’s PCR, he alleged various grounds for ineffective assistance of counsel. However, he did not include the allegation that his counsel failed to advise him of or pursue motions for a speedy trial. Hardin is procedurally barred from raising this issue for the first time on appeal. Frierson v. State, 812 So.2d 1090, 1092(¶ 18) (Miss.Ct.App.2001).

¶ 11. Notwithstanding the procedural bar, Hardin’s argument still fails. As stated above, a guilty plea waives the right to a speedy trial, whether that right is of constitutional or statutory origin. Rowe v. State, 785 So.2d 399, 400(¶ 3) (Miss.1999). Hardin pled guilty to the offense and thereby waived his right to a speedy trial. However, this Court may entertain a speedy trial claim in the context of ineffective assistance of counsel. Thomas v. State, 933 So.2d 995, 997(¶ 4) (Miss.Ct.App.2005). The standard to be applied to an ineffective assistance of counsel claim was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and is followed by this Court. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, the defendant bears the burden of proof that (1) counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defense. Id. We look at the totality of the circumstances in determining whether counsel was effective. Id. There is a strong but rebuttable presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Id. This test applies with equal validity to challenges to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

¶ 12. We are reminded that “merely raising the claim of ineffective assistance of counsel is insufficient to surmount the procedural bar.” Thomas, 933 So.2d at 997(¶ 5). Thus, in order for Hardin to succeed on his claim of ineffective assistance of counsel, he must prove that, but for his counsel’s deficiency, the speedy trial claim would have succeeded. Id. at (¶ 7). When reviewing whether a speedy-trial violation occurred, the following factors are considered: (1) the length of the delay, (2) the reason(s) for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the defendant was prejudiced by the delay. Id. The constitutional right to a speedy trial attaches at the time of arrest. Id. at (¶ 8). A delay of eight months or more has been held to be presumptively prejudicial. Brunson v. State, 944 So.2d 922, 926(¶ 12) (Miss.Ct.App.2006). If the delay is not presumptively prejudicial, then no further inquiry is required. Id.

¶ 13. Hardin was arrested on January 19, 2003. He pled guilty on June 13, 2003. Because only five months elapsed between Hardin’s indictment and the entry of his guilty plea, the length of the delay was not presumptively prejudicial. Therefore, no further analysis of the speedy trial claim is warranted. Because Hardin cannot prove that a speedy trial violation occurred, his claim of ineffective assistance of counsel also fails. Accordingly, we affirm the lower court’s judgment.

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

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


text:
    Tommie CLEVELAND and Jerry Gillis Killen, Appellants v. Oscar Kenneth KILLEN, Estelle D. Killen and Jeffrey Kenneth Killen, Appellees.
    No. 2006-CA-01021-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2007.

      Robert M. Logan, Newton, attorney for appellants.
    P. Shawn Harris, Forest, attorney for appellees.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   CHANDLER, J., for the Court.

¶ 1. The Chancery Court of Neshoba County found that the use of Kenneth Killen’s property by his brother, Jerry Kil-len, was permissive and not adverse. The court, therefore, denied the adverse possession claim of Jerry and his ex-wife, Tommie Cleveland. Aggrieved, Jerry and Tommie appeal. They assert the following issues: (1) that the chancellor erred in finding the use was permissive, (2) that, if the use was initially permissive, it became adverse with the subsequent construction of a pond on the property, and (3) that Jerry’s continued use of the property constitutes adverse possession.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. At issue is a 2.6 acre plot of land, which is located on the south edge of Kenneth Killen’s property along the line where it joins the property of his brother, Jerry Killen. Kenneth and Jerry each owned a twenty-acre tract of land located in Nesho-ba County that their parents deeded to them. Kenneth’s tract is located directly north of Jerry’s, and there is a straight property line dividing the two parcels. Kenneth received his land in the 1960s, and Jerry received his in 1970.

¶ 4. When Jerry received his land, he sought to build a fence for some cows. Testimony at trial indicated that Jerry approached Kenneth to ask whether he could “tie on” additional fencing to a fence that Kenneth had previously built on his own property. Kenneth had constructed his fence to enclose his own cow. By all accounts this fence was crooked and, although the fence was somewhat parallel to the boundary line, it was not intended to represent the boundary between the properties. Seemingly, none of the parties knew where the exact boundary line was when Jerry built the fence. Kenneth testified, however, that they knew the fence did not represent the line because he had originally built the fence for his milk cow deliberately off the line and on his property.

¶ 5. It is undisputed that Kenneth gave his permission for Jerry to “tie on” to his fence. What this meant was that Jerry and his wife Tommie were able to add fencing to Kenneth’s fence that was already constructed. Since Kenneth’s fence spanned the middle portion of the property, Jerry began at the corners of Kenneth’s fence, and he added fencing eastward and westward to the edges of the property. Combined with Kenneth’s portion, this enabled him to fence his cattle without building a fence across the entire property. However, because Kenneth’s original fence was built somewhat north of the actual property line, the completed fence separated the 2.6 acres in dispute from the remainder of Kenneth’s property.

f 6. All the testimony revealed that, until the events preceding trial, there was no conflict among the parties concerning who owned the 2.6 acres. Jerry used the land for gardening and for animals. Kenneth cut timber on the land and built a gate in the fence so he could run his cattle over to Jerry’s pond. It was in 1990, some twenty years after Jerry built the original fence, that he built a pond, approximately one-third of which is located on the land owned by Kenneth but on Jerry’s side of the fence. Kenneth testified that he made a statement to Jerry when he began to build the pond that, “part of that pond is going to run over on me.” According to Kenneth’s deposition, he followed this by stating that Jerry needed to do something about it. At trial, however, he denied that he made any objection to Jerry building the pond.

¶ 7. Nevertheless, there was no conflict concerning the building of the pond. The parties did not come to disagree until Tommie divorced Jerry and gained a remainder interest in his twenty acres. Pri- or to filing suit, Jerry also deeded to Tommie a one-half interest in the property. Tommie eventually filed suit when Kenneth hired a surveyor to mark the property and then built a fence that represented the true property line. The case was pursued by Tommie, and at the time, Jerry was said to be suffering from dementia and did not testify nor make an appearance at trial.

STANDARD OF REVIEW

¶ 8. Upon review, this Court will accept a chancellor’s findings of fact as long as they are supported by credible evidence in the record. Cheatham v. Stokes, 760 So.2d 795, 796-97(¶ 6) (Miss.Ct.App.2000). We will not disturb those findings unless they are clearly erroneous or an incorrect legal standard was applied. Id.

ISSUES AND ANALYSIS

I. Whether use of the land was permissive

¶ 9. Tommie first argues that the chancellor erred by finding that her and Jerry’s use of the land was permissive. She argues that Kenneth originally agreed to let Jerry build the fence to corral cattle. Since Kenneth originally gave his permission, however, Jerry has raised other animals on the land, planted crops there, built a pond, and maintained it as his own.

¶ 10. Mississippi Code Annotated section 15-1-13 (Rev.2003) provides the following:

Ten years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten years by occupancy, descent, conveyance, or otherwise, in whatever way occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title....

Furthermore, the supreme court has stated that there are six elements to a claim of adverse possession: “[PJossession must be (1) under claim of right; (2) actual; (3) open, notorious, and visible; (4) exclusive; (5) continuous and uninterrupted for ten years; and (6) peaceful.” Stallings v. Bailey, 558 So.2d 858, 860 (Miss.1990).

¶ 11. “As a general rule, permissive possession of lands, even if long continued, does not confer title in the person in permissive possession until a positive assertion of a right hostile to the owner has been made known to him.” Hewlett v. Henderson, 431 So.2d 449, 451 (Miss.1983). If there was never a request or a grant of permission to use the land, however, the use would not be permissive, but would be adverse. Cheatham, 760 So.2d at 798(¶ 14). It is a fact question for a chancellor to determine whether a use is prescriptive or permissive. Sharp v. White, 749 So.2d 41, 43(¶ 8) (Miss.1999).

¶ 12. In this case the dispute is between two brothers. This case did not come to trial until Jerry began to suffer from dementia. “[W]hen a close family relationship is involved, ‘proof of adverse possession is not ordinarily as easily established as when the parties are strangers.’ ” Peagler v. Measells, 743 So.2d 389, 391(¶ 12) (Miss.Ct.App.1999) (quoting Georgia Pacific Corp. v. Blalock, 389 So.2d 498, 501 (Miss.1980)).

¶ 13. According to all parties, the two brothers and their families lived side by side for approximately thirty-five years with no disputes between them concerning the 2.6 acres. In the beginning, Jerry asked for Kenneth’s permission to build a fence connected to Kenneth’s, and Kenneth readily gave permission. Afterwards, they freely gave each other permission to use each other’s property. Kenneth built a gate in the fence and brought his cattle across to use the pond during a dry spell. He also cut down some trees located in the disputed area and kept the profit he received from selling the timber. There was no evidence in the record that, after the fence was built, Kenneth objected to Jerry’s continued use of the property.

¶ 14. After reviewing the record, we cannot find that the chancellor abused his discretion in finding that permission to use the 2.6 acres was given by Kenneth, thereby rendering Jerry and Tommie’s use of the land permissive. This issue is without merit.

II. Whether use of the land became adverse upon construction of the pond

¶ 15. Tommie next argues that, even if the chancellor was correct in finding that the initial use of the land was permissive, it became adverse when Jerry built the pond on it. She claims this “brought home to Kenneth his brother’s assertion of a hostile claim.”

¶ 16. We have previously stated the rule as to when permissive use may be converted to adverse use:

Use of property by permission does not evolve into a hostile or adverse use until the permission ends. The time period for obtaining adverse possession or a prescriptive easement, when express or implied permission is previously given, does not begin to run until some form of objection to the use is made by the landowner.

Simcox v. Hunt, 874 So.2d 1010, 1015(¶ 21) (Miss.Ct.App.2004) (citing Sharp, 749 So.2d at 48 (¶ 10)). Not only was there no revocation of the permission by Kenneth, but also there was not any positive assertion of a hostile right against him until the events preceding trial. Hewlett, 431 So.2d at 451.

¶ 17. Ultimately, the chancellor found that the building of the pond was not a deviation from the permission granted. While he does note that the pond is the only thing that could come close to a clear act necessary to convert Jerry’s use to adverse, he found that its construction was “insufficient in and of itself to change the permissive use to that of adverse, open and hostile.... ” The chancellor went on to note that Kenneth was aware that the pond would be on his property, but he made no objection to its construction. As in Simcox and Sharp, the chancellor correctly found that the use of the land was permissive and remained permissive absent an act by either party to convert it to adverse use.

¶ 18. The chancellor found that Kenneth initially gave permission for Jerry to use the property, and that nothing in the record revealed that the permission was terminated or withdrawn. We do not find this to be in error. This issue is without merit.

III. Whether use of the property was inconsistent with the permission

¶ 19. In her last point of error, Tommie argues that her and Jerry’s use of the property throughout the thirty-five years was inconsistent with the reason for which Kenneth allowed them to use the property. The chancellor, however, found that when Kenneth gave Jerry permission to fence in part of his land, he also gave Jerry permission to use that part of his land. We do not find this to be in error as it seems quite reasonable that a person would use land that he encloses in a fence. To rule that Jerry would not be allowed to use a few acres of land, which was fenced in with his own, would be absurd. Until Jerry’s divorce, the brothers lived next to each other, got along well, and cooperated over the use of the disputed land. We find this issue to be similarly without merit.

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF NESHOBA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Jerry and Tommie separated in late 2003, and she divorced him in 2004.


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

text:
    Freddie B. MOORE and Viola B. Moore, Appellants v. Earl WILSON, Sr. and Jeanette D. Wilson, Appellees.
    No. 2006-CA-00363-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2007.
    Johnnie McDaniels, Jackson, attorney for appellants.
    Melvin Hurley McFatter, Port Gibson, attorney for appellees.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   KING, C.J., for the Court.

¶ 1. Freddie and Viola Moore appeal the Claiborne County Chancery Court’s decision denying their motion to re-open the time for appeal. The chancellor previously cited Moore for contempt of a 1991 agreed decree that established the common boundary line between the Moores and their neighbors, Earl Wilson, Sr. and Jeanette Wilson. On appeal, the Moores challenge the decree’s validity, the court’s citation for contempt, the denial of the motion to re-open time for appeal, and the award of attorney’s fees to the Wilsons’ attorney. Finding that we have no jurisdiction because the appeal was not timely filed, we dismiss the appeal.

FACTS

¶ 2. The Moores and Wilsons live on adjoining land, once commonly owned by Leola Turnipseed, Irwin Turnipseed, Jr. and Alice Bass in Claiborne County, Mississippi. Errors in the land deed descriptions, however, led to disputes regarding the common boundary line between the properties. To settle the disputes, Mr. Moore filed a complaint in the chancery court against the Turnipseeds, Bass, and the Wilsons.

¶ 3. On November 28, 1990, the chancery court held a hearing regarding the disputed property. The court viewed the property and the chancellor dictated an agreed decree into the record, setting out the common boundary line between the neighbors. The agreed decree was later reduced to writing and entered into the record on January 8, 1991. The decree required the Moores and Wilsons to construct a fence along the established boundary line within ten days of the January 8th judgment and to equally split the cost of the court appointed land surveyor.

¶ 4. The boundary fence remained unaltered until May 2005, when Mr. Moore removed a portion of the fence. Mr. Wilson, after discovering the boundary line alteration, filed a motion for citation of contempt of the 1991 order. The Moores argued that they were not in contempt of court because they only received a copy of the 1991 agreed decree when they were served with the motion for citation of contempt in June 2005.

¶ 5. On July 19, 2005, the court held a hearing on the contempt motion. The chancellor found that the 1991 agreed decree was res judicata regarding the properties’ common boundary line. The court found Mr. Moore in willful contempt of the decree for his intentional moving and destruction of a portion of the established boundary fence. The court required the Moores to pay the Wilsons the cost of the court action, including attorney’s fees in the amount of $1,542.47, as well as interest. The court directed the Wilsons to file the judgment in the county’s judgment rolls and directed the Moores to repair the fence no later than October 6, 2005.

¶ 6. At the time of trial, the Moores’ attorney indicated that his clients wished to appeal the court’s decision. When the time for appeal expired, the Moores had not filed a notice of appeal with the court clerk’s office.

¶7. On October 20, 2005, the Wilsons served the Moores with a second motion for citation of contempt, as well as a copy of the court’s September 8, 2005, decree. On November 3, 2005, the Moores filed a motion to re-open time for the appeal. The court held a simultaneous hearing on the contempt motion and the request for reopening the time for appeal.

¶ 8. The chancellor denied the motion to re-open the time for appeal as untimely filed. The court found the Wilsons mailed a copy of the court’s decree to the Moore’s attorney on September 8, 2005. The court noted that although the Moores’ attorney denied ever receiving a copy of the September 8th decree, on November 3, 2005, the Moores’ attorney served upon the Wil-sons’ attorney a motion to re-open the time for appeal. The court found that the Moores failed to file their motion to extend the time for appeal within Mississippi Rule of Appellate Procedure 4(h).

¶ 9. Regarding the second motion for citation of contempt, the court approved an agreement set forth by the parties in which the Moores would repair and replace the fence on the common boundary line to the condition it was in before Mr. Moore’s interference. The Moores also agreed to pay the Wilsons for their expenses in bringing the two actions for contempt, including attorney’s fees and expenses in the amount on $2,600, plus interest. The Moores were to post a $2,600 cash bond with the court clerk and that money would be held by the clerk pending the outcome of the Moores’ appeal from the denial of the motion to re-open time for appeal.

STANDARD OP REVIEW

¶ 10. This Court reviews a chancellor’s finding of fact under a clearly erroneous or manifest error standard. Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002). This Court will not reverse unless we find the chancellor’s decision was manifestly wrong, clearly erroneous, or that the chancellor erroneously applied a legal standard. Bradford v. Williams, 797 So.2d 352, 354(¶ 5) (Miss.Ct.App.2001). Questions of law, however, are reviewed de novo and cases are subject to reversal for erroneous interpretations or applications of the law. Pearl Pub. Sch. Dist. v. Groner, 784 So.2d 911, 913-14(¶ 7) (Miss.2001).

ANALYSIS

I. Whether the Chancellor erred by denying the Moore’s motion to re-open time for appeal.

¶ 11. Parties seeking to appeal trial court decisions must file a notice of appeal within thirty days of the judgment or order’s entry. M.R.A.P. 4(a). The chancellor entered the decree on September 8, 2005.

¶ 12. In this case, the court clerk’s office did not notify the Moores immediately following the entry of the September 8th decree, as is required by Rule 77(d) of the Mississippi Rules of Civil Procedure. However, the clerk’s failure to notify the Moores about the decree’s entry does not excuse the Moore’s failure to appeal in a timely manner, except as permitted by Rule 4(h) of the Mississippi Rules of Appellate Procedure. Byrd v. Biloxi Reg’l Med. Ctr., 722 So.2d 166, 168(¶ 11) (Miss.Ct.App.1998).

¶ 13. Rule 4(h) provides that, if a party has not been notified of a judgment’s entry by the clerk or any other party within twenty-one days of the judgment’s entry, the court may re-open the time for appeal, granted neither party would be prejudiced and the movant files a motion within one hundred-eighty days of the judgment entry or within seven days of being notified of the entry, whichever is earlier. M.R.A.P. 4(h).

¶ 14. In denying the Moore’s motion to re-open the time for appeal, the chancellor found that the Wilsons mailed a certified copy of the decree to the Moores’ attorney on September 8, 2005, as evidenced by the Wilson’s attorney’s certificate of service. However, the Moore’s attorney denied receiving the decree. While giving .the Moore’s attorney the benefit of the doubt, the chancellor noted that on October 20, 2005, the Wilsons personally served the Moores a copy-of the court’s September 8th decree. The Moores did not file a notice of appeal until November 3, 2005, more than thirty days after entry of the decree, and more than ten days after the Moores received the decree.

¶ 15. Under the requirements of Rule 4(h), the Moores should have filed their notice to reopen the time for appeal within seven days after receipt of the notice of the decree. The Moores filed their request to reopen the time for appeal approximately fourteen days after the receipt of the notice of the decree. Rule 4(h) requires the court to apply the limitations for re-opening the time for appeal in an obligatory and nondiscretionary matter. Rice v. Perma Corp., 908 So.2d 875, 878-79(¶ 12) (Miss.Ct.App.2005). The chancellor did not err in finding that the court lacked jurisdiction to grant the Moores’ untimely motion for extending the time for appeal of the September 8, 2005 decree. Timely notice of appeal is jurisdictional so that the failure to comply deprived the trial court of jurisdiction.

¶ 16. The Moores’ failure to give timely notice of the appeal in the trial court also leaves this Court without jurisdiction to consider the matter. See Byrd, 722 So.2d at 168. Pursuant to Mississippi Rule of Appellate Procedure 2(c), this Court may not extend the time for filing a civil appeal, and under Rule 2(a)(1), this Court must dismiss any untimely civil appeal.

¶ 17. Accordingly, this Court finds that this appeal is not timely and it is therefore dismissed for want of jurisdiction.

¶ 18. THE APPEAL OF THE JUDGMENT OF THE CLAIBORNE COUNTY CHANCERY COURT IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


text:
    Glen CRAFT a/k/a Glen Kraft a/k/a Glen J. Craft a/k/a Glyn Craft a/k/a Glyn J. Craft a/k/a Glyn Jenmel Craft a/k/a Glen Jemel Craft, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01636-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2007.
    Glen Craft, pro se.

      Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., CHANDLER and CARLTON, JJ.
   KING, C.J., for the Court.

¶ 1. Glen Craft appeals the Marion County Circuit Court’s denial of his petition for post-conviction relief. This Court finds that Craft’s claims are not properly before it, and the appeal must be dismissed.

FACTS

¶ 2. Craft was indicted for the sale of cocaine in violation of Mississippi Code Annotated Section 41—29—139(a)(1) (Rev. 2005) as a third offense. After a jury trial, Craft was convicted of the sale of cocaine as a habitual offender and was sentenced to sixty years in the custody of the Mississippi Department of Corrections without the possibility for parole. Craft appealed the conviction and sentence which this Court affirmed on May 12,1998.

¶ 3. Subsequent to his appeal, Craft filed a motion for post-conviction relief in Marion County Circuit Court. The trial court denied the motion on March 10, 2006. It was not until May 18, 2006, that Craft’s notice of appeal was stamped filed, a total of sixty-nine days after the trial court denied the request for post-conviction relief.

STANDARD OF REVIEW

¶ 4. This Court will not disturb the trial court’s decision to deny post-conviction relief unless the trial court’s decision was clearly erroneous. Arnold v. State, 912 So.2d 202, 203(¶ 2) (Miss.Ct.App.2005). However, this Court reviews questions of law de novo. Hoskins v. State, 934 So.2d 326, 328(¶ 4) (Miss.Ct.App.2006).

ANALYSIS

I. Whether the trial court had jurisdiction to hear the request for post-conviction relief

¶ 5. Prior to addressing the merits of Craft’s appeal, we must address whether or not this appeal is properly before this Court. The first issue we must address is whether the trial court had jurisdiction to hear the motion for post-conviction relief.

¶ 6. Since Craft had his conviction and sentence affirmed on direct appeal, Mississippi Code Annotated Section 99-39-7 (Rev.2000) mandated that he receive leave from the supreme court to seek post-conviction relief at the trial court. Further, this Court has held that “[tjhis procedure is not merely advisory, but jurisdictional.” Doss v. State, 757 So.2d 1016, 1017(¶ 6) (Miss.Ct.App.2000).

¶ 7. After a thorough review of the record presented to us, we cannot find any suggestion that Craft sought leave from the supreme court, much less received the supreme court’s permission to seek post-conviction relief at the trial court level. Without such permission the trial court lacked jurisdiction to consider Craft’s motion. Id. at (¶ 7). “Likewise, this Court lacks jurisdiction to entertain an appeal of that action.” Id.

II. Whether Craft’s appeal is untimely

¶ 8. Even if Craft sought and received permission from the supreme court to file his motion for post-conviction relief, the appeal is untimely. A party who seeks an appeal from judgment has thirty days from the date of judgment to file a notice of appeal with the trial court. M.R.A.P. 4(a). Rule 2(a)(1) of the Mississippi Rules of Appellate Procedure states that “[a]n appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5.” (emphasis added)

¶ 9. Here, the trial court denied Craft’s motion for post-conviction relief on March 10, 2006. According to Rule 4(a), Craft had thirty days from the entry of that judgment in which to file his appeal. Those thirty days expired on April 9, 2006, but since that was a Sunday, Rule 6(a) of the Mississippi Rules of Civil Procedure states that Craft would have until the following Monday to file his notice of appeal.

¶ 10. Craft’s notice of appeal was stamped filed on May 18, 2006. Since Craft’s motion was pro se and he was incarcerated when he mailed the notice of appeal, the prison mailbox rule applies. Sykes v. State, 757 So.2d 997, 1000-01(¶ 14) (Miss.2000). The prison mailbox rule states that a prisoner’s motion is delivered for filing on the date that the prisoner submitted the papers to prison authorities for mailing. Id. Further, “proof of the date of mailing may consist of a prison mail log or other means of record keeping which prison authorities find expeditious[.]” Melton v. State, 930 So.2d 452, 454(¶ 7) (Miss.Ct.App.2006). Since the State is the party moving for dismissal of the appeal in this case, it bears the burden of proving that the notice of appeal was not timely filed. Gaston v. State, 817 So.2d 613, 616(¶ 6) (Miss.Ct.App.2002).

¶ 11. Here, the State has met its burden of proof by including in its filings with this Court, a copy of Craft’s mail transaction history from March 10, 2006, through May 20, 2006. A notarized certificate of authenticity is attached to the mail transaction history signed by Gia McLeod, an employee of the Mississippi Department of Corrections. According to the log, the only items Craft presented to the prison authorities for mailing were logged on May 16, 2006.

¶ 12. Therefore, the date that Craft’s notice of appeal is to be considered filed is May 16, 2006. That date is sixty-seven days after the trial court denied the motion for post-conviction relief, which is well passed the thirty days allowed by Rule 4(a). Also, the record does not contain an order granting Craft an extension to the thirty day time limit. Pursuant to Rule 2(a)(1) of the Mississippi Rules of Appellate Procedure, Craft’s appeal shall be dismissed for failure to timely file his appeal. Penn v. State, 909 So.2d 135, 136(¶ 6) (Miss.Ct.App.2005).

¶ 13. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: CHANDLER, J., for the Court. CARLTON, J.,

text:
    George A. HOLMES, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00412-COA.
    Court of Appeals of Mississippi.
    Oct. 2, 2007.

      George A. Holmes, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   CHANDLER, J., for the Court.

¶ 1. George A. Holmes appeals from the dismissal of his motion for post-conviction relief (PCR) by the Circuit Court of Forrest County, Robert B. Helfrich presiding. We find that Judge Helfrich was disqualified from ruling on Holmes’s PCR. Therefore, we reverse and remand this case for the appointment of a substitute judge before whom further proceedings are to be held.

FACTS AND PROCEDURAL HISTORY

¶ 2. Holmes attached documentation to his PCR establishing the following. Holmes was indicted for aggravated assault and grand larceny for events that occurred on or about March 9, 2000. On March 10, 2000, Robert B. Helfrich, an assistant district attorney for Forrest and Perry Counties, swore out arrest warrants against Holmes for aggravated assault and grand larceny. On March 21, 2000, Holmes turned himself in to authorities in Perry County.

¶ 3. On November 21, 2003, the day of his arraignment, Holmes executed and filed a sworn petition to enter a guilty plea to the aggravated assault charge. He also filed a waiver of conflict of interest concerning Judge Helfrich. In the waiver, Holmes stated, “It is my desire and I do freely and voluntarily waive any and all conflicts of interest that could arise out of the above stated facts, and it is my desire that Judge Robert Helfrich preside as the Circuit Judge in the above styled cause pending against me.” According to the allegations in Holmes’s PCR and the attached affidavits, Holmes waived the conflict of interest upon the advice of his attorney that Judge Helfrich was likely to accept the State’s sentencing recommendation.

¶ 4. At the plea hearing, Judge Helfrich addressed the issue of his recusal from the case. Judge Helfrich ascertained that Holmes had discussed the matter with his attorney and had filed a waiver of conflict of interest. Judge Helfrich stated that he did not remember Holmes’s case. He told Holmes that he would recuse himself and request appointment of another judge. Holmes stated that he desired to go forward with Judge Helfrich, and the hearing continued.

¶5. Judge Helfrich accepted the plea and sentenced Holmes to twenty years in the custody of the Mississippi Department of Corrections, with thirteen years to serve and seven years suspended, with five years on post-release supervision. The judge also ordered Holmes to pay court costs, a fine of $1,000, $100 to the Mississippi Crime Victims’ Compensation Fund, restitution to the victim in the amount of $5,700, and restitution to the Mississippi Victim Compensation Program in the amount of $6,106.10. This punishment was in accordance with the State’s sentencing recommendation.

¶ 6. Holmes timely filed a PCR seeking to withdraw his guilty plea and proceed to trial. He asserted that the guilty plea was involuntary, that he received ineffective assistance of counsel, that his indictment was fatally defective, that he received an illegal suspended sentence, and that Judge Helfrich was disqualified from presiding over his plea hearing. Holmes also filed a motion to recuse Judge Helfrich from ruling on his PCR. Judge Helfrich denied the motion to recuse and summarily dismissed Holmes’s PCR pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev. 2000).

¶ 7. Holmes appeals, re-asserting all the arguments in his PCR. We find that, due to his active participation in Holmes’s prosecution, Judge Helfrich was disqualified from ruling on Holmes’s PCR and was required to recuse himself. Therefore, we reverse and remand this case for the appointment of a substitute judge, before whom further proceedings in this case may be had. Because we are reversing and remanding for another judge to rule on the PCR, we do not reach Holmes’s other issues as they are unripe for appellate review.

LAW AND ANALYSIS

I. WAS JUDGE HELFRICH REQUIRED TO RECUSE HIMSELF FROM RULING ON HOLMES’S PCR?

¶ 8. Holmes argues that Judge Helfrich erred by denying his motion for recusal and adjudicating his PCR. Mississippi constitutional and statutory law applies to the disqualification of a judge. Article 6, section 165 of the Mississippi Constitution of 1890 provides: “No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties.” Mississippi Code Annotated section 9-1-11 (Rev.2002) reiterates the disqualifications listed in section 165 and additionally requires disqualification where the judge was of counsel in the cause. As with constitutional disqualification, a judge may preside despite statutory disqualification if the judge and parties consent. Miss.Code Ann. § 9-1-11.

¶ 9. The Code of Judicial Conduct is also applicable to judicial disqualification. Canon 3(B)(1) of the Code of Judicial Conduct states: “A judge shall hear and decide all assigned matters, except those in which disqualification is required.” According to Canon 3(E):

(1) Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

When a canon is used to assess the conduct of a judge, the canon enjoys the status of law. Banana v. State, 635 So.2d 851, 853 (Miss.1994).

¶ 10. The court has condemned situations in which the accuser also functions as the trier of fact, holding that “[wjhere one actively engages in any way in the prosecution and conviction of one accused of a crime, he is disqualified from sitting as a judge in any matter which involves that conviction.” Banana v. State, 638 So.2d 1329, 1330 (Miss.1994); see Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990). A judge is disqualified from ruling on a motion for post-conviction relief when the judge participated in the prosecution of the underlying conviction. Moore v. State, 573 So.2d 688, 689 (Miss.1990); Ryals v. State, 914 So.2d 285, 287(¶ 9) (Miss.Ct.App.2005). In this case, Judge Helfrich actively participated in Holmes’s prosecution and, therefore, was disqualified from adjudicating Holmes’s motion for post-conviction relief.

¶ 11. In his order denying Holmes’s motion to recuse, Judge Helfrich relied upon Holmes’s waiver of the conflict of interest regarding Judge Helfrich’s presiding over his guilty plea hearing. The supreme court has held that, under the statutory provision for waiver of disqualification, a criminal defendant may effectively waive the conflict presented by the acceptance of his guilty plea by a judge who was the district attorney who brought the charges against him. Banana, 635 So.2d at 853. The issue of whether Holmes’s waiver effectively barred his subsequent challenge to Judge Helfrich’s acceptance of his guilty plea is not presently before this Court, as that is a matter for adjudication by the substitute judge appointed to rule on Holmes’s PCR. But, assuming Holmes effectively waived Judge Helf-rich’s disqualification to preside over his guilty plea hearing, the waiver did not extend to Holmes’s motion for post-conviction relief. A civil action brought under the Uniform Post^Convietion Collateral Relief Act is a collateral attack on a judgment of conviction and is separate and distinct from the underlying criminal proceeding. Miss.Code Ann. § 99-39-5(1) (Rev.2007). When Holmes filed his PCR with the court, an entirely new legal proceeding was commenced. Miss.Code Ann. § 99-39-7 (Rev.2007). In that new proceeding, Holmes did not seek to waive Judge Helfrich’s disqualification but instead moved to recuse Judge Helfrich. As we have held, Judge Helfrich was disqualified from ruling on Holmes’s motion for post-conviction relief and his recusal was required. We reverse and remand this case for the appointment of a substitute judge before whom further proceedings may be had.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

CARLTON, J.,

Dissenting:

¶ 13. I disagree with the majority’s finding that Judge Helfrich was disqualified from adjudicating Holmes’s motion for post-conviction relief. Because Holmes knowingly and voluntarily executed a waiver expressing his consent that Judge Helf-rich be allowed to hear his case, and further waived any non-jurisdictional defect by entering his plea of guilty, I find that Holmes should not be allowed to revoke his consent that Judge Helfrich hear his ease. Accordingly, I respectfully dissent.

¶ 14. I agree with the majority to the extent that the court has condemned situations where the accuser also acts as the trier of fact. It is beyond dispute that Article 6 section 165 of our constitution, as well as Mississippi Code Annotated section 9-1-11 (Rev.2002), generally require disqualification where a judge has an interest or has participated as counsel in any material respect in the case. However, both provisions equally provide that a conflicted judge may preside over a trial “[b]y the consent of the judge and of the parties.” See Miss. Const. art. 6, § 165; Miss.Code Ann. § 9-1-11. The notion that consent trumps the prospect of impartiality is also provided for in the Code of Judicial Conduct in the form of remittal of disqualification. See Code of Judicial Conduct Canon. 3(F). As acknowledged by the majority, our supreme court has squarely held as much. Banana v. State, 635 So.2d 851, 853 (Miss.1994). It follows, that Holmes waived any conflict by executing a written waiver of conflict after being informed both by his own counsel and by Judge Helfrich himself. Moreover, it is well-settled that all non-jurisdictional defects are waived by the entry of a valid guilty plea. Id. at 853-54 (quoting Anderson v. State, 577 So.2d 390, 391 (Miss.1991)). Therefore, I find that Holmes effectively waived any objection to Judge Helfrich presiding over his case for this reason also.

¶ 15. Beyond all this, “[jjurisdiction to hear and determine post-conviction collateral relief efforts is in the court last having jurisdiction of the case.” McDonall v. State, 465 So.2d 1077, 1078 (Miss.1985) (citing Dunn v. Reed, 309 So.2d 516 (Miss.1975)). Our post-conviction relief statutes contain no provision requiring that a judge separate from the one presiding at trial hear a motion for post-conviction relief. Mississippi Code Annotated Section 99-39-11(1) (Rev.2007) provides only that “the judge to whom [the PCR] is assigned” examine the motion.

¶ 16. In conclusion, I find that Holmes waived this issue by the entry of his guilty plea and by consent. Because the majority cites no authority requiring a different result, I find that the waiver should be given effect at Holmes’s post-conviction proceeding and would affirm Judge Helf-rich’s denial of Holmes’s motion for recu-sal.

MYERS, P.J., AND GRIFFIS, J., JOIN THIS OPINION.

      . We observe that Holmes’s plea deal was quite favorable because, in Holmes's sworn petition to enter a guilty plea, Holmes indicated that he was a violent habitual offender. If Holmes had gone to trial and his indictment was amended pursuant to Rule 7.09 of the Uniform Rule of Circuit and County Court Practice to charge him as a violent habitual offender, he would have risked an enhanced sentence of life without the possibility of parole or early release. Miss.Code Ann. § 99-19-83 (Rev.2000).