text:
    Anthony MARQUEZ v. PROGRESSIVE INSURANCE COMPANY, et al. Louisiana Farm Bureau Mutual Insurance Company v. Anthony Marquez.
    Nos. CA 06-1024.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      Maria A. Losavio, Losavio Law Office, L.L.C., Alexandria, Louisiana, for Plain-tiffiAppellant, Anthony Marquez.
    Brandon A. Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, Louisiana, for Defendant/Appellee, Rapides Healthcare System, L.L.C. d/b/a Rapides Regional Medical Center.
    Ian A. McDonald, Perret Doise, Lafayette, Louisiana, for Defendant/Appellee, Progressive Insurance Company.
    J. Payne Williams, Williams Family Law Firm, L.L.C., Natchitoches, Louisiana, for Defendant/Appellee, Louisiana Farm Bureau Mutual Insurance Company.
    Thomas Overton Wells, Alexandria, Louisiana, for Defendants/Appellees, John P. Skrobarcek and Kristy Skrobarcek.
    Ellis G. Saybe, Davis & Saybe, L.L.P., Alexandria, Louisiana, for Defendant/Ap-pellee, Orthopaedic and Sports Medicine Specialists.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Plaintiff, Anthony Marquez (Marquez), appeals the trial court’s judgment disbursing funds pursuant to consolidated concur-sus proceedings provoked by certain insurers as a result of extensive medical bills incurred by Plaintiff in an auto accident. For the following reasons, we affirm the trial court’s judgment.

FACTUAL BACKGROUND

On March 5, 2005, Marquez was involved in an automobile accident and was transported to Rapides Regional Medical Center (Rapides) for medical treatment. Rapides is owned by Rapides Healthcare System, L.L.C. and provided medical treatment to Marquez from March 5, 2005 through March 13, 2005 for multiple, serious injuries. As a result of said auto accident, Marquez filed a personal injury suit against the driver of the other vehicle, John Skrobarcek (Skrobarcek), and Progressive Security Insurance Company (Progressive), Skrobarcek’s automobile liability insurer. Marquez averred that Skrobarcek, as the negligent operator of the vehicle which had collided with Marquez’s vehicle, was liable to him for damages. Marquez also brought in his own uninsured/underinsured motorist (UM) carrier, Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau), as a Defendant for UM and medical payments (med-pay) benefits. Thereafter, Rapides perfected a lien for services rendered to Marquez in accordance with La.R.S. 9:475s.

laOn August 1, 2005, Farm Bureau filed a petition for concursus in the Alexandria City Court and deposited its UM policy limits of $10,000.00 and medical payment policy limits of $5,000.00 into the court’s registry, naming Marquez and Rapides as Defendants. On September 15, 2005, Progressive also filed a petition for concursus in the Ninth Judicial District Court, Rap-ides Parish, Louisiana, and deposited its liability policy limits of $10,000.00 into the court’s registry, naming the same Defendants. The Farm Bureau concursus matter was transferred from Alexandria City Court to the Ninth Judicial District Court, Rapides Parish, Louisiana. Thereafter, the two concursus proceedings were consolidated.

Pursuant to Rapides’s motion to disburse settlement funds deposited by Farm Bureau and Progressive, a hearing was held on January 9, 2006. After taking the matter under advisement, the trial court rendered judgment ordering that the funds on deposit in the registry of the court be disbursed as follows: $7,992.57 for attorney fees; $1,559.78 for court costs; and $15,153.56 for medical services rendered by Rapides to Marquez. A judgment in conformity with the trial court’s determination was signed on May 31, 2006. Marquez filed the instant suspensive appeal on July 24, 2006.

TISSUES

In his brief to this court, Marquez presents the following issues:

1. Did the trial court err in finding that the healthcare provider lien holder under La.R.S. 9:4752 had a preference to the funds over an innocent victim’s rights resulting in no recovery to the victim?
2. Did the trial court err in finding that the healthcare provider lien holder under La.R.S. 9:4752 attached to uninsured/underinsured motorist insurance proceeds?
3. Did the trial court err in finding that the healthcare provider lien holder under La.R.S. 9:4752 attached to any portion of the settlement funds that were not specifically designated for medical services or supplies?
4. Did the trial court err in not equitably distributing the settlement funds allowing some recovery to the victim?

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 4651 defines a concursus proceeding as “one in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding.” “The primary purpose of [a concursus] proceeding is to protect the stakeholder from multiple liability, from conflicting claims, and from the vexation attending involvement in multiple litigation in which the stakeholder may have no direct interest.” Allen & Norman, LLC v. Chauvin, 04-519, p. 3 (La. App. 1 Cir. 6/29/05), 916 So.2d 1071, 1073 (citing Chevron U.S.A., Inc. v. Oliver, 590 So.2d 1248 (La.App. 1 Cir.1991), writ denied, 597 So.2d 1028 (La.1992)). “A con-cursus contemplates a proceeding which leads to a single judgment adjudicating all issues between the parties.” Chevron, 590 So.2d at 1250. The case sub judice concerns the distribution of the net proceeds collected by Marquez from all available insurers, ^Progressive and Farm Bureau.

On appeal, Marquez contends that allowing the trial court’s judgment to stand is tantamount to allowing the lien holder greater rights to the plaintiffs recovery than the plaintiff. Marquez argues such a judgment would be inequitable because he, the innocent, injured victim, would be entitled to nothing, and he would still be responsible for the remaining balances on his various medical bills. Marquez contends that the inequity of his receiving nothing should warrant a reversal of the trial court’s ruling.

Marquez argues that it was not the legislature’s intent to hold a lien holder’s interest superior to that of an innocent, injured victim. Marquez contends that if this were the case, La.R.S. 9:4752 would have contained specific language to that effect; however, no such language exists. In support of his assertions, Marquez analogizes the medical provider lien, set forth in La.R.S. 9:4752, with the workers’ compensation lien set forth in La.R.S. 23:1103(A)(1). He asserts that La.R.S. 23:1103(A)(1) specifically gives the employer a preference over the injured worker for recovery of benefits paid; therefore, because La.R.S. 9:4752 does not specifically give the medical provider preferential rights over the innocent, injured victim, such a | .^preference was not intended by the legislature.

Marquez argues that the trial court erred in allowing the healthcare provider’s lien under La.R.S. 9:4752 to attach to Marquez’s UM proceeds. Marquez argues that the trial court’s ruling disregards the object of the UM statute, i.e., to promote full recovery for damages by an innocent, injured victim. Marquez contends that the trial court not only allowed the healthcare provider lien to attach to the UM policy, but it, in effect, gave the entire UM policy to the healthcare provider and none to the innocent, injured victim.

Marquez also argues that the language of La.R.S. 9:4752 supports his interpretation that the medical providers lien attaches only to the portion of the funds that represent actual medical services or medical supplies. Marquez again analogizes La.R.S. 9:4752 to the workers’ compensation provisions found at La.R.S. 23:1103(B). Marquez asserts that La.R.S. 23:1103(B) specifically states that the employer enjoys a preference over the injured worker for the recovery of benefits paid; therefore, because La.R.S. 9:4752 does not also contain such specific language to provide the medical provider preferential rights over the injured, innocent plaintiff, such a preference was not intended by the legislature. Finally, counsel for Marquez asserts that she has always maintained a willingness to reduce her attorney fees in an effort to promote an equitable distribution of funds; however, Rapides maintains it is entitled to the entire amount of the funds deposited into the registry of the court after Marquez’s attorney fees and court costs are deducted. Thus, even if counsel for Marquez were to stipulate to a fee less than the current one-third (33/a %) contingency fee agreement, Rapides would assert entitlement to the difference created by counsel’s stipulation.

| fiRapides asserted a lien on the proceeds of any third-party recovery Marquez might obtain pursuant to La.R.S. 9:4752, which states:

A health care provider, hospital, or ambulance service that furnishes services or supplies to any injured person shall have a privilege for the reasonable charges or fees of such health care provider, hospital, or ambulance service on the net amount payable to the injured person, his heirs, or legal representatives, out of the total amount of any recovery or sum had, collected, or to be collected, whether by judgment or by settlement or compromise, from another person on account of such injuries, and on the net amount payable by any insurance company under any contract providing for indemnity or compensation to the injured person. The privilege of an attorney shall have precedence over the privilege created under this Section.

Marquez’s medical expenses incurred at Rapides totaled $56,265.24. Rapides argues that because it proved it had furnished services and supplies to Marquez and timely provided Marquez’s attorney with written notice in accordance with La. R.S. 9:4753, it has perfected a privilege, or lien, created by La.R.S. 9:4752 and, therefore, is entitled to the remainder of the funds after attorney fees and court costs are paid. Rapides defends the propriety of the trial court’s judgment arguing that Marquez’s analogies to the workers’ compensation laws are inapplicable. We agree.

In written reasons, the trial court stated:

The [cjourt finds the arguments of [Pjlaintiff appealing for the reason that in this case and many like this one, plaintiffs recover little or nothing for their injuries. However, the law seems clear in favoring the interest of the health care providers who perfect their claim under [La.jR.S. 9:4752 over injured persons. Further, the [cjourt is not aware of any jurisprudence that supports [Pjlaintiffs argument on this point. Accordingly, the [cjourt orders that the settlement proceeds first are distributed to satisfy the [Pjlaintiffs attorney fees that are subject to a legal privilege and the remainder of said settlement proceeds is distributed to Rap-ides Medical Center in satisfaction of their lien.

In Moore v. State, La. State Univ. Med. Ctr., 596 So.2d 293 (La.App. 3 Cir.), writ denied, 600 So.2d 667 (La.1992), LSU Medical Center Hospital perfected a lien for services rendered to an injured plaintiff in accordance with La.R.S. 9:4751, et seq. |7This court held that the plaintiff is considered to be a debtor of the hospital, stating “the relationship between the hospital and [the plaintiff] is that of creditor-debtor.” Id. at 296. This court allowed LSU reimbursement for the full amount of its lien stating, in pertinent part:

The clear language of La.R.S. 9:4752 states that the hospital shall have a privilege for the reasonable charges or fees on the net amount payable to the injured person out of the total amount of recovery, whether by judgment or settlement. ... The statute also clearly gives precedence to the privilege of an attorney over that of the hospital. Under this statute, it is clear that the attorney’s privilege would be satisfied first and the hospital’s privilege should be satisfied next out of the net amount payable to [plaintiff].

Id.

The privilege or lien set forth in La.R.S. 9:4752 applies to any recovery and neither distinguishes nor differentiates between liability, UM, or med-pay insurance benefits. Following this court’s reasoning in Moore, we find no error of law with the trial court’s judgment ordering disbursement of the insurance proceeds in accordance with La.R.S. 9:4752.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against Plaintiff/Appellant, Anthony Marquez.

AFFIRMED.

      . Louisiana Revised Statutes 9:4753 provides:
      The privilege created herein shall become effective if, prior to the payment of insurance proceeds, or to the payment of any judgment, settlement, or compromise on account of injuries, a written notice con-taming the name and address of the injured person and the name and location of the interested health care provider, hospital, or ambulance service is mailed by the interested héalth care provider, hospital, or ambulance service, or the attorney or agent for the interested health care provider, hospital, or ambulance service, certified mail, return receipt requested, to the injured person, to his attorney, to the person alleged to be liable to the injured person on account of the injuries sustained, to any insurance carrier which has insured such person against liability, and to any insurance company obligated by contract to pay indemnity or compensation to the injured person. This privilege shall be effective against all persons given notice according to the provisions hereof, and shall not be defeated nor rendered ineffective as against any person that has been given such notice, because of failure to give such notice to all those persons named herein.

      . Other medical providers were also named as Defendants; however, the trial court ruled that Rapides was the only medical provider to timely perfect a lien for its services pursuant to La.R.S. 9:4753.

      . Louisiana Revised Statutes 23:1103 provides, in pertinent part:
      A. (1) In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in [La.]R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six percent per annum, and shall be satisfied by such payment. The employer's credit against its future compensation obligation shall be reduced by the amount of attorney fees and court costs paid by the employee in the third party suit.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY v. Anthony MARQUEZ Anthony Marquez v. Progressive Insurance Company, et al.
    Nos. CA 06-1025.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.
    Maria A. Losavio, Losavio Law Office, L.L.C., Alexandria, LA, for Plaintiff/Appellant, Anthony Marquez.
    Brandon A. Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Ap-pellee, Rapides Healthcare System, L.L.C. d/b/a Rapides Regional Medical Center.
    Ian A. McDonald, Perret Doise, Lafayette, LA, for Defendant/Appellee, Progressive Insurance Company.
    J. Payne Williams, Williams Family Law Firm, L.L.C., Natchitoches, LA, for Defendant/Appellee, Louisiana Farm Bureau Mutual Insurance Company.
    Thomas Overton Wells, Alexandria, LA, for Defendants/Appellees, John P. Skro-barcek and Kristy Skrobarcek.
    Ellis G. Saybe, Davis & Saybe, L.L.P., Alexandria, LA, for Defendant/Appellee, Orthopaedic and Sports Medicine Specialists.

      Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

For the reasons assigned this day in the companion case of Anthony Marquez v. Progressive Ins. Co., et al, 06-1024 (La. App. 3 Cir.12/6/06), 944 So.2d 876, this matter is affirmed. Costs of this appeal are assessed against Plaintiff/Appellant, Anthony Marquez.

AFFIRMED.


author: DECUIR, Judge.

text:
    Joseph BABINEAUX v. MOSS MOTORS.
    No. 06-749.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.
    H. Douglas Hunter, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, Counsel for Defendant/Appellee: Moss Motors.
    Harry K. Burdette, The Glenn Armentor Corporation, Lafayette, Counsel for PlaintiffAppellant: Joseph Babineaux.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   DECUIR, Judge.

| ¶Workers’ compensation claimant appeals a judgment finding he forfeited benefits under the provisions of La.R.S. 23:1208.

FACTS

Joseph Babineaux alleges that, on September 11, 2003, he injured his back while loading an air compressor in the course and scope of his employment with Moss Motors. Babineaux filed a disputed claim for benefits, and Moss Motors answered alleging that Babineaux misrepresented his prior medical history in violation of La.R.S. 23:1208 and thereby forfeited his benefits.

Babineaux denied treatment for prior back injuries for which he had settled one lawsuit and confirmed a default judgment in the second. He denied the injuries in pre-hire applications, post-hire and post-accident questionnaires, in his statement, deposition and testimony at his hearing. Despite finding Babineaux likable and a good employee, the workers’ compensation judge could not escape the conclusion that he misrepresented his prior injuries for the purpose of obtaining benefits. Accordingly, the workers’ compensation judge found that under the provisions of La.R.S. 23:1208, Babineaux had forfeited his benefits. Babineaux lodged this appeal.

FORFEITURE OF BENEFITS

Babineaux contends the workers’ compensation judge erred in finding that he failed to disclose prior injuries for the purpose of obtaining workers’ compensation benefits and, therefore, forfeited his right to benefits under the provisions of La.R.S. 23:1208.

In Resweber v. Haroil Construction Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7, the supreme court noted that in order to forfeit benefits, La.R.S. 23:1208 requires that 1) there is a false statement, 2) it is willfully made, and 3) it is made for the purpose of obtaining or defeating any benefit or payment. An appellate court | areviews factual determinations of the workers’ compensation judge under the manifest error or clearly wrong standard. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706.

After careful review of the record, we find no manifest error in the workers’ compensation judge’s determination that Babineaux forfeited his benefits. This was clearly a difficult decision for the workers’ compensation judge. However, ultimately, she could not reconcile the claimant’s demeanor with the evidence of multiple misrepresentations regarding his prior history of back injuries. She found that she could not credit Babineaux’s contention that he did not remember two incidents that involved legal proceedings. Accordingly, this assignment has no merit, and the remaining assignments are moot.

CONSTITUTIONALITY OF LA.R.S. 23:1208

Babineaux also asks this court to review the constitutionality of La.R.S. 23:1208. Babineaux challenged the constitutionality of the statute in his motion for new trial. This does not comport with the procedures for challenging constitutionality outlined in La.R.S. 23:1310.3(F). Accordingly, we cannot address the issue as it is not properly before this court. See Jim Walter Homes, Inc. v. Guilbeau, 051473 (La.App. 3 Cir. 6/21/06), 934 So.2d 239.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. All costs of these proceedings are taxed to appellant, Joseph Babineaux.

AFFIRMED.


author: RANDOLPH, Justice, for the Court.

text:
    CITY OF CHEROKEE, Alabama; City of Cherokee Police Chief Paul Norman and Paul Norman, Individually; City of Cherokee Police Officer Jerry McClurg and Jerry McClurg, Individually; Colbert County, Alabama; Colbert County Sheriff Ronnie May and Ronnie May, Individually; and Colbert County Deputy Bill Mays and Bill Mays, Individually v. Dennis Ray PARSONS, et al.
    No. 2005-IA-02003-SCT.
    Supreme Court of Mississippi.
    Oct. 19, 2006.
    Rehearing Denied Jan. 4, 2007.

      Benjamin E. Griffith, Cleveland, attorney for appellants.
    Drayton D. Berkley, attorney for appel-lees.
    Before SMITH, C.J., DIAZ and RANDOLPH, JJ.
   RANDOLPH, Justice, for the Court.

¶ 1. A high speed chase into Mississippi involving Alabama governmental defendants, resulted in this interlocutory appeal, which was granted exclusively on the issue of in personam jurisdiction.

FACTS

¶ 2. On February 21, 2002, at approximately 10:44 p.m., a high speed pursuit of three fleeing felony suspects commenced in Muscle Shoals, Alabama. The chase first involved numerous Alabama and later Mississippi law enforcement officers. According to the circuit court:

2. The [fleeing felony suspects] had been pursued by Alabama officers after a Sheffield, Alabama police officer observed their vehicle run a red light and determined that the vehicle appeared to match the description of a Ford Taurus that had earlier fled from a Wal-Mart store in Muscle Shoals, Alabama following the theft of $3000.00 of property from that store. As the initial pursuing officer and other officers attempted to force the [fleeing felony suspects] to stop, they accelerated and attempted at least three times to ram officers’ vehicles and run them off the road, ran seven red lights, ran more than a dozen stop signs, and drove at speeds in excess of 100 m.p.h. on U.S. Highway 72 within the state of Alabama westward to the state line.
3. With Alabama officers in pursuit, the [fleeing felony suspects] continued driving at a high speed into the State of Mississippi. All of the Alabama officers terminated their pursuit of the [fleeing felony suspects] once the pursuit entered Mississippi except Officer [Jerry] McClurg and Deputy [Bill] Mays.

(Emphasis added). The chase tragically ended in Corinth, Mississippi, when the fleeing vehicle sped through a red light and collided with an oncoming car, killing Kathy Ann Hollands, Brandy L. Hollands, and Jennifer Renee Parsons (“Decedents”).

¶ 3. On December 30, 2002, plaintiffs Dennis Ray Parsons, et al. (the wrongful death beneficiaries of Decedents) filed a civil suit against fifty-five Alabama and Mississippi cities, counties, and law enforcement officers in the Circuit Court of Alcorn County. The complaint alleged that “[e]ach Defendant Law Enforcement Agency [was] inadequately trained, inadequately supervised, had no high speed pursuit policy and procedure or failed to follow recognized high speed pursuit policy and procedure. The Defendants actions in concert were a direct cause of the Deaths of [Decedents].” Appellants are the only remaining defendants in the civil suit. The decedents were Tennessee residents. Appellants are either domiciled in or residents of Alabama. The fleeing felony suspects were residents of Tennessee, who went to Alabama with the intent to steal property.

¶ 4. On January 27, 2005, defendants filed motions for summary judgment in the circuit court claiming a lack of personal jurisdiction over the City of Cherokee, Alabama; Cherokee Police Chief Paul Norman; Colbert County, Alabama; and Colbert County Sheriff Ronnie May. Alternatively, they alleged that they were immune from liability under either Alabama law or “the police protection exemption of the Mississippi Tort Claims Act.” On October 19, 2005, the circuit court issued an order denying defendants’ motions, finding personal jurisdiction over defendants based upon Horne v. Mobile Area Water and Sewer System, 897 So.2d 972 (Miss. 2004), the Mississippi long-arm statute, and the specific jurisdiction prong of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. On November 18, 2005, this Court granted interlocutory appeal exclusively on the issue of in personam jurisdiction, as applied to Appellants. See M.R.A.P. 5.

ISSUES

¶ 5. The following issues are before this Court:

(1) Did City of Cherokee, Cherokee Police Chief Paul Norman, and Cherokee Police Officer Jerry McClurg waive their rights to contest in personam jurisdiction by failing to raise this defense in a pre-answer motion or their answer?
(2) Did the circuit court properly assert in personam jurisdiction over Colbert County, Colbert County Sheriff Ronnie May, and Colbert County Deputy Bill Mays?

STANDARD OF REVIEW

. ¶ 6. “The standard of review for jurisdictional questions is de novo. McCain Builders, Inc. v. Rescue Rooter, LLC, 797 So.2d 952, 954 (Miss.2001). In reviewing questions of jurisdiction this Court is in the same position as the trial court, since all the facts are set out in the pleadings or exhibits. McDaniel v. Ritter, 556 So.2d 303, 308 (Miss.1989).” Yatham v. Young, 912 So.2d 467, 469 (Miss.2005).

ANALYSIS

I. Did City of Cherokee, Cherokee Police Chief Paul Norman, and Cherokee Police Officer Jerry McClurg waive their rights to contest in personam jurisdiction by failing to raise this defense in a pre-answer motion or their answer?

¶ 7. Plaintiffs insist that the record reflects an absence of objection to in per-sonam jurisdiction, see Miss. R. Civ. P. 12(b)(2), by these particular defendants in either a pre-answer motion or their separate answer. The separate answer of these defendants, filed on May 13, 2003, admits jurisdiction is proper in the circuit court. Rule 12(h)(1) of the Mississippi Rules of Civil Procedure states:

[a] defense of lack of jurisdiction over the person ... is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

Miss. R. Civ. P. 12(h)(1) (emphasis added). See also Rockaway Commuter Line, Inc. v. Denham, 897 So.2d 156, 159 (Miss.2004) (“Rockaway has done nothing under Rule 12(h) to surrender its right to object to personal jurisdiction. It could not have violated Rule 12(h)(1), because it never made any pre-answer motions; and when it did give its answer, it included the motion to dismiss for lack of personal jurisdiction.”). As such, plaintiffs contend that these particular Appellants waived the lack of personal jurisdiction defense.

¶ 8. City of Cherokee, Cherokee Police Chief Norman, and Cherokee Police Officer McClurg assert that their lack of personal jurisdiction defense was properly preserved. In support thereof, they point to the motion for summary judgment, filed on January 27, 2005, which claims “[t]he Court lacks personal jurisdiction over the City of Cherokee, Alabama and Cherokee Police Chief Paul Norman, neither of whom is a resident of the State of Mississippi and both of whom lack sufficient minimum contacts with the State of Mississippi to justify assertion of personal jurisdiction.”

¶ 9. The motion for summary judgment was filed over twenty (20) months after the separate answer, which expressly admitted personal jurisdiction, was filed. In the absence of a pre-answer motion, answer, or subsequently amended answer objecting to in personam jurisdiction, this Court finds that the Rule 12(b)(2) lack of jurisdiction over the person defense was waived by defendants City of Cherokee, Police Chief Norman, and Officer McClurg.

II. Did the circuit court properly assert in personam jurisdiction over Colbert County, Colbert County Sheriff Ronnie May, and Colbert County Deputy Bill Mays?

¶ 10. The plain and unambiguous language of Miss.Code Ann. Section 13-3-63 establishes that Deputy Mays and Officer McClurg, are subject to personal jurisdiction in the circuit court. Section 13-3-63 provides:

[t]he acceptance by a nonresident of the rights and privileges conferred by the provision of this section, as evidenced by his operating, either in person or by agent or employee, a motor vehicle upon any ... highway of this state ... or the operation by a nonresident of a motor vehicle on any ... highway of this state ... other than under this section, shall be deemed equivalent to an appointment by such nonresident of the Secretary of State of the State of Mississippi to be his true and lawful attorney, upon whom may be served all lawful processes or summonses in any action or proceeding against him, growing out of any accident or collision in which said nonresident may be involved while operating a motor vehicle on such ... highway ... and said acceptance or operation shall be a signification of his agreement that any such process or summons against him which is so served shall be of the same legal force and validity as if served on him personally....
Any cause of action arising out of such accident or collision against any such nonresident, in case of the death of such nonresident, shall survive ... and service of all necessary and lawful process or summons, when had or obtained upon any such nonresident owner, nonresident operator or agent or employee ... in the manner as hereinbefore provided, for the service of all lawful processes or summonses, herein, shall be deemed sufficient service of process or summons to give any court of this state, in which such action may be filed in accordance with the statutes of the State of Mississippi, jurisdiction over the cause of action and over the nonresident owner, nonresident operator or agent or employee, or the nonresident executor, or administrator of such nonresident owner or nonresident operator, defendant or defendants, and shall warrant and authorize personal judgment against such nonresident owner, nonresident operator, agent, employee, executor or administrator or other legal representative of the estate of such nonresident owner or nonresident operator, defendant or defendants, in the event the plaintiff in such cause of action shall prevail.

Miss.Code Ann. Section 13-3-68 (emphasis added). See also Nationwide Mut. Ins. Co. v. Tillman, 249 Miss. 141, 162, 161 So.2d 604, 612 (1964) (the purpose of this act is “subjecting] to the jurisdiction of ... Mississippi courts nonresidents who are concerned or involved in [the] operation of automobiles within this state” and “affording] a nonresident defendant, who has sustained a wreck due to the operation of an automobile within this state, the opportunity to adequately defend himself in a suit arising therefrom.”). By operating vehicles in the State of Mississippi, Deputy Mays and Officer McClurg separately subjected themselves to the personal jurisdiction of Mississippi courts for actions arising out of accidents which occur in this state.

¶ 11. The facts plainly establish that neither Colbert County or Sheriff May entered upon the highways of Mississippi, involved themselves in efforts to stop the fleeing felons, or in any other way subjected themselves to jurisdiction under Miss.Code Ann. Section 13-3-63. Therefore, we proceed with a long-arm analysis to determine if jurisdiction can be conferred upon them under the Mississippi long-arm statute, see Miss.Code Ann. Section 13-3-57. Assuming arguendo that a tort in whole or in part was committed within the state by them, we must also find that minimum contacts exist. See International Shoe Co. v. Washington, 326 U.S. at 316, 66 S.Ct. 154. Not finding the latter, this Court concludes that Colbert County and Sheriff May are not subject to personal jurisdiction in Mississippi. See id.

CONCLUSION

¶ 12. This Court finds that City of Cherokee, Cherokee Police Chief Paul Norman, and Cherokee Police Officer Jerry McClurg waived their objections to personal jurisdiction; and Colbert County Deputy Bill Mays is subject to personal jurisdiction by virtue of Miss.Code Ann. Section 13-3-63. Colbert County and Colbert County Sheriff Ronnie May are not subject to the personal jurisdiction of the circuit court, as neither committed a tort in whole or in part within the State of Mississippi nor entered upon the highways of the State of Mississippi. Therefore, this Court (1) affirms the circuit court’s order to the extent that it denied the motion of City of Cherokee, Cherokee Police Chief Paul Norman, Cherokee Police Officer Jerry McClurg, and Colbert County Deputy Mays; (2) reverses the circuit court’s order to the extent that it denied the motion of Colbert County and Colbert County Sheriff Ronnie May; and (3) remands this case to the circuit court with directions that it (a) dismiss the plaintiffs’ complaint and this action with prejudice as to defendants Paul Norman, Jerry McClurg, Ronnie May, and Bill Mays, in their individual capacities; (b) dismiss the plaintiffs’ complaint and this action against Colbert County and Colbert County Sheriff Ronnie May for lack of personal jurisdiction over those two defendants; and (c) for further proceedings against the remaining defendants consistent with this opinion.

¶ 13. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J., NOT PARTICIPATING.

      . Two of the three fleeing felony suspects were subsequently tried and convicted of three counts of depraved heart murder each and sentenced to life imprisonment on March 27, 2003, in the Circuit Court of Alcorn County, Mississippi.

      . Motions to dismiss were previously filed by Colbert County and Colbert County Sheriff Ronnie May on September 29, 2003, and motions to strike jury trial were subsequently filed by defendants on January 31, 2005.

      .At oral argument, counsel for plaintiffs conceded that the cause of action does not extend to any defendant in their individual capacity. Accordingly, we will direct the circuit court to dismiss with prejudice defendants Paul Norman, Jerry McClurg, Ronnie May, and Bill Mays, in their individual capacities, see Conclusion infra, and this Court’s analysis will be limited to official capacity alone.

      . The record does not reflect any pre-answer motions filed by these particular defendants.

      . This is in contrast to the answers of Colbert County, Colbert County Sheriff May, and Colbert County Deputy Mays, all of which contained defenses claiming the circuit court lacked personal jurisdiction.

      . As the in personam jurisdiction issue is analyzed under Miss.Code Ann. Section 13-3-63, which provides the jurisdictional basis for the suits against the drivers, this Court declines to address comity. Miss.Code Ann. Section 13-3-63 negates the necessity of discussing and analyzing the Mississippi long-arm statute (Miss.Code Ann. Section 13-3-57) and the Due Process Clauses of the Fourteenth Amendment to the United States Constitution and the Mississippi Constitution. Comity also can be a consideration under the second prong of International Shoe Co. v. Washington due process analysis requiring that the exercise of personal jurisdiction "does not offend ‘traditional notions of fair play and substantial justice.’” 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Mittiken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). As this Court does not address due process, comity is likewise not addressed.


text:
    Brian Wesley CREEL v. STATE of Mississippi.
    No. 2004-CT-01723-SCT.
    Supreme Court of Mississippi.
    Dec. 7, 2006.

      Samuel L. Tucker, Sr., Attorney for Appellant.
    Office of the Attorney General By: Billy L. Gore, Tony Lawrence, III, District Attorney, Attorney for Appellee.
   ON WRIT OF CERTIORARI

WALLER, Presiding Justice, for the Court.

¶ 1. After the Circuit Court of Jackson County dismissed Brian Wesley Creel’s motion for post-conviction relief for lack of jurisdiction, a divided Court of Appeals reversed and remanded. See Creel v. State, 944 So.2d 896, 2005 WL 2851648, 2005 Miss.App. LEXIS 805 (Miss.Ct.App. Nov. 1, 2005). We granted the State of Mississippi’s petition for writ of certiorari. Finding that the circuit court has jurisdiction over Creel’s motion and that Miss. Code Ann. § 47-7-47(2)(a) (Rev.2004) does not apply to certain post-conviction proceedings, we reverse the circuit court’s order, vacate the Court of Appeals’ judgment, and remand to the circuit court for further proceedings consistent with this opinion.

FACTS

¶ 2. On September 2, 1999, Creel entered pleas of guilty to multiple counts of burglary of a dwelling and grand larceny. On September 7, 1999, he was sentenced to ten years for each count, with all sentences to run concurrently. In addition, the circuit court recommended that Creel participate in the Regimented Inmate Discipline (“RID”) program and retained jurisdiction of the case pending Creel’s completion of the program. Creel completed the RID program, and on March 23, 2000, the circuit court released Creel from the custody of the Mississippi Department of Corrections on his own recognizance pending a re-sentencing hearing. This hearing was originally scheduled for April 6, 2000. However, because Creel suffered recurring medical problems and hospitalization, the hearing was continued several times, and ultimately never occurred.

¶ 3. In April, 2004, Creel, still acting on his own recognizance, was detained pursuant to a traffic stop and again placed in the custody of the MDOC to serve the remainder of his original ten-year sentence. Creel stated that this instance was the first notice he had that the MDOC still considered him to be subject to its custody.

¶ 4. On June 11, 2004, Creel filed a motion requesting post-conviction relief in the Circuit Court of Jackson County, which denied Creel’s motion, finding that it did not have jurisdiction to re-sentence Creel due to the passage of more than one year following Creel’s placement into custody of the MDOC. Aggrieved by this decision, Creel appealed. We assigned the appeal to the Mississippi Court of Appeals, which reversed and remanded. We granted the State’s petition for writ of certiora-ri.

DISCUSSION

I. THE CIRCUIT COURT’S RULING.

A. Applicability of Miss.Code Ann. § 47-7-47(2)(a) (Rev.2004).

¶ 5. Section 47-7-47(2)(a) of the Mississippi Code provides in pertinent part:

(2)(a) Any circuit court or county court may, upon its own motion, acting upon the advice and consent of the commissioner [of the MDOC] not earlier than thirty (30) days nor later than one (1) year after the defendant has been delivered to the custody of the [MDOC], suspend the further execution of the sentence and place the defendant on earned probation....

Miss.Code Ann. § 47-7-47(2)(a) (Rev. 2004). The circuit court interpreted this provision to prohibit it from exercising jurisdiction over Creel for resentencing purposes because more than one year had elapsed since Creel’s placement in the MDOC’s custody in 1999. We first note that the statute does not pertain to resen-tencing — it pertains only to a suspension of the further execution of a sentence and to the placement of the convicted felon on earned probation. Therefore, the circuit court’s interpretation of § 47-7-47(2)(a) as pertaining to resentencing was erroneous.

B. Jurisdiction to Resentence.

¶ 6. Under most circumstances, circuit courts do not have jurisdiction to resentence convicted felons. “In the absence of some statute authorizing such modification, ... once the case has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment.” Harrigill v. State, 403 So.2d 867, 868-69 (Miss.1981), partially superceded by statute, Miss.Code Ann. § 99-39-8(1) (Rev.2000); see also Norwood v. State, 846 So.2d 1048, (Miss.Ct. App.2003) (concurring opinion). It is “clear that there is no inherent authority to alter or vacate a judgment, but rather legislation is required.” Dickerson v. State, 731 So.2d 1082, 1085 (Miss.1998), overruled in part, Presley v. State, 792 So.2d 950, 953 (Miss.2001). Therefore, “a judge may not alter or vacate a sentence once the term of court in which the defendant was sentenced has ended.” Id. (citing Miss. Comm’n on Judicial Perf. v. Russell, 691 So.2d 929, 943-44 (Miss.1997)).

¶ 7. However, the Legislature created an exception to this general rule when it enacted the Uniform Mississippi Post-Conviction Collateral Relief Act, Miss.Code Ann. §§ 99-39-1 to 27 (Supp.2005). Dickerson, 731 So.2d at 1084 (“The only statutory authority to resentence [a convicted felon] is the Post Conviction Relief Act. This act establishes the criteria which must be present before the court acquires jurisdiction to consider resentencing a criminal.”). Section 99-39-5(1) provides for nine different claims for relief under the Act:

(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(b) That the trial court was without jurisdiction to impose [the] sentence;
(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;
(d) That the sentence exceeds the maximum authorized by law;
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(f) That his plea was made involuntarily;
(g) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;
(h) That he is entitled to an out-of-time appeal; or
(i) That the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy[.]

Miss.Code Ann. § 99-39-5 (Supp.2005). We conclude that Creel’s petition raises claims under subsection (e) and/or subsection (g).

¶ 8. Because Creel’s petition was filed under the Mississippi Uniform Post-Conviction Collateral Relief Act, the circuit court erred in finding that it did not have jurisdiction and dismissing the petition. Dickerson, 731 So.2d at 1084; see also Miller v. State, 910 So.2d 56, 57 (Miss.Ct. App.2005). Therefore, we find that the trial court had jurisdiction over the petition.

¶ 9. In Curry v. State, 855 So.2d 452 (Miss.Ct.App.2003), the Court of Appeals remanded a similar case to circuit court for consideration of a suspension of sentence instead of sending the felon to a state penitentiary for service of the remaining sentence. There, Curry was sentenced to ten years each on two counts of fondling. The sentences were suspended, and Curry was placed on five years’ probation. Curry violated the terms of the probation, and he was brought before the circuit court for a hearing. The court then ordered Curry to participate in and successfully complete the RID program. Curry, however, was not accepted into the RID program because he was diagnosed with AIDS. The Court of Appeals stated:

There is no question that the circuit court could have ordered Curry to immediately begin serving the entire balance of his original sentence once the court determined that he had violated the terms of his probation. However, it is also a fact that the circuit court has some discretion in the matter of further punishment after adjudicating a violation and may, in the exercise of its sound discretion, sentence the violator to something less than the entire un-served portion of the original sentence. Granting a probation violator the opportunity to be confined for a relatively brief time under the RID Program with the opportunity to earn an early release by successful completion of the program requirements is, in our view, an appropriate exercise by the circuit court under [Miss.Code Ann. § 47-7-37], The opportunity to participate in the RID Program necessarily carries with it the possibility that the participant will not successfully complete the program and thereby forfeit his chance for an early release from confinement....
It seems apparent that the circuit court, in sentencing Curry after his probation violation, concluded that, despite his unsatisfactory behavior, he was nevertheless worthy of some additional consideration for an appropriate sentence that was something less than the entire balance of his original sentence.... [W]e conclude that to require Curry to serve the entire balance of his sentence ... does not necessarily reflect the evident intention of the trial court to devise an alternate sentence that was less severe than this available option.

Curry, 855 So.2d at 454 (emphasis added).

¶ 10. The Curry case and the case at bar are remarkably similar. It is clear that the circuit judge who ordered Creel to complete the RID program and then report back for possible alteration of the terms of the sentence intended that Creel should not be required to serve the remainder of his sentence as an inmate in a state penitentiary.

¶ 11. The Curry court found that this clear intent of the sentencing judge and subsequent events constituted “material facts, not previously presented and heard, that requires vacation of the sentence in the interest of justice” within the meaning of Miss.Code Ann. § 99 — 39—5(l)(e). Here, the circuit judge should consider whether § 99 — 39—5(l)(e) likewise applies to Creel.

¶ 12. The incomplete record does not allow us to determine if, under § 99-39-5(l)(g), Creel’s release was unlawfully revoked. We do note that, in Brown v. State, 864 So.2d 1058 (Miss.Ct.App.2004), the Court of Appeals held that a mere arrest was insufficient to support a revocation.

¶ 13. We remand this case to the circuit court for (1) an expansion of the record under Miss.Code Ann. § 99-39-17 (Rev. 2000); (2) if necessary, an evidentiary hearing under Miss.Code Ann. § 99-39-19 (Rev.2000); and (3) consideration of and a ruling on the merits of Creel’s petition.

II. THE COURT OF APPEALS’ DECISION.

¶ 14. After the circuit court found that Miss.Code Ann. § 47-7-47(2)(a) (Rev.2004) applied to Creel, the Court of Appeals, interpreting the same statute, reversed. Because we find that Creel’s sentence may be reconsidered to the extent authorized by the Mississippi Uniform Post-Conviction Relief Act, we find that § 47-7-47(2)(a) is not relevant to the issues at hand, and both the circuit court and the Court of Appeals erred when they applied this statute.

CONCLUSION

¶ 15. We vacate the judgment of the Court of Appeals, reverse the circuit court’s dismissal of the petition, and remand this case to the circuit court for further proceedings in accordance with this opinion.

¶ 16. THE JUDGMENT OF THE COURT OF APPEALS IS VACATED. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS REVERSED, AND THE CASE IS REMANDED TO THE JACKSON COUNTY CIRCUIT COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.

SMITH, C.J., COBB, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: ISHEE, J., LEE, P.J., IRVING, J.,

text:
    Brian Wesley CREEL, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CA-01723-COA.
    Court of Appeals of Mississippi.
    Nov. 1, 2005.
    Rehearing Denied May 9, 2006.
    Samuel L. Tucker, attorney for appellant.
    Office of the Attorney General by Billy Gore, attorney for appellee.
   ISHEE, J.,

for the Court.

¶ 1. Brian Wesley Creel (“Creel”) filed a motion for post-conviction relief on June 11, 2004, which Circuit Judge Robert P. Krebs denied. Aggrieved, Creel appeals. Finding error, we reverse and remand.

FACTS

¶ 2. On September 2, 1999, Creel entered pleas of guilty to multiple counts of burglary of a dwelling and grand larceny. On September 7, 1999, Jackson County Circuit Judge Kathy King Jackson sentenced Creel to ten years for each count, with all sentences to run concurrently. In addition, Judge Jackson recommended that Creel participate in the Regimented Inmate Discipline (“RID”) program, and retained jurisdiction of the case pending Creel’s completion of the program. Creel completed the RID program, and on March 23, 2000, Circuit Judge James Backstrom released Creel from MDOC custody on his own recognizance pending a re-sentencing hearing. Creel’s re-sentencing hearing was originally scheduled for April 6, 2000. However, because Creel suffered recurring medical problems and hospitalization, the hearing was continued several times, and ultimately never occurred.

¶ 3. In April 2004, Creel, still acting on his own recognizance, was detained pursuant to a traffic stop and again placed in the custody of the MDOC to serve the remainder of his original ten year sentence. Creel stated that this instance was the first notice he had that the MDOC still considered him to be subject to its custody.

¶ 4. On June 11, 2004, Creel filed a motion requesting post-conviction relief in the Circuit Court of Jackson County. Judge Robert Krebs denied Creel’s motion, stating that he did not have jurisdiction to re-sentence Creel due to the passage of more than one year following Creel’s placement into custody of the MDOC. Aggrieved by this decision, Creel appeals, asserting that the trial court was in error in holding that it did not have jurisdiction to re-sentence him.

STANDARD OF REVIEW

¶ 5. In order for this Court to overturn a lower court’s denial of post-conviction relief, we must find that the findings of the lower court were clearly erroneous. McClinton v. State, 799 So.2d 123, 126 (¶ 4) (Miss.Ct.App.2001).

ISSUES AND ANALYSIS

¶ 6. Mississippi Code Annotated § 47-7-47 (Rev.2004) states, in pertinent part:

(2)(a) Any circuit court or county court may, upon its own motion, acting upon the advice and consent of the commissioner not earlier than thirty (30) days nor later than one (1) year after the defendant has been delivered to the custody of the department to which he has been sentenced, suspend the further execution of the sentence and place the defendant on earned probation....

In denying Creel’s motion for post-conviction relief, the circuit court judge sub judi-ce reasoned that this portion of § 47-7-47 prevented him from exercising jurisdiction to re-sentence Creel. We disagree.

¶ 7. While there is scant law on the matter, the reasoning applied by the Mississippi Supreme Court in Jenkins v. State, 733 So.2d 833 (Miss.1999) seems fully applicable to Creel’s situation. The appellants in Jenkins had been released on appeal bond and did not serve more than one year in the MDOC’s custody, even though more than one year passed before the lower court finally sentenced the appellants. Id. at 835 (¶ 6). Creel was sentenced on September 7, 1999, and released by Judge Backstrom on March 23, 2000, pending re-sentencing. We find no significant difference in being released on appeal bond after being in the custody of the MDOC for less than one year and being released pending re-sentencing after completion of the RID program after approximately seven months.

¶ 8. The Jenkins court clearly held “that the appellants were released on appeal bond shortly after sentencing and have not served more than one year in the custody of the [MDOC],” thus holding that continuous, actual physical custody of the defendant is required. Id. Therefore, where the defendant is at liberty under bail, the time period is suspended for the purposes of this statute. It would then be counter intuitive to label Creel as being “in custody” when he was released upon his own recognizance and acting as an unincarcer-ated member of society. Persons “in custody” of the MDOC generally would not even have the opportunity to be detained subsequent to a traffic stop, as Creel obviously did.

¶ 9. Furthermore, whatever “custody” the MDOC had over Creel during his participation in the RID program was much more limited than that contemplated by § 47-7-47. Somewhat helpful is a 2004 opinion by the Mississippi Attorney General, which states in part:

It is our opinion that [Mississippi Code Annotated § 47-7-47] necessarily implies that the [MDOC] does have the authority to accept limited custody of persons for the sole purpose of participating in and completing a RID program as a condition of non-adjudication. Such person would not be an “inmate ” or “convict.”

Regimented Inmate Discipline Program, Op. Att’y Gen.2004-0275 (2004) (emphasis added). While opinions of the Mississippi Attorney General are not binding on this Court, and this opinion specifically deals with participation in the RID program as a condition of non-adjudication, this opinion nevertheless reflects the view that, due to Creel’s status of being released on his own recognizance upon completion of the RID program, he was not “in custody” so as to place him within the ambit of § 47-7-47. Creel’s time in the RID program constituted only limited “custody” and even that “custody” ended when he was released upon successful completion of the program. Judge Krebs, in asserting that he lacked jurisdiction to re-sentence Creel, opined that Creel became an inmate as of the moment of his sentencing on September 7, 1999, and had not ceased to be classified as such. Creel was neither an “inmate” nor “in custody” of the MDOC after being released pending re-sentencing. It seems illogical that Creel was in only limited custody for little more than seven months, which is well under § 47-7-47’s time frame, and yet would be barred from receiving the same relief as the similarly situated appellants in Jenkins. That type of reasoning would prohibit a trial judge from revoking a defendant’s probation after one year from the initial sentencing date.

¶ 10. Furthermore, the reason that Creel did not receive his re-sentencing hearing earlier was due to documented serious health problems for which numerous continuances were obtained delaying the date of such hearing. It would create an injustice to allow Creel’s health problems to prevent him from receiving the re-sentencing originally contemplated. For the above reasoning, we find that the trial court was clearly erroneous in finding that it did not have jurisdiction to re-sentence Creel. Accordingly, we reverse and remand for proceedings consistent with this opinion.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY DENYING POST-CONVICTION RELIEF IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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

LEE, P.J.,

Dissenting.

¶ 12. With respect to the majority, I dissent. I cannot find that the trial judge erred in denying Creel’s motion for post-conviction relief. In ruling that he had no jurisdiction to reconsider Creel’s sentence, the trial judge, relying upon Section 47-7-47, stated:

The plaintiff [Creel] was actually in the custody of the MDOC, and since the Court never had the opportunity to reconsider the original sentence (ten years) within the one (1) year limitation, that sentence remains currently in effect. While there is scant case law giving this Court guidance on this unique situation, there is ample case law regarding the illegality and consequences of a Court’s revisiting sentences where they have no jurisdiction to do so.

¶ 13. The majority finds Jenkins v. State, 733 So.2d 833 (Miss.1999), to be persuasive, finding that being released on appeal bond is similar to being released pending re-sentencing. However, I would agree with the trial judge’s determination that Jenkins was inapplicable to Creel’s situation as the appellants in Jenkins were not in custody of the MDOC and Creel was, in fact, in custody of the MDOC pending re-sentencing.

¶ 14. Furthermore, the majority states that failing to grant Creel relief as the supreme court did for the appellants in Jenkins would amount to prohibiting a trial judge from revoking a defendant’s probation after one year from the initial sentencing date. Clearly this is not the case as trial judges have the authority to revoke a defendant’s probation if the defendant has been shown to violate the terms of probation, regardless of whether one year has passed from the initial sentencing date.

¶ 15. As I do not find that the trial judge erred in denying Creel’s motion for post-conviction relief, I respectfully dissent.

BRIDGES, IRVING AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

IRVING, J.,

Dissenting.

¶ 16. I agree with the dissent authored by Judge Lee. However, I write briefly to comment upon what appears to me to be a fact assumed by the majority: that Creel had a right to be resentenced following his completion of the RID program. That is not the case. In the initial sentencing order, Creel was sentenced to ten years is the custody of the Mississippi Department of Corrections (MDOC). I quote the relevant portion of that order:

IT IS THEREFORE ORDERED that
the defendant is hereby sentenced as follows:
1. To serve a period of 10 years in the custody of the Mississippi Department of Corrections on each count all to run concurrently.
2. The Court recommends placement in the RID Program. This Court directs the Mississippi Department of Corrections to send a letter to this Court upon the defendant’s completion of the RID Program.
3. The Court retains jurisdiction for all purposes, including but not limited to: placing the Defendant on probation, consideration of non-adjudication, payment of court costs, fines restitution, Mississippi Crime Lab fees if applicable, and/or district attorney’s check unit fees if applicable.
4. Further, the Defendant is remanded to the custody of the sheriff.
ORDERED on September 7,1999.

¶ 17. Creel’s assertion that he did not know that he was still under the jurisdiction of the Mississippi Department of Corrections is untenable. His initial sentencing order was clear. Perhaps some uncertainty or confusion arose when he was erroneously released by the MDOC. However, the sentencing order required that the sentencing judge be notified upon Creel’s completion of the RID Program, not that Creel be released from either custody or the MDOC’s jurisdiction. That uncertainty or confusion may have been enhanced by Judge Back-strom’s action in releasing Creel on Creel’s recognizance, but neither of these events obliterates the fact that Creel was given a definite sentence of ten years in the custody of the MDOC.

¶ 18. Even though this situation is unfortunate, I cannot agree that the trial court erred in denying post-conviction relief when Creel never had a right to be resentenced. There was certainly good reason to believe that he would be resen-tenced, but that does not equate to a right. He had already received a definite sentence.


author: BARNES, J.,

text:
    Derrick Cordell HARRIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01325-COA.
    Court of Appeals of Mississippi.
    Aug. 8, 2006.
    Rehearing Denied Dec. 12, 2006.

      Derrick Cordell Harris (Pro Se), attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Originally indicted for capital murder, Derrick Cordell Harris pled guilty in the Circuit Court of Wayne County to a charge of simple murder and was sentenced to life in prison. Harris filed a motion for post-conviction relief which was denied by the circuit court, and from that denial he appeals. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. The grand jury indicted Harris for capital murder under Mississippi Code Annotated section 97 — 3—19(2)(e) (Supp.2005) finding that Harris killed Isaih Blanks, Sr. of the Buckatunna Community while in the act of robbing him. After a finding of indigent status, the circuit court ordered the appointment of Tommy Dickerson of Waynesboro and Leslie Roussell of Laurel as counsel. Harris’s defense counsel filed a series of motions, including a motion for a mental evaluation which was granted on April 11, 2003. The evaluation found that Harris was competent to stand trial and that he did not suffer from any degree of retardation.

¶ 3. On August 29, 2003, after plea bargaining, Harris filed a petition to enter a guilty plea to a charge of simple murder under Mississippi Code Annotated section 97 — 3—19(l)(a) (Rev.2005) with an agreed sentence of life imprisonment and court costs of $250. The circuit court then conducted the plea qualification hearing to determine if the entry of the guilty plea was a voluntary and intelligent act by Harris. The court found Harris’s plea to be freely, voluntarily and intelligently entered. Harris admitted killing Blanks with a shotgun which allegedly went off while he was struggling with Blanks. After Harris recounted this version of accidental shooting, the court questioned his attorneys as to whether they had explored the defense of accident. Defense counsel Roussell explained that Harris had given three versions of the shooting: a videotaped statement in which Harris first said that when he came out of Blanks’ bathroom, Blanks pointed a gun at him and that as they struggled over the gun, it went off killing Blanks; a second statement in which Harris changed his story stating that the shooting occurred in the living room instead of the bedroom as previously stated; and a third version in which Harris said that he had killed Blanks with a shotgun, not necessarily as an accident or in self-defense. Roussell also informed the judge that a witness would testify that Harris brought him the shotgun and told him to hide it. The district attorney advised the judge that if the case went to trial, the prosecution was prepared to show that when taken into custody, Harris had two rings, a pocket knife and another personal item which were identified by Blanks’ daughter as belonging to her father. Roussell told the court that after the district attorney offered the plea agreement of simple murder with a life sentence instead of capital murder with a possible death sentence, he discussed the deal with Harris, and they agreed that it would be the best option. The court asked Harris if that was how he understood the facts and the agreement, and Harris responded yes. After further questioning, the court accepted the guilty plea and sentenced Harris to life in the custody of the Mississippi Department of Corrections. On July 21, 2004, Harris pro se filed a post-conviction relief petition. Then on September 2, 2004, he filed a document styled, “Amended Petition,” which the trial court also treated as a petition for post-conviction relief.

¶ 4. Harris’s post-conviction petition alleged (1) ineffective assistance of counsel; (2)involuntary plea; (3) defective indictment; (4) excessive sentence; and (5) prosecutorial misconduct. In a twenty-five-page opinion, the circuit court denied Harris’s claims for post-conviction relief. From that denial, Harris appeals to this Court.

¶ 5. On appeal Harris raises four issues which we quote verbatim:

(1) Whether the court erred by not granting an evidentiary hearing on plaintiffs post-conviction motion upon the merits of his claim that his attorney advised him wrong regarding his sentence under the plea agreement?
(2) Whether the court erred in allowing plaintiff to plead to the plea bargain when the records “clearly” show plaintiffs confusion, and not advising him of the minimum/maximum sentence plaintiff would receive from the charge against him?
(3) Whether the court erred by not determining whether or not plaintiff received effective assistance of counsel?
(4) Whether the court erred in not determining whether or not plaintiffs indictment was defective?

STANDARD OF REVIEW

¶ 6. In reviewing a trial court’s decision to deny a petition for post-conviction, this Court will not reverse such a denial absent a finding that the trial court’s decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 566(¶ 8) (Miss.1999). However, where questions of law are raised, the standard of review is de novo. Rice v. State, 910 So.2d 1163, 1164-65(¶ 4) (Miss.Ct.App.2005). The trial court’s obligation is to review the original motion and all files, records, transcriptions and correspondence relating to the judgment under attack so that the allegations may be resolved upon the merits. Miss. Code Ann. § 99-39-11(1) (Rev.2000). The burden is upon Harris to prove by a preponderance of the evidence that he is entitled to the requested post-conviction relief. See Miss.Code Ann. § 99-39-23(7) (Rev. 2000).

(1) Evidentiary Hearing

¶ 7. Harris’s first argument is that the trial court erred when it failed to conduct an evidentiary hearing before dismissing his petition. The State counters that the judge’s actions were correct because the pleadings and the transcript of the plea hearing show that Harris was not entitled to relief.

¶ 8. A trial court is not required to conduct an evidentiary hearing when there is no genuine issue of material fact. Miss. Code Ann. § 99-39-19 (Rev.2002). A summary disposition of the motion is warranted when “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Id.

¶ 9. Below we will review the alleged errors which Harris claims should have entitled him to a hearing at which he claims he would have prevailed.

(2) The Plea Hearing

¶ 10. Harris argues that his guilty plea was not knowingly and intelligently entered because he was “confused” about the plea and that had he understood, he would not have agreed to plead guilty. He asserts that he was not informed of the maximum and minimum sentences for the crime to which he pled.

¶ 11. Our jurisprudence requires an unambiguous showing of volun-tariness when a plea of guilty is made by a defendant because the defendant who enters a guilty plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to a jury trial and his right to confront his accusers. Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In order for a defendant to make a due process waiver of these fundamental rights, the accused must possess a knowledge of the law in relation to the facts and voluntarily and intelligently enter a plea of guilty. Goss v. State, 730 So.2d 568, 573(¶ 20) (Miss.1998). A plea of guilt is voluntary and intelligently made only when a defendant has been advised “concerning the nature of the charge against him and the consequences of the plea.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992) (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991)). The burden of proving that the guilty plea was not voluntarily is on the defendant and must be proven by a preponderance of the evidence. Stevenson v. State, 798 So.2d 599, 602(¶ 7) (Miss.2001).

¶ 12. We find no confusion by Harris as to his understanding of his plea and sentence. First, the sworn petition to enter a plea of guilty shows that he knew he was charged with capital murder which carried a minimum sentence of life in prison and a maximum sentence of death. Further the petition states that he desired to plead guilty to the charge of murder (not capital) and that the possible sentence was life imprisonment. Harris signed the petition to enter a plea of guilty and acknowledged his signature to it at the plea hearing. While the record does show that at one point Harris told the court the killing was accidental, he later agreed to plea guilty. A recitation from the plea hearing is in order to show the lack of merit to Harris’s argument:

BY THE COURT: Okay. You are charged here with capital murder in this case. The possible punishments for capital murder are death by lethal injection down to a life imprisonment sentence, and a fine of zero up to $10,000. Do you understand that those are the minimum and maximum possible punishments?
HARRIS: Yes, sir.
COURT: All right. This guilty plea petition indicates to me that you are wanting to plead guilty to a charge of what is referred to as simple murder. There is only one sentence for that offense under Mississippi law, and that is life imprisonment. It carries a fine of zero up to $10,000 also. Do you understand that?
HARRIS: Yes, sir.
COURT: All right. This guilty plea petition that I’m looking at, Derrick, has been signed right here (indicating) Derrick Harris; do you see that?
HARRIS: Yes, sir.
COURT: Is that your signature? HARRIS: Yes, sir.

The court then explained in detail the rights Harris was giving up by pleading guilty and Harris said that he understood the rights he was giving up.

COURT: Do you, in fact, want to plead guilty to this charge of simple murder? HARRIS: Yes, sir.
COURT: Derrick, has anybody tried to force you into pleading guilty or make you do this when you really don’t want to plead guilty but you want to go to trial?
HARRIS: No, sir.
COURT: Is this what you want to do under all the circumstances?
HARRIS: This is what I got to do. COURT: Well—
HARRIS: It’s not a matter of what I want to do. You know what I’m saying? You know, ain’t no need to be prolonging it any longer. I’m ready to go on and get it all over with.
BY MR. ROUSSELL [attorney for Harris]: He is asking you if this is what you want to do under all the circumstances. In other words, have you weighed your options and do you feel this is in your best interest under the circumstances. HARRIS: Yes.

The court continued questioning Harris and gained concurrence from him that no one had promised him anything in order to

induce him to plead guilty other than the plea bargain.

COURT: Have you had a chance to talk with your lawyers about your case? HARRIS: Yes, sir.
COURT: Have they explained to you the elements of the crime of murder as well as any possible defenses that you might have to this charge?
HARRIS: Yes, sir.
COURT: Are you satisfied with the legal advice that Mr. Roussell and Mr. Dickerson have given you?
HARRIS: Yes, sir.

The court next explained to Harris that before his guilty plea could be accepted there must be factual basis for the plea.

COURT: Paragraph 16 [of Harris’s petition to enter a guilty plea] says that you killed Isaac Blanks, Sr., on December 30, 2001 by shooting him here in Wayne County, Mississippi, and doing that not in necessary self-defense. Is that true?
HARRIS: Yes, sir.
COURT: What kind of weapon or gun did you use to shoot him?
HARRIS: A shotgun.
COURT: A shotgun?
HARRIS: (Nodding head).
COURT: Did you do this deliberately and willfully?
HARRIS: No.
COURT: How do you say that? Because your petition says that you killed him. You didn’t intend to kill him? HARRIS: No.
COURT: How did it happen then, sir? HARRIS: It was a struggle and the gun went off. But, you know what I’m saying, I was the only person there.
COURT: Are you in any way claiming that this killing of him was an accident?
HARRIS: Yeah.

As previously discussed the court then asked Harris’s counsel if they had discussed any defenses Harris might have. Defense counsel Roussell responded that Harris gave three different versions of the shooting on a videotape which would come into evidence. Also the district attorney informed the judge that if the case went to trial, the prosecution was prepared to prove capital murder as Harris was in the act of robbery. Roussell told the court that he advised Harris that it was his opinion that there was no way the jury would believe the killing was an accident based upon the evidence and that he recommended the plea agreement since the possibility of a death sentence for Harris was removed. Roussell said that based on all of the discussions and in light of the plea bargain offered by the district attorney, Harris decided to agree to the plea offer.

COURT: Did you hear everything, Mr. Harris, your lawyer just said?
HARRIS: Yes, sir.
COURT: Is what he said true?
HARRIS: Yes, sir.

¶ 13. Before hearing statements from the victim’s family, the court asked Harris if he had any questions of the court or if there was anything that he did not understand, to which Harris replied in the negative.

¶ 14. From this record, we are convinced that Harris’s plea was knowingly and voluntarily entered. At the point where Harris appeared to indicate that he did not commit a murder but that the killing instead was accidental, the court stopped questioning Harris and directed questions to his attorney as to whether he had explored possible defenses with Harris. The attorney explained to the court that the evidence would show Harris gave inconsistent statements as to how the killing took place and that a witness would testify that Harris told him to hide the murder weapon. Also the district attorney advised that he would show that personal items from the victim were in Harris’s possession when he was arrested. Based upon this situation of the facts, defense counsel recommended to Harris that he accept the plea agreement. The trial court asked Harris repeatedly whether he understood what he was pleading guilty to and whether that was what he wanted to do, and Harris answered that he did. From this record, we affirm the trial court’s assessment that Harris voluntarily and knowingly entered his guilty plea.

(S) Ineffective assistance of counsel

¶ 15. Next Harris makes a terse argument that his counsel was ineffective. He claims that his counsel failed upon numerous requests to conduct any form of investigation of the case and failed to interview witnesses.

¶ 16. In asserting an ineffective assistance of counsel claim, Harris must satisfy the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He must show that his counsel’s performance was deficient and the deficient performance prejudiced his defense. Id. at 687. This test applies to guilty pleas based upon ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

¶ 17. Harris’s argument of ineffective assistance of counsel is not supported by the record. After appointment, Harris’s counsel began their defense with a vigorous volley of motions. They filed the following pre-trial motions: two separate motions for discovery, an ex parte motion for funds for expert assistance in the fields of psychiatry/psychology and mitigation investigation and for a fact investigator, a motion for a special venire, a motion for a continuance so that his counsel could further investigate his case, a motion to exclude admission of certain inflammatory and prejudicial matters concerning the victim, a motion to sequester jurors prior to and during the trial, a motion to exclude admission of highly gruesome and highly prejudicial color photographs of the deceased, a motion for discovery of information concerning the DNA testing performed in the case, a motion for permission to proceed ex parte on applications for funds, and a motion for a mental evaluation. Counsels’ supporting briefs on these motions make up some ninety-two pages of the record.

¶ 18. Further, Harris was asked by the court at his plea hearing whether he was satisfied with the assistance he received from his counsel, and he admitted under oath that he was. There is a strong presumption of validity of statements made under oath. Mowdy v. State, 638 So.2d 738, 743 (Miss.1994).

¶ 19. More importantly, in the process of Harris’s defense, his attorneys were able to secure a plea bargain which spared Harris the possibility of a sentence of death — no small victory. We find no merit to Harris’s claim of ineffective assistance of counsel.

(tí Defective Indictment

¶ 20. Harris’s final argument is that he should have been allowed an evi-dentiary hearing in order to challenge the indictment because it did not contain the underlying circumstances or facts to support the charge of capital murder and did not give an exact date of the murder.

¶ 21. Once again Harris’s argument is not supported by the record. The capital murder indictment against Harris returned by the grand jury in the June 2002 term of the Wayne County Circuit Court reads in pertinent part as follows:

The Grand Jury for the State of Mississippi, ... upon their oaths present that DERRICK CORDELL HARRIS in said County and State, on or about the 29th or SOth day of December, A.D., 2001, did wilfully, unlawfully, feloniously, and knowingly kill ISAIH BLANKS, SR., a human being, with or without a design to effect death by ISAIH BLANKS, SR., by shooting him, while the said DERRICK CORDELL HARRIS was engaged in the commission of the crime of robbery, in violation of Mississippi Code Annotated Section 97-3-191972, and contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Mississippi.

(Emphasis added).

¶ 22. Rule 7.06 of the Uniform Rules of Circuit and County Court states that the following shall be included in an indictment:

1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”

¶23. Rule 7.06(5) specifically states that the failure of an indictment to state the correct date when the offense was alleged to have been committed will not render the indictment insufficient. However, despite Harris’s protestations, such is not the case here as the indictment clearly set the date of the offense as December 29 or 30, 2001. In his sworn petition and in his statement under oath at the plea hearing, Harris said that he killed Blanks on December 30, 2001. We find no error.

¶ 24. Also we find no merit in Harris’s assertion that the indictment was defective because it failed to allege the material element of robbery to constitute the offense of capital murder. The indictment states that Harris shot Blanks while “engaged in the commission of the crime of robbery.” Thus, this position is clearly without merit.

¶25. In his reply brief, Harris also argues that the indictment must fail because it did not include the phrase “without authority of law” which is an essential element of capital murder. He cites Edwards v. State, 737 So.2d 275 (Miss.1999). Edwards, however, dealt with amendments of an indictment which was never at issue in this case. In Turner v. State, 796 So.2d 998, 1003(¶ 20) (Miss.2001), the court reviewed the sufficiency of an indictment in a depraved heart murder charge which included the word “unlawfully” in the place of “without the authority of law.” The court said that a common sense analysis must find that “unlawfully” is synonymous with the phrase “without the authority of law” Id. Harris’s indictment clearly contained the word “unlawfully.”

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

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

      . The record is in disagreement over the spelling of the first name of the decedent. The indictment identifies the murder victim as Isaih Blanks, Sr. At the plea hearing the victim is referred to as Isaac Blanks, Sr. During the victims impact statements, the victim's son identified himself as Isaiah Blanks, Jr. Harris does not assign the identification as error. After a thorough reading of the record, we are confident that there was no confusion by the defendant regarding the identity of the victim.

      . The agreed sentence also provided that the life sentence would run consecutively to "any other sentence" that Harris was to serve. At the time of the murder, Harris was on probation from a ten-year sentence for a burglary conviction. As part of the plea agreement, after a revocation hearing Harris would serve his ten-year sentence for the burglary then serve his life term, being given credit for time served.


author: LEE, P.J.,

text:
    David WARD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CP-01365-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.

      David Ward, pro se.
    Office of the Attorney General by Jacob Ray, Attorney for Appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On January 13, 2000, David Ward pled guilty in Rankin County Circuit Court to possession of more than two grams, but less than ten grams of cocaine; possession of more than thirty grams, but less than 250 grams of marijuana; and possession of a firearm by a convicted felon. He was sentenced to serve twenty-two years in the custody of the Mississippi Department of Corrections.

¶ 2. On June 28, 2002, Ward filed a motion for post-conviction relief, and the above-mentioned plea, conviction, and sentence were set aside and the case was set back on the docket for trial. At the new trial on July 16, 2002, Ward again pled guilty to the same charges and was sentenced to twenty years, seventeen years to serve and three years of post-release supervision.

¶ 3. On July 22, 2003, Ward filed a motion for post-conviction relief to set aside his January 13, 2000 conviction and sentence. The trial judge dismissed the motion as moot because the January 13, 2000 conviction had already been set aside.

¶ 4. Ward now appeals to this Court asserting the following: (1) the trial court erred in convicting him of three criminal offenses arising from the same incident in violation of the double jeopardy clause of the Fifth Amendment; (2) the trial court’s sentencing order was improper; (3) cumulative error; and (4) the trial court erred in not conducting an evidentiary hearing.

¶ 5. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. 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(¶3) (Miss.Ct. App.2002). However, when questions of law are raised the applicable standard is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

I. DID THE TRIAL COURT ERR IN CONVICTING WARD OF THREE CRIMINAL OFFENSES ARISING FROM THE SAME INCIDENT?

¶ 7. Ward’s only argument on this issue is that double jeopardy was violated because the State failed to prove separately the elements of possession of a controlled substance and conspiracy to possess a controlled substance. A reading of the charges in the indictment shows that Ward was not charged with conspiracy.

¶ 8. Taking into account that a pro se petitioner’s meritorious complaint will not be lost because inartfully drafted, Gilley v. State, 800 So.2d 1255, 1256(¶3) (Miss.Ct.App.2001), Ward’s argument that he was subjected to double jeopardy by being convicted of three criminal offenses arising out of a single incident is still without merit. Mississippi has long recognized that a criminal defendant may be convicted of more than one offense that arises out of a single event where each offense requires proof of a different element. Davis v. State, 750 So.2d 552, 563(44) (Miss.Ct.App.1999).

¶ 9. This issue is without merit.

II. WAS THE SENTENCING ORDER IMPROPER?

¶ 10. Ward argues that the sentencing order was illegal because the trial court did not enter separate judgments or verdicts in accordance with the following provision of the Mississippi Code: “When a defendant is convicted of two (2) or more offenses charged in separate counts of an indictment, the court shall impose separate sentences for each such conviction.” Miss. Code Ann. § 99-7-2(3) (Rev.2000). This issue is without merit since Ward was sentenced separately on each charge.

III. WAS THERE CUMULATIVE ERROR THAT DEPRIVED WARD OF A FAIR TRIAL?

¶ 11. Ward argues that he was unable to prove his innocence because the police and his attorney used unfair and illegal tactics to force him to incriminate himself. He also argues his attorney was grossly ineffective.

¶ 12. Ward does not reference any specific act of the police or his attorney that he considered unfair or illegal. As to the ineffective assistance of counsel claim, the claim is barred if not initially asserted to the trial court. Ford v. State, 708 So.2d 73, 74(¶ 7) n. 1 (Miss.1998). Absent the procedural bar, Ward presents no evidence to establish a prima facie showing of ineffective assistance of counsel. Id. at 75(8).

¶ 13. Ward raises no issue of error, and, therefore, cumulative error cannot be found. This issue is without merit.

IV. DID THE TRIAL COURT ERR BY FAILING TO CONDUCT AN EVI-DENTIARY HEARING?

¶ 14. “[A] post-conviction collateral relief petition which meets basic pleading requirements is sufficient to mandate an evidentiary hearing unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Turner v. State, 590 So.2d 871, 874 (Miss.1991) (emphasis added). Ward has not presented any facts which would entitle him to relief, and, therefore, the trial court did not err by not conducting an evidentiary hearing. This issue is without merit.

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

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