author: IRVING, J., for the Court.

text:
    La’Kimberly DUDLEY, Appellant v. Metyor HARRIS, Appellee.
    No. 2006-CA-01733-COA.
    Court of Appeals of Mississippi.
    Jan. 8, 2007.
    Rehearing Denied April 15, 2008.
    Jeffrey J. Hosford, for appellant.
    Curtis H. Austin, Colunbus, for appellee.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   IRVING, J., for the Court.

¶ 1. La’Kimberly Dudley appeals the Lowndes County Chancery Court’s grant of custody to her child’s father, Metyor Harris. Finding that we lack jurisdiction, we dismiss this appeal.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 2. Final judgment in this case was entered on September 8, 2006. According to Rule 4(a) of the Mississippi Rules of Appellate Procedure, Dudley had thirty days to file her notice of appeal. The thirtieth day was October 8, 2006, which was a Sunday. Thus, Dudley had until Monday, October 9, to file her notice of appeal. M.R.A.P. 26. However, the notice was not filed until October 10, 2006.

¶ 3. Although Dudley’s certificate of service indicates that she signed her notice of appeal on October 6, the notice was not filed until October 10. Rule 4(a) specifically states that it is the date of the filing with the trial court clerk that is controlling: “the notice of appeal ... shall he filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Regardless of what date Dudley signed her notice of appeal, it was not filed with the clerk of the supreme court clerk until October 10.

¶4. Harris has not raised the untimehness of Dudley’s appeal as an issue. Regardless, Dudley’s failure to file a timely appeal bars our consideration of her appeal, as we lack jurisdiction to hear an untimely appeal. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995); see also Smith v. Parkerson Lumber, Inc., 890 So.2d 832, 834-35 (¶¶ 12-14) (Miss.2003). “Whether raised by the parties or not, [an appellate court] is required to note its own lack of jurisdiction.” Michael, 650 So.2d at 471 (citing Common Cause of Miss. v. Smith, 548 So.2d 412, 414 (Miss.1989); Cotton v. Veterans Cab Co., Inc., 344 So.2d 730, 731 (Miss.1977); Byrd v. Sinclair Oil & Refining Co., 240 So.2d 623 (Miss.1970)).

¶ 5. Rule 2(a)(1) of the Mississippi Rules of Appellate Procedure states that dismissal is mandatory “if the notice of appeal was not timely filed pursuant to Rules 4 or 5 [of the Mississippi Rules of Appellate Procedure].” We may suspend this mandatory dismissal in criminal cases, but Rule 2(c) specifically states that “in civil cases the time for taking an appeal as provided in Rules 4 or 5 may not be extended.” Therefore, we dismiss this appeal for lack of jurisdiction.

¶ 6. THIS APPEAL IS DISMISSED FOR LACK OF APPELLATE JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The record reveals that the notice of appeal was filed with the clerk of the Mississippi Supreme Court instead of with the clerk of the trial court, as required by Rule 4(a).

      . We note that if Dudley had filed a timely notice of appeal with the clerk of the supreme court, such filing would have constituted timely filing with the clerk of the trial court. M.R.A.P. 4(a).


source: Caselaw Access Project

license: Public Domain

text:
    Marshall McNICKLES, Jr., a/k/a Marshall Antonio McNickles, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-CA-00023-COA.
    Court of Appeals of Mississippi.
    May 22, 2007.
    Rehearing Denied Nov. 27, 2007.

      Sylvia S. Owen, New Albany, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., IRVING and ISHEE, JJ.
   IRVING, J., for the Court.

¶ 1. Marshall Antonio McNickles, Jr., appeals a judgment of the Wayne County Circuit Court dismissing his motion for post-conviction relief (PCR). He asserts (1) that the trial court erred in accepting his guilty plea over his claims of innocence and in denying him the opportunity to present mitigating testimony, (2) that his plea was not knowingly and intelligently entered, (3) that he was denied due process of law in sentencing, because he was sentenced to an enhanced sentence as a habitual offender by a judge, rather than by a jury, (4) that the court erred in failing to conduct an evidentiary hearing, and (5) that the cumulative effect of the denial of due process during his sentencing process deprived him the right to a fair trial.

¶ 2. We find no error; thus, we affirm the judgment of the circuit court.

FACTS

¶ 3. McNiekles was indicted by a Wayne County grand jury as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.2000) for possession of a firearm by a convicted felon. On the day that he was set to go to trial and following an unsuccessful suppression hearing, he pleaded guilty to the charge, pursuant to a plea agreement, and was sentenced, in accordance with the agreement, to thirteen years in the custody of the Mississippi Department of Corrections. Almost three months later, McNiekles filed a motion for PCR, which was summarily denied by the trial court. We will relate additional facts during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Guilty Plea

¶4. As issues one and two relate to McNiekles’ guilty plea, we will discuss them together. First, McNiekles contends that the trial court erred in accepting his guilty plea, because he entered the plea while proclaiming his innocence. McNick-les made what is commonly known as an Alford plea, pursuant to the decision of the United States Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, (1970). In Alford, the court stated: “[t]hat [Alford] would not have pleaded except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice.... ” Id. at 31, 91 S.Ct. 160. The court concluded that “[w]hen his plea is viewed in light of the evidence against him, which substantially negated his claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered, its validity cannot be seriously questioned.” Id. at 37-38, 91 S.Ct. 160. (citation omitted).

¶ 5. Prior to accepting a guilty plea the trial court must have before it substantial evidence that the accused committed the offense for which he is offering a plea. Corley v. State, 585 So.2d 765, 767 (Miss.1991). “In the end there must be enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged....” Id.

¶ 6. As previously noted, a suppression hearing, in which McNiekles sought to suppress admission of the firearm that was found in his truck, was held earlier on the day that McNiekles entered his guilty. During that hearing, Kevin Stevens, a deputy for the Wayne County Sheriffs Department, and Michael Tolbert, commander of the South Mississippi Narcotics Task Force at the time of McNiekles’ arrest, testified that upon stopping McNiekles’ vehicle, Tolbert conducted a pat down of McNiekles which uncovered several .22 caliber cartridges. According to Stevens, Tolbert then asked McNiekles if he had a firearm in the truck, and McNiekles responded affirmatively. In contrast, McNiekles testified that he did not tell Stevens nor Tolbert that he had a firearm in the truck, because he did not know that the firearm was in the truck at the time of the stop. The trial court declined to suppress admission of the firearm, and thereafter, McNiekles entered his guilty plea.

¶ 7. It is clear from the record that, in light of the evidence that the State was prepared to present at trial, McNickles concluded that it was in his best interest to plead guilty instead of going to trial, where, if convicted, he would have faced a life sentence. The State was prepared to prove that McNickles, a convicted felon, was in possession of a firearm. Thus, there was a factual basis to support the plea, and the trial court did not err in accepting McNickles’ guilty plea, despite his initial protestations of innocence.

¶ 8. McNickles also argues that the trial court erred in accepting his guilty plea because he had made it clear to the trial judge that he had witnesses who could and would support his claim that he had no knowledge of the presence of the firearm in his truck. The problem with this argument is that witnesses could only be presented if McNickles chose to go to trial. He did not. However, the trial court gave him ample opportunity to choose a trial over a plea. As a prelude to addressing this issue, we relate additional facts.

¶ 9. On the day that McNickles was scheduled for trial, he dismissed his attorney. The court advised McNickles that his case was not going to be continued, as it had already been continued four times. The court then inquired as to the reason for the dismissal, and McNickles responded, “See none of the people that — the witnesses on my case and things like that, he hadn’t contacted any of them.” McNickles also informed the court that he had told his attorney about the witnesses “when this case first occurred.” Thereafter, the court ascertained from defense counsel that no witnesses had been subpoenaed, with defense counsel explaining that he only knew about one witness and had decided, as a matter of trial strategy, not to call that witness. After further discussion between the court, defense counsel, and McNickles, the following colloquy occurred:

BY THE COURT: Well, are they — do you want to instanter subpoenas for these people that he wants? I’d be happy to grant it to you.
BY [ATTORNEY FOR DEFENDANT]: Yes, sir, I would like to subpoena everybody he wants me to subpoena.
BY THE COURT: Well, I’d be happy to issue it to you. I mean, it is sort of late in the day, but I would be happy to do that.
⅜ * * * :¡í *
BY THE COURT: All right. Mr. McNickles, you need to write down the names and give the best addresses you have of those people, and I certainly will grant your attorney’s request for instanter subpoenas and try to get those people here sometime while your case is being tried. But I’m not in the habit of postponing trials because the defendant wants to subpoena witnesses the day of his trial or wants to fire his attorney the day of his trial.

The discussion ended with the court ordering a subpoena instanter for the witnesses identified by McNickles. The court then took up the aforementioned motion to suppress.

¶ 10. Following the conclusion of the suppression hearing, the court recessed until 1:30 in the afternoon. When the court reconvened, it was advised that the State and the defense had reached a plea agreement in which McNickles would plead guilty as a habitual offender, and the State would recommend a sentence of thirteen years. After a lengthy plea qualification hearing and a considerable amount of vacillation, McNickles finally entered a plea in accordance with the plea agreement. Therefore, we find no merit to McNickles’ contention that the court erred in accepting his guilty plea without giving him an “opportunity to put on witnesses to substantiate his assertions and mitigate the charges.”

¶ 11. We further find that McNickles waived this issue by pleading guilty as the entry of a valid guilty plea limits what issues may be raised on appeal. Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990). “A valid guilty plea ... admits all elements of a formal criminal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment against a defendant.” Id.

¶ 12. McNickles next contends that his plea was not knowingly and intelligently entered because he never “fully admitted that he was aware of the presence of the gun in [the] vehicle and where the state [sic] never proved this element of actual knowledge.” This contention is without merit. Under Alford, McNickles was not required to admit that he knowingly possessed the firearm. It is sufficient that McNickles was aware of the charge against him and the proof to be offered by the State, notwithstanding his disagreement with it. For the reasons stated above, we find that McNickles’ plea was valid.

2. Denial of Due Process

¶ 13. First, McNickles contends that his sentence of thirteen years, pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2000), is illegal because defendants convicted under section 99-19-83 must be sentenced to life. This contention has no merit. In Cook v. State, 910 So.2d 745, 747(¶ 10) (Miss.Ct.App.2005) (citing McGleachie v. State, 800 So.2d 561, 563(¶ 4) (Miss Ct.App.2001)) this Court addressed this issue and held that “it is well established in Mississippi that an individual may not plead guilty to a crime, receive a lesser sentence than what is prescribed by statute, and then use the more lenient sentence as a sword to attack the entire sentence as illegal.”

¶ 14. Second, McNickles, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), alleges a deprivation of his constitutional rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, because, according to McNickles, “the jury should decide, if the penalty exceeds that which is normally allowed by law, whether the defendant should be sentenced as a habitual offender.”

¶ 15. In Apprendi, the United States Supreme Court held that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (quoting Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)) (emphasis added). In Blakely, the United States Supreme Court held “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (emphasis added). McNickles’ reliance on Apprendi and Blakely is misplaced because it is clear from the language in both of these cases that a jury is not required to pass upon an enhanced penalty due to prior convictions. McNickles’ sentence is within the limits of section 99-19-83 as construed by Mississippi law. This argument has no merit.

¶ 16. McNickles also argues that the trial court erred in finding that he is a habitual offender without presenting this issue to a jury. This issue is wholly without merit. In Buckley v. State, 511 So.2d 1354, 1360 (Miss.1987), the Mississippi Supreme Court held that the determination of whether a defendant is a habitual offender is a non-jury issue. See also Keyes v. State, 549 So.2d 949, 951 (Miss.1989) (holding that the Constitution confers on the accused no right of a trial by jury on the question of whether he is an habitual offender). Additionally, Rule 11.03(3) of the Uniform Rules of Circuit and County Court provides: “If the defendant is convicted or enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions.” (emphasis added).

3. Evidentiary Hearing

¶ 17. McNickles also argues that the trial court erred in failing to conduct an evidentiary hearing because he provided the court with a sworn affidavit from his brother, the person whom McNickles contends owned the firearm found in his truck. The record reflects that McNickles entered his guilty plea after acknowledging that the jury would likely find the testimony of the deputy sheriff and the narcotics officer more credible:

[BY THE COURT]: Q. What I was about to say is, you heard the testimony of the two—the deputy sheriff and the narcotics officer that testified that they found the cartridges on your person in your pocket, right?
A. Yes, sir.
Q. And you heard them testify that this gun was found-
A. Behind the seat.
Q. —behind the front seat driver side of your pickup?
A. Yes, sir.
Q. And you heard them both testify that they said that you said that there was a gun in the truck behind the front seat?
A. Yes, sir.
Q. Because of that kind of testimony, do you believe that if you went to trial and a jury heard all this case that there is a good chance that the jury is going to convict you of this crime and because of that you want to take this deal that is on the table?
A. Yes, sir.

¶ 18. Mississippi Code Annotated section 99-39-11(2) (Rev.2000) provides: “If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.” Therefore, notwithstanding the information contained in the affidavit, we find that the trial court committed no error in refusing to grant McNickles an evidentiary hearing because, based on the record of the plea hearing, McNickles is not entitled to any relief.

A Ineffective Assistance of Counsel

¶ 19. McNickles failed to argue that his counsel was ineffective in his PCR, and this claim was not distinctly assigned as error in his brief to this Court. Therefore, this issue is procedurally barred, as we will not address issues presented initially on appeal. Taylor v. State, 682 So.2d 359, 362 (Miss.1996). Procedural bar notwithstanding, we find no merit to this issue, as the record belies this allegation of error. The following exchange occurred at McNickles’ guilty plea hearing:

[BY THE COURT]: I know earlier you said you wanted to fire [your attorney]. But I do want to ask you, are you reasonably satisfied with what [your attorney] has done for you?
A. Well, yes, sir, I’m satisfied with him.
5. Cumulative Error

¶ 20. This issue is without merit, as we have found no reversible error in any of the separate issues.

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

KING, C.J., LEE AND MYERS, P.JJ, CHANDLER, GRIFFIS, BARNES, ISH-EE AND CARLTON, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.

      . McNickles also claims that his counsel was ineffective; however, this issue was not presented to the trial court in his PCR and was not specifically listed as a issue in his brief to this Court.


author: GRIFFIS, J., LEE, P.J.,

text:
    Paul M. MARSHALL, Appellant, v. Sharon R. MARSHALL, Appellee.
    No. 2005-CA-00436-COA.
    Court of Appeals of Mississippi.
    June 12, 2007.
    Rehearing Denied Oct. 23, 2007.

      Wren Carroll Way, Vicksburg, attorney for appellant.
    Mark W. Prewitt, Vicksburg, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Sharon Marshall was granted a divorce from Paul Marshall. The final judgment granting a divorce included equitable distribution, an award of alimony, and an award of attorney’s fees. Paul appeals and argues that the chancellor erred when she classified certain property as marital, and when she made an inequitable distribution of necessary repair costs to the marital dwelling. We find no error and affirm.

FACTS

¶ 2. Paul and Sharon Marshall were married in Vicksburg, Mississippi, on February 17, 1973. They have three emancipated children.

¶ 3. Paul and Sharon separated in May of 1996. Paul and Sharon never again cohabited. On June 7, 1996, Sharon filed for divorce on the grounds of adultery. The chancery clerk assigned this action case number 1996-212GN. On July 3, . 1996, the chancellor entered an agreed order that granted Sharon temporary spousal support and child support in the amount of $900 a month.

¶ 4. Seven years later, on February 14, 2003, the clerk dismissed the case (case number 1996-212GN) without prejudice as a stale claim, in accordance with Rule 41(d) of the Mississippi Rules of Civil Procedure. After the dismissal, Paul ceased his payments for temporary spousal support and child support.

¶ 5. On August 17, 2003, Sharon filed her complaint for a divorce and commenced the present action. The chancery clerk assigned this action case number 2003-278GN. On September 29, 2003, the court entered an order for temporary support for Sharon. Thereafter, following a five day hearing, the chancellor entered a judgment granting a divorce on the grounds of adultery. The final judgment equitably divided the parties’ assets and awarded Sharon alimony and attorney’s fees.

ANALYSIS

¶ 6. Paul appeals the chancellor’s classification, valuation, and division of the parties’ marital and separate property. The decision of a chancellor shall not be disturbed on appeal unless it is found to be manifestly wrong, clearly erroneous, or an improper legal standard was used. Arthur v. Arthur, 691 So.2d 997, 1001 (Miss.1997). However, if we find error, we will not hesitate to reverse. Douglas v. Douglas, 766 So.2d 68, 70(¶ 6) (Miss.Ct.App.2000). We now turn to each of Paul’s allegations.

I. The chancellor erred in the classification of the parties’ assets as marital and separate property.

¶ 7. Paul alleges that the chancellor erred in failing to recognize the 1996 temporary order as a line of demarcation of the end of the marriage. Specifically, he argues that the temporary order, entered on July 3, 1996, created a line of demarcation and a presumption arose that all property accumulated by the parties as marital property ended, and the presumption that property acquired thereafter was presumed to be each party’s separate property-

¶ 8. The supreme court has set up a number of guidelines for chancellors to follow during equitable distribution. The chancellor must: (1) classify the parties’ assets as martial or separate, (2) value those assets, and (3) divide the marital assets equitably. Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Marital property consists of assets acquired or accumulated during the course of the marriage. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). Separate property consists of property acquired before or outside of the marriage. MacDonald v. MacDonald, 698 So.2d 1079, 1083 (Miss.1997). All assets acquired during the course of the marriage are presumed to be marital. Hemsley, 639 So.2d at 915.

¶ 9. Normally, the course of the marriage runs from the marriage date until the final judgment of divorce. There is an exception that has arisen due to the fact that Mississippi does not recognize legal separation. In Godwin v. Godwin, 758 So.2d 384, 386(¶ 7) (Miss.1999), the supreme court held that:

[a]ssets acquired after an order for separate maintenance should be considered the separate property of the parties, absent a showing of either (1) contribution to the acquisition of the asset by the other spouse as contemplated in our decisions in Ferguson v. Ferguson, 639 So.2d 921, 928-29 (Miss.1994), and Magee v. Magee, 661 So.2d 1117, 1123 (Miss.1995) or, (2) acquisition of the asset through the use of marital property.

This Court has extended this principle to temporary support orders. Barnett v. Barnett, 908 So.2d 833, 841(¶ 17) (Miss.Ct.App.2005) citing Pittman v. Pittman, 791 So.2d 857, 864 (¶¶ 17-18) (Miss.Ct.App.2001).

¶ 10. In this case, the chancellor stated, “the parties have been separated for a number of years. However, there is no law to support that a lengthy separation is enough to classify an otherwise marital asset as non-marital.” This statement is not quite accurate, based on the legal precedent cited in the preceding paragraph. In this appeal, Paul argues' that this finding was in error because, although a separate maintenance judgment does not exist, the court entered a temporary support order in 1996 in case number 1996-212GN.

¶ 11. Paul’s argument is well stated. We would agree with Paul’s authorities except for one significant fact. The July 3, 1996 temporary order was entered in case number 1996-212GN. That case was dismissed in 2003, and Paul was relieved of the duties, responsibilities and obligations under the 1996 temporary order. Indeed, Paul took advantage of the dismissal and ceased making the payments to Sharon. As a result, after the dismissal, in March of 2003, Sharon had no right or authority to enforce Paul’s payment under the 1996 temporary order in case number 1996-212GN. At that time, Paul and Sharon were legally married and there was no pending divorce action. Hence, we conclude that there was no line of demarcation for division between marital and non-marital property.

¶ 12. Paul cites us to Pittman v. Pittman, 791 So.2d 857, 864(¶18) (Miss.Ct.App.2001), to support the proposition that the 1996 temporary order should be treated as an interruption in the marriage. We accept that Pittman would guide our decision if case number 1996-212GN had continued through to a final judgment. Indeed, were that the case, Paul would be absolutely correct in his argument that all property acquired after the 1996 order would be separate property subject to the exceptions mentioned in Godwin. Pittman, 791 So.2d at 864(¶ 19).

¶ 13. Here, we find that the chancellor was correct to not consider the July 3, 1996 order, in case number 1996-212GN, as a line of demarcation for the equitable division of the marital assets. Therefore, we find no merit to this issue.

II. The chancellor erred in assigning a value to the marital home different from the parties’ stipulation.

¶ 14. Paul next argues that the chancellor erred “in the valuation of the marital domicile in lowering the stipulated, present day appraisal of $65,000.00 and deducting therefrom the cost of repairs of $21,000.00.” While the parties did stipulate that the value of the marital dwelling was $65,000, the chancellor was free to take into account any necessary repairs that would need to be made and allocate the costs of repairs to the parties.

¶ 15. Where there is court approval of a formal stipulation, the issues addressed in the stipulation are forever settled and excluded from controversy. Douglas v. Douglas, 766 So.2d 68, 71(¶ 9) (Miss.Ct.App.2000). Here, only the value of the marital dwelling was agreed upon in the stipulations. The written stipulation did not consider repairs. The chancellor believed that the necessary repairs, which the testimony supported, should be taken into account and then reduced Sharon’s assets by that amount. Paul argues that this is not equitable, because it makes him account for the entire cost of repairs to the marital dwelling while the sole benefit, the increased value of the dwelling, goes to Sharon.

¶ 16. Equitable distribution does not mean equal distribution. Owen v. Owen, 798 So.2d 394, 399(¶ 14) (Miss.2001). This Court must determine if the distribution as a whole is inequitable. Tillman v. Tillman, 716 So.2d 1090, 1094(¶ 19) (Miss. 1998). We view this distribution with the familiar abuse of discretion standard. Id. An equal division of the repair cost would have been $10,-500 for each party. With property totaling over $130,000, the additional allocation of $10,500 to Paul is a small portion of the total allocation. It is clear after viewing the distribution as a whole, the chancellor did not abuse her discretion by only reducing Sharon’s assets by the amount of the necessary repairs. We find no merit to this issue.

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

MYERS, P.J., BARNES, ROBERTS AND CARLTON, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY. LEE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, CHANDLER AND ISHEE, JJ.

LEE, P.J.,

dissenting.

¶ 18. Because I find that the entry of the temporary order was enough to establish a line of demarcation regardless of its dismissal, I respectfully dissent.

¶ 19. By the time of their divorce, Paul and Sharon had been separated for nine years. During this separation Paul made child support payments and spousal support payments pursuant to a temporary order. As the majority correctly states, a temporary support order can create a point of demarcation with respect to the parties and their estates. See Pittman v. Pittman, 791 So.2d 857, 864(¶ 18) (Miss.Ct.App.2001). Although this temporary order was eventually dismissed in 2003 and Paul ceased his support payments to Sheila, I find that the better course in situations such as this would be to focus on the equities involved. If the evidence is clear that during a period of long separation prior to divorce the parties did not contribute to the accumulation of a particular asset, then I find no reason why that particular asset should be equitably divided. In the absence of a separate maintenance or temporary support order, I do not suggest that we arbitrarily pick a date or time to serve as a starting point for a chancellor to determine when a separation truly begins for purposes of classifying assets. If a couple separates for however long, whether five, fifteen years or whatever, and produces evidence that their newly acquired assets were not jointly accumulated or in any way obtained through some form of mutual contribution or acquisition, then the only equitable result is to classify the property as non-marital. I agree with Judge Irving’s dissent in Graham v. Graham, 767 So.2d 277, 284(¶ 27) (Miss.Ct.App.2000), where he stated, “a marriage license alone should not entitle one spouse to share in what the other spouse has accumulated if the accumulation was not the result of joint contributions.”

¶20. In this case, the parties were clearly separated as a result of the temporary support order as well as by the very act of physically separating themselves from one another without any subsequent periods of cohabitation. The separation occurred and continued uninterrupted and I cannot find that the subsequent order dismissing the separate maintenance order as a stale case negated the fact that the parties were truly separated and remained so. Mississippi law does not provide for a legal separation. Separation occurs when the parties do just exactly that, separate. In this case, they did, court order for temporary support notwithstanding.

¶ 21. I find that the chancellor erred in determining that the 1996 temporary order was not a line of demarcation; thus, I respectfully dissent.

IRVING, CHANDLER AND ISHEE, JJ., JOIN THIS OPINION.


author: CARLTON, J., for the Court.

text:
    CULBREATH REVOCABLE TRUST and Quad C. Farms, Appellants v. Dick S. SANDERS, Charlie V. Sanders, Dennis Churchwell and Lynley Churchwell, Appellees.
    No. 2006-CA-00291-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.
    Rehearing Denied Dec. 11, 2007.

      Thomas Henry Freeland, attorney for appellants.
    William F. Schneller, Holly Springs, attorney for appellees.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. This is an appeal challenging the findings of a chancellor that no misrepresentations were made to a purchaser of land, and the award of earnest money as liquidated damages and attorney’s fees pursuant to the contract for the sale of land. Finding no error, we affirm.

FACTS

¶ 2. Don Culbreath is the settlor of the Culbreath Revocable Trust. His son Elliot is the beneficiary of that trust. Both Don and Elliot are partners comprising the Tennessee general partnership, Quad C. Farms. Don Culbreath had previously developed land and was experienced in other business ventures and transactions.

¶ 3. The appellees here were the parties selling the land involved in this dispute. They include Dick Sanders, his brother, Charlie Sanders, and husband and wife, Dennis and Lynley Churehwell. The owners of the property were Dick Sanders, Charlie Sanders, and Lynley Churehwell. Dennis had no ownership interest in the property apart from his wife.

¶ 4. In June 2003, Don and Elliot Cul-breath were shown a 432 acre tract of land in Marshall County, Mississippi, by Dennis. The sellers had purchased the land seven days prior to Dennis showing the land to Culbreath. The property has a field road that runs through it and is raised approximately four feet above the level of the land. The property is adjacent to a creek and two creeks run through the property. During the June 2003 tour of the land, Culbreath inquired from Dennis whether the property flooded. Dennis communicated to Culbreath that approximately “twenty to thirty acres floods.” Twenty to thirty acres of the property were designated as swamp or wetland on the topography map which was given to Culbreath and later attached to the contract he would sign. The topography map Culbreath received showed the elevation of much of the property to be on the same level as the banks of an adjacent river and a creek. Culbreath also requested a flood map that would indicate how much of the land flooded. Culbreath did not include any language in the contract reserving a right to cancel the purchase in relation to the amount of land that flooded.

¶ 5. On June 27, 2003, Don, acting on behalf of himself, his son, the trust, and partnership, signed a contract to purchase the property. Dick Sanders and Dennis signed the contract as the sellers. Charlie Sanders and Lynley Churehwell did not sign the contract. The agreed purchase price for the property was $850,000. The earnest money totaled $65,000 including $10,000 in cash, and used equipment, including a backhoe, and a bulldozer valued at $55,000. The initial closing date was set as August 15, 2003. Pursuant to the terms of the contract, Culbreath took possession of the property on the date the contract was signed. Culbreath was to pay an agreed amount of rent each month until the closing took place.

¶ 6. Evidence was presented that, subsequent to the execution of the contract, Elliot Culbreath no longer wanted to purchase the property. Evidence was also presented that Don was still interested in completing the purchase on his own. The chancellor found that Don was still attempting to meet the closing date even after having received the flood plain map from the U.S. Army Corps of Engineers. By letter dated September 3, 2003, Dick Sanders extended the closing date to September 12, 2003. He also stated that the earnest money would be forfeited if closing did not take place by September 12.

¶ 7. In a letter dated September 9, 2003, counsel retained by Culbreath informed Dick Sanders that Don and Elliot Cul-breath would not be closing on the property because Dennis misrepresented the flood zone on the property. Culbreath’s counsel alleged in the letter that over eighty percent of the property is in the flood zone. A demand was made for the return of the portion of the earnest money and equipment that had already been paid and that the contract be rescinded. Cul-breath had only paid $10,000 in cash and given $20,000 in equipment toward the total earnest money set at $65,000. None of the earnest money was returned to Cul-breath.

¶ 8. On April 27, 2004, Culbreath filed suit in the Marshall County Chancery Court. Culbreath alleged fraud, intentional and negligent misrepresentation, and failure to make statutory disclosures. He sought rescission of the contract, actual and punitive damages, and attorneys fees. A trial was held, and proposed findings of fact and conclusions of law were submitted by the parties to the chancellor.

¶ 9. Prior to the date of the trial, the property had already been sold to other parties. Dick Sanders testified that he purchased an additional seven acres adjacent to the property. He also testified that improvements were made including an additional road being built through the property. The property was then divided and sold to various purchasers.

¶ 10. On January 25, 2006, the chancellor rendered his judgment. He found no misrepresentations were made to Cul-breath, and that Culbreath did not rely on statements Dennis made concerning how much of the property flooded. Pursuant to the terms of the contract, the chancellor awarded the sellers the balance of the earnest money owed with interest in the amount of $39,518.89, and attorney’s fees in the amount of $3,750. Aggrieved by this decision, Culbreath appeals. His appeal has been assigned to this Court.

DISCUSSION

¶ 11. We will not disturb the chancellor’s findings if they are supported by substantial evidence and are not manifestly wrong or clearly erroneous. Estate of Dykes v. Estate of Williams, 864 So.2d 926, 930(¶ 9) (Miss.2003). Questions of law are reviewed de novo. Id.

1. Validity of Contract

¶ 12. Culbreath argues that the chancellor erred in refusing to rescind the contract which was void by virtue of the statute of frauds. However, the parties conceded the validity of the contract. The chancellor stated that neither party advanced proof that there was an agency relationship between Dick Sanders and Charlie Sanders or Lynley Chruchwell. There was no proof that Don Culbreath had the capacity to bind his son, Elliot, through a power of attorney. The chancellor was “inclined to put the parties back into the position they occupied before signing [the contract],” but did not do so because of the concession as to validity. The chancellor stated in his judgment that the “Court takes pain in finding that this was a contract.” The chancellor concluded that the contract was valid due to the pleadings of the parties and admissions in their briefs that a valid contract did exist. The chancellor was uncomfortable in using the statute of frauds to conclude no contract existed due to the admissions of the parties.

¶ 13. Based upon the arguments of the parties and the findings of the chancellor, the validity of the contract is not an issue relevant in this appeal. Any affirmative defense based upon the statute of frauds has been waived. Pass Termite & Pest Control, Inc. v. Walker, 904 So.2d 1030, 1033(¶ 10) (Miss.2004); see also Canizaro v. Mobile Communications Corp. of Am., 655 So.2d 25, 30 (Miss.1995) (holding that the defense of the statute of frauds may be waived).

2. Misrepresentation By Fraud or Negligence

¶ 14. Culbreath argues that the chancellor erred in concluding that there was neither a fraudulent nor negligent material misrepresentation made to Cul-breath. Culbreath relies on case law in arguing that he had a right to rely on representation of Dennis without further inquiry. Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 164-65, 125 So. 708, 709 (1930). In Nash, a purchaser of a used vehicle attempted to return the vehicle and rescind the purchase contract. Id. The basis for the recision was one not good at law. Id. The purchaser then discovered that the mileage of the purchased vehicle had been altered. Id. The supreme court held that if “A attempts to rescind his contract with B on a ground not good in law, but there exists, at the time, a ground that is good in law, A can, later, rely on the good ground and is not bound to stand on the false ground.” Id. (citation omitted). Culbreath also argues that Dennis is guilty of fraud if he knew more than twenty to thirty acres of the land flooded or if he was ignorant of that fact. J.A. Fay & Egan Co. v. Louis Cohn & Bros., 158 Miss. 733, 749, 130 So. 290, 292 (1930). Culbreath concludes that the findings of the chancellor are not supported by the evidence.

¶ 15. At trial, Culbreath was required to prove the following to meet his burden on the claim of fraudulent misrepresentation:

The elements of fraud, which must be proven by clear and convincing evidence, include: 1) a representation; 2) its falsity; 3) its materiality; 4) the speaker’s knowledge of its falsity or ignorance of its truth; 5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; 6) the hearer’s ignorance of its falsity; 7) his reliance on its truth; 8) his right to rely thereon; and 9) his consequent and proximate injury. In order to establish fraudulent misrepresentation, the elements of fraud must be proven.

Levens v. Campbell, 733 So.2d 753, 761(¶ 35) (Miss.1999) (internal citations omitted). Culbreath was required to prove the following to meet his burden on the claim of negligent misrepresentation:

To recover on a cause of action based on negligent misrepresentation, [a plaintiff] must prove by a preponderance of the evidence: 1) a misrepresentation or omission of a fact; 2) that the representation or omission is material or significant; 3) failure to exercise reasonable care on the part of the defendant; 4) reasonable reliance on the misrepresentation or omission; and 5) damages as a direct result of such reasonable reliance.

Id. at 762(¶ 40) (internal citations omitted).

¶ 16. In the present ease, the chancellor found that Culbreath failed to prove at least two elements of fraudulent misrepresentation: that the representation of Dennis was false, and that Culbreath relied on the truth of that representation. The chancellor found that the statement “twenty to thirty acres floods” was not false. The chancellor found that the parties never discussed the difference between how much of the land flooded or how much of the land was within the 100-year flood plain. The chancellor also found that there was no evidence whether Culbreath’s question about how much of the land flooded meant how much floods annually, regularly, or under the 100-year flood plain.

¶ 17. The evidence demonstrated that the term “flood” was not used interchangeably with “flood plain.” There was evidence that Dennis did not know the amount of acreage that was in the 100-year flood plain, but stated only that twenty to thirty acres of the property flooded. There was also evidence that Dennis relied upon the topography map showing twenty to thirty acres of swamp or wetlands within the property.

¶ 18. In addition, there was evidence that Culbreath did not rely upon the statement of Dennis concerning the flooding of the property. Culbreath testified that he knew a contingency provision could have been included in the contract about any concerns relating to flooding. Cul-breath chose not to include such a provision. Of importance is that Culbreath was given the topography map prior to signing the contract. That map showed no grade variation between a river and creek, and the contour lines extending over into the property.

¶ 19. The chancellor questioned Culbreath’s credibility and gave little weight to his testimony due to his “demeanor and unconfident answers that he gave....” In his brief, Culbreath attempts to explain a misstatement he made at trial. However, it is “the chancellor’s duty to evaluate the credibility of the witnesses.” Simmons v. Jaggers, 914 So.2d 693, 697(¶ 20) (Miss.2005).

¶ 20. The record demonstrates that there was ample evidence to support the chancellor’s conclusion that Dennis did not make a false or incorrect statement when he communicated to Culbreath that twenty to thirty acres of the property floods. Having found that the statement Dennis made was not a misrepresentation, and that Culbreath did not rely upon that statement, the chancellor also concluded that Culbreath failed to meet the required burden to prove negligent misrepresentation.

¶ 21. The chancellor’s finding that Cul-breath failed to meet the required burden of proof on the claims of fraudulent and negligent misrepresentation is supported by the evidence. The evidence the chancellor relied upon is of sufficient weight to support his findings. Our affirmance of the chancellor’s findings that Churehwell did not make a misrepresentation to Cul-breath and that Culbreath did not rely on any statement made by Dennis renders moot the issue of whether Dennis was acting as an agent of the Sellers.

3. Damages

¶ 22. Culbreath argues that the chancellor erred in awarding any damages because the property was eventually sold for approximately $1,200,000. This amount was greater than the $850,000 Cul-breath agreed to pay for the property. Culbreath cites case law in arguing that liquidated damages in a contract for the sale of property are not allowed where there are no actual damages. Maxey v. Glindmeyer, 379 So.2d 297, 300-01 (Miss.1980) (discussed below); Jones v. Miss. Farms Co., 116 Miss. 295, 305-07, 76 So. 880, 884 (1917) (case involving a contract, but not for sale of property, holding that liquidated damages cannot be unconscionable and extravagant). Culbreath also relies on case law holding that damages must not exceed that which was actually sustained by a non-breaching party. Eastland v. Gregory, 530 So.2d 172, 175 (Miss.1988) (actual damages awarded to seller where seller elected to sue for actual damages instead of accepting earnest money as liquidated damages, and advanced proof seller suffered $12,500 in actual damages and attorney’s fees). We note that East-land dealt with a situation where actual damages were sought by a seller, not liquidated damages as in the present case. Id. at 174. The applicability of the supreme court’s statement in Eastland, that a “party who breaches a contract is only liable for the damages caused by the breach, and the non-defaulting party is only entitled to be put in the same position he would have been had there been no breach,” should be read in light of the fact that actual damages were at issue there. Id.

¶ 23. The Sellers here argue that earnest money is treated as liquidated damages in real estate transactions, even where the contract does not declare it as liquidated damages. The applicable case law they rely upon is discussed below.

¶ 24. Dick Sanders testified that after Culbreath breached the contract, Sanders purchased seven additional acres adjacent to the property. Sanders also testified that the property was further developed including an additional road being built through the property. Sanders testified that the expanded and improved property was not sold as one tract of land, but was sold in seven or eight different tracts. The expansion, improvements, and sales took place within a two-year period after Culbreath breached the contract.

¶ 25. The relevant portion of the contractual provision providing for damages states:

in the event of breach of this contract by Buyer, Seller at his option may either: (1) accept the earnest money deposit as liquidated damages and this contract shall then be null and void, or (2) enter suit in any court of competent jurisdiction for damages, giving credit on said damages for the said earnest money deposit, or (3) enter suit in any court of competent jurisdiction for specific performance.
If it becomes necessary to insure the performance of the conditions of this contract for either party to initiate litigation, then the losing party agrees to pay reasonable attorney’s fees and court costs in connection therewith.

The chancellor found that the parties were bound to the liquidated damages provision in the contract.

¶ 26. As early as 1847, Mississippi law has been that earnest money is held to be liquidated damages. Sims v. Hutchins, 16 Miss. 328, 8 S. & M. 328 (1847). The Sims opinion states:

This suit was instituted before a justice of the peace, for money had and received. It seems that Hutchins by a parol contract, entered into in January, 1840, agreed to buy of Sims a tract of land for six hundred and fifty dollars, one half of which was to be paid on the first of March following, when the contract was to be consummated and possession delivered. Hutchins, in part performance, paid Sims fifty dollars, but on the first of March was unable, as he states, to pay the balance, and refused to complete the contract, though Sims was very willing to do so on his part. He says that Sims did not expressly agree to a rescission of the contract, though he said nothing when informed by Hutchins of his intended abandonment. Another witness states that Sims was willing and anxious to comply on his part, but the vendee refused to make the payment, on the ground, as stated by him, that he had made a bad bargain, although he had the money. Sims was even willing to give time for payment, and offered to go to Lexington to execute a deed. This witness also states, that Sims did not agree to rescind the contract.
On this state of the evidence, it is impossible to conclude that the contract was rescinded by mutual consent, either express or implied, and without such mutual rescission it must be clear that the amount paid in part performance, cannot be recovered back. The only grounds for such a recovery are the unwillingness or inability of the vendor to convey according to contract, or a mutual abandonment of the contract. That the contract was not in writing may be good ground of defence, when specific performance of the contract is sought against the vendor, for whose benefit the statute was passed; but if the vendor is willing to perform, the price paid cannot be recovered back. Contracts by parol for land are generally regarded as voidable merely. Philbrook v. Belknap, 6 Vt. 383. On this principle it is clear, that if the vendor does nothing to avoid the contract, but on the contrary is both able and willing to perform, the vendee cannot recover what he has paid. The precise point now before us was raised in the case of Dowdle v. Camp, 12 Johns. [N.Y.] 451, and it was holden that the vendee could not recover back his money without some default of the vendor. The same point was also very fully considered in Shaw v. Shaw, 6 Vt. 69, and decided in the same way.

Id. at 330-31. This rule of law was repeatedly applied by the supreme court, the most recent application in 1976. Coats v. Taylor, 332 So.2d 417, 419-20 (Miss.1976) (quoting Sims, 16 Miss, at 331). The longstanding strict application of Sims, that the “only grounds” for recovery of earnest money are the unwillingness or inability of the vendor to convey according to contract, or a mutual abandonment of the contract, was modified just four years after that rule was applied in Coats. Maxey v. Glindmeyer, 379 So.2d 297, 300-01 (Miss.1980).

¶ 27. In Maxey, a contract for sale of land contained a liquidated damages provision stating:

In the event that the purchaser fails to comply within the time specified, the seller shall have the right to declare the $75,000 of the deposit, ipso facto forfeited as liquidated damages without formality beyond tender of title to the purchaser; or the seller may demand specific performance.

Maxey, 379 So.2d at 299. The supreme court, for the first time, applied to land sales contracts the requirement that liquidated damages be reasonable as stated in the Uniform Commercial Code. That requirement states:

Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasability[nonfeasibilty] of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

Id. at 301 (quoting Miss.Code Ann. § 75-2-718 (1972)).

¶ 28. The liquidated damages in Maxey were set at $75,000. The purchase price of the property was $150,000. The damages were held to be unreasonable because it was imposed regardless of whether the seller’s damages amounted to $75,000 or not. Id. The supreme court reversed and remanded the award of damages for a determination on the amount of damages the seller actually sustained due to the buyer’s breach. Id. The seller was entitled to an “amount only which will reimburse her for those damages.” Id.

¶ 29. The supreme court has mentioned Maxey in summarizing the law on liquidated damages. Board of Trustees v. Johnson, 507 So.2d 887, 889-90 (Miss.1987). There, the court stated:

In [Maxey ], this Court stated, “Equity will enforce a contract for liquidated damages if such liquidated damages can be found to be reasonable and proper in the light of the circumstances of the case.” Indeed, parties agree to the payment of liquidated damages where it is difficult to determine actual damages, resulting from a breach. Consequently, if such are not a reasonable pre-estimate of damages, but are unreasonable or constitute a penalty, their provision is unenforceable. To distinguish then liquidated damages from a penalty, courts must look to the parties’ intentions.

Johnson, 507 So.2d at 889-90 (internal citations omitted).

¶ 30. We do not read Maxey to render meaningless the liquidated damages provisions in contracts to purchase property. Rather, Maxey stands for the rule that the norms of equity are applicable to all liquidated damages provisions. See R.K v. J. K, 946 So.2d 764, 773-74 (¶¶ 18-26) (Miss.2007) (upholding a chancellor’s refusal to enforce a liquidated damages provision in a property settlement agreement by applying the clean hands doctrine to bar enforcement). We also read Maxey as setting out the rule that where the liquidated damages are unreasonable, such as earnest money being fifty-percent of the purchase price, a party must then seek to recover actual damages by demonstrating such damages were actually incurred.

¶ 31. The liquidated damages here were in the amount of $66,000 which included $10,000 cash and $55,000 in equipment. The earnest money here was approximately 7.6% of the purchase price. As a matter of published record, an earnest money amount of 7.6% seems to be reasonable as evidenced in many cases reviewed by the appellate courts of this State noting similar percentages of earnest money. See, e.g., Earwood v. Reeves, 798 So.2d 508, 510(¶ 4) (Miss.2001) (7.6% earnest money, $100,000 on a $1,300,000 purchase); Wade v. Selby, 722 So.2d 698, 699(¶ 2) (Miss. 1998) (10.5% earnest money, $3,000 on a $28,500 purchase); Jones v. Baker, 242 Miss. 833, 836-37, 135 So.2d 846, 848 (1962) (10% earnest money, $1,600 on a $16,000 purchase).

¶ 32. In the present case, the need for liquidated damages is evident as it would be extremely difficult to estimate possible damages in the event of a breach. The language of the contract demonstrates that a preset amount of damages was the intention of the parties. It is implied in the chancellor’s award of earnest money as damages that he did not think the amount to be unreasonable. The subsequent expansion, improvement, and sale of the land should not render the liquidated damages provision in the contact meaningless. The contract involved a substantial sum for the purchase price. The exact damages that could result in the event of a breach would understandably be difficult to determine before hand, and could be substantial. The liquidated damages were well under ten percent of the purchase price, an amount that has been used in other contracts as a reasonable amount of earnest money. Being reasonable, it was within the discretion of the chancellor to enforce the liquidated damages provision of the contract. On this record, we will not disturb the determination of the chancellor to enforce that provision.

¶ 33. The chancellor was also authorized under the contract to award attorney’s fees to the prevailing party. The chancellor followed the provisions of Mississippi Code Annotated section 9-1^41 (Rev.2002) as to the reasonableness of the fees awarded. We find no error in the award of attorney’s fees and other findings and conclusions of the chancellor.

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

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

      . There was a proposed modification of the original contract which would have increased the purchase price to $200,000, but the opinion is not clear if that was the set price in the final contract. See Maxey, 379 So.2d at 300.


author: ISHEE, J., for the Court.

text:
    Timothy R. SHARP, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01407-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2007.
    Rehearing Denied Jan. 29, 2008.
    Timothy R. Sharp, Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. Timothy R. Sharp was convicted of one count of sexual battery and one count of fondling in the Circuit Court of Itawam-ba County on January 17, 2001. He was sentenced to thirty years in the custody of the Mississippi Department of Corrections for the sexual battery conviction, with ten years suspended, and five years for the fondling conviction, to run concurrently with the twenty years he had to serve. On October 26, 2004, the supreme court granted Sharp leave to proceed in the trial court on his claim that he received ineffective assistance of counsel, under the assertion that his counsel failed to call a medical professional to testify that a bicycle accident had caused the child victim’s injury. Sharp alleged that the child received medical treatment from a bicycle injury prior to his arrest that could have countered the prosecution’s expert testimony regarding the physical evidence of sexual abuse. A hearing was held on Sharp’s post-conviction relief motion. On July 25, 2006, the trial court dismissed Sharp’s PCR motion. Aggrieved, he appeals, asserting that the court erred in denying him relief from his claim of ineffective assistance of counsel. Finding no error, we affirm.

FACTS

¶ 2. On November 21, 2000, an Itawam-ba County grand jury indicted Sharp for sexual battery and fondling. A trial was held, where Sharp was represented by David Daniels, and the jury found Sharp guilty on both counts of the indictment. On January 17, 2001, the trial court entered a final judgment and sentenced Sharp to a term of thirty years for the sexual battery conviction, with ten years suspended, and five years for the fondling conviction, which was to run concurrently with the twenty-year sentence, in the custody of MDOC.

¶ 3. On October 26, 2004, the supreme court granted Sharp leave to proceed in the trial court on his claim that Daniels’ assistance at trial was ineffective, and that Sharp was entitled to a hearing regarding his claim that Daniels failed to call a medical professional who could have countered the prosecution’s expert testimony regarding the physical evidence of sexual abuse. Sharp alleged that the child’s injury was the result of a bicycle accident that occurred prior to his arrest and that she had received medical treatment for that injury. The supreme court held that “all other issues raised in the petition are without merit.”

¶ 4. On June 27, 2005, the supreme court dismissed Sharp’s PCR motion, finding that Sharp had failed to file his PCR motion in the trial court. The supreme court held that Sharp should be allowed thirty days to file his PCR motion with the trial court. On July 6, 2005, Sharp filed his motion with the trial court in which he asserted he received ineffective assistance by his court-appointed attorney, Daniels. While he asserted several reasons for Daniels’ ineffectiveness, the supreme court had limited Sharp’s hearing to Daniels’ failure to call a medical professional and/or provide medical evidence to support Sharp’s claim that the child’s injury was from a bicycle accident. Sharp claimed that the child received medical treatment when she injured herself in a “straddle accident” on her bicycle; furthermore, there were medical records to support this incident. Sharp asserted that had Daniels presented evidence of the alleged injury, Sharp’s trial result would have been different. A hearing was held on July 25, 2006, and afterward the court dismissed Sharp’s motion in a bench ruling. The order stated that Sharp failed to show that there existed a “reasonable probability that having said testimony would have changed the result of the proceedings.”

¶ 5. On August 24, 2006, Sharp filed his notice of appeal and on September 19, 2006, filed his appeal, arguing that the trial court erred by dismissing his PCR motion and by not granting him relief on his claim of ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 6. In reviewing the trial court’s decision to dismiss a motion for post-conviction relief, we will reverse if the movant can substantially show that the claim is procedurally viable due to a denial of a state or federal right. Gaston v. State, 922 So.2d 841, 843(¶ 5) (Miss.Ct.App.2006) (citing Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999)). Furthermore, we will not reverse absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(3) (Miss.Ct.App.2002) (citing Kirksey v. State, 728 So.2d 565, 567(8) (Miss.1999)). However, where questions of law are raised, the applicable standard of review is de novo. Pace v. State, 770 So.2d 1052, 1053(4) (Miss.Ct.App.2000).

ISSUE AND ANALYSIS

I. Whether the trial court erred when it dismissed Sharp’s post-conviction relief motion.

¶ 7. The test for ineffective assistance of counsel is well known and requires a showing of deficiency in the performance of counsel and prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bell v. State, 879 So.2d 423, 430 (Miss.2004). To bring a successful claim for ineffective assistance of counsel, pursuant to the court’s ruling in Strickland, the defendant must prove that his attorney’s overall performance was deficient and that this deficiency deprived him of a fair trial. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Moore v. State, 676 So.2d 244, 246 (Miss.1996) (citing Perkins v. State, 487 So.2d 791, 793 (Miss.1986)). We must be mindful of the “strong but rebuttable presumption that an attorney’s performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic.” Covington v. State, 909 So.2d 160, 162(¶ 4) (Miss.Ct.App.2005) (quoting Stevenson v. State, 798 So.2d 599, 602(¶ 6) (Miss.Ct.App.2001)). To overcome this presumption, the defendant must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Woodson v. State, 845 So.2d 740, 742(¶ 9) (Miss.Ct.App.2003).

¶ 8. Sharp asserts that the trial court was in error when it dismissed his motion for post-conviction relief, in which he claimed he received ineffective assistance of his court appointed trial counsel, David Daniels. Sharp insists that the trial court “failed to give appellant’s argument fair consideration, and appellant has never been allowed any opportunity to present evidence in his favor, at trial, or direct appeal, or the post-conviction hearing.” Sharp acknowledges that his counsel during the hearing on the PCR motion, Bas-ham, did obtain the medical records his argument relies on but that she “failed to put together a physical evidence argument.” Although, Sharp’s reply brief contains a letter, marked “Exhibit 1,” dated December 29, 2005, from Basham indicating that she had subpoenaed the medical records for the child in question and had a nurse translate them. She states, “there was no mention in the records of a bicycle accident.” Basham also indicates in the December 29 letter that, per Judge Gardner’s request, she had forwarded the medical documents to his office. The court held a hearing on the PCR motion for ineffective assistance of counsel on July 25, 2006. The State presented testimony by David Daniels and Basham presented Sharp’s testimony. The trial court dismissed the motion after hearing the testimony presented, finding that Sharp had not met the standard of proof established in Strickland for a successful ineffective assistance of counsel claim. We agree.

¶ 9. After reviewing the record before us, we do not find that the trial court was in error when it dismissed Sharp’s PCR motion. The record does not indicate that Daniels’ representation of Sharp was deficient in any way, nor that Sharp’s trial would have ended with a different result had Daniels presented a medical professional’s testimony regarding Sharp’s insistence of an alleged bicycle accident. Furthermore, according to the record, Ms. Basham did subpoena the child’s medical records and the trial judge had them in his possession at the time of Sharp’s hearing on the ineffective assistance of counsel claim. Moreover, “the mere failure to call a witness for the defense, standing alone, does nothing to demonstrate ineffective assistance of counsel.” Phinisee v. State, 864 So.2d 988, 991-92(¶ 18) (Miss.Ct.App.2004) (citing Magee v. State, 744 So.2d 379, 381(¶ 8) (Miss.Ct.App.1999)). It is common in criminal trials for the defense to put on no evidence and, in summation, affirmatively uses the decision not to put on any evidence as a means of emphasizing the weakness of the prosecution’s evidence. Id. Accordingly, we find the trial court did not err when it dismissed Sharp’s PCR motion for relief. This issue is without merit.

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

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

      . Lori Nail Basham was appointed to represent Sharp for his hearing on the PCR motion.


author: ISHEE, J.,

text:
    Frederick ALEXANDER, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01176-COA.
    Court of Appeals of Mississippi.
    Nov. 13, 2007.
    Rehearing Denied April 15, 2008.

      Frederick Alexander, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Frederick Alexander was tried and convicted in the Circuit Court of Claiborne County, Mississippi on a charge of unlawful sale of cocaine. On January 6, 1997, the court entered an order sentencing him to thirty years in the custody of the Mississippi Department of Corrections (MDOC). Alexander subsequently filed a motion to reconsider the sentence on January 16,1997. The motion was based solely on the ground that the sentence was “clearly excessive.” On June 14, 2006, the trial court denied Alexander’s motion, finding it to be without merit. Alexander now appeals alleging that the trial court erred in denying Alexander’s motion to reconsider where the court imposed the maximum sentence of thirty years upon him, as a first offender, without dictating or providing justification for such action. Finding no appellate jurisdiction exists over the motion to reconsider and no error on the part of the trial court, we dismiss the appeal.

ISSUE AND ANALYSIS

1. Whether the trial court erred in dismissing Alexander’s motion to reconsider for lack of jurisdiction.

¶ 2. Alexander does not have a constitutional or common law right to appeal to this Court; instead, his ability to appeal is based entirely on statute. See Fleming v. State, 553 So.2d 505, 506 (Miss.1989) (superseded on alternate grounds). There are two primary ways a criminal defendant may challenge a trial court proceeding: (1) a direct appeal from conviction under Mississippi Code Annotated Section 99-35-101 (Rev.2007), or (2) a proceeding under the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated Sections 99-39-1 to 29 (Rev.2007). Id. Further, an “attempt to appeal an unappealable order is a total departure from the orderly administration of justice and should not be approved.” Swift v. State, 952 So.2d 1039, 1040(¶ 4) (Miss.Ct.App.2007). Alexander’s challenge to his sentencing qualifies as a post-conviction proceeding under the Post-Conviction Collateral Relief Act, and therefore, should have been brought in accordance with the statute. See Miss.Code Ann. § 99-39-5 (Rev.2007). Because Alexander is not directly appealing his conviction nor proceeding under the Post-Conviction Relief Act, this appeal is not properly before this Court. Because the Court lacks jurisdiction to hear this matter, the appeal should be dismissed. See Shanks v. State, 906 So.2d 760, 762(¶ 5) (Miss.Ct.App.2004).

¶ 3. Although Alexander has failed to properly bring his appeal before this Court, we will still address the sentencing issue.

2. Whether the trial court erred in imposing the maximum sentence of thirty years.

¶4. “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Nichols v. State, 826 So.2d 1288, 1290(¶ 10) (Miss.2002), Wall v. State, 718 So.2d 1107, 1114 (Miss.1998) (quoting Hoops v. State, 681 So.2d 521, 537 (Miss.1996)). The general rule in Mississippi is that a sentence that does not exceed the maximum term allowed by the statute cannot be disturbed on appeal. Nichols, 826 So.2d at 1290(¶ 10). Under Mississippi Code Annotated Section 41-29-115(A)(a)(4) (Supp. 2006), cocaine is a controlled substance classified in Schedule II. The penalty for selling a Schedule II controlled substance is set out in Mississippi Code Annotated Section 41 — 29—139(b)(1) (Supp.2006). The statute provides for a maximum sentence of thirty years and a fine of one million dollars. See Miss.Code Ann. § 41-29-139(b)(1) (Supp.2006). It does not require the defendant to sell any minimum amount of the controlled substance, and there is no minimum penalty. Id.

¶ 5. In the present case, Alexander was charged and convicted for the sale of cocaine. Alexander argues that though the statute-prescribes a maximum thirty-year sentence, his sentence is excessive because he is a first-time offender. The statute does grant an exception to first-time offenders, but this exception is limited to those who sell small amounts of marijuana. Id. Alexander was not charged with selling marijuana but rather cocaine, for which no exception is available.

¶ 6. Pursuant to statute, Alexander faced a possible thirty-year sentence for the sale of cocaine. Under Nichols, his sentence was within the discretion of the trial court. The trial court did not abuse its discretion, because it acted within the statutory guidelines when it imposed the maximum thirty-year sentence. Therefore, this issue is without merit.

¶ 7. THE APPEAL FROM THE CIRCUIT COURT OF CLAIBORNE COUNTY IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAIBORNE COUNTY.

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


author: MYERS, P.J.,

text:
    Riley GHOSTON, Appellant v. Debbie A. Jones GHOSTON, Appellee.
    No. 2006-CA-01848-COA.
    Court of Appeals of Mississippi.
    Nov. 20, 2007.
    Rehearing Denied April 15, 2008.
    Alix H. Sanders, Greenwood, for Appellant.

      A.E. (Rusty) Harlow, Jr., Sabrina A. Davidson, Grenada, for Appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Riley Ghoston and Debbie A. Jones Ghoston divorced due to irreconcilable differences, following a fourteen-year marriage, to which one child was born. Matters of child custody and alimony were adjudicated at a hearing on the matter, and Mrs. Ghoston received an award for both in her favor. Mr. Ghoston now seeks reversal and remand of the portion of the award regarding the ordered alimony. He argues that the chancellor (1) failed to properly consider the Armstrong factors before awarding alimony and (2) erred in failing to require Mrs. Ghoston to file a financial disclosure under Rule 8.05 of the Mississippi Uniform Chancery Court Rules. Finding no error in the decision of the chancellor, we affirm.

STANDARD OF REVIEW

¶ 2. “Our scope of review in domestic relations matters is limited ... [in that we] will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard.” Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002). We are limited to reversing only when there is no substantial credible evidence in the record to justify the finding. Id.

DISCUSSION

I. WHETHER THE CHANCELLOR FAILED TO PROPERLY CONSIDER THE ARMSTRONG FACTORS BEFORE AWARDING ALIMONY TO MRS. GHOSTON

¶ 3. Mr. Ghoston argues that the chancellor did not consider all of the Armstrong factors in his ruling and, as such, failed to adequately weigh each factor. Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). He seeks reversal of the alimony award, citing an abuse of discretion. “When the chancellor fails to address all factors on the record, we are not required to remand the case, and should not, so long as all facts are available to us so as to allow an equitable determination to be made.” Roberson v. Roberson, 949 So.2d 866, 869(¶ 6) (Miss.Ct.App.2007) (citing Holcombe v. Holcombe, 813 So.2d 700, 704(¶ 12) (Miss.2002)). Wfiien a chancellor grants alimony, he is not required to specifically enumerate each Armstrong factor. Gable v. Gable, 846 So.2d 296, 301(¶ 20) (Miss.Ct.App.2003). The chancellor is not “required to put special weight on one consideration over the other.” Id. Even if the chancellor forgoes “an on-the-record consideration of the Armstrong factors ... in making his determination of the appropriateness of an alimony award [we will only reverse] if, after a review of all facts and application of the Armstrong factors, it appears that the chancellor’s failure to make findings of fact and corresponding conclusions of law constitutes manifest error.” Roberson, 949 So.2d at 869(¶ 6).

¶ 4. In the case sub judice, there is adequate information contained in the record for us to determine that an equitable determination was made. Within the court’s divorce decree, which also adjudicated the issue of alimony, the chancellor specifically addressed the expenses of the parties, the length of the marriage, the debts of the parties, as well as the differences in incomes. Additionally, the decree incorporated the chancellor’s bench opinion, which discussed in detail the parties’ earning capacities, their standards of living, and their respective tax obligations. Thus, we find no merit in Mr. Ghoston’s argument asserting that the chancellor failed to adequately weigh each Armstrong factor. We affirm the chancellor’s order of alimony, accordingly.

II. WHETHER THE CHANCELLOR ERRED IN FAILING TO REQUIRE MRS. GHOSTON TO PROVIDE A FINANCIAL DISCLOSURE STATEMENT PURSUANT TO MISSISSIPPI CHANCERY RULE 8.05

¶ 5. Mr. Ghoston argues that the chancellor erred in failing to require Mrs. Ghoston to provide a financial disclosure statement in compliance with UCCR 8.05 prior to trial. He argues that he was not given enough time to review the disclosure for its accuracy due to the delay in its production. However, Mrs. Ghoston points out that Mr. Ghoston also failed to provide a disclosure statement until the day of trial. Mr. Ghoston enters this Court with unclean hands due to his own failure to provide a financial disclosure until the day of trial, and, thus, we find the chancellor’s failure to order Mrs. Ghoston’s disclosure statement is of no consequence within the maxims of equity.

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

KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. ROBERTS, J., CONCURS IN PART AND DISSENTS IN PART. IRVING, J., NOT PARTICIPATING.