author: SMITH, Chief Justice, DICKINSON, Justice,

text:
    CUCOS, INC. v. Jerry McDANIEL, and Spouse Laura McDaniel.
    No. 2005-IA-00626-SCT.
    Supreme Court of Mississippi.
    Sept. 21, 2006.

      Simpson Gray Edmondson, Franklin Williams, attorneys for appellant.
    Margaret P. Ellis, Jackson, attorney for appellees.
   SMITH, Chief Justice,

for the Court.

¶ 1. This premises liability case is before us on appeal by Cucos, Inc., from an order of the Jackson County Circuit Court granting the motion of Jerry McDaniel and Laura McDaniel to reinstate this case, which was previously dismissed for want of prosecution. The Court will address the two overarching questions brought forth on appeal, considering first, whether sufficient action was taken to prevent dismissal pursuant to Miss. R. Civ. P. 41(d) and second, whether the trial court’s grant of relief from dismissal was an abuse of discretion. Finding the actions taken by the plaintiffs and the trial court sufficient to prevent dismissal and thus, no abuse of discretion by the court’s relief from dismissal, we affirm the trial court’s reinstatement of the case.

PROCEDURAL HISTORY AND FACTS

¶ 2. On May 18, 2000, Jerry McDaniel and his wife, Laura McDaniel, filed a complaint alleging injuries sustained during a slip and fall accident at Cucos, Inc on June 8, 1997. Cucos timely filed its answer on July 13, 2000. The last action recorded by the clerk was a civil subpoena attested to by a deputy clerk on July 6, 2001. Exhibits presented by both parties reflect active settlement negotiations from September 2001 through August 2002.

¶ 3. After two years void of action in the case, the clerk entered a Motion to Dismiss for Want of Prosecution on October 16, 2002, and sent notice to each of the parties. On or about November 13, 2002, the McDaniels responded to the clerk with a letter, which was at the time a common and sufficient response in that circuit court district. The letter requested the case not be dismissed and asked for notification from the clerk if additional steps were necessary. The clerk failed to place the letter in the court file and never notified the judge of the letter or . replied to the letter with notification of additional necessary steps. On November 22, 2002, unaware of the McDaniels’ letter to the Clerk, the trial court entered an Order Dismissing Case for Want of Prosecution. The McDaniels sent a letter to Cucos on or about August 20, 2004, regarding settlement. The McDaniels were unaware of the dismissal, the clerk having failed to send notice of the Order and having placed the incorrect docket number on the Order, until Cucos responded on or about August 24, 2004, saying the case was dismissed.

¶ 4. Oh August 30, 2004, the McDaniels filed a Motion to Set Aside Dismissal asserting that the letter they sent should have been sufficient to prevent dismissal. The trial court held a hearing on December 9, 2004, and found (1) the McDaniels’ letter to the Clerk requesting the case remain active was not in the court file at the time she signed the order of dismissal; (2) the McDaniels’ letter was an acceptable method of preventing the Clerk’s dismissal for want of prosecution; (3) a copy of the Order Dismissing Case for Want of Prosecution was not provided to the McDaniels; (4) -the McDaniels provided the circuit court with specific denials and rebutted the presumption they received notice of the dismissal; and (5) the McDaniels were pursuing efforts to schedule conferences between Cucos and his treating physicians in order to facilitate settlement. Based on these findings, the court entered an Order Granting Plaintiffs Motion to Set Aside Dismissal on January 10, 2005, effectively reinstating the case. Cucos subsequently requested an interlocutory appeal, which we granted. See Miss. R.App. P. 5.

DISCUSSION

I. WHETHER SUFFICIENT ACTION WAS TAKEN TO PREVENT DISMISSAL PURSUANT TO Miss. R. Civ. P. 41(D)

¶ 5. Any court of law or equity may exercise the power to dismiss for want of prosecution. This power, inherent to the courts, is necessary as a means to “the orderly expedition of justice” and “the court’s control of its own docket”. Walker v. Parnell, 566 So.2d 1213, 1216 (Miss.1990) (quoting Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986)). It has been clear since the adoption of the Mississippi Rules of Civil Procedure that the granting of motions to dismiss is a matter within the discretion of the trial court. Roebuck v. City of Aberdeen, 671 So.2d 49, 50 (Miss.1996) (citing Carter v. Clegg, 557 So.2d 1187, 1190 (Miss.1990)). This Court will not disturb a trial court’s ruling on a dismissal for want of prosecution unless it finds an abuse of discretion. Watson, 493 So.2d at 1279.

¶ 6. The first issue in dispute is over the satisfaction of Miss. R. Civ. P. 41(d) which governs dismissals for want of prosecution. Rule 41(d) calls for the clerk to mail notice to attorneys of civil cases identified as having an inactive record for twelve or more months. Miss. R. Civ. P. 41(d). “[S]uch case will be dismissed by the court for want of prosecution unless within thirty days following said mailing, action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case. If action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.” Id.

¶ 7. One possibility for preventing dismissal under Rule 41(d) is that the plaintiff perform an “action of record.” In 2000, this Court in Wilson v. Freeland acknowledged that “there are no Mississippi cases construing what constitutes an ‘action of record.’ ” That statement holds true today as there still exist no cases defining what constitutes an “action of record.” 773 So.2d 305, 309 (Miss.2000). Cucos relies on Wilson for the proposition that an action of record must “hasten the suit to judgment.” This is incorrect. The Court simply arrived at the conclusion that the Order signed in that case was sufficient as an action of record, and the Court used as its foundational reasoning citations to the holdings of various jurisdictions from which the Court noted “[m]any of these cases focus on whether the action is ‘hastening the suit to judgment.’ ” Id.

¶ 8. For several reasons, Wilson is weak precedent when used for defining or placing limits on what constitutes an action of record. In Wilson only five justices participated, and three votes constituted the majority. Also, this Court is not bound by decisions from other jurisdictions. Griffith v. Gulf Refining Co., 215 Miss. 15, 61 So.2d 306, 307 (1952). While the Court may regard such decisions as persuasive authority if well reasoned, the Court is at complete liberty to disregard them. Id. The Court may refuse to follow such decisions which are contrary to the public policy of the state. Id.

¶ 9. Wilson is only controlling in cases where the trial court decides to use the “hasten the suit to judgment” analysis in determining whether an action satisfies Rule 41(d). The sole significance of Wilson is the finding that an “action of record” encompasses actions that “hasten the suit to judgment.” The decision does not hold, however, as Cucos argues, that an action of record only consists of actions that “hasten the suit to judgment,” but, instead, those actions that “hasten the suit to judgment” are merely one category of actions now deemed sufficient. In providing its analysis, the Court did not create a new standard that in every situation where a claimant attempts to prevent dismissal in compliance with Rule 41(d) by performing an action of record that action must “hasten the suit to judgment.” See Wilson, 773 So.2d at 309. No such requirement exists, and the Court will not acknowledge Wilson as putting forth such a requirement for the purpose of resolving the issue at hand.

¶ 10. The Court of Appeals, whose propositions of law are only binding upon this Court if adopted by this Court, has twice decided whether particular action was sufficient to be deemed an action of record, but neither decision provides a clear standard or defines the phrase. See Curry v. Walls, 871 So.2d 762 (Miss.Ct.App.2004) (holding in reliance on Wilson v. Freeland that a letter requesting a copy of the record was not an action on the record for the purposes of preventing dismissal pursuant to Miss. R. Civ. P. 41(d)); Guidry v. Pine Hills Country Club, 858 So.2d 196 (Miss.Ct.App.2003) (holding in reliance on Wilson v. Freeland that a motion to stay on the active docket was not an action on the record for the purposes of preventing dismissal pursuant to Miss. R. Civ. P. 41(d)). Cucos attempts to use the holdings in Curry and Guidry to strengthen the proposition it puts forth that Wilson requires an action of record to hasten the suit to judgment. Each of these decisions is faulty in its analysis, misstating what is simply a means of analysis in Wilson as a mandate. See Curry, 871 So.2d at 764; Guidry, 858 So.2d at 198-99.

¶ 11. Cucos argues that the McDaniels’ letter was insufficient to constitute an action of record under Rule 41(d) and uses the “hasten the suit to judgment” analysis from Wilson, Curry, and Guidry as the bases for this argument. However, that analysis is not mandatory for trial courts. These findings merely provide analytical options for trial courts. As dismissal for want of prosecution is within the trial court’s discretion, the trial court judge may find that the plaintiff has performed an action of record without that action being in accord with the “hasten the suit to judgment” analysis, and likewise, a trial court judge may, within his discretion, use those cases to support a decision to dismiss a ease with similar facts, such as this one. Without an explicit definition or standard, what suffices as an action of record is left to the reasonable discretion of the trial court. Additionally, Curry and Guidry do not affect the trial court’s decision in this case since in 2002 when the actions in question occurred, neither case had been decided. So, even if deemed controlling law for the proposition Cucos states, neither case would have applied to the McDaniels’ actions in 2002 as Guidry was decided in 2003 and Curry in 2004. Therefore, despite the factual similarity to this case, since these cases neither define nor purport to place limits on what constitutes an action of record, neither Curry, Guidry, nor Wilson require a trial court to use the same “hasten the suit to judgment” analysis used in those cases.

¶ 12. Seeing that this Court is not bound by any previously promulgated definition or restraint on what constitutes an action of record, interpretation of general wording in rules or statutes, such as that in Rule 41(d), is often aided by looking to the function or the purpose of the rule. The only such purpose or function of Rule 41(d) noted by this Court to date has been as a “means necessary to the orderly expedition of justice and the court’s control of its own docket.” Watson, 493 So.2d at 1278. When satisfaction of the rule is in dispute, these two functions can serve as guidance for the trial court. The trial court should consider whether the action taken by the plaintiff was in accordance with the orderly expedition of justice. Certainly, the court is afforded great discretion in the second function of Rule 41(d), which is to control its own docket. Thus, in a situation, such as the one before us, where the only standard this Court has set forth is that in determining the sufficiency of the plaintiffs action the trial court must do what is necessary for justice as well as what the trial court decides is appropriate in controlling its own docket, this Court will construe Rule 41(d) liberally.

¶ 13. Moreover, though this Court fails to find a mandatory standard in Wilson, it recognizes the legitimacy of the method of analysis in that case, the use of other jurisdictions’ jurisprudence as guidance when this Court has not definitively ruled on the issue. Decisions from other jurisdictions may have persuasive authority if well reasoned and promotive of justice. Griffith, 61 So.2d at 307. One such decision is Clark v. State Farm Mut. Auto. Ins. Co. 785 So.2d 779, 785 (La.2001). In Clark the Louisiana Supreme Court held that its rule regarding want for prosecution actions should be liberally construed in favor of maintaining the plaintiffs suit. Id. Accordingly, dismissal should be considered as a last resort, and any dispute about satisfaction of the rule that can be resolved in favor of the plaintiff should be resolved in favor of the plaintiff. See id. at 787. We adopt this view regarding satisfaction of Miss. R. Civ. P. 41(d).

¶ 14. Dismissal for want of prosecution is not a punitive concept as evidenced by the requirement of dismissal without prejudice. Instead, it is a means of docket regulation. In considering which cases should be pruned from the docket pursuant to Rule 41(d), the trial court in using its discretion should employ a balancing concept. Clark, 785 So.2d at 787. There are typically two competing policy considerations. Id. The Court must weigh the great social interest in provision of every litigant with his day in court and the attempt to not deprive the plaintiff of that opportunity for technical carelessness or unavoidable delay against the purpose of the Rule as found by the Court in Walker to be achievement of the orderly expedition of justice and control by the trial court of its own docket. 566 So.2d at 1216. If the facts of this case were such that the trial court, in an effort to control its own docket, wanted to dismiss this case for want of prosecution and take or postpone the plaintiffs day in court, this Court would need to balance the two competing policy considerations. However, in this case the two policy considerations merge since the trial court’s desired manner of controlling its own docket includes wanting to allow the plaintiff his day in court. When a plaintiff clearly abandons his case, the purpose of Rule 41(d) should be allowed to prevail, but in this situation where the plaintiffs sent a written request to the court that the case stay open, and the trial court held a hearing on the matter to determine if there was good cause, or, in other words, if reinstatement was just, and determined that it wanted to keep the case on its docket, the balance of policy interests favors allowing the McDaniels’ case to proceed.

¶ 15. The Louisiana Code, more specific in language than the comparable Mississippi Rule, requires more than an action of record, namely, a step in prosecution. La. Code Civ. Proc. art. 561(A)(1) (2006). The Louisiana Code also provides specific examples of sufficient acts, such as the inclusion of formal discovery, and notes that this act constitutes a step in prosecution regardless of whether filed. La.Code Civ. Proc. art. 561(B) (2006). Even with greater specificity and a more stringent requirement, the Louisiana rule has been construed as accepting a letter in accordance with local practice as sufficient to prevent dismissal. See Ellzey v. Employers Mut. Liab. Ins. Co., 388 So.2d 843, 845 (La.Ct.App.1980) (affirming the trial court’s reinstatement of a case after dismissal for want of prosecution when the plaintiffs letter was a step in prosecution under Art. 561 but the court was unaware of the letter because the clerk did not file it).

¶ 16. The Florida rule governing involuntary dismissal for want of prosecution also specifies in greater detail than the Mississippi rule what actions will prevent dismissal. Fla. R. Civ. P. 1.420(e) (2006). Satisfactory actions include a “filing of pleading, order of court, or otherwise.” Id. Yet, a Florida appeals court in Koscot Interplanetary Inc. v. Zurich Ins. Co. adopted a liberal construction of what constitutes an action of record. 580 So.2d 318, 319 (Fla.Dist.Ct.App.1991). The court rejected the trial court’s finding that a letter reminding the judge about setting the case for trial did not constitute “a pleading that would represent file activity.” Id. (quoting the trial court’s order). The court of appeals reversed the trial court’s dismissal for want of prosecution. Id. Under the Mississippi Rule, which is more vague than both the Louisiana and Florida rules, and thus, open to a wider range of judicial discretion, we deem a letter acceptable as a local practice sufficient to prevent dismissal when there is no controlling authority to the contrary.

¶ 17. “That this Court will not disturb a trial court’s finding on appeal unless it is manifestly wrong is a doctrine too well known to require citation.” Watson, 493 So.2d at 1279. This often cited standard of review clearly requires deference to the fact findings of the court, and the trial court found that McDaniel acted in such a manner to satisfy Rule 41(d). A letter in response to a Rule 41(d) motion for dismissal that simply requests that a case remain on the docket is an action of record when the letter is (1) timely sent within the thirty-day period which begins upon the filing of the motion, (2) found to be a sufficient action on the record and that finding is not in contradiction to an existing statute or decision of this Court, and (3) considered as part of a hearing where the trial court determined good cause existed for allowing the case to remain on its docket. While these facts need not be found by every trial court to constitute an action of record, they are sufficient for a court which within its discretion chooses to deem them as such.

¶ 18. Pursuant to the reasoning that this Court has adopted from other jurisdictions and the liberal construction of Rule 41(d) in accordance with the objectives of attaining justice and allowing the trial courts to control their own dockets, the McDaniels’ letter in response to the clerk constituted an action of record such as would preclude a determination of dismissal under Rule 41(d). Additionally, the letter coupled with the findings made by the trial judge at the hearing held by the trial court were sufficient to show that there was good cause as required under Rule 41(d). This Court finds that in matters relating to dismissals pursuant to Rule 41(d), the trial court has considerable discretion, and considering the totality of the trial court’s findings, the McDaniels satisfied Rule 41(d).

II. WHETHER THE TRIAL COURT’S GRANT OF RELIEF FROM DISMISSAL WAS AN ABUSE OF DISCRETION

¶ 19. An appellate court evaluates the granting of a Miss. R. Civ. P. 60 motion for abuse of discretion. Montgomery v. Montgomery, 759 So.2d 1238, 1240 (Miss.2000) (citing Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)). The finding of the trial court will not be disturbed unless the judge was either manifestly wrong or clearly erroneous or erroneous in applying the legal standard. See Perkins v. Perkins, 787 So.2d 1256, 1261 (Miss.2001).

¶20. Three errors by the trial court clerk warranted relief from dismissal: (1) failing to file the McDaniels’ letter sent in response to the motion to dismiss; (2) placing the incorrect docket number on the Order dismissing the case; and (3) failing to notify the McDaniels of the Order to Dismiss. There are two sections to Miss. R. Civ. P. 60 that allow relief from judgment. Cucos argues that any relief due to McDaniels should be granted only under section (a). The Court agrees, instead, with the trial court that Rule 60(b) is the more appropriate section.

¶ 21. Section (a) applies specifically to “clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission.” Miss. R. Civ. P 60(a). The purpose of Rule 60(a) is simply to correct insubstantial clerical errors. Miss. R. Civ. P. 60(a) cmt. Rule 60(a) only offers a correction of the record, which is inadequate relief. The failure by the clerk to place the McDaniels’ letter in the record, where the trial court indicated it expected to see such a letter, resulted in a dismissal by the trial court which was unaware at the time of dismissal the that McDaniels had sent what the trial court deemed a sufficient response to prevent dismissal or at least justify holding a hearing in order to determine whether good cause existed. This erroneous result could not be overcome by a mere correction of the record. The trial court properly set aside the Order Dismissing Case for Want of Prosecution, which is a result unattainable under Rule 60(a).

¶ 22. Relief from more substantial errors requires the use of Rule 60(b), Townsend v. Townsend, 859 So.2d 370, 375 (Miss.2003), and, specifically, Rule 60(b)(6) applies in this case. After the enumerated grounds of subsections 1 through 5, Rule 60(b)(6) provides that the court may relieve a party from a final judgment or order for “any other reason justifying relief from judgment,” and the motion “shall be made within a reasonable time.” M.A.S. v. Miss. Dep’t of Human Servs., 842 So.2d 527, 530 (Miss.2003). A reasonable time is determined on a case-by-case basis, turning on the facts in each individual case. Id. Initially unaware of the dismissal due to the clerk’s failure to comply with Miss. R. Civ. P. 77(d), which requires immediate notice of a judgment sent by the clerk to the parties, the McDaniels acted quickly, filing a motion to obtain relief from the dismissal within six days upon learning of the judgment.

¶23. Additionally, two of the factors considered regarding whether a party acted in a reasonable time to justify relief are whether the party opposing the motion has suffered prejudice from the delay and whether the movant can show good cause for failure to act sooner. M.A.S., 842 So.2d at 530. Upon a hearing on the McDaniels’ motion to set aside the dismissal, the trial court mentioned no finding of prejudice, and this. Court has been presented with no argument regarding an improperly considered or ignored claim of prejudice. Also, the movants, according to the findings of the trial judge from the hearing and in the opinion of this Court, showed good cause in that they did not receive notice of the Order to dismiss and were unable to reasonably find the dismissal themselves because it was labeled with the incorrect docket number. Therefore, this Court finds that the McDaniels moved for relief within a reasonable time pursuant to Rule 60(b).

¶24. Further, Cucos argues that the facts of this case are insufficient to constitute the exceptional or extreme circumstances required to gain relief under Rule 60(b)(6). Correctly, Cucos states that Rule 60(b)(6) is for use only in extraordinary and compelling circumstances. M.A.S., 842 So.2d at 530. However, this Court recently decided in a similar case that the trial court acted well within its discretion when it granted a motion to vacate and subsequently allowed post trial motions to be considered on the merits that were filed fifteen days after the final judgment as opposed to the ten day requirement in the rules. Hartford Underwriters Ins. Co. v. Williams, 936 So.2d 888, 894-95 (Miss.2006). The Court upheld the granting of the motion to vacate under Rule 60(b)(6), finding exceptional circumstances where the clerk failed to give notice of the judgment as required “immediately upon the entry” by Miss. R. Civ. P. 77(d) and answered incorrectly the movant’s inquiries about the status of the case. Id.

¶ 25. The case sub judice is significantly akin to Hartford in at least three ways. The clerk similarly failed to comply with Rule 77(d) in not notifying the McDaniels of the judgment and inhibiting his ability to respond to the dismissal more quickly. Also, incorrect information was provided by the clerk regarding the status of the case since the judgment was labeled with the incorrect docket number. Finally, as Hartford filed a motion for relief on the day of learning of the judgement, McDaniel, too, filed for relief quickly, filing within six days. In Hartford this Court held that “Rule 60(b) provides a trial judge with the discretionary capacity to right the unforeseeable wrong without having to undermine important procedural mandates.” Id., 936 So.2d at 894. The numerous errors made by the clerk constitute exceptional circumstances that justify relief for the McDaniels under Rule 60(b)(6), and the trial court was within its discretion when it granted the McDaniels’ motion pursuant to Rule 60(b)(6) to set aside the dismissal for want of prosecution. Therefore, this Court will, as we did in Hartford, uphold the judgment of the trial court.

¶ 26. Cucos contends that the trial court made erroneous statements used as a bases for its decision to grant relief under Rule 60(b), and consequently, the decision cannot be upheld. The Court dismisses this argument as irrelevant. The result was legally justifiable, and “a trial court judgment may be affirmed on grounds other than those relied upon by the trial court judgment.” Askew v. Askew, 699 So.2d 515, 519 (Miss.1997) (citing Kirksey v. Dye, 564 So.2d 1333, 1336 (Miss.1990); Stewart v. Walls, 534 So.2d 1033, 1035 (Miss.1988)). “It is well established in our jurisprudence that the right result reached for the wrong reason will not be disturbed on appeal.” Accredited Sur. & Cas. Co., 535 So.2d at 60 (affirming a trial court grant of relief under Rule 60(b)(6) despite the incorrect identification by the movant of the subsection for which relief was available and no identification of the appropriate prong of Rule 60(b) by the trial court).

¶ 27. Within the trial court decision, Cucos also refutes the relevancy of the clerk’s failure to notify the McDaniels of the Order dismissing the case. The Court agrees in part and disagrees in part. Regarding Rule 41(d), the point in time which triggers the plaintiffs rights in preventing dismissal is when the clerk files the motion to dismiss at which time the plaintiff has thirty days in which to respond to prevent dismissal of the case. Thus, the important event for Rule 41(d) is the filing of the motion to dismiss and providing notification of the motion, rather than notice of the Order to dismiss. While this Court agrees that the Order to dismiss is irrelevant for the purposes of applying Rule 41(d), it finds the failure to send notice of the Order critically relevant for the application of Rule 60(b). Failure by the clerk to send notice of the Order to dismiss was one of several factors that justified the granting of relief under Rule 60(b)(6).

¶ 28. Cucos argues that the McDaniels do not qualify for relief under Rule 60(b) because they failed to exhaust procedural remedies available under Miss. R. Civ. P. 41(d). Indeed, Rule 60(b) is not an escape hatch for litigants who failed to use available procedural remedies. Briney v. United States Fid. & Guar. Co., 714 So.2d 962, 967 (Miss.1998). However, the Court addresses the issue of Rule 41(d) compliance above and finds that the McDaniels properly pursued the procedural remedies available under Rule 41(d).

CONCLUSION

¶ 29. Lacking clear or specific guidance on the issue, the trial court ruling did not contradict existing law and moreover, directly complied with the objectives of Rule 41(d) as previously stated by this Court. Considering the totality of the trial court’s findings, the trial court did not abuse its discretion in considering the McDaniels’ letter in response to the Clerk’s Motion to Dismiss for Want of Prosecution and the hearing it held on the issue as sufficient to prevent dismissal for want of prosecution pursuant to Miss. R. Civ. P. 41(d). Additionally, considering the clerk’s failure to record or file the McDaniels’ letter, correctly identify the Order to dismiss, or provide notice to the McDaniels that the Order to dismiss was entered, the circumstances warrant relief pursuant to Miss. R. Civ. P. 60(b)(6). The trial court did not abuse its discretion in granting relief from the dismissal for want of prosecution that was granted without full knowledge of the trial court due to significant errors by the court clerk. For these reasons, we affirm the judgment of the Jackson County Circuit Court and remand this case to that court for further proceedings consistent with this opinion.

¶ 30. AFFIRMED AND REMANDED.

WALLER AND COBB, P.JJ., DIAZ, EASLEY CARLSON AND GRAVES, JJ„ CONCUR. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, J.

DICKINSON, Justice,

dissenting:

¶ 31. After filing this lawsuit, the plaintiffs did nothing for over two years. Then, unbelievably, after the Clerk filed a motion to dismiss the case for want of prosecution, and after the Circuit Judge dismissed the case, the plaintiffs still took no action of record for another two years. Instead, the plaintiffs sent a letter to the Clerk simply asking that the case not be dismissed. Because I believe the plaintiffs failed to respond to the Clerk’s motion to dismiss as required by M.R.C.P. 41(d), and because I believe the majority sets a dangerous precedent by approving the plaintiffs’ substituted compliance with an unapproved local “custom,” I respectfully dissent.

¶ 32. The issues in this matter are governed by Rule 41(d) of the Mississippi Rules of Civil Procedure. The Rule’s requirements are stated in plain, unambiguous language. The McDaniels had thirty days following the Clerk’s motion to either (1) take an “action of record,” or (2) make written application to the court showing “good cause” why his lawsuit should be allowed to continue. No amount of legalese legerdemain will convert the plaintiffs’ actions into compliance with either of these requirements.

The plaintiff took no action of record.

¶ 33. The majority expends much energy dancing around the language of Wilson v. Freeland, 773 So.2d 305 (Miss.2000), a case decided by this Court only six years ago. After christening Wilson “weak precedent,” the majority proceeds to ignore it as if it were no precedent at all. I am not so much concerned with the majority’s desire to retreat from this Court’s requirement that the plaintiff file an action of record that “hastens the suit to judgment.” To be sure, I didn’t like that requirement when it was imposed in Wilson, and I still don’t like it. What troubles me here is the majority’s willingness to accept as an “action of record” a letter the plaintiffs sent to the Clerk which (1) does nothing more than, in essence, say “don’t dismiss our case,” and (2) does not even request that it be filed of record. If this letter — which was not filed of record and which no one requested to be filed of record — complies with the “action of record” portion of Rule 41(d), then why not a phone call or a passing conversation in the supermarket?

¶ 34. In Wilson, this Court held that the action taken in the case, a motion to compel discovery, constituted an “action of record” specifically because such action “invariably ‘hastens a suit to judgment,’ as discovery is an integral part of the litigation process which must be completed before an action may proceed to trial. Consequently, [the chancellor] erred in dismissing the case as stale.” Id. at 309. The majority, after devaluing the Wilson Court for citing cases from foreign jurisdictions, promptly turns to cases from Louisiana and Florida, as well as the Louisiana Code, to bolster its conclusion that an action of record need not “hasten the suit to judgment.” Acknowledging that the McDaniels’ letter did nothing to move the litigation process along, the majority nonetheless finds the letter a sufficient “action of record.” It seems to me in the wake of four years of inactivity, the letter cannot fairly be considered in compliance with Rule 41(d).

¶ 35. In her order, the Circuit Judge attempted to distinguish the Court of Appeals’ reasoning in Curry v. Walls, 871 So.2d 762, 764 (Miss.Ct.App.2004), by stating that, prior to the Curry decision, the practice and procedure in the Nineteenth Circuit Court District allowed a plaintiff to overcome the Clerk’s motion to dismiss with a letter similar to the McDaniels’ letter. However, the Circuit Judge’s Order neither distinguished Wilson (which clearly required the McDaniels to take some action that would “hasten the suit to judgment”), nor provided any authority for preempting a rule of civil procedure with an unapproved local rule.

The plaintiffs did not file a written application showing “good cause.

¶ 36. The McDaniels’ letter made no attempt whatsoever to offer good cause as to why his case should remain on the active docket. In fact, the letter was completely silent on the issue of cause. They provided no explanation for why they had allowed more than two years to elapse without prosecuting their case. The letter merely stated, “[pjlease accept this letter as our notice that the above entitled matter should not be dismissed pursuant to the Clerk’s motion to dismiss.” The McDaniels then let another two years pass without prosecuting their case. In my view, as a matter of law, this letter did not meet the requirements of Rule 41(d) to prevent dismissal of the McDaniels’ lawsuit.

Prior practice of the district

¶ 37. Additionally, the circuit court erred by relying on a prior practice of the district to justify the McDaniels’ failure to comply with the clear requirements of Rule 41(d). Local rules, practices, or procedures that have not been approved by this Court are ineffective and an inappropriate basis for claiming exemption from the mandates of the Mississippi Rules of Civil Procedure. Koerner v. Crittenden, 635 So.2d 833, 835 (Miss.1994); Watts v. Pennington, 598 So.2d 1308, 1313 (Miss.1992). The majority completely ignores our precedent on this issue.

¶ 38. The majority declares its desire to “not deprive the plaintiff of [his day in court] for technical carelessness or unavoidable delay,” and while I agree with the majority’s sentiment, I do not find that statement relevant to this case. The McDaniels’ neglect of their case for more than four years was not caused by technical carelessness or unavoidable delay. They chose their course of action, or rather inaction. Accordingly, I would find the circuit court erred in granting the McDan-iels’ Motion to Set Aside Dismissal.

Failure to receive the Order Dismissing Case for Want of Prosecution

¶ 39. In her order, the Circuit Judge found that the McDaniels did not receive the order of dismissal. The Circuit Judge then stated, “[a]s a result, the Court finds that Plaintiffs were not given the opportunity to provide the Court with good cause why the case should remain on the docket.” I believe this finding is manifestly in error. As the majority acknowledges, whether the McDaniels received the order had nothing whatsoever to do with their opportunity to show good cause why the case should not be dismissed. The relevant question is whether the McDaniels received the motion to dismiss, which they did. Having received the motion, they had thirty days to take an action of record or provide the Circuit Judge with good cause, and they did neither.

¶ 40. Stated another way, even if the McDaniels had received the order of dismissal, it would have had no bearing on the disposition of the Clerk’s motion to dismiss, because by the time the order was entered, the McDaniels were already in violation of the rule. They failed to take an “action of record” and failed to provide, in writing, good cause as to why their case should not be dismissed. The entry of the order of dismissal was completely unrelated to the McDaniels’ failure to comply with Rule 41(d).

¶ 41. The Circuit Judge relied on PrePaid Legal Services, Inc. v. Anderson, 873 So.2d 1008 (Miss.2004), in holding that because the McDaniels were not sent notice of the order of dismissal, they were denied the opportunity to provide the court with good cause as to why the case should remain on the docket. In Anderson, the defendants were not sent notice of the entry of judgment and, as a result, the defendants failed to timely file them notice of appeal. Id. at 1009. Because the defendants rebutted the presumption that they had received the notice, this Court remanded the case to allow the defendants to file their appeal. Id. at 1010. The Circuit Court’s reliance on Anderson is misplaced.

¶42. While it is true that both the McDaniels and the defendants in Anderson failed to receive notice of entry of the court’s judgment, that is where the similarity ends. The issue here is not whether failure to receive notice of the judgment deprived a defendant of his right to appeal, as was the case in Anderson. The issue here is whether failure to receive notice of entry of the dismissal deprived the McDaniels of their right to comply with the requirements of Rule 41(d). As stated earlier, by the time the trial court entered the order of dismissal, the McDaniels should have already fully complied with the requirements of Rule 41(d) and, in fact, their time to do so had expired. Thus, they cannot blame their failure to comply with the rule on their failure to receive the order.

¶ 43. Notice of the entry of judgment alerts the opposing party of the need to take action within a prescribed time period following the entry. Anderson, 873 So.2d at 1010. Notice of an order of dismissal for want of prosecution does not serve a similar purpose. Rather, notice of the Clerk’s Motion to Dismiss for Want of Prosecution is the comparable action, because that notice starts the clock for the opposing party to respond as to why the case should remain on the active docket. The McDaniels received this notice, so the clock began to run. A dismissal is entered when a party fails to timely respond or to take sufficient “action of record,” neither of which the McDaniels did in this case. The McDaniels’ failure to receive notice of the order of dismissal does not erase or excuse their failure to appropriately respond to the notice of the Clerk’s Motion to Dismiss, which they did receive. Accordingly, the circuit court erred in finding that the McDaniels’ failure to receive the order of dismissal denied them the opportunity to show good cause. The McDan-iels failed to satisfy the requirements of Rule 41(d), so the circuit court erred in setting aside the final judgment pursuant to Rule 60(b).

Relief under Rule 60(b)

¶ 44. The majority finds that this case involves “extraordinary and compelling circumstances” such that relief under Rule 60(b), as opposed to 60(a), is warranted. I cannot agree. Section (a) specifically deals with “clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission.” This is exactly the category of errors we are faced with in this case.

¶ 45. The majority relies on Hartford Underwriters Insurance Co. v. Williams, 936 So.2d 888, 892 (Miss.2006), a case where post-trial motions were filed late. Hartford involved a five-day delay, whereas in this case the plaintiffs failed to prosecute their case for four years. Additionally, in Hartford, the Court based its ruling in part on the inaccurate information received by the movant upon inquiry into the status of its case. Id. at 894. Here, we have no indication that the McDaniels ever asked the Court about the status of their case in the two years after they sent a letter to the Clerk. We have no reason to think that the McDaniels ever made, or even intended to make, such an inquiry. Regardless of its assertion to the contrary, the majority is allowing the McDaniels to use Rule 60(b) as an “escape hatch” for their failure to prosecute their case.

¶ 46. In my view, the circuit court had no basis for granting Rule 60(b) relief to the McDaniels from the Order Dismissing Case for Want of Prosecution. For this reason, and the other reasons stated herein, I would reverse the circuit court’s granting of the McDaniels’ Motion to Set Aside Dismissal for Want of Prosecution, and render judgment dismissing this case.

RANDOLPH, J., JOINS THIS OPINION.

      . This Court is applying a similar standard of review as it has numerous times with respect to a discovery violation. See Allen v. Nat’l R.R. Passenger Corp., 934 So.2d 1006, 1008-09 (Miss.2006) (holding that in discovery matters trial courts have considerable discretion and should be reviewed with great deference); Caracci v. Int’l Paper Co., 699 So.2d 546, 556 (Miss.1997) (holding that there is a high threshold, "a definite and firm conviction of error,” which must be surpassed before a trial court will be reversed); Clark v. Miss. Power Co., 372 So.2d 1077, 1080 (Miss.1979) (holding that dismissal should only be used as a last resort). Discovery violations and stagnant cases are similar in at least two ways. From statutes related to each, the Court has indicated a policy favoring consideration on the merits as well as a policy protecting a trial court's ability to maintain control over procedural resolution when not dictated by statute or this Court. See Miss. R. Civ. P. 37; Miss. R. Civ. P. 41(d). See also Clark, 372 So.2d at 1080 (holding that justice is favored over form and technicalities); Allen, 934 So.2d at 1015 (holding that considerable discretion is afforded to trial courts in managing the pretrial discovery process in their courts); Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986) (holding that the ability to dismiss for lack of prosecution is a means to assist in achieving the orderly expedition of justice and for trial courts to control their own dockets). Therefore, considerable discretion is afforded regarding involuntary dismissal for want of prosecution similarly to that afforded discovery violations.

      . This Court does note that within the Clark decision the Court also holds that certain actions, such as matters outside the record and informal or ex parte actions, are insufficient steps for prosecutions due to the lack of notice to the defendant that steps are still being taken in prosecution for the case and that the time is no longer tolling towards the time requirement for dismissal for want of prosecution. See 785 So.2d at 790-91. That issue is irrelevant to the points of law that this Court adopts from Clark since the letter in this case sent by the plaintiff was mistakenly not filed by the clerk and that practice was commonplace and well-known according to the trial court. Thus, the defendants should have at least expected that possibility and at best upon the proper filing of the letter would have become aware of the action by requesting and viewing the case file.

      . Dismissal for want of prosecution is referred to as abandonment in Louisiana. This is the one comparable statute in the Louisiana Code of Civil Procedure, and as in Mississippi, the result for want of prosecution is a dismissal without prejudice. Roberts v. New Orleans Symphony, 883 So.2d 452, 458 (La.Ct.App.2004).

      . The McDaniels filed a Motion to Set Aside Dismissal on August 30, 2004 after receiving a letter from Cucos dated August 24, 2004, informing the McDaniels that the case was dismissed.

      . See Miss. R. Civ. P. 50; Miss. R. Civ. P. 59.

      . The majority aptly characterizes this period of time as "two years void of action.”

      . The plaintiffs freely admit receiving a copy of the Clerk’s motion to dismiss. When the McDaniels received notice of the Clerk’s Motion to Dismiss for Want of Prosecution in October 2002, he neither filed a motion seeking extension of discovery nor sought to have the case set for trial. In fact, they took no action of record whatsoever.

      .This total of four years with absolutely no action filed of record by the plaintiffs exceeds the applicable statute of limitations for filing the action in the first instance.


source: Caselaw Access Project

author: WALLER, Presiding

license: Public Domain

text:
    Ronnie Lynn CHANCY v. STATE of Mississippi.
    No. 2004-CT-02036-SCT.
    Supreme Court of Mississippi.
    Sept. 21, 2006.

      Ronnie Lynn Chancy, Appellant, pro se.
    Jeffrey A. Klingfuss, attorney for appel-lee.
   ON WRIT OF CERTIORARI

WALLER, Presiding

Justice, for the Court.

¶ 1. In 1995, in the Circuit Court of Rankin County, Ronnie Lynn Chancy pled guilty to two counts of armed robbery, and he was sentenced to thirty-one years in the custody of the Mississippi Department of Corrections. In 2004, he filed a pleading under the Mississippi Uniform Post-Conviction Collateral Relief Act which the circuit court dismissed as being time barred. Chancy’s appeal from the order of dismissal was assigned to the Mississippi Court of Appeals, which unanimously affirmed the circuit court’s order. See Chancy v. State, 938 So.2d 267, 2005 WL 3112688 2005 Miss.App. LEXIS 920 (Miss.Ct.App.2005). We agree with the Court of Appeals’ affir-mance of the dismissal of Chancy’s post-conviction relief petition, but find that the Court of Appeals erred when it found that the newly discovered evidence exception of the PCR statute of limitations did not apply to petitioners who pled guilty.

DISCUSSION

¶2. Chancy claims that his guilty plea was involuntarily entered due to ineffective assistance of counsel. He presents the affidavits of his mother and his sister which aver that Chancy’s counsel informed his mother that, if he pled guilty, Chancy would be sentenced to 10 years’ imprisonment. Chancy alleges that he entered the guilty plea based on the expectation of being sentenced to 10 years, but, instead, he was sentenced to 31 years’ imprisonment.

¶ 3. The State argued, and the circuit court and the Court of Appeals agreed, that Chancy’s PCR petition was not timely filed. Chancy pled guilty in 1995 and the petition was filed in 2004. However, Chancy responds that his mother did not inform him of her conversation with his counsel in which she was apprised of the plea agreement until 2001, the first time his mother came to visit him. He contends that his mother’s information is newly discovered evidence and that his PCR petition was timely filed.

¶ 4. The Court of Appeals specifically held that “[n]ewly discovered evidence is relevant only in situations where a defendant went to trial and was convicted.” Chancy, 938 So.2d at 269, 2005 WL 3112688, *, 2005 Miss.App. LEXIS 920 at *5. We disagree. In Bell v. State, 759 So.2d 1111 (Miss.1999), we granted an evi-dentiary 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).

¶ 5. We find, however, that the exception does not apply to Chancy’s petition because the information contained in the affidavits is not newly discovered evidence. In his sworn petition for post-conviction relief, Chancy admits that he knew about the alleged plea agreement in 1995 when he pled guilty. Furthermore, his allegations of an involuntary guilty plea are contradicted by the sworn statement he made in the petition to enter a guilty plea: that the guilty plea was knowingly and voluntarily made, that no promises regarding a sentence had been made, and that he understood that he could be sentenced to life. The petition also stated in pertinent part:

I also have been told by my lawyer that any sentence I may receive is up to the court, that the court is not required to carry out any understanding made by me and my attorney with the District Attorney; I understand that the court is not required to follow the recommendation of the District Attorney, if any.... I believe that my lawyer has done all that anyone could do to counsel and assist me. I AM SATISFIED WITH THE ADVICE AND COUNSEL HE HAS GIVEN ME. I recognize that if I have been told by my lawyer that I might receive ... a light sentence, this representation is merely his opinion and that it is not binding the court or the District Attorney.

(emphasis in original). We therefore find no exception to the bar of the three-year statute of limitations. See, e.g., Felder v. State, 876 So.2d 372, 373 (Miss.2004).

CONCLUSION

¶ 6. For these reasons, we affirm the judgment of the Court of Appeals and the judgment of the Circuit Court of Rankin County dismissing Chancy’s petition for post-conviction collateral relief.

¶ 7. AFFIRMED.

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

      . Under Miss.Code Ann. § 99-39-5(2) (Supp. 2006), Chancy had three years from the entry of the judgment of conviction based on his guilty plea to file a motion seeking relief under the Mississippi Uniform Post-Conviction Collateral Relief Act.


author: COBB, Presiding Justice, DIAZ, Justice,

text:
    Vickie BALOUCH v. STATE of Mississippi.
    No. 2003-CT-00386-SCT.
    Supreme Court of Mississippi.
    Oct. 5, 2006.

      L. Abraham Rowe, Jr., attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   ON WRIT OF CERTIORARI

COBB, Presiding Justice,

for the Court.

¶ 1. Vickie Balouch was found guilty by a Pike County Circuit Court jury of the “placing out” of D.L. in violation of Miss. Code Ann. §§ 43-15-23 (Rev.2004). She was sentenced to three years in the custody of the Mississippi Department of Corrections, with one year to serve and two years on post-release supervision, and fined $1,000. She appealed, and the case was assigned to the Court of Appeals, which reversed her conviction and rendered a verdict of not guilty, based on its holding that evidence in the record was insufficient to support the verdict. Upon grant of certiorari, we conclude the Court of Appeals erred. Therefore, we reverse the judgment of the Court of Appeals and reinstate and affirm the trial court judgment entered consistent with the jury verdict.

FACTS

¶2. Balouch assisted Dr. David Smith and his wife, Autumn Smith, in connection with their possible adoption of D.L. The facts set forth by the Court of Appeals in its opinion (with re-numbered footnotes) are stated in their entirety, as follows:

On May 2, 2002, Balouch contacted her physician, Dr. David Smith, regarding the adoption of three-year-old [D.L.]. At the time, both of [D.L.’s] biological parents were incarcerated, and [D.L.] had been temporarily placed in the home of her foster parents, John and Paula Newton. Balouch falsely informed Dr. Smith that she had a working relationship with the Mississippi Department of Human Services (DHS) and that she worked with battered women and children. She also misrepresented that [D.L.] had been sexually abused by John and that Paula was addicted to drugs. Later that night, Dr. Smith called Bal-ouch to inform her that he and his wife Autumn were interested in pursuing the adoption. Balouch brought the child to visit with the Smiths the next day.
Over the course of her communications with the Smiths, Balouch also misrepresented that [D.L.’s] father was incarcerated in a Texas prison and that he was willing to relinquish his paternal rights. She also stated that she had a working relationship with local attorney Jack Price whom she recommended to handle the adoption. Balouch informed the Smiths that they could expect to pay up to $5,000 in attorney fees and expenses for the adoption. The Smiths soon learned that [D.L.’s] father was unwilling to consent to the adoption, and Balouch was subsequently indicted for placing out a child in violation of Mississippi Code Annotated section 43-15-23 (Rev.2004).

Balouch v. State, 938 So.2d 262, 263, 2005 WL 2358338, *1 (Miss.Ct.App.2005).

PROCEEDINGS IN THE COURT OF APPEALS

¶ 3. Balouch raised four issues on appeal, challenging the sufficiency and weight of the evidence; improper jury instructions; witness testimony in violation of physician-patient privilege; and speculative lay opinion testimony. Finding reversible error due to insufficiency of the evidence and holding that the State failed to prove essential elements of the crime, the Court of Appeals declined to address the other issues. Balouch v. State, 938 So.2d at 264-66, 2005 WL 2358338, *2-4. Specifically, the Court of Appeals held the State failed to prove that Balouch arranged to place D.L. in the Smiths’ home for the purpose of free care and adoption pursuant to Miss Code Ann. § 43-15-23(1). Id. at 264, *2. The Court of Appeals further held that even if Balouch illegally placed the child out, the State failed to prove she received or requested compensation for her services pursuant to Miss. Code Ann. § 43-15-23(2). Id. In conclusion, the Court of Appeals determined the evidence was insufficient to support the verdict and reversed and rendered. Id at 266-67, *4.

¶ 4. The State’s petition for writ of cer-tiorari raised the sole issue of whether the Court of Appeals erred in its interpretation of the statutory language of Miss. Code Ann. § 43-15-23, an issue of first impression. We found the petition to be well-taken, and granted certiorari. After due consideration of not only the single issue raised by the State on certiorari, but also all other issues raised on direct appeal, we now reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court of Pike County.

ANALYSIS

¶ 5. In Bush v. State, 895 So.2d 836, 843-44 (Miss.2005), this Court laid to rest some confusion surrounding the difference between review of the weight and sufficiency of the evidence. When reviewing the sufficiency of the evidence, this Court, after viewing the evidence in a light most favorable to the prosecution, must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 843. If this Court 'determines the evidence is insufficient to support the verdict, the proper remedy is to reverse and render. Id. Where sufficiency of the evidence is determined within a context requiring the definition of statutory elements of a crime, the correct statutory construction by the courts is critical.

¶ 6. Balouch was found guilty of the placing out of a child in violation of Miss. Code Ann. § 43-15-23, which became effective from and after July 1, 1986, and which reads in pertinent part, as follows:

(1) As used in this section the term “placing out” means to arrange for the free care of a child in a family, other than that of the child’s parent, stepparent, grandparent, brother, sister, uncle or aunt or legal guardian, for the purpose of adoption or for the purpose of providing care. (Emphasis added).
(2) No person, agency, association, corporation, institution, society or other organization, except a child placement agency licensed by the Department of Public Welfare under Section 43-15-5, shall request, receive or accept any compensation or thing of value, directly or indirectly, for the placing out of a child. (Emphasis added).
(3) No person shall pay or give any compensation or thing of value, directly or indirectly, for placing out of a child to any person, agency, association, corporation, institution, society or other organization except a child placement agency licensed by the Department of Public Welfare.
.... [here deleted sub-section 4 which talks of payment of salaries to DHS, etc.]
(5) Any person, agency, association, corporation, institution, society or other organization violating the provisions of this section shall be guilty of illegal placement of children and shall be punished by a fine not to exceed Five Thousand Dollars ($5,000.00) or by imprisonment not more than five (5) years, or both such fine and imprisonment.

¶ 7. The State points to the deception perpetrated by Balouch. It was established through the testimony of Dr. Smith that Balouch claimed she was working with social services and attorney Jack Price, and that the adoption would cost approximately $5,000. However, she was not involved with either social services or Price. The State argues “it is an absolutely reasonable inference from the entire record that defendant asked for money for arranging the ‘placing out’ or ‘placing in’ of the child. Defendant was the only person gathering information, correct names, addresses, the sole keeper of the information regarding the child transfer.”

¶ 8. Balouch responds only that the State has no grounds for seeking a writ of certiorari, because none of the M.R.A.P. 17 grounds for granting certiorari exist. She bases her position on her belief that “[t]he overwhelming majority of the opinion by the Court of Appeals is obiter dictum, and it is this dicta which the State seeks to have reviewed by this Court.” Thus, she argues, the State has “completely ignored the actual basis for the ruling of the Court of Appeals and has not sought a review of the actual basis for that ruling.” She goes on to state the basis “was that the State failed to prove one of the essential elements of the crime charged, specifically that [her] actions constituted a placing out of the child for adoption.” We reject Bal-ouch’s argument. Because the determination by the Court of Appeals was based on an erroneous interpretation of the plain language of Miss.Code Ann. § 43-15-23, this matter is properly before this Court on writ of certiorari pursuant to M.R.A.P. 17.

¶ 9. The Court of Appeals stated that Balouch had to receive something of value to be guilty pursuant to the Miss. Code Ann. § 43-15-23, but went on to hold Balouch did not request or receive a thing of value for placing out D.L. Balouch v. State, 938 So.2d at 264, 2005 WL 2358338, *2. Further, the evidence is sufficient to show that a rational juror could find that Balouch requested, directly or indirectly, payment for the placing out of D.L. Bal-ouch never directly asked the Smiths to give her anything of value for the adoption. However, in order to prove Balouch guilty of placing out D.L., the State need only prove she directly or indirectly requested a thing of value; the statute does not require she actually receive anything of value. See supra Miss.Code Ann. § 43-15-23(2). The Smiths testified that Bal-ouch told them the adoption would cost approximately $5,000. Dr. Smith expressed concern about this cost and asked Balouch why it would be so much. Bal-ouch responded that she was working with Jack Price, an attorney, and it was to cover the cost of Price flying to Texas to meet with D.L.’s biological father to get the adoption papers signed and that “there would be other expenses involved too.” At this point Balouch was the only person with whom the Smiths had dealt regarding the adoption. Dr. Smith testified that “[Balouch] presented herself as working with [Price], so she had done all this other information collecting for him, so why wouldn’t I assume, just like anyone else would, that I would be giving the money to her to get to him later.”

¶ 10. Balouch misrepresented to the Smiths that D.L.’s father was incarcerated in a Texas prison and was willing to relinquish his parental rights. In fact, D.L.’s biological father, who was incarcerated in Leakesville, Mississippi, testified that he did not even know Balouch and was never contacted regarding the adoption. In addition, Price testified he was not associated with Balouch, and that Balouch called him only after she had made substantial arrangements for the adoption and told the Smiths the adoption would cost $5,000. Price further testified that he and Balouch never discussed a fee, and furthermore, his legal fee for an adoption is $750, and he only handles uncontested adoptions. Moreover, Balouch told the Smiths she was associated with the Department of Human Services, and there was testimony revealing this statement was false as well.

¶ 11. Given Balouch’s ongoing and exclusive relationship with the Smiths regarding the potential adoption, together with her statement to the Smiths that the adoption would cost $5,000 despite the fact that she was not affiliated with an attorney or social services at the time, is sufficient for a rational juror to find she directly or indirectly requested a thing of value for placing out D.L. See Hooker v. State, 716 So.2d 1104, 1110 (Miss.1998) (A jury is allowed to draw all reasonable inferences from the evidence). Further, when reviewing the sufficiency of the evidence, the State is given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Miller v. State, 875 So.2d 194, 198 (Miss.2004). Therefore, the Court of Appeals erred when it determined the evidence was insufficient to support the verdict because there was no evidence she received compensation for placing out D.L.

¶ 12. The Court of Appeals also held the evidence was insufficient to show Balouch arranged the placing out of D.L. Balouch v. State, at 264, 2005 WL 2358338, *2. Specifically, the Court of Appeals stated “[although Balouch took the child to visit with the Smiths on one occasion, the record is clear that [D.L.] remained in her foster parents’ home at all times. As a result we fail to see how Balouch’s actions constituted a ‘placing out’ within the meaning of the statute”. Balouch v. State, at 264, 2005 WL 2358338, *2. Essentially, the Court of Appeals held that to be guilty for the placing out of a child, the defendant had to actually place that child in another’s home. This holding is contrary to the plain language of the statute. The statutory definition states “ ‘placing out’ means to arrange for the free care of a child in a family .... for the purpose of adoption.” Miss.Code Ann. § 43-15-23(1) (emphasis added).

¶ 13. The word “arrange” means “1. [t]o place in proper, desired, or convenient order. 2.[t]o come to an agreement or understanding regarding. 3.[t]o prepare or plan.” Random House Webster’s College Dictionary 75 (2000). This definition is plain and unambiguous. “Where the language used by the legislature in a statute is plain and unambiguous and converys [sic] a clear and definite meaning there is no occasion to resort to rules of statutory interpretation.” Miss. Power Co. v. Jones, 369 So.2d 1381, 1388 (Miss.1979). The record is clear that Balouch made plans and prepared .. for D.L.’s adoption. Balouch made the initial contact with Smith regarding the adoption. Further, she did most of the planning. Dr. Smith testified that Bal-ouch frequently communicated with them regarding the adoption, including giving them information about D.L.’s birth parents.

¶ 14. Further questioning of Dr. Smith revealed the following:

A. [Balouch] told us that she would be coming with a social worker to the office with the child, and that we would be able t[o] see her and visit with her then.
Q. Who brought [D.L.] to the office?
A. [Balouch].

Furthermore, Autumn Smith testified “... [Balouch] brought the child by the office. That was the first time I met her”. Autumn Smith’s testimony also revealed that she and Balouch took D.L. to the hospital where Dr. Smith was seeing patients:

[Balouch] was probably there a good 45 minutes at least, because then we loaded [D.L.] up and took her to Beacham. She put the car seat in Sandra’s car, our nurse, because all I had was a truck, and [Balouch] encouraged me to take her down there because he couldn’t get back. We were supposed to keep her that night, but the social worker wasn’t able to come for her to meet us, so she encouraged me to take her to Beacham so David could meet her and spend the afternoon with her. She had to have her back by 4:00 o’clock.

Moreover, Balouch falsely claimed to work for the Department of Human Services. Finally, perhaps the most compelling evidence is Dr. Smith’s testimony that Bal-ouch said, in essence, “if you want me to, even though its illegal, if you just give me the word, I’ll go and get the child that night, and I’ll bring her over to your house that night....”

¶ 15. In sum, a review of the transcript clearly reveals Balouch was heavily involved in the arranging of D.L.’s adoption by the Smiths. Consequently, a rational juror could have, and in fact did determine that Balouch was guilty of the placing out of D.L. The evidence is sufficient to support the jury’s guilty verdict pursuant to Miss.Code Ann. § 43-15-23.

¶ 16. This Court must presume the words in the statute were “intended to convey their usual meaning absent some indication to the contrary.” Wallace v. Town of Raleigh, 815 So.2d 1203, 1208 (Miss.2002) (internal citation omitted). There is nothing before this Court to indicate that the legislature intended anything other than the literal meaning of the words in this statute. The courts have no right to add anything to or take anything from a statute, where the language is plain and unambiguous. To do so would encroach upon the power of the Legislature. The courts have neither the authority to write into the statute something which the legislators did not write therein, nor to ingraft upon it any exception not included by them. Id.

¶ 17. We have also considered the remaining issues raised by Balouch before the Court of Appeals concerning claims of error due to improper jury instructions, witness testimony in violation of the physician-patient privilege, and speculative lay opinion testimony. Having considered these additional assignments of error, we find them to be without merit and without need for discussion.

CONCLUSION

¶ 18. Under the plain language of Miss. Code Ann. 43-15-23, the evidence is sufficient to support the jury’s decision to find Balouch guilty of the placing out of a child. Additionally, the other issues Balouch raised in her brief to the Court of Appeals are without merit. We reverse the judgment of the Court of Appeals and we reinstate and affirm the trial court’s judgment.

¶ 19. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED. CONVICTION OF PLACING OUT OF A CHILD AND SENTENCE OF THREE (3) YEARS, WITH ONE (1) YEAR TO SERVE AND TWO (2) YEARS ON POST-RELEASE SUPERVISION, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A FINE OF $1,000 AND COURT COSTS, AFFIRMED.

SMITH, C.J., WALLER, P. J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.

DIAZ, Justice,

Dissenting:

¶20. The majority concedes that Ms. Balouch never directly asked for anything of value for the adoption. They hold that she should be convicted of a felony and sent to prison for “indirectly” requesting a “thing of value.” However, the evidence in this case does not show that Ms. Balouch even “indirectly” requested anything and thus does not even rise to this abysmally low threshold for felony conviction. The evidence in this case reveals that at most Ms. Balouch provided an inaccurate estimate of the cost of the adoption. The majority’s interpretation of the statute in question should send shivers down the spine of anyone involved in the private adoption process. It is an invitation for abuse of the criminal process and will have a chilling effect upon adoptions in this state. Further, to send someone to prison on such scant evidence is a reprehensible miscarriage of justice and should never be condoned by this Court. By reinstating this verdict we are encouraging the prosecution of individuals based upon nothing more than someone’s interpretation of another person’s words. Finally, it must be pointed out that no other underlying crime was committed in this case. Ms. Balouch was prosecuted, convicted of a felony, and is being sent to prison simply because she conveyed her thought and uttered the words that this adoption “could cost up to $5,000, don’t quote me on the exact price, but it could cost $5,000.”

¶ 21. Therefore, I agree with the Court of Appeals that the State failed to prove an essential element of the crime charged, and I respectfully dissent. While the Court of Appeals did state there was insufficient evidence that Ms. Balouch received compensation for her services, the whole of the court’s holding was that she never even requested compensation. Balouch v. State, 2006 Miss.App. LEXIS 690, *2-4. The record demonstrates that the State offered the testimony of three witnesses as evidence of Ms. Balouch’s alleged request for compensation, and all three denied that she ever asked for money.

¶ 22. Angie McKenzie (Dr. Smith’s office manager) testified that Ms. Balouch informed her “the [$5,000] would be for Jack Price to fly to Texas and for the paperwork to be done for the child to be adopted.” When asked whether Ms. Bal-ouch requested any compensation for herself, Ms. McKenzie replied, “no.” Similarly, Dr. Smith testified that Ms. Balouch told him that he and his wife “needed to be prepared to pay $5,000 for th[e] adoption to be able to take place.” When he asked why it was such a large sum of money, Ms. Balouch responded that “it was going to cost a lot of money for Jack Price to be able to fly to Texas,” and “there would be other expenses involved too.”

¶ 23. Furthermore, Autumn Smith offered the following testimony on cross-examination:

Q: And you asked Ms. Balouch what was involved in going private, did you not?
A: Yes, sir.
Q: And would you give me her exact quote, please, that’s in your notes?
A: I asked what was involved by going private, and Vickie then said, “it could cost up to $5,000, don’t quote me on the exact price, but it could cost $5,000.”
Q: And your response, according to your notes?
A: I said, Whoa, I wasn’t expecting that with the father ready to sign.’
Q: And what was her response?
A: Vickie said that we would have to pay for Jack to fly to Texas to get the papers signed.
Q: And there was no other conversation between you and Ms. Balouch about money, correct, other than what you just testified to out of your notes?
A: We talked more in discussion about the $5,000.
Q: And it was for payment to Jack for things that he was going to do?
A: She did not say that it was being given directly to Jack.
Q: What was it going to be given to?
A: She said that she — Vickie said that she helped him out as well, and that she was filling out necessary paper work, but she did not say the money was going to Jack. She just said it was for Jack.
Q: She didn’t request that you give her the money, did she?
A: (No Answer.)
Q: Yes or no?
A: (No Answer.)
Q: She did not request that you give— Vickie did not request that you give her the money, did she?
A: She did not say give me the $5,000, no.

¶ 24. As the Court of Appeals held, the above testimony fails to demonstrate that Ms. Balouch requested any compensation, either directly or indirectly. In light of the State’s failure to meet the burden of proof as to the statute’s compensation element, I find it unnecessary to consider the other issues. I would uphold the decision of the Court of Appeals to reverse and render.

GRAVES, J., JOINS THIS OPINION.

      . We use these initials instead of the child’s full name in order to protect the child's interests.

      . John Newton was formerly married to [D.L.'s] biological mother.

      .Balouch also told the Smiths that [D.L.] had been removed from the Newtons’ home due to drug use by Paula.

      . Paula was under the belief that Balouch had taken [D.L.] to the store and was unaware that she had actually taken the child to visit the Smiths.

      . [D.L.'s] father was actually incarcerated in Mississippi and was unaware of Balouch's communications with the Smiths.

      .The grand jury returned a two-count indictment against Balouch which was later severed by the trial court. Count one charged Balouch with requesting compensation for placing out a child, and count two charged her with illegally obtaining prescription drugs in violation of Mississippi Code Annotated section 41-29-144 (Rev.2004).


author: IRVING, J.,

text:
    Vickie BALOUCH, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00386-COA.
    Court of Appeals of Mississippi.
    Sept. 27, 2005.
    Rehearings Denied Nov. 29, 2005 and Feb. 14, 2006.
    Bryan C. Harbour, M. Dave Harbour, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for the appel-lee.
    Before KING, C.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. A Pike County jury convicted Vickie Balouch of illegal placement of a child for compensation in violation of Mississippi Code Annotated section 43-15-23 (Rev. 2004). She was sentenced to three years in the custody of the Mississippi Department of Corrections, with one year to serve and two years on post-release supervision and fined $1,000. On appeal, Bal-ouch argues that (1) the jury’s verdict was insufficient as a matter of law, (2) the trial court erred in allowing certain testimony into evidence, (3) the trial court erred in failing to properly instruct the jury, and (4) the jury’s verdict was against the overwhelming weight of the evidence.

¶2. We find that the State failed to present sufficient evidence that Balouch placed out a child for compensation in violation of the statute. Therefore, we reverse and render her conviction and sentence.

FACTS

¶ 3. On May 2, 2002, Balouch contacted her physician, Dr. David Smith, regarding the adoption of three-year-old Destiny Lezino. At the time, both of Destiny’s biological parents were incarcerated, and Destiny had been temporarily placed in the home of her foster parents, John and Paula Newton. Balouch falsely informed Dr. Smith that she had a working relationship with the Mississippi Department of Human Services (DHS) and that she worked with battered women and children. She also misrepresented that Destiny had been sexually abused by John and that Paula was addicted to drugs. Later that night, Dr. Smith called Balouch to inform her that he and his wife Autumn were interested in pursing the adoption. Bal-ouch brought the child to visit with the Smiths the next day.

¶ 4. Over the course of her communications with the Smiths, Balouch also misrepresented that Destiny’s father was incarcerated in a Texas prison and that he was willing to relinquish his paternal rights. She also stated that she had a working relationship with local attorney Jack Price whom she recommended to handle the adoption. Balouch informed the Smiths that they could expect to pay up to $5,000 in attorney fees and expenses for the adoption. The Smiths soon learned that Destiny’s father was unwilling to consent to the adoption, and Balouch was subsequently indicted for placing out a child in violation of Mississippi Code Annotated section 43-15-23 (Rev.2004).

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. In her first assignment of error, Balouch argues that the evidence submitted by the State was insufficient to sustain her conviction. She specifically attacks the jury’s finding that she requested compensation or something of value in violation of the statute.

¶ 6. When the sufficiency of evidence is challenged, the evidence is viewed and tested in a light most favorable to the State. McClain v. State, 625 So.2d 774, 778 (Miss.1993) (citing Esparaza v. State, 595 So.2d 418, 426 (Miss.1992)). <rWe are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” McClain, 625 So.2d at 778 (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987)).

¶ 7. We have thoroughly reviewed the record, and we find that the State failed to prove the essential elements of the crime charged. Mississippi Code Annotated section 43-15-23 (Rev.2004), which defines the term “placing out,” states in pertinent part:

(1) As used in this section the term “placing out” means to arrange for the free care of a child in a family, other than that of the child’s parent, stepparent, grandparent, brother, sister, uncle or aunt or legal guardian, for the purpose of adoption or for the purpose of providing care.
(2) No person, agency, association, corporation, institution, society or other organization, except a child placement agency licensed by the Department of Public Welfare under Section 43-15-5, shall request, receive or accept any compensation or thing of value, directly or indirectly, for placing out of a child.

¶ 8. In order to secure a conviction under the statute, the State had the burden of proving that Balouch arranged to place Destiny in the Smiths’ home for the purpose of free care or adoption. Although Balouch took the child to visit with the Smiths on one occasion, the record is clear that Destiny remained in her foster parents’ home at all times. As a result, we fail to see how Balouch’s actions constituted a “placing out” within the meaning of the statute.

¶ 9. However, assuming arguendo that Balouch illegally placed the child out, we find that there is insufficient evidence in the record to support the State’s contention that she received compensation for her services. As evidence of Balouch’s alleged request for compensation, the State offered as witnesses Angie McKenzie (Dr. Smith’s office manager), Autumn Smith, and Dr. Smith himself.

¶ 10. McKenzie testified that Balouch first contacted her regarding the possibility of the Smiths adopting Destiny. McKenzie further testified that Balouch stated that the adoption would cost $5,000, and that “the [$5,000] would be for Jack Price to fly to Texas and for the paperwork to be done for the child to be adopted.” When asked whether Balouch requested any compensation for herself, McKenzie responded, “no.”

¶ 11. Next, Autumn Smith testified that Balouch suggested that Autumn Smith and Dr. Smith do a private adoption because the process would be faster than going through DHS or an adoption agency. Autumn further testified that Balouch stated that the adoption could cost them “up to $5,000,” and that “the $5,000 was for Jack to fly to Texas to get the papers signed.” When asked whether Balouch ever made a request for money other than the $5,000, Autumn responded, “no.” Similarly, on cross-examination, Autumn offered the following testimony regarding nine pages of personal notes made by her during a discussion with Balouch about the adoption:

Q: On Page 1 of Exhibit 2. Your notes did not reflect any request of compensation or thing of value from Ms. Balouch, did they?
A: No, sir.
Q: Page 2, your notes did not reflect a request from Ms. Balouch of any money or thing of value, is that correct?
A: No, sir, did not.
Q: Page 3, your notes do not reflect a request by Ms. Balouch for compensation or thing of value, do they?
A: No, sir.
Q: Page 4. Your notes do not reflect any request or statement by Ms. Balouch requesting compensation or anything of value, do they?
A: No, sir.
Q: In fact, the first four pages of your notes do not mention any type of money, funds or other thing of value, do they?
A: No, sir.
Q: Now, on page 5, your notes do say you and Ms. Balouch got into a discussion of how to go about a private adoption, didn’t you?
A: Yes, sir.
Q: And you asked Ms. Balouch what was involved in going private, did you not?
A: Yes, sir.
Q: And would you give me her exact quote, please, that’s in your notes?
A: I asked what was involved by going private, and Vickie then said, “it could cost up to $5,000, don’t quote me on the exact price, but it could cost $5,000.”
Q: And your response, according to your notes?
A: I said, ‘Whoa, I wasn’t expecting that with the father ready to sign.’
Q: And what was her response?
A: Vickie said that we would have to pay for Jack to fly to Texas to get the papers signed.
Q: And there was no other conversation between you and Ms. Balouch about money, correct, other than what you just testified to out of your notes?
We talked more in discussion about the $5,000.
And it was for payment to Jack for things that he was going to do? O’
She did not say that it was being given directly to Jack.
What was it going to be given to? <y
She said that she — Vickie said that she helped him out as well, and that she was filling out necessary paper work, but she did not say the money was going to Jack. She just said it was for Jack. <
She didn’t request that you give her the money, did she? ¡y
(No Answer.) <j
Yes or no? o’
(No Answer.) <¡
She did not request that you give — - Vickie did not request that you give her the money, did she? &
She did not say give me the $5,000, no.

¶ 12. Dr. Smith testified that Balouch informed him that he and his wife “needed to be prepared to pay $5,000 for th[e] adoption to be able to take place.” Dr. Smith stated that when he questioned Bal-ouch about why such a large sum of money was needed, Balouch responded that “it was going to cost a lot of money for Jack Price to be able to fly to Texas ...,” and “there would be other expenses involved too.... ” Dr. Smith testified that although he did not know exactly what the $5,000 would be used for, he assumed that some of the money would be used for Price to go to Texas.

¶ 13. The State further attempted to introduce as evidence of possible compensation a request by Balouch to Dr. Smith for a prescription refill. Although the trial judge initially sustained the defense’s motion seeking to limit the State’s ability to use the prescription as evidence of compensation, he later ruled that the defense had opened the door to the evidence and allowed Dr. Smith to testify accordingly. On redirect examination, Dr. Smith gave the following testimony:

Q: Dr. Smith, on cross-examination, Counsel asked you the question, what thing of value would Vickie Balouch get from this adoption process, and I would ask at this time if you have an answer to that question.
A: Yes, sir. I told the jury earlier about the $5,000 issue, and I think they understand the extent of that, but the other issues that I thought were pertinent on Sunday is that on Sunday afternoon, during conversation about the child, she had asked for me to refill a prescription for some narcotic at that time that on Friday, earlier, we had denied filling because it was too early to fill, and that was routine practice.
On that Sunday night, I felt that it was appropriate to call it in because the time had expired for the previous prescription to run out, and so I did call it in. But in talking with her during that same conversation that night, Vickie told me — you know, Autumn and I were upset because we thought we were going to be able to get her that night, and we really wanted to see the child. And Vickie told me then-this is a quote — “This will be illegal, but if you want me to, I will go over to Ms. Toya’s house ... ” — This is the person that doesn’t exist — ” ... and she’ll agree”—
MR. HARBOUR [Defense counsel]: Objection to that remark. That calls for speculation. It’s totally inappropriate, Judge.
THE COURT: Overruled. Proceed.
Q: Would you continue, Dr. Smith?
A: That she would go over to Ms. Toya’s house and get the child and bring her to my house anyway if I just gave the word, and that’s a quote. And I told her then, “No.” As much as I’d like to see her tonight, I’m not going to do anything that is not appropriate, and if we’re not supposed to be seeing the child and the child is supposed to be in a temporary foster home, then she needs to stay there, and we’ll just have to wait until a few days have passed, and then we could get her then.” And after that was said, then I started thinking that night— it was too late to call and verify anything at that time, but I started thinking then, well, this woman is trying to use — trying to get me to do something illegal that she can hold over my head and where she can continue to get narcotics inappropriately, which had been requested earlier inappropriately.

¶ 14. On recross-examination, Dr. Smith, however, testified that Balouch’s prescription refill was medically appropriate, and when asked whether Balouch’s offer to get Destiny had anything to do with him writing the prescription, Dr. Smith responded “no.” Dr. Smith stated that he “base[d][his] decisions on writing a prescription on medicine, not on any other issue.”

¶ 15. Based upon the above testimony, we find that the State clearly failed to meet its burden of proving the requisite compensation element essential to a conviction under the statute. Each of the witnesses testified that Balouch informed him/her that the $5,000 would be used for paperwork and for Price to fly to Texas and that Balouch never at any time requested compensation for herself. Similarly, it is clear from Dr. Smith’s testimony regarding the refill request that Balouch was not asking for the prescription as compensation or something of value in exchange for arranging the adoption. As a result, we reverse and render her conviction. In light of our disposition of the forgoing issue, we find it unnecessary to discuss Baloueh’s remaining issues.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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

      . John. Newton was formerly married to Destiny's biological mother.

      . Balouch also told the Smiths that Destiny had been removed from the Newtons' home due to drug use by Paula.

      . Paula was under the belief that Balouch had taken Destiny to the store and was unaware that she had actually taken the child to visit the Smiths.

      . Destiny’s father was actually incarcerated in Mississippi and was unaware of Balouch's communications with the Smiths.

      . The grand jury returned a two-count indictment against Balouch which was later severed by the trial court. Count one charged Balouch with requesting compensation for placing out a child, and count two charged her with illegally obtaining prescription drugs in violation of Mississippi Code Annotated section 41-29-144 (Rev.2004).


text:
    Ronnie Lynn CHANCY, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-02036-COA.
    Court of Appeals of Mississippi.
    Nov. 22, 2005.
    Rehearing Denied April 18, 2006.

      Ronnie Lynn Chancy, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. Ronnie Chancy filed a pro se motion to vacate and set aside his 1996 conviction and sentence of two counts of armed robbery. The Circuit Court of Rankin County treated the motion as a motion for post-conviction relief and summarily dismissed the motion as being time-barred. Feeling aggrieved by this decision, Chancy appeals and asserts the following issues: (1) whether the trial court erred in dismissing his motion as time-barred without consideration as to whether the sworn affidavits of his mother and sister fell within the newly discovered evidence exception to the statutory time bar, (2) whether he was denied effective assistance of counsel because his guilty plea was entered pursuant to his counsel’s advice, and (3) whether his guilty plea was involuntarily entered.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On November 14, 1995, a Rankin County grand jury indicted Chancy for two counts of armed robbery. Chancy entered a guilty plea to both counts of armed robbery, and the circuit court sentenced him to thirty-one years in the custody of the Mississippi Department of Corrections. On February 12, 2004, Chancy filed a motion to vacate and set aside his conviction and sentence. In the motion, Chancy contested the validity of his 1996 guilty plea due, in large part, to his claim that his plea was involuntarily entered as a result of ineffective assistance of counsel. The circuit court dismissed Chancy’s motion as being time-barred because it was filed beyond the three-year time period allotted by Mississippi Code Annotated section 99-39-5(2) (Supp.2004) for filing a motion for post-conviction relief. From this adverse ruling, Chancy appeals.

STANDARD OF REVIEW

¶ 4. Our standard of review of a trial court’s denial of post-conviction relief is clear. “When reviewing a lower court’s decision to deny a petition for post-conviction relief, we will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999) (citing Bank of Miss. v. S. Mem’l Park, Inc., 677 So.2d 186, 191 (Miss.1996)).

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. Chancy argues that the circuit court erred in summarily dismissing his post-conviction relief motion. Chancy contends that the sworn affidavits of his mother and sister fall within the newly discovered evidence exception to the three-year time bar. He further argues that his 1996 guilty plea was involuntarily entered as a result of his counsel’s ineffective assistance. Therefore, Chancy concludes that he should not be barred from having the merits of his claim decided by the circuit court.

¶ 6. The State counters that the circuit court did not error in ruling that Chancy’s motion was time-barred. The State’s position is that it is clear from the record that both Chancy’s motion for post-conviction relief and his ineffective assistance of counsel claim are barred.

¶ 7. The circuit court found Chancy’s motion to be untimely because it was filed outside the three-year statute of limitations. We agree with the decision of the circuit court. Mississippi Code Annotated section 99-39-5(2) (Supp.2004) states:

A motion for relief under this article shall be made .... 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(2) (Supp.2004).

¶ 8. When Chancy filed his motion for post-conviction relief on February 12, 2004, he was well beyond the statutory three-year time period for filing a motion for post-conviction relief. In fact, Chancy’s motion was filed almost eight years after his conviction and sentence. However, Chancy maintains that he is exempted from the three-year statute of limitations set forth in section 99-39-5(2) because of affidavits, dated December 3, 2003, from his mother and sister which state that Chancy’s lawyer told both of them that he had arranged a plea bargain agreement in which Chancy would serve five years for each count of armed robbery. Chancy maintains that these affidavits are newly discovered evidence, not reasonably discoverable at trial, which would have caused a different result in his conviction or sentence if they had been introduced at trial.

¶ 9. Newly discovered evidence is relevant only in situations where a defendant went to trial and was convicted. If following the trial, a defendant discovers relevant and material evidence which could not have reasonably been discovered prior to trial, the defendant may seek to have his conviction set aside based on the newly discovered evidence. When a defendant pleads guilty, he is admitting that he committed the offense. Therefore, by definition, a plea of guilty negates any notion that there is some undiscovered evidence which could prove his innocence.

¶ 10. We also point out that in his sworn petition to enter the guilty plea, Chancy acknowledged that he was entering an open plea to both counts of the indictment. He also acknowledged his belief that his lawyer had done all that anyone could do to counsel and assist him and that he was satisfied with the advice and counsel his lawyer had given him. Chancy further acknowledged that he had been told by his lawyer that any sentence that Chancy might receive was up to the court, that the court was not required to carry out any understanding made by him and his attorney with the district attorney, and that he understood that the court was not required to follow the recommendation of the district attorney, if any. Therefore, there is no merit to this issue.

¶ 11. We are cognizant of the fact that the Mississippi Supreme Court has acknowledged that section 99-39-5(2) might be overcome in another manner. “Our supreme court has held that the three-year statute of limitations may be waived when a fundamental constitutional right is implicated.” McGleachie v. State, 840 So.2d 108, 110(¶ 12) (Miss.Ct.App.2002) (citing Sneed v. State, 722 So.2d 1255, 1257(¶ 11) (Miss.1998)). We clearly realize that the right to competent counsel is a fundamental constitutional right. However, the Mississippi Supreme Court has never held that merely raising a claim of ineffective assistance of counsel is sufficient to surmount the time bar of section 99-39-5(2). Bevill v. State, 669 So.2d 14, 17 (Miss.1996). Accordingly, we decline to hold, without substantial and specific supporting facts, that Chancy’s assertion that his counsel’s ineffective assistance prompted his guilty plea is enough to operate as a waiver of the three-year statute of limitations. Finally, we note that the Mississippi Supreme Court has consistently held that the time bar of Mississippi Code Annotated section 99-39-5(2) applies to petitioners’s post-conviction relief claims based on ineffective assistance of counsel and involuntariness of guilty pleas. Kirk v. State, 798 So.2d 345, 346(¶ 6) (Miss.2000) (citing Luckett v. State, 582 So.2d 428, 429-30 (Miss.1991)). In light of established Mississippi law, we find that all of Chancy’s issues are time-barred, including his claim of ineffective assistance of counsel and the involuntariness of his plea.

¶ 12. The circuit court did not err in dismissing Chancy’s motion. Therefore, we affirm.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY DISMISSING APPELLANT’S MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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