author: RANDOLPH, Justice,

text:
    Carl MITCHELL v. PROGRESSIVE INSURANCE COMPANY.
    No. 2006-CA-01542-SCT.
    Supreme Court of Mississippi.
    Sept. 27, 2007.

      Jeffrey Lynn Ellis, attorney for appellant.
    Ginny Y. Kennedy, Cecil Maison Heidelberg, attorneys for appellee.
    Before SMITH, C.J., GRAVES and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. On November 27, 2002, Mississippi resident Carl Mitchell was involved in an automobile accident with Louisiana resident Patrick Benfatti in New Orleans, Louisiana. At the scene of the accident, Benfatti provided Mitchell with documentation allegedly sufficing as proof of automobile insurance. On January 16, 2003, Mitchell’s attorney, Karl Wiedemann, faxed a letter to Progressive Gulf Insurance Company (“Progressive”) stating that Benfatti was not insured at the time of the accident and asserting an uninsured motorist claim against Progressive.

¶ 2. In December 2005, Mitchell attempted to file a complaint against Progressive in the Circuit Court of Wayne County. The complaint was signed by Wiedemann, a licensed Louisiana attorney, and included his office address in New Orleans and bar number. Wiedemann was not licensed in Mississippi. That complaint was subsequently refused by the Circuit Clerk of Wayne County because it was not signed by a member of the Mississippi Bar and did not evidence a Mississippi Bar number. In February 2006, Mitchell filed a separate complaint against Progressive in the circuit court. The new complaint was signed by Mitchell’s present attorney, Jeffrey L. Ellis, who is licensed to practice in Mississippi.

¶ 3. Thereafter, Progressive filed a “Motion to Dismiss, in the alternative, Motion for Summary Judgment.” Following hearing, the circuit court entered a “Judgment of Dismissal” finding that the December 2005 complaint was not legally filed and the February 2006 complaint was “filed beyond the statute of limitations and ... therefore time barred.” Following judgment, Mitchell filed notice of appeal.

FACTS

¶ 4. On November 27, 2002, Mitchell was involved in an automobile accident with Louisiana resident Benfatti in New Orleans. As a result of the accident, Mitchell alleges that he “sustained personal injury and property damage.” At the scene of the accident, Benfatti exhibited what he claimed was proof of automobile insurance. On January 16, 2003, Mitchell’s Louisiana attorney, Wiedemann, faxed a letter to Progressive stating, “[i]t is our understanding that the driver of the vehicle, who hit-Mr. Mitchell, had no liability insurance at the time of the accident. Therefore, Mr. Mitchell is making a claim against his own UM carrier, [Progressive].” (Emphasis added).

¶ 5. In December 2005, Wiedemann attempted to file a complaint against Progressive on behalf of Mitchell in the Circuit Court of Wayne County. The complaint was signed by Wiedemann, a licensed Louisiana attorney, and included his office address in New Orleans and Louisiana bar number. That same day, a summons to Progressive was filed in the circuit court. Soon thereafter, according to the affidavit of Rose Bing-ham, Circuit Clerk of Wayne County:

4. The original complaint was returned to Wiedemann & Wiedemann when one of my clerks realized that a firm from Louisiana had filed it.
5. This [cjomplaint was refused by this office due to the fact that it was filed by a Louisiana law firm and did not have a Miss. Bar N[o]. It is no longer a part of our records.

When Wiedemann was informed of the deficiency, he was left with sufficient time for the proper filing of the complaint.

¶ 6. In February 2006, Mitchell filed another complaint against Progressive in the same court. This complaint was signed by Mitchell’s present attorney, Ellis, who is licensed to practice in Mississippi. In March 2006, service of process in Cause No. CV-2006-22-B was perfected through the Mississippi Commissioner of Insurance.

¶7. In April 2006, Progressive filed a “Motion to Dismiss, in the alternative, Motion for Summary Judgment.” The motion stated, in pertinent part, that:

6. Any action against [Progressive] for benefits under [Mitchell’s] policy of uninsured/underinsured motorist coverage should have been filed at least by January 16, 2006.
7. [Mitchell’s] [c]omplaint was filed on February 14, 2006.
8. Thus, [Mitchell’s] claim was not timely filed and is barred by the statute of limitations, and the [c]omplaint fails to state a claim upon which relief may be granted.

In response to Progressive’s motion to dismiss, Mitchell asserted that his complaint was not time-barred, as it “was filed on December 5, 2005 ... which bears the file stamp of the Wayne County Circuit Clerk’s Office.... Further, the summons was issued and the summons and the complaint were served by the Sheriff of Wayne County....” Mitchell urges, “[t]he action was commenced ... when the Wayne County Circuit Clerk accepted] the [c]om-plaint for filing and affixed her stamp thereto.”

¶ 8. Following a hearing, the circuit court entered its “Judgment of Dismissal.” The circuit court determined that the December 2005 complaint was not legally filed because:

[f]irst, the [c]omplaint was not signed by [Mitchell]. Second, it was signed by an out of state attorney, not licensed to practice law in the state of Mississippi. Third, even if it was given a cause number, a summons was issued and it was stamped filed, there is no record of the filing in the Circuit Clerk’s office in Wayne County, Mississippi. Fourth, if it is as [Mitchell] argues then a foreign attorney could come into a Mississippi [c]ourt and file anything he wants and the Supreme Court has clearly said he cannot. Under Rule 11, Mississippi Rules of Civil Procedure and Rule 46, Mississippi Rules of Appellate Procedure, an attorney must either be licensed to practice in Mississippi or be admitted pro hac vice. Further, all of the actions taken with the earlier complaint were in another Cause Number, not the Cause Number the [e]ourt is faced with today.

In dismissing Mitchell’s claim with prejudice, the circuit court concluded that:

[Mitchell] learned that the other driver was uninsured on or about January 16, 2003. Therefore, he had until January 16, 2006, to file his [c]omplaint. The [c]ourt is of the opinion that the [c]om-plaint in this matter was not legally filed until February 14, 2006. Therefore, it was filed beyond the statute of limitations and is therefore time barred.

On August 30, 2006, Mitchell filed notice of appeal.

ISSUES

¶ 9. This Court will consider:

(1) Whether the circuit court erred in granting Progressive’s motion to dismiss Mitchell’s complaint.

STANDARD OF REVIEW

¶ 10. “When considering a motion to dismiss, this Court’s standard of review is de novo.” Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006). See also Carter v. Citigroup, Inc., 938 So.2d 809, 817 (Miss.2006) (quoting Stephens v. Equitable Life Assurance Society, 850 So.2d 78, 82 (Miss.2003)) (“[t]his Court uses a de novo standard of review when passing on questions of law including statute of limitations issues.”).

Analysis

¶ 11. Mitchell argues that he:

filed his [c]omplaint against [Progressive] on December 5, 2005. A [complaint bearing a file stamp of the Wayne County Circuit Clerk’s Office and the date of December 5, 2005, is a part of the record. Despite [Progressive’s] assertions to the contrary, Mississippi residents have a right to rely on the official stamp of its elected officials. The file stamped complaint is all that is required by rule to establish a filing date. [Miss. R. Civ. P. 3(a) ]. Once a [c]omplaint is filed the statute of limitations relative to the cause of action is tolled.

Furthermore, Mitchell maintains that “[Progressive] had notice of this claim before any statute of limitations expired which is the purpose of [Miss. R. Civ. P. 3(a) ].” As such, Mitchell contends that he “should be allowed to continue with his claims against [Progressive].”

¶ 12. Progressive replies that “[t]he December 5, 200[5] complaint failed to comply with Rule 11 of the Mississippi Rules of Civil Procedure and Rule 46 of the Mississippi Rules of Appellate Procedure.” Specifically, Progressive urges that:

[t]he December 5, 2005 complaint was not accompanied by any motion for admission pro hac vice and it was not signed by any attorney licensed to practice law in Mississippi and it was not signed by Mitchell himself. In fact, Wiedemann’s submission of this complaint on his signature alone constitutes an unauthorized practice of law. See M.R.A.P. 46(b)(ll)(iii). As such, the complaint was properly refused for filing by the Wayne County Circuit Court and the complaint had no effect whatsoever.

Progressive further notes that “[t]he Clerk promptly returned the papers to Mr. Wiedemann and informed him of the deficiency within sufficient time for the complaint to be properly filed before the statute of limitations expired. Yet, no action was taken until nearly six weeks later— until February 14, 2006 — one month too late.” Therefore, Progressive persuasively argues that Mitchell’s complaint was “time-barred and was properly dismissed with prejudice by the court below.”

¶ 13. The creation of a statute of limitations is within the province and function of the Legislature. See Miss. Dept. of Public Safety v. Stringer, 748 So.2d 662, 666 (Miss.1999) (quoting Smith v. Sneed, 638 So.2d 1252 (Miss.1994)). “The primary purpose of statutory time limitations is to compel the exercise of a right of action within a reasonable time. These statutes are founded upon the general experience of society that valid claims will be promptly pursued and not allowed to remain neglected.” Id. at 665. A cause of action against an insurer for uninsured motorist benefits is an action on contract. See Employers Mut. Cas. Co. v. Tompkins, 490 So.2d 897, 906 (Miss.1986). As such, a three-year statute of limitations period applies. See Miss.Code Ann. § 15-1-49(1) (Rev.2003). As both parties submit this cause of action accrued on January 16, 2003, the Court shall accept this date for its analysis. As “a civil action is commenced by filing a complaint with the eourt[,]” Mitchell was required to file a complaint, in compliance with the Mississippi Rules of Civil Procedure, on or before expiration of the three-year statute of limitations. Miss. R. Civ. P. 3(a).

¶ 14. No dispute exists that Mitchell attempted to file a complaint in the circuit court on December 5, 2005. The issue pertains to the validity of that filing. Mississippi Rule of Appellate Procedure 46(b)(2) provides “[a] foreign attorney shall not appear in any cause except as allowed pro hac vice under this Rule 1.6(b).'” Miss. R.App. P. 46(b)(2) (emphasis added). In order to appear pro hac vice, the foreign attorney must associate in the cause with a local attorney and file a verified application, clerk’s statement, and $200 filing fee. See Miss. R.App. P. 46(b)(4) and 46(b)(5). Mississippi Rule of Appellate Procedure 46(b)(ll)(I) states:

[n]o court clerk or filing officer of any administrative agency of this state shall accept or file any pleadings or other papers from a foreign attorney who has not complied with the requirements of this rule. Any pleadings or other papers filed in violation of this rule shall be stricken from the record upon the motion of any party or by the court or administrative agency sua sponte.

Miss. R.App. P. 46(b)(ll)(I) (emphasis added). See also Taylor v. General Motors Corp., 717 So.2d 747, 749-50 (Miss.1998); Terrell v. Tschirn, 656 So.2d 1150, 1152 (Miss.1995) (“[b]ecause of Tschirn, Sr.’s violation of Rule 46, upon proper motion by Terrell the pleadings in this case would have been stricken from the record.”). But see Dinet v. Gavagnie, 948 So.2d 1281, 1285 (Miss.2007) (filing was never refused by the circuit clerk and this Court found foreign counsel’s failure to comply with Mississippi Rule of Appellate Procedure 46 did not warrant dismissal in light of the association and appearance of a licensed local attorney prior to dismissal). Moreover, Mississippi Rule of Civil Procedure 11(a) provides, in part, that:

[ejvery pleading or motion of a party represented by an attorney shall be signed by at least one attorney of record in that attorney’s individual name, whose address shall be stated.... The signature of an attorney who is not regularly admitted to practice in Mississippi, except on a verified application for admission pro hac vice, shall further constitute a certificate by the attorney that the foreign attorney has been admitted in the case in accordance with the requirements and limitations of Rule Jp6(b) of the Mississippi Rules of Appellate Procedure.

Miss. R. Civ. P. 11(a) (emphasis added). “If a pleading or motion is not signed or is signed with the intent to defeat the purpose of this rule, it may be stricken as sham and false, and the action may proceed as though the pleading or motion had not been served.” Miss. R. Civ. P. 11(b) (emphasis added).

¶ 15. This Court finds that the December 5, 2005, complaint was properly refused by the circuit clerk and stricken from the record. Mitchell has presented no evidence that Wiedemann was licensed in Mississippi or had complied with any rule allowing a pro hac vice appearance. See Miss. R.App. P. 46. As the December 5, 2005, complaint was signed by a Louisiana attorney only, Mississippi Rule of Appellate Procedure 46(b)(ll)(I) provides it “shall be stricken from the record upon the motion of any party or by the court or administrative agency sua sponte.” Miss. R.App. P. 46(b)(ll)(I). See also Miss. R. Civ. P. 11(b) (“Elf a pleading ... is signed with the intent to defeat the purpose of this rule, it may be stricken as sham and false, and the action may proceed as though the pleading ... had not been served.”). Bingham’s affidavit provides that the complaint was refused and “is no longer a part of our records.” That action was well within the scope of authority granted by Mississippi Rule of Appellate Procedure 46(b)(ll)(I). As the subsequent complaint was not filed until February 14, 2006, after the statute of limitations expired, this Court concludes that the circuit court was eminently correct in dismissing Mitchell’s claim with prejudice.

¶ 16. Mitchell next argues that:
[a]t the very least the principles of equitable estoppel should be applied to prevent [Progressive] from asserting the defense of statute of limitations. The inactions of the insurance company, despite repeated communications from [Mitchell] and/or his representatives, demonstrate that [Progressive] had notice of this claim and its defenses should be null and void.

Progressive responds that equitable estop-pel in the statute of limitations context applies only where there is evidence of “inequitable or fraudulent conduct[,]” and “Mitchell’s bald assertion, raised for the first time in this appeal, that he was ‘stonewalled’ by Progressive is unsupported by any evidence.” Moreover, Progressive contends that “were this Court to accept Mitchell’s [notice] argument, all that would be required to indefinitely toll the statute of limitations would be for an individual to simply put an insurance carrier on notice of a potential claim and then file it whenever he wished.”

¶ 17. This Court has previously stated that:

[e]quitable estoppel is ‘defined generally as the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion would be suffered if such denial or contrary assertion was allowed.’

Dubard, v. Biloxi H.M.A., Inc., 778 So.2d 113, 114 (Miss.2000) (quoting Koval v. Koval, 576 So.2d 134, 137 (Miss.1991)). “[EJquitable estoppel exists where there is a (1) belief and reliance on some representation; (2) a change of position as a result thereof; and (3) detriment or prejudice caused by the change of position.” B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 492 (Miss.2005) (citing Cothern v. Vickers, Inc., 759 So.2d 1241, 1249 (Miss.2000)). Additionally, “inequitable or fraudulent conduct must be established to estop a party from asserting a statute of limitations defense.” See Stringer, 748 So.2d at 665.

¶ 18. No evidence was submitted to the circuit court or this Court that Progressive engaged in “inequitable or fraudulent conduct[,]” id., toward Mitchell. As “[t]he burden of establishing the elements of an estoppel is on the party asserting the estoppelf,]” id., this Court finds that the absence of any such evidence requires affirming the circuit court’s dismissal.

CONCLUSION

¶ 19. Accordingly, this Court affirms the “Judgment of Dismissal” of the Circuit Court of Wayne County. This Court finds that Wiedemann’s violation of Mississippi Rule of Appellate Procedure 46 and Mississippi Rule of Civil Procedure 11, in attempting to file the December 5, 2005, complaint without being admitted pro hac vice, may merit discipline by the Mississippi and/or Louisiana State Bar. Mississippi Rule of Appellate Procedure 46(b)(ll)(iii) provides, “[v]iolation of this rule is deemed to be the unlawful practice of law. The Mississippi Bar, or its designated representatives, shall have the right to take appropriate action to enforce the provisions of this rule under the provisions of Miss.Code Ann. § 73-51-1 (1989).” Miss. R.App. P. 46(b)(ll)(iii). Mississippi Rule of Civil Procedure 11(b) states, in part, that “[f]or wilful violation of this rule an attorney may be subjected to appropriate disciplinary action.” Miss. R. Civ. P. 11(b). Finally, in Dined, this Court found that a Louisiana attorney who failed to be admitted pro hac vice in Mississippi:

violated Rule 5.5(a) [of the Louisiana Rules of Professional Conduct] when he engaged in the unauthorized practice of law in this State. We remand this issue to the trial court with instructions to notify the Louisiana State Bar of this unauthorized activity and for imposition of such other sanctions as the trial court deems proper due to the violations of Miss. R. Civ. P. 11 and Miss. R.App. P. 46.

Dinet, 948 So.2d at 1285. Therefore, this Court remands this case to the circuit court with instructions to notify the Louisiana State Bar of this unauthorized activity and for imposition of such other sanctions as the trial court deems proper due to the violations of Mississippi Rule of Civil Procedure 11 and Mississippi Rule of Appellate Procedure 46.

¶ 20. AFFIRMED AND REMANDED.

SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND LAMAR, JJ., CONCUR. DIAZ, P.J., CONCURS IN PART. EASLEY AND GRAVES, JJ., CONCUR IN RESULT ONLY.

      .While the record is silent as to activity between January 16, 2003, and December 5, 2005, Mitchell attempts to summarize that activity in his brief. Following the January 16, 2003, letter to Progressive, Mitchell states that "Wiedemann contacted the adjuster for [Progressive] ... and began settlement discussions.” During this period of settlement negotiations, Mitchell claims that he "continued to be treated by a physician for his injuries so a resolution to the claim was unable to be reached.” Furthermore, he alleges that "[d]ue to Hurricane Katrina [on August 29, 2005] those settlement negotiations were never fulfilled.” According to Mitchell, Wiede-mann’s office suffered significant damage from Hurricane Katrina and Wiedemann "lost his computers and many of his 'paper' files ... as a result....”

      . Initially it was assigned Cause No. CV-2005-212-B.

      . No Mississippi Bar number of any attorney was included in the complaint.

      . According to Progressive, however, “process of this complaint was never served on Progressive or Progressive’s agent.”

      . Cause No. CV-2006-22-B.

      . According to Mitchell, "there was no transcript made of the hearing of [Progressive’s] Motion to Dismiss before the trial court.”

      . Regarding any argument by Mitchell that equitable estoppel should apply because of Hurricane Katrina, Progressive notes that tore than two and a half years of the limitations period passed between January 16, 2003 and August 29, 2005, when Hurricane Katrina struck, yet Mitchell took rio action within that time.” Additionally, Progressive observes that "as challenging as it may have been, [Wiedemann] was able to, and did in fact, prepare and submit a complaint before the statute of limitations expired.” Finally, Progressive maintains that "Hurricane Katrina is not to blame for Mitchell’s failure to act, upon receiving notice the complaint had not been filed, to ensure that his action was properly and timely filed.”


source: Caselaw Access Project

author: EASLEY, Justice,

license: Public Domain

text:
    Joseph Leon JACKSON, Jr. v. STATE of Mississippi.
    No. 2005-CT-01580-SCT.
    Supreme Court of Mississippi.
    Sept. 27, 2007.

      Imhotep Alkebu-Lan, for Appellant.
    Office of the Attorney General by Jacob Ray, for Appellee.
   ON WRIT OF CERTIORARI

EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Joseph Leon Jackson, Jr. pleaded guilty to armed robbery and aggravated assault on October 17, 2001. A jury was empaneled and returned a sentence of life imprisonment for Jackson in the custody of the Mississippi Department of Corrections. Jackson appealed the judgment to this Court, whereupon it was assigned to the Mississippi Court of Appeals. The Court of Appeals dismissed the case on September 9, 2003. This Court further denied Jackson’s writ of certiorari on July 29,2004.

¶ 2. Jackson then filed a petition for post-conviction relief (PCR), which the trial court denied on July 29, 2005. The court found that Jackson was procedurally barred from bringing his claim pursuant to Mississippi Code Annotated Section 99-39-5(2) (Supp.2006).

¶ 3. Jackson sought post-conviction relief from this Court, which again assigned the appeal to the Court of Appeals. Aggrieved by the Court of Appeals’ decision, Jackson filed a petition for certiorari, which this Court granted. On certiorari, we address the following assignments of error:

I. WHETHER THE TRIAL COURT ERRED BY HOLDING THAT JACKSON’S PETITION FOR POST-CONVICTION RELIEF WAS BARRED BY THE STATUTE OF LIMITATIONS.

II. WHETHER THE TRIAL COURT ERRED BY RULING THAT JACKSON’S CLAIM FAILED ON THE MERITS.

FACTS

¶4. On July 14, 2001, Jackson, along with two others, robbed the Piggly Wiggly in Winona, Mississippi, at gunpoint. The group stole more than $1,000 in cash. During the robbery, Jackson shot and wounded a Piggly Wiggly employee. Jackson was arrested and charged with armed robbery and aggravated assault. Jackson pleaded guilty to both charges, thereby waiving his right to a trial by jury. The court found that Jackson’s guilty pleas were made voluntarily, freely, and knowingly, and accepted the pleas.

¶ 5. A jury was empaneled to determine Jackson’s sentence on October 18, 2001. The jury returned a verdict, sentencing Jackson to life imprisonment in the custody of the Mississippi Department of Corrections. After filing an appeal which was dismissed, Jackson filed a PCR petition in the Circuit Court of Montgomery County on July 19, 2005. The trial court denied Jackson’s petition, finding that the claims were time-barred by the three-year statute of limitations and that the claims also did not meet any of the exceptions listed under the statute. Miss.Code Ann. § 99-89-5(2) (Rev.2007). The trial court further considered the merits of Jackson’s claim, finding that Jackson’s sentence was indeed proper and that he was not denied effective assistance of counsel.

DISCUSSION

¶ 6. On post-conviction relief, we will not disturb the trial court’s findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598 (Miss.1999). However, if questions of law are raised, then the applicable standard of review is de novo. Id. “The imposition of a sentence is within the discretion of the trial court, and this Court will not review the sentence, if it is within the limits prescribed by statute.” Reynolds v. State, 585 So.2d 753, 756 (Miss.1991) (citing Reed v. State, 536 So.2d 1336, 1339 (Miss.1988)); Boyington v. State, 389 So.2d 485 (Miss.1980).

I. STATUTE OF LIMITATIONS.

¶ 7. Jackson’s judgment of conviction for armed robbery was entered in October 2001. Jackson filed his petition for post-conviction relief on July 19, 2005. Generally, Mississippi Code Annotated Section 99-39-5(2) provides a three-year statute of limitations for filing a petition for post-conviction relief. Mississippi Code Annotated Section 99-39-5(l)-(2) provides:

(1) Any prisoner in custody under sentence of a court of record of the State of

Mississippi who claims:

(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(b) That the trial court was without jurisdiction to impose sentence;
(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;
(d) That the sentence exceeds the maximum authorized by law;
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(f) That his plea was made involuntarily;
(g) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;
(h) That he is entitled to an out-of-time appeal; or
(i) That the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy; may file a motion to vacate, set aside or correct the judgment or sentence, or for an out-of-time appeal.
(2) A motion for relief under this article shall be made within three (3) years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Miss.Code Ann. § 99-39-5(1) (Rev.2007).

¶ 8. In Lockett v. State, 614 So.2d 888, 893 (Miss.1992), this Court stated that “[t]he petitioner carries the burden of demonstrating that his claim is not procedurally barred.” (Citing Miss.Code Ann. § 99-39-21(6) (Supp.1991); Cabello v. State, 524 So.2d 313, 320 (Miss.1988)). “However, ‘an alleged error should be reviewed, in spite of any procedural bar, only where the claim is so novel that it has not previously been litigated, or, perhaps, where an appellate court has suddenly reversed itself on an issue previously thought settled.’ ” Lockett, 614 So.2d at 893 (quoting Irving v. State, 498 So.2d 305, 311 (Miss.1986)).

¶ 9. In Chancy v. State, 938 So.2d 251, 253 (Miss.2006), this Court held that in the case of newly discovered evidence, post-conviction relief is available even where an individual pleaded guilty and untimely filed the petition for post-conviction relief, stating:

In Bell v. State, 759 So.2d 1111 (Miss.1999), we granted an evidentiary hearing on the basis of newly discovered evidence even though Bell, who had pled guilty, had not timely filed his PCR petition. The Court of Appeals itself also recognized the newly discovered evidence exception in the context of guilty pleas in the following cases: Gaston v. State, 922 So.2d 841 (Miss.Ct.App.2006); Sykes v. State, 919 So.2d 1064 (Miss.Ct. App.2005); Garlotte v. State, 915 So.2d 460 (Miss.Ct.App.2005); Freshwater v. State, 914 So.2d 328 (Miss.Ct.App.2005); McGriggs v. State, 877 So.2d 447 (Miss. Ct.App.2003); Donnelly v. State, 841 So.2d 207 (Miss.Ct.App.2003); Wright v. State, 821 So.2d 141 (Miss.Ct.App.2000).

¶ 10. On writ of certiorari, Jackson argues that the trial court did not have legal authority to have him tried by a jury on sentencing after it accepted Jackson’s guilty plea to armed robbery. Jackson asserts that the trial court should have imposed the sentence after accepting his plea of guilty, rather than allowing a jury to determine the appropriate sentence. The State argues that the trial court did not have authority to sentence Jackson to a life sentence and only a jury possessed such authority, pursuant to Mississippi Code Annotated Section 97-3-79; therefore, the trial court empaneled a jury to determine sentencing after the trial court accepted Jackson’s plea of guilty. The trial court denied Jackson’s petition for post-conviction relief, finding it was untimely filed and barred by the statute of limitations.

¶ 11. If the trial court did not have authority to empanel a jury for sentencing in a non-death penalty capital case, then Jackson’s failure to timely raise the illegal sentence and failure to object to the sentencing procedure would not render this assignment of error procedurally barred by the statute of limitations. In Ivy v. State, 731 So.2d 601, 602 (Miss.1999), we stated, “[ajlthough, the Appellant filed his petition ten (10) years after the applicable statute of limitations had expired, petitions alleging an illegal sentence are not subject to the time bar.” See Twillie v. State, 892 So.2d 187, 191 (Miss.2004) (“Twillie was asserting that he received an illegal sentence — a claim which could not be procedurally barred”).

¶ 12. We find that Jackson’s petition for post-conviction relief was not untimely filed, as Jackson asserted that he received an illegal sentence.

II. MERIT OF JACKSON’S POST-CONVICTION CLAIM.

¶ 13. In Taggart v. State, 957 So.2d 981, 991 (Miss.2007), the Court stated:

Other than the death penalty statutory sentencing scheme in capital murder cases, there are three instances in which a jury in Mississippi may impose the sentence upon finding a defendant guilty of a felony criminal offense. Those instances are where the jury has found the defendant guilty of kidnapping (Miss. Code Ann. § 97-3-53 (Rev.2006)), rape (Miss.Code Ann. § 97-3-65(4)(a) (Rev. 2006)), and/or armed robbery (Miss. Code Ann. § 97-3-79 (Rev.2006)).

¶ 14. In his petition for post-conviction relief, Jackson argues that he received ineffective assistance of counsel. After Jackson pleaded guilty to armed robbery, the trial court empaneled a jury to determine his sentence, without objection from Jackson’s attorney. Jackson asserts that the authority to impose sentence rested solely in the control of the trial court after the trial court accepted his guilty plea.

¶ 15. The trial court found Jackson’s petition for post-conviction relief to be without merit, stating:

[T]here was nothing improper about the procedure that was followed when Jackson plead guilty and a jury was impaneled to consider whether he should be sentenced to life imprisonment. Jackson’s counsel was therefore not deficient in fading to object to a procedure that was permissible.

¶ 16. This Court has never specifically addressed the question of whether the trial court can empanel a jury to affix the penalty of life imprisonment after accepting a guilty plea in an armed robbery case. As such, in order to determine whether the trial court had authority to empanel a jury to determine Jackson’s sentence after accepting his guilty plea, we must look at Rule 10.04 of the Uniform Rules of Circuit and County Court Practice. Rule 10.04(B) outlines the procedure for bifurcated trials in criminal cases not involving the death penalty, and we quote this rule here, verbatim:

In all cases not involving the death penalty, wherein the jury may impose life sentence, the court may conduct a bifurcated trial. If the defendant is found guilty of an offense for which life imprisonment may be imposed, a sentencing trial shall be held before the same jury, if possible, or before the court if jury waiver is allowed by the court.
At the sentencing hearing:
1. The state may introduce evidence of aggravation of the offense of which the defendant has been adjudged guilty.
2. The defendant may introduce any evidence of extenuation or mitigation.
3. The state may introduce evidence in rebuttal of the evidence of the defendant.
4. A record shall be made of the above proceeding and shall be maintained in the office of the clerk of the trial court as a part of the record in that court.

(Emphasis added).

¶ 17. Based on the plain language of Rule 10.04(B), which applies in non-death penalty criminal cases, we find nothing which prohibited the trial court from ordering a bifurcated, jury trial for sentencing after accepting Jackson’s guilty plea. Nothing in Rule 10.04 distinguishes the use of the bifurcated sentencing by a jury after a plea of guilty as opposed to a jury determination of guilt. As such, they should be treated the same. Rule 10.04(B) states that the trial court may bifurcate the guilt and sentencing phase. This discretion rests in the trial court.

¶ 18. In Duncan v. State, 939 So.2d 772, 782 (Miss.2006), we addressed bifurcation in the context of armed robbery. “Strictly construing the criminal statute at issue, MiSs.Code Ann. § 97-3-79, provides that it is within the jury’s discretion to fix the sentence for armed robbery at life imprisonment.” Id. In Duncan, 939 So.2d at 782, we held that the decision whether or not to order a bifurcated trial rests within the trial court’s discretion, stating:

Rule 10.04(B) of the Uniform Rules of Circuit and County Court Practice clearly states that the decision whether or not to order a bifurcated trial rests within the trial court’s discretion in its use of the discretionary word “may.” Rule 10.04(B) provides: In all cases not involving the death penalty, wherein the jury may impose life sentence, the court may conduct a bifurcated trial. If the defendant is found-guilty of an offense for which life imprisonment may be imposed, a sentencing trial shall be held before the same jury, if possible, or before the court if jury waiver is allowed by the court. U.C.C.C.R. 10.04(B). (Emphasis added).

¶ 19. Since the decision of whether or not to order a bifurcated trial clearly rests within the trial court’s discretion pursuant to Rule 10.04(B) of the Uniform Rules of Circuit and County Court Practice, the question that needs to be examined is whether Jackson, before pleading guilty, was aware that the trial court was going to empanel a jury to determine sentencing. It is clear that Jackson pleaded guilty after being made aware that the trial court did not have authority to sentence him to life, so a jury would be empaneled to determine whether he should be sentenced to life. The record in the case sub judice also reflects that the trial court expressly informed Jackson of the charges against him; the consequences of his guilty plea, including the minimum and maximum penalties in sentencing; and the implications of waiving his right to trial by jury, right to confront adverse witnesses, and right to protection against self-incrimination.

¶ 20. Here, the record demonstrates that Jackson was made fully aware of the sentencing hearing and that a jury could return a life sentence for Jackson, pursuant to the armed robbery statute. Jackson voiced no objection and indicated that he understood the proceedings. The State was unwilling to offer Jackson a plea bargain or make a sentencing recommendation to the trial court. As to the bifurcation of the sentencing, the transcript of the guilty plea proceeding provides, in pertinent part:

Court: Now, Mr. Jackson, for the crime of armed of armed robbery, the maximum penalty is life imprisonment. A jury must decide — and the minimum sentence is three years. So you could be sentenced anywhere from three years in the custody of the Mississippi Department of Corrections to a maximum of life imprisonment if a jury so found that you deserved life imprisonment. Do you understand that?
Jackson: Yes, sir.
Court: Now, if it was just the Court making that determination, I could impose any sentence less than life; but only a jury can decide whether you should receive life in prison or not. In Cause No. 2001-0074, the armed robbery and aggravated assault charge, it’s my understanding now that you are waiving the right to a jury trial to decide your guilt or innocence, but a jury will be determining whether you should be sentenced to life imprisonment or not. Do you understand that — ■
Jackson: Yes, sir.
Court: ■ — to be the case?
Jackson: Yes, sir.
Court: And so tomorrow, we will have a trial and that jury will be deciding one thing: They will be deciding whether you should be sentenced to life imprisonment or whether the Court should impose sentence instead of the jury. Do you understand that?
Jackson: Yes, sir.
Court: But do you understand if the jury finds that the Court should make that determination instead of the jury, then this Court can impose any sentence they (sic) choose to do so less than life imprisonment. Do you understand that?
Jackson: Yes, sir.

¶ 21. The record is clear that Jackson was informed by the trial court that a jury could return a life sentence against him, pursuant to the armed robbery statute. Jackson responded that he understood and did not object to a jury assessing his penalty. Jackson’s post-conviction claim that he had not been properly advised of the consequence of a guilty plea is without merit.

¶ 22. Considering the merits of Jackson’s petition for post-conviction relief, we find that the trial court did not err in denying Jackson’s petition for post-conviction relief. This Court’s decision is based on the facts of this case. The record clearly demonstrates that during the plea colloquy Jackson was fully advised and informed as to the sentencing hearing and the fact that a jury could return a life sentence pursuant to the armed robbery statute. Jackson’s counsel was not deficient by failing to object to a sentencing procedure that was acceptable. Accordingly, we affirm the judgment of the trial court.

CONCLUSION

¶ 23. For the reasons stated above, the judgment of the Court of Appeals is affirmed, and the judgment of the Circuit Court of Montgomery County to deny Joseph Leon Jackson, Jr.’s post-conviction relief is affirmed.

¶ 24. AFFIRMED.

SMITH, C.J., WALLER and DIAZ, P.JJ., CARLSON, DICKINSON, RANDOLPH and LAMAR, JJ., concur.

GRAVES, J., concurs in result only.

      . The facts and the procedural history are taken from the Court of Appeals’ opinion. Jackson v. State, 965 So.2d 693, 2007 WL 3592, 2007 Miss.App. LEXIS 3, 1-3 (Miss.Ct. App.2007).

      . On appeal, Jackson assigns as error the life sentence imposed for the armed robbery conviction. Jackson does assign error as to the aggravated assault conviction and sentence.

      . Jackson pleaded guilty before the Circuit Court of Montgomery County, Mississippi, on October 17, 2001.

      . Mississippi Code Annotated Section 97-3-79 (Rev.2006) provides:
      Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the stale penitentiary for any term not less than three (3) years.
      (Emphasis added).


author: CHANDLER, J., for the Court.

text:
    Joseph Leon JACKSON, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CA-01580-COA.
    Court of Appeals of Mississippi.
    Jan. 2, 2007.
    Rehearing Denied April 24, 2007.

      Ihotep Alkebu-Lan, Chokwe Lumumba, Jackson, attorneys for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J., for the Court.

¶ 1. Joseph Leon Jackson, Jr. pled guilty to armed robbery on October 17, 2001. A jury was empaneled and returned a recommended sentence of life imprisonment for Jackson in the custody of the Mississippi Department of Corrections. Jackson appealed the judgment to the Mississippi Supreme Court where it was assigned to the Court of Appeals. The Court of Appeals dismissed the case on September 9, 2003, finding that Jackson improperly attempted to appeal a sentence. The Mississippi Supreme Court further denied Jackson’s writ of certiorari on July 29, 2004.

¶ 2. Jackson then filed a petition for post-conviction relief (PCR), which was denied by the trial court on July 29, 2005. The court found that Jackson was procedurally barred from bringing his claim pursuant to Mississippi Code Annotated Section 99-39-5(2) (Supp.2006). Aggrieved, Jackson seeks post-conviction relief from this Court, arguing the following:

I. WHETHER THE TRIAL COURT ERRED BY HOLDING THAT JACKSON’S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED.

II. WHETHER THE TRIAL COURT ERRED BY RULING THAT JACKSON’S CLAIM FAILED ON THE MERITS.

FACTS

¶ 3. On July 14, 2001, Leon Jackson, along with two others, robbed the Piggly Wiggly in Winona, Mississippi at gunpoint. The group stole over $1,000 in cash. During the robbery, Jackson shot and wounded a Piggly Wiggly employee. Jackson was arrested and charged with armed robbery and aggravated assault. Jackson pled guilty to both charges, thereby waiving his right to a trial by jury. The court found that Jackson’s guilty pleas were made voluntarily, freely and knowingly, and accepted the pleas.

¶ 4. A jury was empaneled to determine Jackson’s sentence on October 18, 2001. The jury returned a verdict, sentencing Jackson to life imprisonment in the custody of the Mississippi Department of Corrections. After filing an appeal which was dismissed, Jackson filed a PCR petition in the Circuit Court of Montgomery County on July 19, 2005. The trial court denied Jackson’s petition, finding that the claims were time-barred by the three year statute of limitations and that the claims also did not meet any of the exceptions listed under the statute. Miss.Code Ann. § 99-39-5(2). The trial court further considered the merits of Jackson’s claim, finding that Jackson’s sentence was indeed proper and that he was not denied effective assistance of counsel.

STANDARD OF REVIEW

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

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY HOLDING THAT JACKSON’S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED.

¶ 6. The trial court denied Jackson’s PCR, stating that it was time-barred. Jackson pled guilty to the charge of aggravated assault and armed robbery. For guilty pleas, section 99-39-5(2) of the Mississippi Code Annotated provides in pertinent part that a motion for post-conviction relief shall be made within three years from the judgment of conviction or sentence, unless an exception applies:

Excepted from this three-year statute of limitations are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.

¶ 7. This Court denied Jackson’s appeal on September 9, 2003, stating that Jackson was not entitled to a direct appeal of his sentence. The Mississippi Supreme Court also denied Jackson’s subsequent writ of certiorari. Since no direct appeal was ever considered by this Court or our supreme court, the statute of limitations did not toll upon the date Jackson’s appeal was dismissed. Rather, Jackson was required per statute to file his PCR within three years from October 19, 2001, the date of his conviction. Miss.Code Ann. § 99-39-5(2). Jackson, through counsel, did not file his PCR until July 19, 2005, nine months after the deadline. Therefore, Jackson is time-barred from bringing this post-conviction relief claim.

II. WHETHER THE TRIAL COURT ERRED BY RULING THAT JACKSON’S CLAIM FAILED ON THE MERITS.

¶ 8. Notwithstanding the procedural bar, we will discuss the merits of Jackson’s case. This Court may review a time-barred claim if fundamental rights are at stake. Ivy v. State, 731 So.2d 601, 603(¶ 13) (Miss.1999). Jackson claims that his sentence is illegal because the determination of a sentence length is within the exclusive domain of the trial judge once a defendant pleads guilty.

¶ 9. Jackson relies on State v. Hayes, 887 So.2d 184, 186(¶9) (Miss.2004), by stating that no life sentence may be imposed for armed robbery if the defendant was not subject to a jury trial. Id. Mississippi Code Annotated Section 97-3-79 (Rev.2006) states in pertinent part that in cases for armed robbery, “[Wjhere the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.”

¶ 10. Jackson argues that once he pled guilty to armed robbery, his sentence was within the exclusive control of the judge, who could not have imposed a life sentence. Marshall v. Cabana, 835 F.2d 1101, 1102-03 (5th Cir.1988). The case before us is distinguishable from both Marshall and Hayes because, unlike those cases, a jury was empaneled to determine Jackson’s sentence. Jackson knowingly, voluntarily and intelligently waived his right to have a jury consider his guilt or innocence when he pled guilty. The State was unwilling to offer Jackson a plea bargain or make a sentence recommendation to the judge. Thus, a jury was empaneled to determine the length of Jackson’s sentence.

¶ 11. Moreover, the record shows that the court informed Jackson in detail about the sentencing procedure. The court stated that a jury could return a life sentence for Jackson, pursuant to the armed robbery statute. Jackson responded that he understood that issue, and he failed to object at trial to a jury assessing his penalty. Upon hearing proof of Jackson’s guilt, the jury recommended a life sentence, which the judge imposed.

¶ 12. Jackson also argues that he was denied effective assistance of counsel because his attorney allowed the jury to assess the punishment. We find this argument to be without merit because the record clearly shows that the court informed Jackson of the sentencing procedure, and Jackson never objected to that procedure at trial. Since the trial court properly followed the standard set forth by the statute, Jackson fails to show that his counsel was deficient by not objecting to a procedure that was acceptable, or that he was prejudiced in any way. Therefore, we find no error in the lower court’s decision, and affirm the denial of Jackson’s PCR.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY 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, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J„ NOT PARTICIPATING.


author: MYERS, P.J.,

text:
    MISSISSIPPI DEPARTMENT OF TRANSPORTATION, Appellant v. Shirley RUTLAND, Appellee.
    No. 2005-CC-02062-COA.
    Court of Appeals of Mississippi.
    March 6, 2007.
    Rehearing Denied July 17, 2007.

      John L. Maxey II, Paul H. Kimble, Jackson, attorneys for appellant.
    Dennis L. Horn, Madison, Darold L. Rutland, attorneys for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. The Mississippi Department of Transportation (MDOT) brings this appeal from the order of the Circuit Court of Hinds County, Mississippi, which affirmed the decision of the Mississippi Employee Appeals Board (EAB) to reinstate MDOT employee Shirley Rutland to her former position with full back pay and benefits. MDOT terminated Rutland in February 2004 and she immediately appealed her termination to the EAB claiming that her termination was politically motivated. The hearing officer appointed to hear Rutland’s appeal on behalf of the EAB found that Rutland had failed to meet her burden of proof and affirmed her termination. However, on appeal to the full board, the EAB, sitting en banc, reversed the hearing officer’s decision and ordered Rutland reinstated, based on its determination that Rutland’s discharge was the culmination of an ongoing political and personal dispute between MDOT Executive Director Larry “Butch” Brown and Central District Transportation Commissioner Dick Hall. The decision of the en banc EAB was affirmed by the Circuit Court of Hinds County, and MDOT now appeals raising the following issues:

I. WHETHER THE INITIAL DECISION OF THE EAB HEARING OFFICER AFFIRMING RUT-LAND’S TERMINATION SHOULD BE AFFORDED DEFERENCE OVER THE FINAL DECISION OF THE EAB, SITTING EN BANC, TO REINSTATE RUT-LAND?

II. WHETHER THE RECORD CONTAINED SUBSTANTIAL EVIDENCE IN SUPPORT OF RUT-LAND’S ALLEGATION THAT HER TERMINATION WAS POLITICALLY MOTIVATED?

¶ 2. After review of the record, we find that the final decision of the en banc EAB should be afforded deference over the decision of the hearing officer, and that the record contains sufficient evidence to support the circuit court’s decision to affirm the order of the en banc EAB. Accordingly, the decision of the Circuit Court of Hinds County is affirmed.

STATEMENT OF THE FACTS

¶ 3. We begin our discussion of this case by providing a brief overview of MDOT’s organizational structure. The Transportation Commission is comprised of one elected commissioner from each of the State’s three districts. Miss.Code Ann. § 65-1-3 (Rev.2005). The Transportation Commission elects one of its three members to serve as chairman of the commission and to preside over the commission meetings for the four-year term for which the commissioners are elected. Miss.Code Ann. § 65-1-5 (Rev.2005). The Commission is responsible for formulating MDOT’s operational policies, as well as appointing and discharging an executive director. Miss. Code Ann. § 65-1-9 (Rev.2005). All day-to-day managerial decisions, including the hiring and firing of MDOT’s more than 3,300 employees, are exercised exclusively by the executive director. Miss.Code Ann. § 65-1-10 (Rev.2005). There are two types of employees working for MDOT, state service employees and non-state service employees. State service employees, as defined by Mississippi Code Annotated section 25-9-107 (Rev.2006), are those employees “serving in positions in state departments, agencies, or institutions that are covered by the state personnel system.” Miss.Code Ann. § 25-9-121 (Rev. 2006). Non-state service employees are those “employees serving in state departments, agencies, or institutions that are excluded from state service.” Miss.Code Ann. § 25-9-107 (Rev.2006). A key distinction between state service employees and non-state service employees is that state service employees may only be terminated for good cause, after written notice and a hearing. Miss.Code Ann. §'25-9-127 (Rev.2006). However, non-state service employees, including probationary state service employees during the first twelve months of employment, are not afforded this protection. Id. Non-state service employees may be terminated, without notice, for any reason other than “on the basis of race, color, creed, sex, religion, national origin, age, disability, or political affiliation; and/or a violation of a right otherwise specifically protected by the U.S. Constitution or other law.” Employee Appeals Board Administrative Rules, July 2003, Appendix A, Grievable Issues, P. 19 section D.

¶4. In the summer of 2003, a dispute arose between Central District Transportation Commissioner Dick Hall and MDOT Executive Director Butch Brown over the protocol concerning MDOT press releases. Hall had recently been appointed Chairman of the Transportation Commission, and had instructed his assistants, Brad White and Shirley Rutland, to create letterhead designating him as “Chairman,” to be used in MDOT press releases bearing his name. Brown took issue with Hall’s use of the “Chairman” title, and created an External Affairs Division to handle all press releases emanating from MDOT. Brown also established a protocol for when the “Chairman” title would be used. If the press release concerned an action of the Commission, and Hall was speaking for the Commission as a whole, then Hall would be afforded the “Chairman” designation. However, if the press release concerned routine matters, such as lane closures or ribbon cuttings in Hall’s district, then the release would designate Hall only .as “Central District Transportation Commissioner.” Hall took issue with Brown’s protocol, first, because past chairmen had been allowed to use the “Chairman” title in all press releases, and second, Hall felt that the protocol was an attempt on Brown’s part to undermine Hall’s influence in an election year. As a result, Hall instructed his assistants not to follow Brown’s protocol and to include the “Chairman” designation on all of his press releases.

¶ 5. This dispute between Brown and Hall created substantial friction between Hall’s assistants, Brad White and Shirley Rutland, and the personnel in External Affairs. After several battles over the title, Hall ordered White and Rutland to draft the press releases for his office and to send them out without going through External Affairs. The personnel in External Affairs alerted Brown to White’s and Rutland’s practice, and Brown called Rut-land in for a meeting on the subject on August 12, 2003. At her termination hearing, Rutland testified that in the August 12, 2003 meeting, Brown asked her for whom she worked. When Rutland stated that she worked for Hall, Brown became enraged and according to Rutland stated: “The Bible says that you can only serve one master, and around here I’m the God d— master, that son-of-a-b — - Hall does not run this agency.” Rutland testified that Brown then informed her that he had hired her and that he alone could fire her. Before Brown could continue, Rutland walked out of Brown’s office and immediately went to Hall and informed him of her conversation with Brown. Hall then met with Brown, and Brown told Hall that Rutland was causing a disruption in External Affairs. Hall told Brown that Rutland was following his directions and that he would handle his own staff.

¶ 6. The turmoil over the press releases continued throughout the fall of 2003, prompting Executive Director Brown to suggest to Southern District Commissioner Wayne Brown (no relation) that Rut-land be terminated. Commissioner Brown agreed that Rutland was causing a disruption and should be terminated. Director Brown then contacted Mary McDonald,. Human Resources Director at MDOT, and determined that Rutland was a non-state service employee who could be terminated without cause or notice. Director Brown then began the process of terminating Rutland. However, before Rutland could be terminated, Hall made a motion before the Commission to discharge Director Brown. Commissioners Hall and Stewart voted two-to-one over Commissioner Brown to terminate Director Brown, effective November 18, 2003.

¶ 7. Following Butch Brown’s termination, elections were held for the commissioners’ seats. Hall and Wayne Brown retained their seats on the Commission, but newcomer Bill Minor was elected to replace Zack Stewart for the Northern District. Since Butch Brown’s termination, the Commission had been interviewing potential replacements for Executive Director of MDOT. However, once Minor joined the Commission, he and Wayne Brown voted two-to-one over Hall to re-hire Butch Brown, effective January 13, 2004. Commissioner Brown testified at the EAB hearing that when Butch Brown was rehired, Commissioners Brown and Minor warned Butch Brown against any retaliatory firings.

¶ 8. On February 3, 2004, Director Brown terminated Rutland via a letter citing Section 5.0 of the Mississippi Employee Handbook, which states that a non-state service employee may be terminated with or without cause or notice. Rutland appealed her termination to the EAB on February 13, 2004, alleging that her termination was an attempt by Director Brown to retaliate against Hall for discharging Brown the previous November. Hearing Officer William H. Smith was appointed to hear the matter, and a hearing was held in Mendenhall, Mississippi on May 27, 2004. After hearing testimony from Butch Brown, Wayne Brown, Bill Minor, Jim Willis, Mary McDonald, Dick Hall/ Brad White, Jim Majure, Shirley Rutland, and several other MDOT employees, as well as arguments from counsel, Smith affirmed Rutland’s termination, finding that she had failed to meet her burden of proof by showing substantial evidence that her.termination was politically motivated. On July 9, 2004, Rutland made a request for an en banc review of Smith’s decision, and on November 18, 2004, the EAB, sitting en banc, reversed the hearing officer’s ruling and reinstated Rutland with full back pay and benefits. We note that Smith was a member of the full board and did not issue a dissenting opinion. MDOT appealed the final decision of the EAB to the Circuit Court of Hinds County. The circuit court found the record to contain substantial evidence in support of the EAB’s en banc decision and affirmed the decision to reinstate Rutland. From the decision of the Circuit Court, MDOT now appeals.

STANDARD OF REVIEW

¶ 9. Appellate courts are not to substitute their judgment for that of an administrative board or agency when the board or agency acts within the narrow confines of its statutory decision-making authority. Miss. Dep’t of Corr. v. Smith, 883 So.2d 124, 128(¶ 11) (Miss.Ct.App. 2004). In the case at bar, the EAB was to consider whether the facts offered in support of MDOT’s termination of Rutland were true, and whether those reasons, if proven, are sufficient grounds for her termination. Id. (citing Miss.Code Ann. § 25-9-127 (Rev.1991)). The legislature has placed the burden on the appealing employee to show that the charged facts are not true or are not of sufficient gravity to merit the discipline imposed. Id. Great deference has been afforded to an administrative agency’s construction of its own rules and regulations and the statutes under which they operate. Mississippi State Tax Comm’n v. Mask, 667 So.2d 1313, 1314-15 (Miss.1995). The applicable scope of review of the circuit court over the decision of the EAB to reinstate Rutland as provided by our supreme court was as follows:

The statutory scope of judicial review of employee appeals board decisions is found in Miss.Code Ann. § 25-9-132 (Rev.2003), which states in' pertinent part:

(2) The scope of review of the' circuit court in such cases shall be limited to review of the record made before the employee appeals board or hearing officer to determine if the action of the employee appeals board is unlawful for the reason that it was: (a) Not supported by substantial evidence; (b) Arbitrary or capricious; or (c) In violation of some statutory or constitutional right of the employee.

These factors which govern the standard of review for agency decisions are the only grounds for overturning an agency’s action; otherwise the agency’s determination must remain undisturbed.

Miss. Transp. Comm’n v. Anson, 879 So.2d 958, 963(¶ 13) (Miss.2004). In our review of the decision of the circuit court concerning the agency action, we are bound to follow the same standard of review as the lower court. Miss. Sierra Club, Inc. v. Miss. Dep’t of Envtl. Quality, 819 So.2d 515, 519(1115) (Miss.2002).

LEGAL ANALYSIS

I. WHETHER THE INITIAL DECISION OF THE EAB HEARING OFFICER AFFIRMING RUT-LAND’S TERMINATION SHOULD BE AFFORDED DEFERENCE OVER THE FINAL DECISION OF THE EAB, SITTING EN BANC, TO REINSTATE RUT-LAND?

¶ 10. Under our standard of review, we must give deference to the rules promulgated by the EAB. The EAB has clearly set out the rules governing its appeals process and those rules are provided in the Mississippi State Employee Handbook as follows: “any party aggrieved by the final written decision of a presiding Hearing Officer entered on the hearing of an appeal may file a Written Request for Review by the Full Board.” Mississippi State Employee Handbook, July 2005, Appeals to the Full Board, P. 88 section 11. The Handbook further states: “the full board shall issue a final written decision and order on the review within a reasonable time after the final date for considering all documents to be considered on review.” Id. at P. 89 section 11 (emphasis added). However, MDOT argues that the opinion and order of Hearing Officer Smith should be granted deference over the final decision of the en banc EAB. In support of this argument, MDOT cites Smith, 883 So.2d at 124, and asserts that Smith stands for the proposition that the hearing officer should be afforded deference over the full board because the hearing officer had the benefit of observing, interacting with, and determining the credibility of the witnesses, while the full board order is based upon a review of only the dry record. However, we find MDOT’s interpretation of the Smith decision to be in error.

¶ 11. In Smith, the EAB affirmed the decision of the hearing officer. On appeal, Judge Southwick, writing for the Court, wrote: “[t]he substance of the Board’s order was nothing more than the hearing officer’s decision was ‘proper, correct, and should be affirmed.’ ” Id: at 130(¶ 19). Judge Southwick further added: “[w]e thus examine the hearing officer’s findings, but we consider them the findings of the board itself....” Id. (emphasis added). The hearing officer’s findings in Smith were given deference because they were adopted as the final findings of the full board, not because the decision of the hearing officer somehow trumped the decision of the full board. The case at bar stands in contrast to Smith, in that the full board rejected the hearing officer’s findings and issued their own. What is more, the hearing officer sat as a member of the full board and failed to issue a dissenting opinion to the order of the full board. This Court is in agreement with the opinion of the circuit judge espoused during arguments before that court, that to accept MDOT’s argument in favor of deference to the hearing officer, would be to find that “in any case in which the EAB reverses the hearing officer’s findings, all the losing party has to do is to appeal, and automatically the hearing officer’s findings are reinstated ... [cjlearly, this is not the law.” We hold that deference shall be given to the decision of the EAB, sitting en banc, and we proceed with our review accordingly-

II. WHETHER THE RECORD CONTAINED SUBSTANTIAL EVIDENCE IN SUPPORT OF RUT-LAND’S ALLEGATION THAT HER TERMINATION WAS POLITICALLY MOTIVATED?

¶ 12. The fact that Rutland was a probationary employee during the first twelve months of employment and did not have the protections afforded to state service employees, i.e., termination for good cause only after notice and a hearing, is undisputed. Miss.Code Ann. § 25-9-127 (Rev.2006). However, our supreme court has held that even though a probationary employee has no protection via the “good cause” standard, he or she may not be “adversely affected” for unlawful reasons. Gill v. Miss. Dep’t. of Wildlife Conservation, 574 So.2d 586, 591 (Miss.1990). Furthermore, state employees are protected by general policies established in other statutes, including “fair treatment ... without regard to political affiliation,” and to be free from “coercion for partisan or political purposes-” Miss.Code Ann. § 25-9-103 (Rev.2006). The statutes and administrative regulations applicable to this case placed the burden upon Rutland to prove, by substantial evidence, that she was terminated for political reasons. Further, Rutland had the burden to show that the reason given by MDOT for her termination, that she caused a disruption within External Affairs, was merely a pretext to the true motive behind MDOT’s actions. Smith, 883 So.2d at 129-30(¶ 16). This burden of proof could not be met merely by proving that Rutland was a good employee. Id. In order to reverse the ruling of the EAB, we must determine that there was not “substantial evidence” in the record to support the finding of the full board that Rutland’s termination was a politically motivated retaliatory firing. “ ‘Substantial evidence’ is not an especially large quantum.” Id. at 129(¶ 15). “Substantial evidence” may be less than a preponderance, but must be more than a scintilla, and “must be such that would make any conclusion based on that evidence a reasonable one.” Id. Accordingly, there may be substantial evidence in the record to support one fact-finder’s view, and in the same record substantial evidence to support the opposite view. Id.

¶ 13. Our review of the record indicates that the full board found substantial strife to have ensued between Hall’s staff and External Affairs over the use of the “Chairman” title in MDOT press releases. The record contains testimony that Hall’s staff wrote the releases as Hall had instructed, while External Affairs was operating as Director Brown had instructed. The EAB found that the orders were in conflict and created a stressful situation, not of the employees’ making. Further, the EAB found that Butch Brown’s own testimony and the testimony of MDOT employees Jim Majure, Brad White, and Shirley Rutland, as well as that of Commissioner Dick Hall indicated that Director Brown took substantial issue with Hall’s exercise of power and wanted to make clear that he ran the agency, not Hall. In support of this finding, we note that both Majure and Rutland testified that Brown declared himself “master” of the agency, and stated, “that son-of-ab — - Hall, does not run this agency.” White also testified to receiving an e-mail to this effect.

¶ 14. Additional support for the EAB’s finding is apparent in the testimony of Commissioners Bill Minor and Wayne Brown. In their testimony, both indicated that they had harbored concern over possible retaliatory firings when Butch Brown was rehired and that they warned Brown against such actions. Further, evidence of the political motivation behind Rutland’s termination may also be gleaned from the testimony of an MDOT safety engineer, Jim Wills, regarding a meeting between he and Director Brown shortly after Brown was rehired. Although Rutland spent the majority of her time working for Hall, she also worked as an assistant to Willis. Willis testified that Brown asked him whether Rutland had worked on Hall’s campaign for reelection. Willis told Brown that he was not aware of Rutland working on Hall’s campaign. Brown then asked Willis to keep the meeting between the two of them secret.

¶ 15. Finally, White and Hall testified that they were sure that the firing was politically motivated. White testified that he handled ninety-five percent of the press releases sent out by Hall and dealt with External Affairs far more often than Rut-land. However, because White has strong political connections in Simpson County, which lies within Commissioner Brown’s electoral district, he believes that Commissioner Brown would not allow Director Brown to terminate him. White testified that this belief was based on the fact that shortly after Director Brown was rehired, Commissioner Brown approached him and alerted him that Director Brown was going to fire three or four people. However, Commissioner Brown assured White that his position with MDOT was secure. Hall and White both testified that it was their belief that because Director Brown lacked the power to get rid of Hall, he instead, went after the only person he could, Rut-land.

¶ 16. Based on the foregoing facts, we find that the decision of the EAB, sitting en banc, finding Rutland’s termination to be politically motivated, is supported by “substantial evidence,” and must be afforded deference by this Court. We reiterate that it is not the function of this Court to substitute our judgment for that of an administrative board when the board acts within the narrow confines of its statutory decision-making authority. Smith, 883 So.2d at 128(¶ 11). Accordingly, the holding of the en banc EAB, affirmed by the Circuit Court of Hinds County, reinstating Rutland to her position as an assistant to Dick Hall, with full back pay and benefits, is affirmed.

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

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


author: IRVING, J., for the Court.

text:
    Jason CARTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01623-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Rehearing Denied Sept. 25, 2007.

      Walter E. Wood, Ridgeland, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   IRVING, J., for the Court.

¶ 1. Jason Carter was convicted by a Madison County jury of three counts of armed robbery, and was sentenced by the Madison County Circuit Court to a total of thirty years in the custody of the Mississippi Department of Corrections. Aggrieved, Carter appeals and asserts the following four errors: that his initial stop by police was unlawful and that the evidence discovered as a result of the stop should not have been admitted at trial, that his inculpatory statement to police should not have been admitted, that the evidence against him is insufficient to support his conviction, and that the court erred in allowing hearsay testimony by one of the police officers involved in the case.

¶ 2. Finding error, we affirm in part and reverse and render in part.

FACTS

¶ 3. On April 28, 2003, Officer Christopher Corley of the Canton Police Department was dispatched to the Westside Trailer Park in Canton. Once there, Officer Corley encountered three visibly distressed individuals of Hispanic descent, two women and one man. Police officers determined the identity of the three individuals, but never testified regarding the identity of the victims at trial. Officer Corley testified that the individuals did not speak much English, but that they were able to relate that they had been robbed at gunpoint by three individuals. The perpetrators were described by the victims as three black males, one large, one skinny, one wearing a black T-shirt, and one wearing a white T-shirt. This description was sent out over the police radio.

¶ 4. Shortly after the description went out, Deputy Alex Slaughter observed three black males, including Jason Carter, who fit the description given by the victims. Evidence indicated that the location where Carter and the other individuals were observed was within a mile of the Westside Trailer Park. At that time, Deputy Slaughter called for backup. After other officers arrived, Carter and the others were patted down, and a pistol was located on Carter’s person. The pistol was taken from Carter, and he was placed on the ground and secured with handcuffs. A further search of Carter revealed a receipt with a Hispanic name on it, a twenty-dollar bill, a wrist watch, and a small amount of money. A “piece of gray material” was also discovered.

¶ 5. The next morning, Carter was interviewed at the Madison County Police Department after executing a written waiver of his Miranda rights. Carter confessed that he, Joshua Carter, and Brien Hill had robbed three individuals at the Westside Trailer Park. Carter gave additional details regarding the robbery. Investigator Don Hicks transcribed Carter’s confession and then allowed Carter to read the confession. At that time, Carter noted a needed correction, which. Investigator Hicks made. Carter initialed the correction.

¶ 6. Thereafter, Carter was tried and convicted by a Madison County jury. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES •

1. Suppression of Evidence

¶ 7. In his first and third contentions of error, Carter claims that the trial court erred in refusing to suppress evidence obtained after Carter was stopped by police. Specifically, Carter claims that the stop was made without reasonable suspicion and that the evidence resulting therefrom should therefore have been suppressed.

¶ 8. Carter was initially detained for an investigative stop, and was arrested only after a pistol was discovered on his person. The Mississippi Supreme Court has stated that “[t]he constitutional requirements for an investigative stop and detention are less stringent than those for an arrest. This Court has recognized that ‘given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest....’ ” Wilson v. State, 935 So.2d 945, 950(¶ 18) (Miss.2006) (quoting Floyd v. City of Crystal Springs, 749 So.2d 110, 114(¶ 16) (Miss.1999)). The Court discussed what constitutes reasonable suspicion: “whether, taking into account the totality of the circumstances, the detaining officers had a ‘particularized and objective basis for suspecting the particular person ... of criminal activity.’ ” Id. (quoting Floyd, 749 So.2d at 115(¶ 17)).

¶ 9. Taking into account the totality of the circumstances, the officers had reasonable suspicion to stop Carter. Carter was observed within fifteen to twenty minutes of the robbery, in close proximity to the location of the robbery, and he and the individuals with him fit the general description of the perpetrators given to the police. Therefore, the officers had a “particularized and objective basis for suspecting” Carter of having been involved in criminal activity. This issue is without merit.

2. Suppression of Statement

¶ 10. In his second claim of error, Carter argues that the court erred in refusing to suppress his statement, which Carter alleges was involuntary.

¶ 11. Carter appears to argue that his statement was involuntary, not because he was coerced by officers, but because he did not actually make the statement that was introduced into evidence. However, to date Carter has produced no evidence that the statement was falsified or was not accurate, other than his own assertions that he did not make any statement to the police. No evidence has been offered to show that Carter’s signature on the statement was falsified. Therefore, the court did not abuse its discretion in refusing to suppress Carter’s inculpatory statement, as no credible evidence was presented to indicate that the statement was anything other than a voluntary statement.

3. Sufficiency of the Evidence

¶ 12. In this assertion of error, Carter claims that the evidence introduced at trial was insufficient to sustain a conviction for armed robbery against the individuals named in the indictment. Specifically, Carter contends that the receipt found in his pocket is the only evidence identifying any of the individuals who were held at gunpoint while the trailer was being searched. That receipt identified only Eva Rivera. As Carter notes, the record is entirely devoid of any evidence identifying Margarita Garcia or Lino DeJesus Garcia, the other individuals identified in the indictment. Although Carter admits in his statement that one of his codefendants held a gun on the victims outside of the trailer, nothing in the statement identifies Margarita or Lino. Further, although Officer Corley talked to three people outside of the trailer and obtained their identity, neither he nor any other officer testified as to their identity during the trial.

¶ 13. Evidence supporting a conviction is insufficient when “evidence of one or more of the elements of the charged offense is such that reasonable and fair-minded jurors could only find the accused not guilty.” Wilson v. State, 936 So.2d 357, 363(¶ 16) (Miss.2006) (citing Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003)). We view all the evidence in “the light most favorable to the State and consistent with the verdict.” Id. (citing Hawthorne, 835 So.2d at 22(¶ 32)).

¶ 14. We agree with Carter that the evidence produced at trial was insufficient to sustain his conviction in counts II and III of the indictment, which were related to the armed robbery of two individuals identified in the indictment as “Margarita Garcia and Lino Dejesus Garcia.” None of the victims testified at trial because they could not be located after the robbery. Furthermore, as we have already noted, no officers testified regarding the identity of the individuals who were questioned at the trailer park the night of the robbery. Without any evidence regarding the identity of the individuals who were robbed at the trailer park, it should have been impossible for the jury to find that the evidence supported a conviction against Carter for the robberies of Margarita and Lino. Simply put, not only was the evidence insufficient to show that Carter robbed these individuals, such evidence was completely nonexistent.

¶ 15. Allowing Carter’s conviction to stand would allow the jury to convict Carter without any proof that the individuals named in the indictment were actually the individuals that Carter robbed. The indictment clearly alleged that Carter had robbed specific individuals. By contrast, the evidence produced at trial indicated only that Carter had robbed Rivera and maybe two other unidentified individuals. In the face of such lack of proof, there was simply no evidence from which the jury could find that Carter robbed individuals “named in the indictment” as Margarita Garcia and Lino Garcia.

¶ 16. The State never sought an amendment of the indictment in this case to take out the identity of the victims of the robbery. Furthermore, the identity of the victim is an essential element of the crime of robbery. In Coffield v. State, 749 So.2d 215, 217(¶ 7) (Miss.Ct.App.1999) (quoting Miss.Code Ann. § 97-3-73) (Rev.1994), this Court noted: “Robbery is defined as the taking of ‘the personal property of another.... ’ We are satisfied that the State is not required, as a critical element of these crimes, to either charge or to put on affirmative proof, beyond the specific identity of the victim, that the victim was a human being.” The defendant in Cof-field had argued that the indictment was “fatally defective for its failure to charge that the victim Lana Coffield [his estranged wife], was a human being.” Coffield, 749 So.2d at 216-17(¶ 1).

¶ 17. In Burks v. State, 770 So.2d 960, 963(¶ 12) (Miss.2000) (quoting Hughes v. State, 207 Miss. 594, 603, 42 So.2d 805, 807 (1949), citing Upshaw v. State, 350 So.2d 1358, 1362 (Miss.1977)), the Mississippi Supreme Court stated that “ ‘an indictment must state the name of the victim of an offense where that is an element of the offense, and a failure to state it, or a material variance between statement and proof is fatal....’ A variance is material if it affects the substantive rights of the defendant.” We have found nothing to indicate that the identity of a victim of a robbery is not an essential element of the crime of armed robbery. Thus, it appears to this Court that the State could not have amended the indictment to omit reference to the identities of the victims, even had it attempted to do so. In either case, there was a material variance between the indictment and the proof offered, since no evidence indicated the identity of any victim other than Rivera.

¶ 18. We note that this same issue was raised and discussed below. During the discussion of what instructions to submit to the jury, the State sought to have an instruction given to the jury that read for count I: “a human being, a different human being from Counts II and III. And then in Count II, put a different human being from Count[s] I and III.” At this point in the discussion, the court questioned the State: “Well, why can’t we just put their names?” In explaining his problem, the prosecutor stated: “The reason being is, I suppose there could be some argument made if we put their names in there that, ladies and gentlemen, you have to find him not guilty because they never proved that DeJesus was the man; because he never stepped forward.” Shortly thereafter, the prosecutor admitted, “What I’m saying is, Judge, I think we may not have met the proof of who the individual names are.... I think it’s best if we just leave their names out and say ‘a human being, different from Count[s] II and III.’ ” At this point in the discussion, the defense objected, noting that the indictment named three specific individuals that Carter was alleged to have robbed. As a compromise, the court introduced the language that eventually went into the jury instructions, which stated that Carter had robbed “a person named in the indictment as Eva Rivera.... ” The language was then changed in subsequent instructions to reflect the name of each of the other two victims. We note that this compromise did not make the evidence against Carter sufficient to sustain a conviction. The indictment clearly identified three separate individuals that Carter was alleged to have robbed. The instructions as given still clearly identified three separate people that Carter allegedly robbed, when the evidence was wholly insufficient to show that Carter robbed two of the three individuals.

¶ 19. We affirm Carter’s conviction in count I, because evidence was produced supporting a conviction for the robbery of Rivera. Specifically, a receipt was introduced into evidence bearing Rivera’s name. Testimony indicated that the receipt was recovered from Carter’s pocket, along with some cash that was allegedly taken during the course of the robbery. Furthermore, one of Carter’s co-defendants, Brien Hill, testified against Carter at trial. Hill was questioned extensively regarding his plea of guilty regarding the robbery of Rivera. Neither of the other two victims was named during Hill’s testimony, and he apparently pled guilty only to the robbery of Rivera. The presence of the receipt, Hill’s testimony, and the testimony of the officers and Carter’s own admission that he and two other individuals had robbed three people at the trailer park is sufficient to sustain Carter’s conviction. While scant, this evidence was such that reasonable and fair-minded jurors could find Carter guilty of the armed robbery of Rivera.

¶20. Because the evidence is insufficient to sustain a conviction against Carter for the armed robbery of Margarita Garcia and Lino Dejesus Garcia, we reverse and render those counts, leaving only Carter’s conviction for armed robbery against Rivera intact.

A Exclusion of Hearsay Testimony

¶ 21. Finally, Carter claims that the court erred in allowing hearsay testimony by Officer Corley regarding what one of the victims had told him. Carter’s attorney objected at trial, and the trial judge ruled that the testimony would be admissible, although “not ... necessarily for the truth of the matter, that being a factual determination to be made by the jury.” The judge made a specific finding as to why the testimony was reliable. Although the judge stated that the testimony would not “necessarily” be admitted for the truth of the matter asserted, no limiting instruction was ever given to the jury.

¶ 22. Carter contends that the lower court erred in finding that the statement was reliable. Specifically, Carter argues that “[a]ny reliability the statements embodied due to the nature of the event they observed was diminished by the declar-ant’s inability to adequately articulate a description of the perpetrators. Also, the statement loses trustworthiness after considering that the assault occurred in the dark of night.”

¶ 23. The testimony in question was admissible as the statement of an unavailable witness. The court clearly did not err in ruling that the victims in this case were unavailable for purposes of the hearsay rule, as evidence offered strongly indicated that the State had been “unable to procure [their] attendance ... by process or other reasonable means.” M.R.E. 804(a)(5). In fact, Carter’s attorney stipulated to the unavailability of the victims at trial: “I’ll stipulate that ... if anybody could find the witnesses, Carroll Phelps could or could get somebody to find them. And that he has used every reasonable means to locate the witnesses that he was asked to locate.”

¶ 24. Once a witness is ruled unavailable, there are several types of hearsay testimony that may be presented. See M.R.E. 804(b)(l — 4). However, none of these exceptions fit the victim’s statements testified to at trial. Instead, the statements are allowable under Rule 804(b)(5), which states:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Here, the statement was offered as evidence of a material fact (Carter’s identity and involvement in the crime), the statement was more probative than other evidence that could be produced, and admission of the statement served the “interests of justice.” The court also made a finding that there were “circumstantial guarantees of trustworthiness.” Nothing in the rules prohibited the statement from being introduced as proof of the truth of the matter asserted, and no limiting instruction was required to be given to the jury.

¶25. As to Carter’s claim that the statement lacked trustworthiness, we note that the statement was given to a police officer immediately after the commission of a crime, by individuals who had no apparent reason to lie to law enforcement. To date, no evidence has been produced by Carter to indicate that the victims were lying or had any reason to lie to Officer Corley. Carter claims that the statement lacks reliability because the victims were unable to give an adequate description of the men who had robbed them. We note that the description of the perpetrators given by the victims was quite clear: three black males, one large, one skinny, one wearing a black T-shirt, and one wearing a white T-shirt. In fact, it was this specific description .that led to Carter’s arrest. Furthermore, as to Carter’s contention that the statements lacked reliability because the robbery occurred at night, we note that no evidence was presented to indicate that the lighting was so poor that an individual could not have made an adequate identification. No evidence whatsoever was presented to indicate the lighting, or lack thereof, at the trailer park where the robbery took place. This issue is without merit.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF ARMED ROBBERY IN COUNT I AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF ARMED ROBBERY IN COUNTS II AND III AND SENTENCE OF TWENTY YEARS ON EACH COUNT TO RUN CONCURRENTLY TO EACH OTHER AND CONSECUTIVELY TO THE SENTENCE IN COUNT I, IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

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

      . Specifically, Carter was sentenced to twenty years each for counts II and III, and ten years for count I. Count I is to run consecutively to counts II and III, which are to run concurrently to each other, for a total of thirty years in the custody of the Mississippi Department of Corrections.

      . It is not clear from the record whether the victims advised that they each had been robbed. However, the indictment contains three counts, one for each of the alleged victims, and alleges that money and personal property were taken from each of the victims. Neither the amount of money nor the identity of the personal property is identified in the indictment.

      . We note that Carroll Phelps, case manager for the Madison County District Attorney's Office, testified that he had been unable to locate Eva Rivera, Margarita Garcia and Leno DeJesus Garcia in preparation for the trial. However, he did not testify to their connection with the trial, and certainly not that they were the victims of the robbery. We further note that these individuals were identified as the victims during the court’s voir dire, and during closing arguments, but neither voir dire nor arguments by counsel are evidence.