author: LEE, P.J.,

text:
    BINSWANGER MIRROR and Travelers Insurance Company, Appellants v. William E. WRIGHT, Appellee.
    No. 2005-WC-01915-COA.
    Court of Appeals of Mississippi.
    Sept. 5, 2006.
    Rehearing Denied Jan. 23, 3007.

      Simpson Gray Edmondson, Franklin Williams, attorneys for appellants.
    Alan D. Lancaster, Winona, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. William Wright began working at Binswanger Mirror Co. in Grenada, Mississippi, in 1974. Wright was employed by Binswanger until his job was terminated on June 11, 1999. Wright worked as a load operator, loading mirrors and glass, in part, by gripping the pieces with his hands. In the months prior to his termination, Wright complained of severe pain and weakness in his arms, hands and fingers. Wright also testified that he would frequently lose control of his arms and hands, causing the loading machine to chip the glass. Wright further testified that the pain prevented him from sleeping at night. During this time, Walter Sullivan, Wright’s supervisor, cited Wright nine times for poor on-the-job performance.

¶ 2. Wright sought medical treatment from Dr. Richard Reid during the spring of 1999. Dr. Reid referred Wright to Dr. Cooper Terry, an orthopaedist. Dr. Terry diagnosed Wright with bilateral carpal tunnel syndrome (“CTS”) on April 1, 1999. Four days after his job with Binswanger was terminated, Wright filed for, and was granted, disability benefits with the Social Security Administration.

¶ 3. On October 17, 2000, Wright filed a petition to controvert with the Mississippi Workers’ Compensation Commission alleging that he suffered from work-related CTS. Binswanger and Travelers Insurance Company, Binswanger’s carrier, denied compensability. On February 5, 2004, a hearing was held before an administrative law judge (ALJ), and the opinion issued on March 23 found that Wright suffered from work-related CTS. The ALJ awarded benefits commensurate with a permanent, total disability.

¶ 4. Binswanger and Travelers (hereinafter collectively referred to as Binswanger) filed a petition for review, and the Commission held a hearing on the matter. On March 2, 2005, the Commission affirmed the ALJ’s findings, and Binswanger sought review in the Circuit Court of Grenada County. On September 19, 2005, the circuit court affirmed the Commission’s ruling; it is from this ruling that Binswanger appeals, arguing numerous issues concerning whether the Commission’s findings are supported by substantial evidence. Bin-swanger also attacks the Commission’s reliance on the testimony of Glenn Forten-berry, a vocational rehabilitation expert, and the admission of Wright’s deposition into evidence.

¶ 5. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. The Commission sits as the ultimate fact-finder. Accordingly, the Commission may accept or reject an ALJ’s findings. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994). This Court will affirm the Commission’s findings of fact if they are supported by substantial evidence. Id. In other words, “[t]his Court will reverse an order of the [Commission] only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence.” Id. Doubtful claims should be resolved in favor of compensation, so as to fulfill the beneficial purposes of statutory law. Sharpe v. Choctaw Elecs. Enters., 767 So.2d 1002, 1006(¶ 19) (Miss.2000).

I. ARE THE COMMISSION’S FINDINGS SUPPORTED BY SUBSTANTIAL EVIDENCE?

¶ 7. Binswanger argues that the Commission erred in finding that CTS was the cause of Wright’s disability, as Wright’s health problems stem from intervening and superceding causes. Binswan-ger further argues that the Commission should have apportioned Wright’s benefits pursuant to Mississippi Code Annotated Section 71-3-7 due to his preexisting diabetes and neurological complications.

¶ 8. Binswanger points to the deposition testimony of Dr. D.L. Harrison, Wright’s physician since 1980. Wright complained of dizziness during his examination with Dr. Harrison on May 5, 1999. Dr. Harrison examined Wright and ordered an MRI, the results of which, in Dr. Harrison’s opinion, indicated that Wright had suffered a stroke. On May 21, Dr. Harrison referred Wright to neurologist Dr. Michael DeShazo, whose records reflected that, although Wright complained of slurred speech in May, he could find no evidence of a stroke during his examination of Wright on June 7. On June 14 and 28 Wright returned to Dr. Harrison, again complaining of dizziness and confusion. Wright was examined by Dr. Harrison several times during the following months due to persistent complaints of dizziness, shoulder pain, and stiffness in his hands. Bin-swanger further points to Wright’s history of diabetes and Dr. Harrison’s testimony that the diabetes could have exacerbated the CTS. Binswanger argues that this testimony presents compelling evidence that, at a minimum, any benefits should have •been apportioned.

¶ 9. In Stuart’s, Inc. v. Brown, 548 So.2d 649, 655-56 (Miss.1989), our supreme court held that where “(1) there is evidence of a medically cognizable, identifiable, symptomatic condition which antedated the injury; and (2) the employee experienced some absence of normal wage earning capacity, then apportionment must be ordered.” The testimony presented does not support a conclusion that Binswanger is entitled to apportionment, as Wright suffered from diabetes and glaucoma for years prior to his termination from Bin-swanger, yet continued to fulfill his work obligations to his employer. Additionally, although Dr. Harrison’s testimony indicates that Wright experienced symptoms which could be the result of a stroke, our supreme court has found that “close questions of compensability should be resolved in favor of the worker” and that “the act should be liberally construed to carry out its beneficent remedial purpose.” Id. at 652 (citing Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888, 889 (Miss.1980); Pontotoc Wire Products Co. v. Ferguson, 384 So.2d 601, 603 (Miss.1980)). As there was a divergence in opinions regarding the theory that Wright’s disability stemmed from a stroke, we find substantial evidence to support the Commission’s decision to affirm the findings of the AL J.

¶ 10. Binswanger argues that Wright failed to present evidence regarding his wage earning capacity and that he failed to present evidence that he sought employment following his termination from the company. Binswanger further argues that Wright “has suffered no loss of wage earning capacity whatsoever as a result of his CTS.” These assertions are sufficiently contradicted by the record, as Glen For-tenberry, a vocational consultant, testified that Wright suffered from CTS and that Wright’s CTS, his eighth-grade education, his lack of experience in other fields and the dismal job market limited his ability to compete with others in the current labor market. Fortenberry further testified that in his opinion Binswanger could not accommodate Wright by making adjustments to the demands he faced as a load operator, as the operator must have constant use of his hands. Dr. Terry gave Wright a permanent medical impairment of 20% in both the left and right upper extremities. Additionally, Wright was involuntarily released from his employment at Binswanger in June 1999. The ALJ found that Wright sought employment until he was hired as a security guard at a school where he made $3,063.75 in 2003.

¶ 11. The burden of proving disability within the meaning of the workers’ compensation statute rests with the claimant. Entergy Miss., Inc. v. Robinson, 777 So.2d 53, 55(¶ 6) (Miss.Ct.App.2000). The workers’ compensation statute defines “disability” as an “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment....” Miss.Code Ann. § 71 — 3—3(i) (Rev.2000). A claimant seeking permanent partial disability must show “(a) an inability to resume his former work, and (b) the effort he has made to seek employment in another or different trade for which he might be suited.” Entergy, 777 So.2d at 55(¶ 6). Our supreme court has held that “where a permanent partial disability renders a worker unable to continue in the position held at the time of injury, such inability creates a rebuttable presumption of total occupational loss of the member, subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury.” McDonald v. I.C. Isaacs Newton Co., 879 So.2d 486, 489-90(¶ 15) (discussing Meridian Prof'l Baseball Club v. Jensen, 828 So.2d 740, 747(¶ 21) (Miss.2002)). Such a presumption arises when the claimant establishes that he has made a reasonable, however fruitless, effort to find work in his usual employment, or presents other proof of his inability to perform the substantial acts of his usual employment. Id. “Rebuttal can be shown by all the evidence concerning wage-earning capacity, including the claimant’s education and training, age, continuance of pain, and any other related circumstances.” Id.

¶ 12. The testimony established that Wright was unable to perform the acts necessary to continue his usual employment, as the CTS limited his dexterity and caused substantial pain. As Binswanger failed to rebut this presumption, we do not agree that the Commission erred in affirming the decision of the ALJ. These arguments are without merit.

II. DID THE COMMISSION ERR IN RELYING ON FORTENBER-RY’S TESTIMONY?

¶ 13. Binswanger argues that the ALJ erred in relying on testimony presented by Fortenberry, a vocational consultant who testified on Wright’s behalf. Binswanger argues that Fortenberry’s testimony was not based upon sufficient facts or data, as Fortenberry did not review the depositions of Drs. Reid, Terry and Harrison, had not toured the plant where Wright had been employed, or observed Wright’s former job.

¶ 14. We note that Procedural Rule 8 of the Mississippi Workers’ Compensation Law relaxes the general rules of evidence, “so as to permit the introduction of any relevant and competent evidence.” Nevertheless, parties must still place objections on the record to preserve arguments for appeal. See Sonford Prods. Corp. v. Freels, 495 So.2d 468, 473 (Miss.1986) (overruled on other grounds) (party’s argument on appeal regarding reliability of expert opinion found meritless when the argument was not presented to the administrative judge).

¶ 15. As no such objection was raised, we find this argument to be without merit.

III. WAS IT AN ABUSE OF DISCRETION TO ADMIT WRIGHT’S DEPOSITION?

¶ 16. Binswanger’s final argument is that the ALJ erred in admitting Wright’s deposition into evidence, as Wright was available to testify at the hearing.

¶ 17. In discussing the admissibility of depositions, our supreme court has previously held that, as an administrative agency, the Commission possesses “authority to relax and import flexibility to those procedures where in its judgment such is necessary to implement and effect its charge under the Mississippi Workers’ Compensation Act.” Delta Drilling Co. v. Cannette, 489 So.2d 1378, 1380-81 (Miss.1986). The court further opined that, “[i]t is a rare day when we will reverse the Commission for an action taken in the implementation and enforcement of its own procedural rules.” Id. We, likewise, decline to find reversible error in the admission of Wright’s deposition, as Binswanger had the opportunity to address the deposition in Wright’s cross-examination. Additionally, the deposition reveals nothing that was not covered during Wright’s testimony. At best, the admission constitutes harmless error. This issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


source: Caselaw Access Project

author: GRIFFIS, J„

license: Public Domain

text:
    Shawna M. (Busby) CAVER and John T. “Tommy” Caver, Appellants v. JACKSON COUNTY BOARD OF SUPERVISORS and William L. McKelvain, Appellees.
    No. 2005-CA-00877-COA.
    Court of Appeals of Mississippi.
    Jan. 23, 2007.

      Michael L. Fondren, Jackson, attorney for appellants.
    Katherine B. Parker, A. Scott Cumbest, Pascagoula, attorneys for appellees.
   GRIFFIS, J„

for the Court.

¶ 1. Shawna M. Caver and John T. Caver appeal the decision of the Board of Supervisors of Jackson County, Mississippi (the “Board”) that granted a zoning variance to William L. McKelvain. Finding error, we reverse and render.

FACTS

¶ 2. Prior to March of 2004, McKelvain purchased a single family residence on the Pascagoula River. The residence was located on a lot that had dimensions of sixty-five feet wide and two hundred feet deep. McKelvain’s property was bordered by a road on the front, the Pascagoula River to the rear, and a lot to each side. The Cavers owned one of the lots adjacent to McKelvain. When McKelvain purchased the property, his house was situated sixteen and one-half feet from the Cavers’ property line and seven and one-half feet from the other property line.

¶ 3. In March of 2004, McKelvain’s house burned down. Thereafter, McKel-vain began to rebuild his house. He did not rebuild in the burned footprint of his house. Instead, he tried to “center” his house on the property. To do so, the plans called for McKelvain’s house to be built twelve and one-half feet from each adjacent property line. ’ McKelvain learned that this would violate the- Jackson County zoning plan, which requires houses be built at least twenty feet from each adjacent property line. This zoning requirement was not in effect at the time that McKelvain’s original house was built, and his house had been grandfathered in, as many houses in the subdivision were, when the zoning ordinances were passed.

¶ 4. McKelvain requested a variance from the Jackson County Planning Commission. The Commission approved the variance. The Cavers appealed the decision to the Jackson County Board of Supervisors. The Board voted to uphold the Commission’s decision. The Board did not discuss the reasons it voted to uphold the decision.

¶ 5. The Cavers then appealed the decision to the Circuit Court of Jackson County. After a hearing, the circuit court upheld the decision to grant the zoning variance. From the circuit court’s decision, the Cavers appealed to the Supreme Court and such appeal was deflected here for our consideration.

STANDARD OF REVIEW

¶ 6. The standard of review in zoning cases is whether the action of the board or commission was arbitrary or capricious and whether it was supported by substantial evidence. Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986). A reviewing court in a zoning matter does not sit as a “superzoning commission.” City of Biloxi v. Hilbert, 597 So.2d 1276, 1280 (Miss.1992). In fact, “the zoning decision of a local governing body which appears ‘fairly debatable’ will not be disturbed on appeal, and will be set aside only if it clearly appears the decision is arbitrary, capricious, discriminatory, illegal or is not supported by substantial evidence.” Id. The party challenging the decision bears the burden of proof. McWaters v. City of Biloxi, 591 So.2d 824, 827 (Miss.1991).

ANALYSIS

¶ 7. The Cavers allege that McKel-vain’s variance is not permitted under the zoning ordinances. Article I, Section 2, of the Jackson County zoning ordinance provides that a “variance” is a:

modification of the literal provisions of this ordinance which the Planning Commission is permitted to grant when strict enforcement of said provisions would cause undue hardship (such hardship cannot be self-created or of an economic nature) owing to circumstances unique to the individual property on which the variance is sought.

The Cavers allege that McKelvain failed to show any undue hardship, and without this showing, the Board failed to abide by the County’s zoning ordinance. They argue that the Board “may not ignore but must abide by the restrictions of all applicable zoning ordinances.” Noble v. Scheffler, 529 So.2d 902, 907 (Miss.1988).

¶ 8. The zoning ordinance required that there must be a hardship affecting the property for a modification to be granted, and the hardship cannot be self-created. The record does not include the Board’s rationale for the decision to grant a variance. However, the absence of such findings does not warrant reversal. Barnes v. DeSoto County Bd. of Supervisors, 553 So.2d 508, 511 (Miss.1989). When such specific findings of fact are not made by the municipal authority, as here, the reviewing court must look to the record to determine if the decision is supported by the evidence. Faircloth v. Lyles, 592 So.2d 941, 945 (Miss.1991).

¶ 9. The subdivision was designed before these particular set-back requirements were created. Thus, when the zoning ordinance was passed by the Board, McKel-vain’s house was in violation of the setback requirements. The ordinances grandfathered in McKelvain’s house and any other houses that violated the newly enacted set-back restrictions.

¶ 10. Neither party disputes the fact that McKelvain could have rebuilt his home on the original footprint without any problems. The issue here is whether the fact that MeKelvain’s house burned created a basis for a variance, i.e., creates an undue hardship, that would allow the residence to be rebuilt in different position on the lot. At the Board’s hearing, McKel-vain stated that to rebuild in the original footprint would only require him to redraw the plans, which would cost $530. McKel-vain also stated he could change the dimensions to suit whatever the Board suggested. McKelvain said that if he wanted to “center” the house on the lot, without a set-back variance, the house could still be twenty-five feet wide. The current front and rear setback lines would allow the house to be up to 140 feet long without a setback variance.

¶ 11. The zoning ordinance established a standard for a variance. A variance merely for the convenience of a landowner is not sufficient. Westminster Presbyterian Church v. City of Jackson, 253 Miss. 495, 506, 176 So.2d 267, 272 (1965). From the record before us, there is no evidence that McKelvain will suffer an undue hardship if the variance is denied. Indeed, the decision to grant a variance was for McKelvain’s convenience. The variance would allow McKelvain to move the location of his house as he desires and not because of an undue hardship. The Board must uphold the ordinance and may not ignore its requirements. Noble, 529 So.2d at 907. Accordingly, this Court finds that this issue was not fairly debatable, and the decision to grant the variance was arbitrary and capricious. Therefore, we reverse and render the judgment of the Circuit Court of Jackson County, Mississippi.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY AFFIRMING THE DECISION OF THE BOARD OF SUPERVISORS OF JACKSON COUNTY GRANTING A ZONING VARIANCE IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

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


author: GRIFFIS, J.,

text:
    Brian HEAFNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CA-01792-COA.
    Court of Appeals of Mississippi.
    Jan. 23, 2007.

      Tommy Wayne Defer, Water Valley, Bobby T. Vance, Batesville, attorneys for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Brian Heafner pled guilty to the crimes of conspiracy to sell a controlled substance and sale of a controlled substance. On October 20, 2004, Heafner filed a motion to determine parole eligibility. The trial court acknowledged procedural errors in the petition and treated it as a motion for post-conviction relief. The trial court then addressed the merits and denied the motion. On appeal, Heafner argues that the trial court erred by failing to determine his parole eligibility or to clarify his sentence. We find no error and affirm.

STANDARD OF REVIEW

¶ 2. In reviewing a trial court’s decision to deny a motion for post-conviction relief, the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(113) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is rife novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

I. Jurisdiction

¶ 3. Our initial consideration is whether we have jurisdiction to hear this appeal. Our concern is the fact that Heaf-ner’s notice of appeal was not timely filed. Mississippi Rule of Appellate Procedure 2(a)(1) states that “[a]n appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rule 4 or 5.” Since this is an appeal from a dismissal, M.R.A.P. 4(a) is controlling. In relevant part, it reads:

(a) Appeal and Cross-Appeals in Civil and Criminal Cases. In a civil or criminal case in which an appeal or cross-appeal is permitted by law as of right from a trial court to the Supreme Court, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from....

(emphasis added).

¶ 4. This appeal was filed forty-four days after the entry of the order. The notice of appeal was filed three days after Hurricane Katrina profoundly affected this State. As a result of the hurricane, the supreme court issued an order extending the deadlines for some filings. However, the order extending deadlines does not affect the untimely filing of this appeal, since the deadline for filing this notice of appeal was August 22, 2005, seven days prior to the hurricane making landfall. We fail to find a valid excuse, in the record, for Heafner’s failure to file this notice of appeal in a timely manner.

¶ 5. This is not a pro se appeal. The notice of appeal identified two lawyers who represent Heafner, and the notice was signed by one of the lawyers. The date signed, as typed in the notice, was August 19, 2005, which was before the thirty day period had passed. The notice of appeal was stamped “filed” and dated by the clerk on September 1, 2005. M.R.A.P. 4(a) specifically requires that the notice of appeal be “filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” (emphasis added). The controlling date for the rule is the date the notice of appeal is filed; therefore, the date the notice was signed is of little consequence.

¶ 6. We have held that failure to file a notice of appeal within the thirty day time period constitutes the appeal as untimely and it should be dismissed. Mosby v. State, 830 So.2d 661, 663(¶ 6) (Miss.Ct.App. 2002). While the late filing does seem to preclude this Court from addressing the merits of this case, the supreme court has held in some circumstances involving post-conviction relief that the rules in regard to the filing of the notice of appeal may be suspended. Benbow v. State, 614 So.2d 398, 400 (Miss.1993). The supreme court reads M.R.A.P. 2(c) and (4)(g) along with Mississippi Code Annotated Section 99-39-25(1) (Supp.1991) to provide that “this [cjourt with authority to suspend the rule in post-conviction relief appeals, as in any other criminal appeal, and to allow an appeal to proceed despite apparently untimely notice.” Benbow, 614 So.2d at 400. In short, as the comment to M.R.A.P. 4 states, the purpose of a suspension of the rules is to “prevent manifest injustice.” Thus, we examine whether Heafner’s appeal in this light.

II. Whether the sentences are ambiguous

¶ 7. Heafner claims that the trial court was in error when it determined that his sentence was not ambiguous. Heafner was convicted of four different crimes contained in two separate indictments.

¶ 8. Heafner was convicted of conspiracy with Leslie Salmon to sell methamphetamine, for which he was sentenced to serve five years. In the same indictment, Heaf-ner was convicted of the sale of methamphetamine, for which he was sentenced to serve eight years followed by twenty years of post-release supervision. The order also explained that five years of the post-release supervision is to be reporting post-release supervision, and the remaining fifteen years are to be non-reporting.

¶ 9. Heafner was also convicted of conspiracy with David Nelson to sell methamphetamine, for which he was sentenced to serve five years. In the same indictment, Heafner was convicted of the sale of methamphetamine, for which he was sentenced to serve eight years followed by twenty years of post-release supervision. The order also explained that five years of the post-release supervision is to be reporting post-release supervision, and the remaining fifteen years are to be non-reporting.

¶ 10. The sentences from the' two indictments mirror each other. The trial court ordered all of the sentences to run concurrently. This is permitted under Mississippi Code Annotated Section 99-19-21(1) (Rev.2000), which provides that “[w]hen a person is sentenced to imprisonment on two (2) or more convictions, the imprisonment on the second, or each subsequent conviction shall, in the discretion of the court, commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction.” Also, the trial court aptly pointed out, citing Black’s Law Dictionary 291 (6th ed.1990), that with concurrent sentences, each prison term runs “simultaneously and the prisoner is entitled to discharge at the expiration of the longest term.” It is clear that Heafner will be discharged only upon the expiration of the longest term. Here, the longest term is either of the eight year prison terms. We find nothing about the sentences to be ambiguous or indefinite in the sentences Heafner received. Therefore, we find that this issue is without merit.

III. Parole Eligibility

¶ 11. Heafner alleges that the trial court erred in failing to determine his parole eligibility. The trial court properly held that parole eligibility is normally an executive decision and not one for the judiciary to determine. Generally, a circuit court does not have the authority to determine parole eligibility. Brown v. State, 731 So.2d 595, 598(¶ 7) (Miss.1999).

¶ 12. Administrative remedies are available to Heafner, by way of the Mississippi Department of Corrections Administrative Remedies Program. It allows an inmate to file a “Request for Administrative Remedy for situations arising from policies, conditions, or events within the Department of Corrections that affect them personally.” Miss. Dep’t Corr. Admin. Remedy Program Procedures 1. The procedures list several available claims and while “[pjarole eligibility is not listed, we do not suggest that it would be improper for an inmate to pursue a change to his parole eligibility date by using the internal grievance procedure.” Lattimore v. Sparkman, 858 So.2d 936, 938(¶ 7) (Miss.Ct.App.2003). Nevertheless, this Court has held “that an inmate may contest matters such as this [parole eligibility] as an original action in circuit court.” Id. Therefore, we examine whether Heafner’s allegations are meritorious.

¶ 13. Heafner repeatedly argues that he should be eligible for parole under Miss.Code Ann. Section 47-7-3(g) (Supp. 2001). This section bars parole eligibility for anyone convicted after June 30, 1995, but allows first time offenders convicted after January 1, 2000, of a non-violent crime to be eligible for parole. Id. What Heafner fails to note is that in the same subsection of the statute, the legislature excepted a list of crimes from the definition of non-violent crimes. Id. Included in this list is “the sale or manufacture of a controlled substance under the Uniform Controlled Substances Law.” Id. Therefore, Heafner would not be eligible for parole on either of his eight year sentences, since each was for the sale of methamphetamine in violation of Mississippi Code Annotated Section 41-29-139 (Supp. 1999). We find that this allegation is without merit.

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

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

      . Information about how to commence the formal procedure of the Administrative Remedies Program can be found in Chapter VIII of the Mississippi Department of Corrections Inmate Handbook.


author: CHANDLER, J.,

text:
    BERT ALLEN TOYOTA, INC., Appellant v. Horst F.G. GRASZ, Appellee.
    No. 2005-CA-00748-COA.
    Court of Appeals of Mississippi.
    Jan. 23, 2007.

      Tim C. Holleman, attorney for appellant.
    Dale Robinson, attorney for appellee.
    Before KING, C.J, CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. This appeal is the second time this breach of contract case has been before this Court. In Bert Allen Toyota v. Grasz I, 909 So.2d 763, 771(¶26) (Miss.Ct.App.2005), we affirmed in part and reversed and remanded in part the Chancery Court of Harrison County’s order awarding specific performance of a contract for Grasz’s purchase of an unused 2003 Toyota Tacoma truck from Bert Allen Toyota for $15,017.50. In that appeal, Bert Allen Toyota had argued that specific performance of the contract was impossible because, by the time of the 2004 trial, Bert Allen Toyota lacked access to an unused 2003 model truck and was thus unable to specifically perform the contract. We remanded for a determination of whether Bert Allen Toyota in fact could not provide an unused 2003. model truck, with instructions for the chancery court to fashion another equitable remedy if the court found Bert Allen Toyota could not provide an unused 2003 model truck.

¶ 2. This appeal is from an order of the trial court that was entered during the pendency of the first appeal. On August 18, 2004, with the first appeal pending, Grasz filed a “Motion for Bond or in the Alternative Motion to Enforce Judgment.” On December 17, 2004, the trial court entered a “Judgment Regarding Bond and Enforcement.” In that judgment, the court found that, because Bert Allen had not moved for a stay of the judgment ordering specific performance, the judgment was enforceable. The court stated that Bert Allen could specifically perform by providing Grasz with a truck from “model year 2003 or later.” Bert Allen moved to set aside the Judgment Regarding Bond and Enforcement, arguing that the judgment impermissibly reconsidered the earlier final judgment by expanding how Bert Allen could specifically perform. Bert Allen also moved for a stay. On March 30, 2005, the court denied the motion to set aside the Judgment Regarding Bond and Enforcement and granted Bert Allen’s motion for a stay.

¶ 3. Bert Allen appeals, renewing its argument that the Judgment Regarding Bond and Enforcement impermissibly reconsidered the earlier final judgment. We find that, because an appeal had been perfected, the trial court lacked jurisdiction to alter the final judgment. Therefore, we reverse and render the Judgment Regarding Bond and Enforcement to the extent that it modified or clarified the relief awarded to Grasz. We observe that our reversal little avails Bert Allen Toyota because this Court has already affirmed the specific performance award and remanded for the chancellor to fashion another equitable remedy if it finds that Bert Allen Toyota is unable to provide an unused 2003 model truck.

FACTS

¶ 4. The following chronology embraces the events that have culminated in this appeal.

May 29, 2003 — Grasz filed his complaint for specific performance of the contract.

March 2004 — A trial was held.

March 22, 2004 — The chancery court entered a final judgment ordering Bert Allen Toyota to provide an unused 2003 Toyota Tacoma truck for $15,017.50.

April 8, 2004 — Bert Allen Toyota filed a motion to correct findings of fact and conclusions of law and/or for a new trial and/or for a JNOV.

July 30, 2004 — The court entered a judgment denying Bert Allen Toyota’s posttrial motions.

August 11, 2004 — Bert Allen Toyota filed a notice of appeal.

August 18, 2004 — Grasz filed his “Motion for Bond or in the Alternative Motion to Enforce Judgment.” In the motion, Grasz requested that the court enforce the judgment for specific performance, cite Bert Allen Toyota for contempt, or, alternatively, require Bert Allen Toyota to post a bond sufficient to protect Grasz’s interest.

September 20, 2004 — Bert Allen Toyota filed an objection to the motion for bond or in the alternative to enforce judgment. Bert Allen Toyota argued that the contempt motion was without merit because Grasz had failed to issue or serve summons under M.R.C.P. 4 as required by M.R.C.P. 81(d)(2) for any contempt matters. Bert Allen Toyota also contested the chancery court’s jurisdiction over the motion on the ground that an appeal from the final judgment was pending.

December 17, 2004 — The chancery court entered the “Judgment Regarding Bond and Enforcement” that is the subject of this appeal. The court made several findings in this judgment which are enumerated below.

(1) The court found it had jurisdiction over the motion because any request regarding a stay of judgment and an appeal bond must first be addressed by the trial court. M.R.A.P. 8(b); M.R.C.P. 62.

(2) The court observed that the superse-deas bond rule of M.R.A.P. 8(a) applies only to money judgments and does not apply to judgments for property other than money. Because the judgment was for specific performance, no supersedeas bond was required. The court observed that Bert Allen Toyota had not moved for a stay under M.R.C.P. 62. The court stated that, had Bert Allen moved for a stay, the court in its discretion could have required a supersedeas bond as a condition of granting the stay pending appeal.

(3) As Bert Allen had not sought a stay, the court found no impediment to enforcement of the judgment for specific performance. Thus, the court held that “Bert Allen Toyota shall deliver to Grasz a 4X2 truck with the exact features and amenities ordered in April 2003, for the sale price of $15,017.50. The truck shall be model 2003 or later.” The court further stated:

In the response to the pending motion for bond, Bert Allen alleges that the specific performance ordered by the Court, delivery of the special order truck, is impossible to perform, but again, does not seek a stay. The Court notes that Bert Allen Toyota has enjoyed a good reputation in this community for many years. For this reason, the Court has given Bert Allen Toyota the benefit of this reputation, that it would perform its now court ordered obligation and deliver Grasz the truck for which he bargained. Bert Allen Toyota argues, however, that it is impossible for it to comply with the order. Counsel for Bert Allen Toyota argues that Bert Allen Toyota is not a manufacturer of Toyota vehicles and, therefore, it cannot produce a Toyota for Graz [sic]. However, when the parties contracted for the vehicle, the sales manager told Graz that, “We will have to build one for you” and therefore there will be a delay in delivery. Bert Allen Toyota held itself out as an agent of the manufacturer of Toyota vehicles, and, in fact, has been selling them for many years.
It would seem that counsel for Bert Allen Toyota assumes that the only such Toyota truck required to comply with the Order is one manufactured in the year 2003. As in any other case for specific performance, the construction, manufacture or service will be delayed to a later time frame. Accordingly, if Bert Allen Toyota no longer has a 2003 Toyota as ordered by Graz, then Bert Allen should deliver to Graz a similar Toyota truck manufactured in a subsequent year. Bert Allen Toyota should not be permitted to profit from its wrong-doing in selling to another the truck which it ordered and received for Graz pursuant to their contract. Indeed, if as it alleges Bert Allen Toyota is unable to deliver a vehicle to Graz, and no supersedeas bond is required, how then, is the status quo to be maintained and Grasz to be protected during the pendency of the appeal?

(4) The court gave Bert Allen ten days from the date of entry of judgment to either comply with the judgment for specific performance or to seek a stay.

(5) Finally, the court found that Bert Allen could not be held in contempt because no M.R.C.P. 81 summons had issued.

December 20, 2004 — Bert Allen Toyota filed a motion for a stay without bond and to set aside the “Judgment Regarding Bond and Enforcement.” Bert Allen Toyota argued that, with the language explaining how Bert Allen was to specifically perform, the trial court had impermissibly modified the final judgment.

March 30, 2005 — The chancery court entered an “Order Denying Motion to Set Aside and Granting Stay With Bond.” The court granted the motion for a stay pending appeal so long as Bert Allen Toyota posted a bond in the amount of 125% of $15,017.50. The chancellor also found that the “Judgment Regarding Bond and Enforcement” did not modify the final judgment. The court observed that, in its bench opinion awarding specific performance, the court had expressed that in all likelihood it would be difficult for Bert Allen to locate a 2003 truck. The court further stated:

The court did not modify the Final Judgment in the Judgment Regarding Bond and Enforcement. What the court did, and continues to do in response to the contention of Bert Allen Toyota that specific performance in this case is impossible, is merely reiterate the explanation offered at the original trial on how specific performance could be accomplished, and that was for the “dealership ... [to] find or get another car identical or substantially the same as the 1993[sic] model because ... the most equitable decision is to let the dealership provide [Grasz] with a [current model] car at that agreed-upon price ...” It is implicit that a vehicle “identical or substantially the same” would be a current year vehicle when the delivery is finally made. This interpretation of the Court Order is not only logical, equitable and fair to all parties, it also eliminates the concerns of Bert Allen Toyota that it cannot comply with the Court Order.

April 8, 2005 — Bert Allen Toyota filed a notice of appeal from the Judgment Regarding Bond and Enforcement and the Order Denying Motion to Set Aside Judgment Regarding Bond and Enforcement.

¶ 5. On August 23, 2005 this Court handed down its judgment affirming the final judgment in part and reversing and remanding in part for the chancery court “to determine whether Bert Allen Toyota is unable to supply an unused 2003 truck with the appropriate options Grasz specified.” Bert Allen Toyota, 909 So.2d at 771(¶ 24). We further stated that, “if the chancellor finds that it is not feasible for Bert Allen Toyota to supply an unused 2003 vehicle, the chancellor is free to fashion other equitable remedies.” Id. at 771(¶ 25).

LAW AND ANALYSIS

I. THE TRIAL COURT ERRED IN RENDERING A SECOND “JUDGMENT REGARDING BOND AND ENFORCEMENT” WHEREIN THE COURT ATTEMPTED TO MODIFY OR CORRECT ITS PREVIOUS JUDGMENT WITHOUT NOTICE TO OR OPPORTUNITY TO RESPOND BY APPELLANT.

II. THE TRIAL COURT ERRED IN ATTEMPTING TO MODIFY OR CORRECT ITS PREVIOUS JUDGMENT, WHEN NO MOTION WAS BEFORE THE COURT PURSUANT TO RULE 59 Or. 60 OF THE MISSISSIPPI RULES OF CIVIL PROCEDURE.

III.THE TRIAL COURT ERRED IN REFUSING TO SET ASIDE ITS “JUDGMENT REGARDING BOND AND ENFORCEMENT.”

¶ 6. In a single argument addressing all three issues, Bert Allen Toyota challenges the chancellor’s extrapolation in the “Judgment Regarding Bond and Enforcement” on how Bert Allen Toyota could satisfy the specific performance that was ordered in the final judgment. Specifically, Bert Allen complains that the final judgment awarded specific performance of a “Model 7113, 2003 Tacoma 4x2 truck, deal number 15031 for the price of $15,017.50, as more fully identified on page 4 of Exhibit 1 in evidence,” while the subsequent “Judgment Regarding Bond and Enforcement” stated, “Bert Allen Toyota shall deliver to Grasz a Tacoma 4X2 truck with the exact features and amenities ordered in April 2003, for the sales price of $15,017.50. The truck shall be model year 2003 or later.” Bert Allen Toyota argues that, in specifying that Bert Allen Toyota could comply with the final judgment by supplying a truck from a model later than 2003, the chancery court erroneously changed, altered, modified or corrected the final judgment.

¶ 7. The filing of a notice of appeal transfers jurisdiction of a matter from the lower court to the appellate court, divesting the lower court of authority to amend, modify, or reconsider its judgment. McNeil v. Hester, 753 So.2d 1057, 1075(¶ 68) (Miss.2000). However, though an appeal is pending, “the appellee may execute on the decree in the lower court, providing the appeal is without a superse-deas bond and that the court does not in any way broaden, amend, modify, vacate, clarify, or rehear the decree.” Ladner v. Ladner, 843 So.2d 81, 83(¶5) (Miss.Ct.App.2003) (citing McNeil, 753 So.2d at 1075(¶ 68)). An order that does so exceeds the subject matter jurisdiction of the lower court and must be vacated as null and void. McNeil, 753 So.2d at 1075(¶68). “Where an appeal is with supersedeas, the case is so far removed to the appellate court that even steps taken pursuant to enforcement and execution of the decree are stayed.” In re Estate of Moreland, 537 So.2d 1345, 1347 (Miss.1989). Of course, if a notice of appeal is filed before the trial court disposes of certain posttrial motions, the notice of appeal will not ripen into an effective appeal until after disposition of the posttrial motions. M.R.A.P. 4(d); Howard v. Howard, 913 So.2d 1030, 1038(¶ 15) (Miss.Ct.App.2005).

¶ 8. At the time that the chancellor entered the “Judgment Regarding Bond and Enforcement,” all posttrial motions had been disposed of and Bert Allen Toyota’s appeal without supersedeas was pending. Though the chancery court was empowered to determine the issues concerning a stay of the final judgment, bond, and enforcement of the judgment, the chancellor was without jurisdiction to broaden, amend, modify, vacate, clarify or rehear the final judgment. Ladner, 843 So.2d at 83(¶ 5). Clearly, the chancellor’s statements in the “Judgment Regarding Bond and Enforcement” and in the “Order Denying Motion to Set Aside and Granting Stay With Bond” evinced the chancellor’s beneficent intention to facilitate Bert Allen Toyota’s compliance with the final judgment. Nonetheless, it is equally clear that the function of those statements was, at most, to broaden and, at least, to clarify the final judgment. The final judgment ordered Bert Allen Toyota to specifically perform the contract by providing Grasz with an unused 2003 Toyota Tacoma truck with certain specifications for the price of $15,017.50. Bert Allen Toyota appealed from the final judgment, arguing inter alia that it was impossible to specifically perform the contract because it lacked access to an unused 2003 model truck. In the chancery court’s subsequent orders entered during the pen-dency of the appeal, the court opined that it was implicit in the final judgment that Bert Allen Toyota could specifically perform by providing Grasz with an unused truck from a model year later than 2003. But, due to the pendency of the appeal, the chancery court was without jurisdiction to broaden or clarify the relief awarded in the final judgment. Therefore, those portions of the “Judgment Regarding Bond and Enforcement” and the “Order Denying Motion to Set Aside and Granting Stay With Bond” that order Bert Allen Toyota to provide Grasz with a truck from a model year subsequent to 2003 or with a current model year truck are void. McNeil, 753 So.2d at 1075 (¶ 68).

¶ 9. We already have observed that our reversal little avails Bert Allen Toyota. Over a year ago, in Bert Allen Toyota I, 909 So.2d at 771 (¶ 25), this Court remanded the case and ordered the chancellor to fashion other equitable remedies if he finds that Bert Allen Toyota is unable to provide Grasz with an unused 2003 truck with the options Grasz specified. Therefore, after this appeal, Bert Allen Toyota remains subject to the chancellor’s broad remedial powers. For this reason and because the chancellor’s erroneous actions were sua sponte and not upon motion of Grasz, we find that the costs of this appeal are fairly assessed to Bert Allen Toyota. M.R.A.P. 36(a).

¶10. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . On August 17, 2005, several days before Bert Allen Toyota v. Grasz I was handed down, Bert Allen Toyota moved to consolidate this appeal with its other pending appeal from the final judgment. On September 7, 2005, the Supreme Court denied the motion to consolidate the appeals.

      . An exception to this rule is provided by Mississippi Rule of Civil Procedure 60(b), which provides the lower court with limited concurrent jurisdiction to grant relief from the judgment though an appeal has been perfected. See Estate of Moreland, 537 So.2d at 1347 n. 1 (Miss.1989). This exception is inapplicable in this case because the “Judgment Regarding Bond and Enforcement” did not . adjudicate a Rule 60(b) motion made within six months after the entry of final judgment.

      . We mention that, while the chancery court's equitable powers are "as broad as equity and justice require,” they are not unbridled. R.N. Tumbow Oil Investments v. McIntosh, 873 So.2d 960, 963(¶ 14) (Miss.2004); Hall v. Wood, 443 So.2d 834, 842 (Miss.1983). It is the opinion of this Court that, if an unused 2003 truck cannot be provided, the chancellor should carefully fashion a remedy that is truly equitable to both Grasz and Bert Allen Toyota, and that any truck awarded should be comparable to the unused 2003 model that was the subject of the original contract.


author: KING, C.J.,

text:
    Dexter “D.L.” SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01474-COA.
    Court of Appeals of Mississippi.
    Jan. 23, 2007.
    Humphreys County Circuit Court, Hon. Jannie M. Lewis, J.
    W.S. Stuckey, Jr., attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   KING, C.J.,

for the Court.

FACTS

¶ 1. On August 15, 2004, patrons of the 49 Club in Humphreys County were shooting dice on a pool table when Dexter “D.L.” Smith set two dinner plates on the table. Christopher Lowe, who was running the dice game, asked Smith to remove the plates from the table. Smith and Lowe exchanged unkind words, and Lowe punched Smith in the mouth. Smith then fired three shots, one of which hit Lowe in the shoulder. Smith left the scene and went to Deana Blakely’s house. Smith told Blakely that a man had punched him in the mouth, so Smith shot him. Smith hid the gun behind a pillow in Blakely’s bedroom. Officers tracked Smith to Blakely’s house where they retrieved the gun and found Smith hiding in a refrigerator.

¶ 2. Four eyewitnesses, including Lowe, testified at trial. Blakely also testified about Smith’s confession to her. Smith testified that he did not have a weapon on the night in question, but stated that he heard someone else fire a shot during the fight. A Humphreys County Circuit Court jury found Smith guilty of aggravated assault and being a felon in possession of a firearm.

ANALYSIS

¶ 3. In accordance with Lindsey v. State, 939 So.2d 743 (Miss.2005), Smith’s attorney, W.S. Stuckey, Jr., filed an appellate brief in which he states the following:

1. It is the opinion of counsel for the Appellant that there are no arguable issues supporting Appellant’s appeal, and that he has reached this conclusion after scouring the record thoroughly, specifically examining:
(a) the reason for the arrest and the circumstances surrounding the arrest;
(b) any possible violations of Appellant’s right to counsel;
(c) the entire trial transcript:
(d) all rulings of the trail [sic] court;
(e) possible prosecutorial misconduct;
(f) all jury instructions;
(g) all exhibits, whether admitted into evidence or not; and
(h) possible misapplication of the law in sentencing.
2. Counsel for Appellant shall forward a copy of this Brief with advice to Appellant that counsel could find no arguable issues in the record, but that he has the right to file a pro se supplemental brief, if he desires.
3. Counsel for Appellant requests this Court allow 30 days additional time for the Appellant to file said supplemental brief, should he so desire.

Lindsay provides that once such declarations have been filed with this Court,

Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.

Lindsey at (¶ 18).

¶ 4. Smith has not filed a supplemental brief with this Court. Additionally, after a thorough review of the record, this Court finds no arguable issue on which to base an appeal. Accordingly, we affirm the trial court’s judgment.

¶ 5. THE JUDGMENT OF THE HUM-PHREYS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE LAST FIVE YEARS TO BE SERVED ON POST-RELEASE SUPERVISION AND CONVICTION OF COUNT II BEING A FELON IN POSSESSION OF A FIREARM AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

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


author: BARNES, J.,

text:
    Willie Jene QUALLS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00525-COA.
    Court of Appeals of Mississippi.
    Jan. 23, 2007.

      James L. Penley, Vicksburg, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before MYERS, P.J., GRIFFIS, and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Willie Qualls was tried and convicted of one count of burglary and one count of attempted grand larceny in the Circuit Court of Claiborne County. He was sentenced to seven years in the custody of the Department of Corrections as a habitual offender. Qualls appeals to this Court. We find no error below and affirm his conviction.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. At about 3:30 a.m. on the morning of October 20, 2003, Nancy Wilson awoke to see her husband’s 1993 GMC truck going down the driveway of their home in Port Gibson. She woke her husband, Don, who instructed her to call the Port Gibson police. Don Wilson then ran out into his yard to stop his truck. He saw the truck’s brake lights go on and a young, slim African-American male wearing a white tank-top T-shirt jump out of the truck and run away. Three police officers arrived minutes later and began searching the area. Shortly thereafter, one police officer saw two African-American men running between houses a few blocks away. One of these men was wearing a white tank-top T-shirt.

¶ 3. A few blocks from the crime scene, the other two police officers saw a white car with a Warren County license plate and tinted windows partially pulled into the driveway of an elderly couple’s home. While looking in the front window of the automobile, one police officer noticed that someone was in the front seat. He knocked on the window, identified himself as a police officer, and asked the person twice to exit the vehicle, without receiving a response. He then broke the driver’s side window of the car with his baton and, upon opening the car door, found two men in the car — one lying on the front seat and one lying on the back seat. The men were observed to be breathing heavily and sweating. The man in the back seat— Willie Qualls — was wearing a white tank-top shirt, and resisted the police officer’s attempts to remove him from the car.

¶ 4. The two men were taken into custody and returned to the Wilson’s house for possible identification. Although Don Wilson could not definitively identify Qualls as the person who jumped from his truck, Qualls’s appearance was consistent with the general description of that person: slim, African-American, and wearing a white tank-top T-shirt. At the police station, Freddie Haras, the other man in the parked automobile, told the police that he and Qualls had attempted to steal Don Wilson’s truck that evening.

¶ 5. Two different indictments were brought against Qualls. The first indictment charged him and co-defendant Harris with attempted larceny of a vehicle. The second indictment charged Qualls alone with auto burglary and attempted grand larceny, in addition to noting his habitual offender status.

¶ 6. At a hearing on September 27, 2004, Qualls requested and received a new court-appointed attorney, because Qualls claimed his original court-appointed attorney wanted him to plead guilty. Also, Qualls requested his second indictment be dismissed because it was improperly served. The circuit judge informed Qualls that he must file a motion to this effect.

¶ 7. At a hearing on November 8, 2004, Qualls’s new court-appointed attorney moved to dismiss the second indictment for lack of proper service. The State noted that Qualls had been presented with the second indictment at the September 27, 2004 hearing. Further, the circuit judge had Qualls again served with the indictment at the hearing. Qualls also moved to suppress evidence based on an allegedly illegal arrest. The judge continued this motion until the date of the trial.

¶ 8. At trial on January 6, 2005, the jury found Qualls guilty of one count of auto burglary and one count of attempted grand larceny. The judge merged these two counts as a matter of law, and Qualls’s sentence was based on the auto burglary charge. The defendant’s motion to suppress evidence related to an illegal arrest was denied, as were the defendant’s motion for a judgment notwithstanding the verdict (“JNOV”) and motion for a new trial. Qualls received a seven year prison sentence as a habitual offender. Qualls now appeals to this Court.

ISSUES AND ANALYSIS

I. WHETHER QUALLS’S INDICTMENT WAS DEFECTIVE.

¶ 9. The issue of whether an indictment is fatally defective is a question of law and warrants a broad standard of review by this Court. Nguyen v. State, 761 So.2d 873, 874(113) (Miss.2000). Since this issue is a question of law, the standard of review is de novo. Peterson v. State, 671 So.2d 647, 652 (Miss.1996) (citations omitted). The purpose of an indictment is “to inform the defendant with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense.” Moses v. State, 795 So.2d 569, 571(¶ 13) (Miss.2001). The indictment shall contain “the essential facts constituting the offenses charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06.

¶ 10. Qualls argues that he was not fully informed of the charges he would face in the Claiborne County Circuit Court because there were two separate indictments, and he claims this fact created difficulties in knowing which charges he was to defend. Yet, both indictments, as admitted in Qualls’s brief, “had similar charges and proof.” Qualls was specifically informed by both his own defense attorney at that time and an assistant district attorney, at his November 8, 2004 hearing, which indictment the State was planning to pursue. The judge then reiterated to Qualls that “[y]our attorney will advise you.” Obviously, Qualls was put on notice that his defense attorney would know which indictment would go forward. Moreover, there were no claims of error below regarding which indictment to defend against. We cannot see how these circumstances would create difficulties in Qualls’s defense when his trial attorney had knowledge of the charges pursued by the State and did not complain of the situation at that time.

¶ 11. Qualls also argues that there were several defects with his first indictment. His first indictment charged him with attempted “taking possession of or taking away a motor vehicle” under Mississippi Code Annotated section 97-17-42 (Rev. 2006). Qualls argues the language of the statute precludes this charge against him. He also points out the indictment lacks a date or seal and contains an inaccurate vehicle description.

¶ 12. While this indictment may contain the structural defects of which Qualls complains, and apparently, the first indictment was never formally dismissed by the trial court, these errors cannot be examined by this Court. The State is correct in noting that the validity of the first indictment was not properly preserved for appeal, because the indictment is not contained in the record. Further, Qualls’s defense counsel made no motion to supplement the record. Merely including the initial indictment in the “record excerpts” filed with Qualls’s brief is insufficient. The Mississippi Supreme Court has held repeatedly that it is the appellant’s duty to have the proper record to support his or her assignments of error. Peterson v. State, 518 So.2d 632, 638 (Miss.1987). This Court cannot assign error to actions not made a part of the record. Thus, this issue, as it pertains to the first indictment, is procedurally barred. Furthermore, even if we considered that this first indictment was properly before this Court, it is not the indictment the State proceeded with. Thus, this issue is without merit regarding the first indictment.

¶ 13. Qualls argues that the second indictment, under which he was tried and convicted, should be dismissed because of lack of service, date, seal, and an improper vehicle description. Regarding proper service for the second indictment, Qualls states that, because he was faxed the indictment while incarcerated, he was not properly served. However, the State claims it attempted to serve him the new indictment at the September 27, 2004 hearing, but Qualls refused to accept it. During the November 8, 2004 hearing, Qualls’s new lawyer moved to dismiss the second indictment for improper service, even though Qualls was already in possession of a copy of the indictment at that time. At this hearing, the circuit court judge stated he wanted the lack of proper service to be cured, and informed the defendant that “the failure to serve an indictment does not warrant dismissal of the indictment.” At this point in the proceeding, Qualls was re-served with the second indictment by the assistant district attorney, in the presence of the trial judge and his defense counsel, so we find there can be no question of personal, proper service.

¶ 14. Further, in Qualls’s brief, he argues for the first time that the second indictment is faulty because there is not a date of filing and an official court seal. Upon review of the copy of the indictment in the record, the reverse image of a “filed” stamp with a date was faintly visible in the bottom right corner, as if the original indictment had been stamped on the back of the paper. To further investigate, we requested a certified copy of the second indictment from the circuit court clerk, which did in fact show the document had the date of filing of August 18, 2004, and court clerk stamp on the reverse side of the original document. Additionally, while the date of filing is required, there, is no rule stating an indictment must have a court seal to be valid. See URCCC 7.06; Miss.Code Ann. § 99-7-9 (Rev.2000). We find that the second indictment was properly filed with the circuit clerk, and had this argument been brought before the trial court, the judge in possession of the original record could easily have rejected it. We do so now. As for the inaccurate vehicle description, the second indictment clearly lists the vehicle’s make, model, VIN number and owner. This is sufficient. Consequently, the issue regarding Qualls’s indictments is without merit.

II. WHETHER THERE WAS PROBABLE CAUSE TO ARREST QUALLS.

¶ 15. Qualls argues that the police officers had mere suspicion regarding the white automobile parked in the driveway, and that this was insufficient probable cause to arrest or search the occupants of the vehicle. Qualls also notes the officers did not have a warrant to break the white vehicle’s window. Further, he argues that the attempted crime that morning may not have even been a felony, but could have been a lesser offense like trespass or joy riding, since the truck never left the Wilson’s driveway.

¶ 16. Police officers have the legal authority to detain an individual for mere investigatory purposes. Haddox v. State, 636 So.2d 1229, 1234 (Miss.1994). “Given reasonable circumstances, an officer may stop and detain an individual to resolve an ambiguous situation,” even when there is not “sufficient knowledge to justify an arrest.” Shannon v. State, 739 So.2d 468, 471(¶ 13) (Miss.Ct.App.1999) (citing Estes v. State, 533 So.2d 437, 441 (Miss.1988)). Stopping a suspicious individual to determine his identity “may be most reasonable in light of the facts known to the officer at the time.” Singletary v. State, 318 So.2d 873, 877 (Miss.1975) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Additionally, a police officer may make an investigative stop “when he has a reasonable suspicion- that the accused is involved in a felony” or other criminal activity. Hodge v. State, 801 So.2d 762, 769(¶20) (Miss.Ct.App.2001) (citing Floyd v. State, 500 So.2d 989, 992 (Miss.1986)). Further, “[a] collection of actions which, individually, are subject to innocent explanation may be sufficient to create reasonable suspicion under the totality of the circumstances.” Anderson v. State, 864 So.2d 948, 951(¶ 13) (Miss.Ct.App.2003) (citing United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). Yet, “mere hunches” or “looking suspicious” is insufficient to establish reasonable suspicion for an investigatory stop. Id. (citations omitted).

¶ 17. An arrest within the meaning of criminal law means the “taking into custody of another person by an officer ... for the purpose of holding him to answer an alleged or suspected crime.” Smith v. State, 229 So.2d 551, 556 (Miss.1969) (citations omitted). To be sure, an arrest without a warrant is valid if the arresting officer has “probable cause to believe a felony has been committed, and probable cause to believe the suspect to be arrested committed the felony.” Abram, v. State, 606 So.2d 1015, 1025-26 (Miss.1992). Further, an officer may arrest a person without a warrant “for an indictable offense committed, or a breach of the peace threatened or attempted” in the officer’s presence, or for a felony not committed in the officer’s presence, where the officer has “reasonable ground to suspect and believe the person proposed to be arrested to have committed it....” Miss.Code Ann. § 99-3-7(1) (Supp.2005). “Probable cause” has been defined as “less than the evidence which would justify condemnation, but more than bare suspicion.” Hester v. State, 463 So.2d 1087, 1090 (Miss.1985) (internal citations omitted). To determine if an officer had probable cause to arrest an individual, the court must look at the facts and the totality of the circumstances within the knowledge of the officer, not only at that time, but in the preceding circumstances before the arrest, and ask if “that information was reasonably trustworthy and sufficient to warrant a reasonably prudent person to believe that a crime had been committed.” Hodge v. State, 801 So.2d 762, 770(¶23) (Miss.Ct.App.2001).

¶ 18. In the instant case, during the trial, a hearing occurred on the defendant’s motion to suppress the State’s evidence regarding the probable cause grounds for arrest. The court denied this motion. The standard of review for a trial judge’s ruling on a motion to suppress evidence is well established. This Court must decide whether there was substantial, credible evidence to support the trial judge’s ruling. Culp v. State, 933 So.2d 264, 274(¶ 26) (Miss.2005). This ruling must not be disturbed by our Court unless such substantial, credible evidence is absent. Ray v. State, 503 So.2d 222, 223-24 (Miss.1986). Further, admission of evidence is within the discretion of the trial court, and can only be reversed upon abuse of its discretion. Crawford v. State, 754 So.2d 1211, 1215(¶ 7) (Miss.2000).

¶ 19. At the suppression hearing, and indeed in Qualls’s brief to this Court, it was not specified by defense counsel what evidence he was trying to suppress relating to Qualls’s arrest. We assume it was the identifying evidence gathered, such as the fact Qualls was sweating, breathing hard, and wearing a white T-shirt. The arresting officer testified at length to the events that transpired before the arrest and the circumstances surrounding the arrest. From this detailed factual testimony, the judge ruled that, at the point the police officer approached the parked vehicle, he “did have probable cause to stop the suspects and to question them.” The trial judge overruled Qualls’s objection, and the evidence of the circumstances surrounding the arrest was presented to the jury.

¶20. During the suppression hearing, the arresting officer testified that he was aware that there had been an attempted vehicle burglary nearby, and that the perpetrator had run away. He also knew two suspects, one wearing a white T-shirt, had been seen running between houses in the area. He then saw a suspicious vehicle pulled half-way off the street into an elderly couple’s driveway, with a Warren County tag. Initially, he saw one individual in the vehicle.

¶ 21. Based on the circumstances, the officer had reasonable suspicion to knock on the vehicle’s window. When the individual seen inside the car did not respond to the officer’s two requests to exit the vehicle, the officer had probable cause to break the car window and detain the individual, and the other occupant, for additional questioning, and at the very least, charge both individuals with the misdemeanor of failure to comply with the lawful commands of a police officer. See Miss. Code Ann. § 97-35-7 (Rev.2006). The fact that the officer only saw one individual in the vehicle initially, when two men were seen running in the neighborhood, does not lessen the officer’s reasonable suspicion. The fact that Qualls physically resisted the officer’s lawful requests, after reasonable suspicion was established, furthers the establishment of probable cause to arrest him. See Miss.Code Ann. § 97-35-7 (Rev.2006) (failure to comply with requests/commands of police officer is misdemeanor); Miss.Code Ann. § 97-9-73 (Rev.2006) (resisting or obstructing arrest is misdemeanor).

¶ 22. Therefore we find that, in analyzing the totality of these circumstances, the trial court judge had substantial, credible evidence to deny Qualls’s motion to suppress the evidence surrounding his arrest. Furthermore, we find that there was reasonable suspicion to investigate the suspicious white vehicle, and then probable cause to detain its occupants for further questioning in light of their failure to respond and resisting arrest. Accordingly, the trial judge did not abuse his discretion and properly found there was probable cause to arrest Willie Qualls.

III. WHETHER THE VERDICT WAS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

¶ 23. Qualls asserts that the jury verdict was against the weight and sufficiency of the evidence presented to the jury. He states that since there was no direct evidence connecting him to the attempted crime, the jury “was forced to draw upon inferences and suspicious circumstances to find him guilty.” Qualls states he was not a resident of the small town of Port Gibson and was thus the “perfect foil” for a crime against a local citizen. Further, Qualls stated that his testimony during trial about copious drinking and marijuana usage the night of the crime could have prejudiced the jury to find him “more guilty than not.”

¶ 24. Although not discussed • in his brief, challenges to the weight and sufficiency of the evidence relate to Qualls’s motion for a new trial and motion for JNOV, both of which were denied. It is well established that a motion for a new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127(1116) (Miss.1999). This Court must “accept as true the evidence which supports the verdict.” Todd v. State, 806 So.2d 1086, 1090(¶ 11) (Miss.2001). “A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction ‘unconscionable injustice.’ ” Id.

¶ 25. Alternatively, a motion for JNOV challenges the sufficiency of the evidence presented to the jury, not its weight. McClain v. State, 625 So.2d 774, 778 (Miss.1993). To consider this challenge, the Court must ask “whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and ... that every element of the offense existed.’ ” Bush v. State, 895 So.2d 836, 843(¶16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Our Court can reverse only when “the facts and inferences considered in a challenge to the sufficiency of the evidence ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.’ ” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). The sufficiency of the evidence is reviewed by our Court in the light most favorable to the State. Bush v. State, 895 So.2d 836, 843(¶ 17) (Miss.2005).

¶ 26. In the case sub judice, the weight and sufficiency of the evidence presented by the State support the conviction of Qualls. Don Wilson was able to identify the general appearance of the suspect as he ran from the truck. Two persons, one fitting the description of the suspect, were seen running in the area near the crime scene. In this same time frame a car with a Warren County tag was blocking an elderly couple’s driveway. The occupants refused to respond to police orders. Once out of the car, Qualls fit the description of the burglary suspect. These men were sweating in the car as if they had been running. This Court must weigh the evidence in a light favorable to the State. Thus, we are not persuaded that the jury verdict was contrary to the overwhelming weight of the evidence. The record indicated that a reasonable, fair-minded jury could find beyond a reasonable doubt Qualls’s guilt. The allegedly prejudicial effect on the jury of Qualls’s voluntary testimony about his partying the night in question does not relate in any way to the weight or sufficiency of the evidence. We find the jury was presented with substantial evidence to support its conviction of Qualls for auto burglary and attempted grand larceny beyond a reasonable doubt. This issue is without merit.

IV. WHETHER THE STATE FAILED TO PROVE ALL THE ELEMENTS OF THE CRIME BEYOND A REASONABLE DOUBT.

¶ 27. Qualls argues that the State failed to prove all of the elements of the crimes charged. Ultimately, Qualls was sentenced for auto burglary, after the judge merged the attempted grand larceny and auto burglary charges as a matter of law. Qualls argues that even though there is ample proof that someone was in the Wilson’s car and broke the steering column, it was “only speculation” that the intent of that person was to steal the truck. He maintains that the State failed to show the intent element for this crime. He suggests the perpetrator could have been merely trespassing, and there was no jury instruction to this effect. Further, he argues that there is no evidence linking Qualls to the breaking and entering of the truck, and no evidence was offered to prove the Wilsons owned the truck.

¶ 28. Although the State’s case was based entirely on circumstantial evidence, direct evidence is not needed to sustain a conviction as long as there is sufficient circumstantial evidence “to prove the defendant’s guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence.” Fleming v. State, 604 So.2d 280, 288 (Miss.1992) (citations omitted). This does not mean that the circumstantial evidence “exclude every possible doubt, but only every reasonable doubt, or reasonable hypothesis of innocence.” Tolbert v. State, 407 So.2d 815, 820 (Miss.1981). However, the burden of proof is higher for circumstantial evidence than cases based on direct evidence. Murphy v. State, 566 So.2d 1201, 1204 (Miss.1990).

¶ 29. The elements of auto burglary are unlawful breaking and entering of an automobile with the intent to steal, or with the intent to commit any felony. Miss.Code Ann. § 97-17-33 (Rev.2006). A jury could reasonably find that an individual, driving another person’s truck down his driveway, in the early morning hours in a vehicle with a broken steering column, and who runs away when confronted, has the intent to steal that vehicle. The evidence showed that an individual did break and enter Don Wilson’s car, with the necessary intent to steal it. The evidence linking Qualls to the crime, although circumstantial, was sufficient for the jury to find Qualls guilty beyond a reasonable doubt to the exclusion of any hypothesis consistent with innocence. Qualls was found in a vehicle, hiding, shortly after the crime, near the scene of the crime, with no other reasonable explanation for being there. He and his accomplice were lying out of sight, breathing heavily and sweating, after a police officer saw two men running in the area, one of whom fit the description of Qualls, and also resembled the suspect who ran from the victim’s truck. The State proved the elements of auto burglary to the jury beyond a reasonable doubt. Accordingly, this issue has no merit.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF CLAIBORNE COUNTY OF CONVICTION OF AUTOMOBILE BURGLARY AND ATTEMPTED GRAND LARCENY AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. CARLTON, J. NOT PARTICIPATING.

      . In 1991, Qualls pled guilty to grand larceny and burglary and received a four year prison sentence. In 1995, Qualls pled guilty to aggravated assault and carrying a concealed weapon while a felon, and received a fifteen year prison sentence.

      . Qualls has had three attorneys involved in this proceeding. His second court-appointed attorney handled his trial. A different attorney is representing Qualls on appeal.


author: MYERS, P.J.,

text:
    Sernia THOMAS, Appellant v. Renovielle D. BYARS, Appellee.
    No. 2005-CA-00792-COA.
    Court of Appeals of Mississippi.
    Jan. 23, 2007.

      Alsee McDaniel, Indianola, attorney for appellant.
    Nick Crawford, attorney for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. This case involves custody a minor child, Jozcelyn Thomas. Sernia Thomas, the mother of Jozcelyn Thomas, appeals from the order of the Washington County Chancery Court granting custody of her minor child to the father, Renovielle Byars. In issuing its order, the chancery court found that it had no choice but to award custody of the minor child to the father instead of the maternal grandparents because the grandparents were not joined as parties in the custody suit. The mother, Thomas, asserts that the lower court erred in awarding custody to the father, Byars, rather than the grandparents, and asks this Court to review whether the lower court possessed the authority to place child custody in a third person not party to the suit.

¶ 2. However, upon our review of the case, this Court recognized a potential jurisdictional defect and ordered supplemental briefing of the parties. Prior to the entry of the order by the Washington County Chancery Court, the grandparents were granted temporary custody of Jozce-lyn by the Youth Court of Washington County due to the child’s abandonment. We find that the chancery court lacked jurisdiction over the matter, and that exclusive original jurisdiction over the custody matter lies in the youth court. Accordingly, we vacate the portion of the chancery court order awarding custody of the minor child to Byars.

STATEMENT OF FACTS

¶ 3. A summary of the events leading up to this appeal is necessary to an understanding of our holding. This case began in November of 1999 when a four-year-old child, Jozcelyn Thomas, was abandoned by her mother, Sernia Thomas. Thomas left Jozcelyn with a babysitter for what was supposed to be a week; however, Thomas did not return until March of 2000. When Thomas did not return, the babysitter took Jozcelyn to the Mississippi Department of Human Services (MDHS). At this time, MDHS contacted the maternal grandparents, Frank and Helen Johnson (the John-sons), and requested that they care for Jozcelyn, along with Thomas’ three other children, and the Johnsons obliged. As a result of Jozcelyn’s abandonment, the Youth Court of Washington County awarded temporary custody through an emergency custody order to the Johnsons on January 11, 2000.

¶ 4. In March of 2000, Thomas finally returned to Washington County, and she was charged with child desertion. She pled guilty and was sentenced to one year of house arrest, placed on probation for four years, and ordered to participate in parenting classes. Jozcelyn remained in the custody of the Johnsons. Around this same time, Helen Johnson approached Re-novielle Byars, the alleged father, and asked whether he wanted to take custody of Jozcelyn. At this time, Byars declined and stated that he wanted Jozcelyn to stay with her siblings at the Johnsons’ home. Over the next few years, Byars visited Jozcelyn on holidays and would take her to his home, but never for more than two weeks. Financially, Byars only provided the Johnsons with a total of $750 to assist with the support of Jozcelyn. However, since Jozcelyn’s birth, Byars claimed her as his dependent for the purposes of his state and federal tax returns.

¶ 5. On July 30, 2004, MDHS filed a complaint on behalf of the Johnsons, who had custody of Jozcelyn, seeking to establish paternity and other relief against Jozcelyn’s alleged father, Byars. Byars filed an answer to the MDHS complaint and also filed a cross-complaint seeking custody of Jozcelyn. Although not an original party to the suit, Thomas, the mother, was allowed to intervene into the chancery court custody suit and filed an answer to Byars’ cross-complaint, together with her cross-complaint seeking custody. A hearing was held by the chancery court on the MDHS complaint to determine paternity and support, Byars’ cross-complaint seeking custody and Thomas’ cross-complaint seeking custody. On March 10, 2005, the chancery court issued an order awarding custody of Jozcelyn to Byars. The chancery court made the following findings:

I want the record to reflect that the court is [awarding custody to the father] because the court has no choice. The court does not actually believe that the father wants this child. The' court believes the father does not want to pay child support. I think it’s a shame. I do not think it’s is [sic] in the best interest of this child that the child go to the father. In fact, I think that this is probably going to be detrimental to the child, her grades and everything else. I think we are splitting this child from her siblings. We’re placing her in an environment where she’s not really wanted, all for the sake of avoiding paying child support.... I think it’s a mistake and it’s not something the court wants to do, but I don’t believe the court has any choice. I was tempted to go ahead and leave the child [with the grandparents], which I think is in the best interest of the child, where she is. I suspect the child will end up there anyway, as soon as the father is satisfied that he does not have to pay any child support.

Subsequent to these findings, an order was then issued by the chancellor adjudicating paternity finding Byars to be the biological father of Jozcelyn, ordering Thomas to file a financial statement, and. granting custody of Jozcelyn to Byars. Thomas appealed the chancery court order, asking this Court to consider whether the chancery court erred in finding that it did possess the authority to award child custody to a third person, namely the grandparents, not party to the suit.

¶ 6. Noticing a potential jurisdictional defect regarding the chancery court’s custody award, however, this Court ordered the parties to provide supplemental briefing as to (1) whether the chancery court properly had jurisdiction over the case in light of the youth court order granting temporary custody to the maternal grandparents, and (2) whether the order of the chancery court is void for failure to include necessary parties to the lawsuit.

DISCUSSION

I. WHETHER JURISDICTION OF THE ISSUE OF JOZCELYN’S CUSTODY LIES IN THE CHANCERY OR YOUTH COURT?

STANDARD OF REVIEW

¶ 7. Jurisdictional issues are matters of law, and on appeal, this Court reviews legal issues de novo. Tyson Breeders, Inc. v. Harrison, 940 So.2d 230(¶ 5) (Miss.2006).

LEGAL ANALYSIS

¶ 8. Pursuant to Mississippi Code Annotated section 43-21-151, the youth court has exclusive original jurisdiction over cases involving abused, neglected, or delinquent children. This jurisdiction conferred upon the youth court continues until the child’s twentieth birthday, unless terminated sooner by order of the youth court. Miss.Code Ann. § 43—21—151(l)(c) (Rev.2004); Helmert v. Biffany, 842 So.2d 1287(¶ 18) (Miss.2003). Youth Court Law ensures that children coming within its jurisdiction become responsible, accountable and productive citizens. When a youth court order and a chancery court order conflict in a case regarding an abused or neglected child, the order of the youth court predominates because jurisdiction over the child resides in the youth court. D.L.D. v. Wilkinson County, 606 So.2d 1125 (Miss.1992) (holding youth court custody order trumped chancery court custody order in a case regarding an abused child, although chancery court retained jurisdiction first in parents’ divorce case). Mississippi Code Annotated section 43-21-301(1) makes clear that the youth court has exclusive jurisdiction to render a custody decision and states in pertinent part: “[n]o court other than the youth court shall issue [a] ... custody order for a child in a matter in which the youth court has exclusive original jurisdiction but shall refer the matter to the youth court.” If a party seeks modification of the custody arrangement, the jurisdiction to hear the matter lies in the youth court.

¶ 9. In this case, the youth court initiated jurisdiction when it issued an emergency custody order on January 11, 2000, granting custody of Jozcelyn to her grandparents as a result of her mother’s desertion. The jurisdiction retained by the youth court is exclusive and original and was still in effect on March 10, 2005, when the chancery court issued the order awarding Byars custody of Jozcelyn. Therefore, because the youth court had exclusive original jurisdiction over the case, the youth court order of January 11, 2000 supersedes the chancery court order of March 10, 2005. Therefore, we vacate the portion of the chancery court order inasmuch as it awards custody to Byars, due to the chancery court’s lack of jurisdiction over the matter. The proper route for Byars to obtain an award of custody was not by filing his cross-complaint to the MDHS complaint in chancery court, but rather was through filing in the youth court.

II. WHETHER THE CHANCERY COURT ORDER IS VOID FOR FAILURE TO INCLUDE NECESSARY PARTIES IN THE CUSTODY SUIT?

¶ 10. As we have already found that the chancery court lacked jurisdiction over the issue of custody and have vacated that portion of the order, we are left to determine whether the remainder of the chancery court order is void for failure to include the grandparents as necessary parties. The chancery court order addressed issues other than that of custody. The order also adjudicated paternity, finding Byars to be Jozeelyn’s father, as well as ordered the mother to file a financial statement, pending a child support award. The portion of the order pertaining to custody has already been vacated by this Court due to lack of the chancery court’s jurisdiction; thus, discussion of whether the grandparents were necessary parties to the suit involving custody is moot. However, the issues of paternity and child support are left undisturbed and we find that these issues were properly within the parameters of the chancery court’s authority to decide. The issues of paternity and child support did not involve the grandparents; therefore, the grandparents would not be necessary parties.

¶ 11. Had the chancery court had proper jurisdiction to award custody of Jozcelyn to her father, then the grandparents would have been proper, but not necessary, parties to the custody case. Furthermore, the absence of such a proper party would not render the chancellor’s decree void. When a minor child is in the custody of a third person, such as a grandparent, the third person is a proper party to a custody action, although not necessary to deem an order valid. Smith v. Watson, 425 So.2d 1030, 1033 (Miss.1983). The repercussions of failure to include the third party in the custody suit is that the judgment is not binding against the third party unless they were parties to the custody suit. Id. But, in the case sub judice, because the custody portion of the chancellor’s decree is vacated by this Court, the grandparents were not proper parties to the suit regarding the adjudication of paternity and the award of child support.

CONCLUSION

¶ 12. The chancery court order, so far as it addresses custody of the minor child, is vacated. Custody matters involving Jozcelyn Thomas belong within the purview of the youth court because the youth court retains exclusive original jurisdiction. All other matters addressed in the order of the chancery court are affirmed, as the grandparents, although holding legal custody of the minor child, are not necessary parties to the matters adjudicated therein.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS VACATED AS TO THE AWARD OF CUSTODY AND AFFIRMED AS TO THE ADJUDICATION OF PATERNITY AND SUPPORT. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

      . From January 2000, the time the custody award was granted by the youth court, until September 2004, Jozcelyn remained in the Johnsons’ custody without challenge from either Byars or Thomas. For reasons unknown to this Court, to this day, a hearing has not been held on the temporary order in the youth court and the order has remained undisturbed.