author: CARLSON, Justice,

text:
    PURSUE ENERGY CORPORATION v. MISSISSIPPI STATE TAX COMMISSION.
    No. 2006-CA-01390-SCT.
    Supreme Court of Mississippi.
    Sept. 20, 2007.
    Rehearing Denied Nov. 29, 2007.

      James T. Knight, C. Glen Bush, Ridge-land, attorneys for appellant.
    Office of the Attorney General by William F. Blair, Troy Farrell Odom, Geoffrey C. Morgan, Gary Wood Stringer, attorneys for appellee.
    Before DIAZ, P.J., CARLSON and RANDOLPH, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. The Rankin County Chancery Court, Chancellor Thomas L. Zebert presiding, granted summary judgment in favor of the Mississippi State Tax Commission (MSTC) and against Pursue Energy Corporation, holding that Pursue owed the State of Mississippi a use tax for gas it used and consumed in its operations. From this grant of summary judgment, Pursue appealed to this Court. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The facts were very ably set out by the chancellor in his Findings of Fact and Conclusions of Law:

Pursue operates a number of sour gas wells in the Thomasville Field, located in Rankin and Simpson Counties, Mississippi. The gas requires processing to remove hydrogen sulfide (“sour gas”) before it can be sold. Pursue owns the gas wells, the pipelines, and the plant at which the hydrogen sulfide is removed. Pursue processes the sour gas to remove the hydrogen sulfide. From the clean gas available at the tailgate of the plant (“Residue Gas”), most of the processes [sic] gas is sold; however, Pursue uses a portion of the processed gas for plant fuel (“Plant Fuel”) and as fuel to run its lease equipment at the well sites, (“Lease Fuel”).
Pursue first began operations in the Thomasville Field in the late 1970’s. Initially, Pursue purchased Plant Fuel and Lease Fuel from Shell Oil Company (“Shell”). Shell paid sales tax to the State of Mississippi on the gas Shell sold Pursue.
In 1995, Pursue purchased the Shell wells and plant (“Shell Plant”). Thereafter, Pursue began using its own processed gas for Plant Fuel and Lease Fuel. However, Pursue does not pay use tax to the State of Mississippi on the use of the processed gas, even though it is believed to be required to under state law.
Pursue removes certain volumes of processed gas at the tailgate of the Shell Plant for its plant and lease fuel operations. For income tax, plant processing charges, royalty owner payment purposes, and severance tax deductions, Pursue values this volume based upon the average price per MCF Pursue receives for the Residue Gas it sells to third parties at the plant tailgate. Pursue pays royalties on the Residue Gas used for Plant Fuel and Lease Fuel to its royalty owners and books it as income to the company. Pursue then deducts that same value as an expense to the plant, and charges its royalty owners the same amount as part of its processing fee. Pursue also deducts that value from its severance taxes as an expense to the owners to process the gas as if it were purchasing the gas from a third party.
In 2001, the Commission audited Pursue to determine use tax liability for the gas used by Pursue. The Court reviewed the March 15, 2001, Summary of tax [sic] Audit, attached to Memorandum Brief in support of Motion for Summary Judgment as Exhibit “A”. This audit covered the period of time from October 1, 1997, through September 30, 2000. Pursuant to the audit, the Commission determined that Pursue owed $354,674.00 in use taxes, penalties and interest.
On or about March 15, 2001, the Commission issued as (sic) assessment against Pursue for $312,988.00.[] Copy of Assessment was attached to Memorandum Brief in support of Motion for Summary Judgment and marked Exhibit “B”.
On March 23, 2001, Pursue appealed the assessment to the Commission’s Board of Review. On August 28, 2001, the Board of Review upheld the use tax assessment. The Order of the Board of Review was attached to Memorandum Brief in support of Summary Judgment marked as Exhibit “C”.
On September 5, 2001, Pursue appealed the Board of Review’s decision to the full Commission. On February 13, 2002, the Commission issued its Order, upholding the original assessment. See Order of the Commission, attached to Memorandum Brief in support of Motion for Summary Judgment marked as Exhibit “D”. The Commission held:
[withdrawal of such gas would give rise to sales proceeds under Miss. Code Ann. § 27 — 65—3(h)[] and would subject such activity to Mississippi Sales Tax under Miss.Code Ann. § 27-65-19. The subsequent use of said natural gas by the taxpayer gives rise to a use tax at the same tax rates as set out under Miss.Code Ann. § 27-65-19 for the sale of such natural gas since the withdrawal of such gas has not been included in the measure of a Mississippi Sales tax under Miss.Code Ann. § 27-65-19.
The Commission assessed $353,203.00 for taxes, penalties, and interest. Pursue subsequently paid the full amount of the assessment. However, rather than appeal the full Commission’s ruling to the Chancery court [sic] of Rankin County, Mississippi, Pursue filed for Chapter 11 bankruptcy protection on September 20, 2002. Because the assessment was fully adjudicated by the Commission, and the delinquent amount paid in full, the Bankruptcy Court was without jurisdiction to determine any further appeal by Pursue.[] Finally, on September 14, 2004, Pursue filed its appeal in this Court.[]

¶ 3. On February 23, 2006, the Commission filed a Motion for Summary Judgment, including a Memorandum in Support of Motion for Summary Judgment. The Memorandum included the partial deposition of Jeff Brasher (Brasher), Pursue’s Revenue Accounting Manager. On April 5, 2006, the Commission filed a Motion to Compel. Pursue then filed its own Motion for Summary Judgment on May 12, 2006.

¶ 4. On May 15, 2006, the chancellor conducted a hearing on the Commission’s Motion for Summary Judgment. On May 16, 2006, the Commission filed a Motion to Supplement the Record for its Motion for Summary Judgment. On June 14, 2006, the chancellor entered an Order Granting Motion to Supplement Record and allowed the Commission to supplement Brasher’s entire deposition rather than his partial deposition. Also, the chancellor entered his Findings of Fact and Conclusions of Law for Summary Judgment on June 14, 2006, concluding:

The Mississippi Use Tax Law to this Court is clear and unambiguous. All personal property used or consumed within the state is taxable if sales tax has not already been collected. Natural gas is such a personal property. There is no requirement for a “sale” within the traditional definition of an exchange of " property for monetary consideration.
It is the opinion of this Court and the Court finds that the Mississippi State Tax Commission’s Motion for Summary Judgment is granted and the decisions of the Board of Review and the full State Tax Commission is upheld.
This Court is further of the opinion that statutory interest rate of 1% as provided by the (sic) Mississippi Code Ann. § 27-65-39[] is granted.

¶ 5. The chancellor entered final judgment on July 27, 2006, denying Pursue’s request for a refund of use taxes paid, stating:

The parties, including the appellant, Pursue Energy Corporation, provided to this Court a Pretrial Order in Bankruptcy Court styled In re: Pursue Energy, Bankruptcy No. 02-05339-JEE-ll, wherein the Bankruptcy Court referred the use tax issues to this Court for consideration. Furthermore, that Pretrial Order specifically recited that any decision of this Court could be used by the Bankruptcy Court for determination of any use taxes that were applicable after September 30, 2000. This Final Judgment hereby determines that the State Tax Commission’s use tax assessments are valid and that use taxes are due and collectible on any gas used by Pursue Energy for fuel for its plant and for lease operations. Any calculations of the actual use taxes, penalties, and interest owed from and after October 1, 2000, until the date of the Confirmation Order, shall be presented to the Bankruptcy Court for its determination. This Court likewise rules that the State Tax Commission’s assessment of interest and penalties was proper.

¶ 6. Pursue then timely appealed to this Court. On August 30, 2006, this Court entered an order at the request of the Commission granting expedited status to the case sub judice.

DISCUSSION

¶ 7. “We employ a de novo standard of review of a trial court’s grant or denial of summary judgment and, examine all the evidentiary matters before it, [such as] admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” Gregory v. Cent. Sec. Life Ins. Co., 953 So.2d 233, 238 (Miss.2007) (quoting Hurdle v. Holloway, 848 So.2d 183, 185 (Miss.2003)). “Furthermore, ‘[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party.’ ” Id. (quoting Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 663 (Miss.2002)).

¶ 8. There are three issues for this Court to decide: (1) whether the chancellor erred in holding that Pursue’s use of its own gas for its operations is subject to the use tax; (2) whether the chancellor used the correct standard of review; and (3) whether the chancellor erred in determining that there were no outstanding issues of material fact.

I. WHETHER THE CHANCELLOR ERRED IN HOLDING THAT PURSUE’S USE OF ITS OWN GAS FOR ITS OPERATIONS IS SUBJECT TO THE USE TAX.

¶ 9. The chancellor held in his Findings of Fact and Conclusions of Law that the Commission’s decision was supported by substantial evidence, stating:

Pursue does not dispute that it used the Residue Gas for Plant Fuel and Lease Fuel as part of its operations in the Thomasville Field. Further, Pursue does not dispute that Shell formerly paid sales tax on this same fuel when Pursue purchased the fuel from Shell. Pursue’s sole argument is that the Plant Fuel and Lease Fuel was neither sold, nor placed in the market for sale and, therefore, there is no transaction upon which to impose the use tax. Pursue’s argument disregards the plain language of the use tax statute, the elementary premise of use tax, and ignores its own treatment of the fuel in its accounting process.
Mississippi Code Annotated § 27-67-1 et seq. is known as the Mississippi Use Tax Law. Section 27-67-5 provides:
There is hereby levied, assessed and shall be collected from every person a tax for the privilege of using, storing or consuming, within this state, any tangible personal property possession of which is acquired in any manner.
The use tax is assessed and collected at the same rates as imposed under § 27-65-19, and computed on the value of the property. Id. § 27-67-5(a). A sales tax is a tax on a purchase, whereas “the use tax of the State of Mississippi is ... a tax upon the ‘using, storing, or consuming’ of tangible personal property within the State.” Mavar Shrimp & Oyster Co. v. Stone, 221 Miss. 519, 73 So.2d 109, 111 (1954).
The use tax rate is set by Miss.Code Ann. § 27-65-19. The rate is 7% sales tax on the value of the natural gas, liquified petroleum gas or other fuel sold for non-industrial purposes, i.e., Lease Fuel, Id. § 27 — 65—19(l)(a), and 1.5% of the value of the natural gas, liquified petroleum gas or other fuel sold for industrial purposes, i.e., Plant Fuel.
Essentially, it appears that Mississippi’s use tax is simply a statutory tax on the use of personal property in situations where there is no purchase from a third party that would generate a sales tax. That “use”, for all practical purposes, is taxed just like the “sale” it replaces. The only necessary requirement is a use or consumption of personal property in this State computed at the value of the object.
Leading authorities on the subject of state taxation describe use taxes as follows:
When a manufacturer uses property it produces in its own business, a number of states treat the use as taxable, as if the manufacturer had purchased the property for its own use. Failure to treat such uses as taxable provides an economic advantage to those who produce their own property over those who must purchase such property from third parties.
Jerome R. Hellerstein & Walter Heller-stein, State and Local Taxation 16.07 (3d ed. 2005).

¶ 10. At the January 23, 2002, hearing, the full State Tax Commission found:

1. The use tax assessment arose following Pursue’s use of refined, processed gas for its plant and lease operations.
2. Prior to the audit, Pursue purchased the fuel from third parties and paid sales tax on those purchases.
3. Pursue’s withdrawal of the gas gives rise to Mississippi sales tax under Miss.Code Ann. § 27-65-3.
4. Pursue’s use of the processed gas for fuel gives rise to use tax at the same rates as contained in Mississippi sales tax law only to the extent sales tax was not paid on the plant and lease fuel.
Pursuant to Mississippi law, that portion of the processed gas used to fuel plant operations is subject to use tax at a rate of 1.5%. Miss.Code Ann. § 27-65-19(l)(b). That portion of the processed gas used to fuel lease operations is subject to use tax a[sic] rate of 7%. Id. § 27 — 65—19(l)(a). This is the precise manner in which the State Tax Commission assessed Pursue. This decision was upheld by the Commission’s Board of Review and by a full hearing of the entire Commission.
No question exists that natural gas used as fuel is personal property subject to the use tax. In 1992, the Mississippi Supreme. Court held that an interstate pipeline company was liable for Mississippi use tax on that portion of natural gas it removed from its pipeline stream to fuel its compressors located at equidistant intervals on the pipeline. Tennessee Gas Pipeline Co. v. Marx, 594 So.2d 615 (Miss.1992). The State Tax Commission assessed use tax on only that portion of natural gas used within Mississippi. The Mississippi Supreme Court upheld this assessment as a fundamental function of the Mississippi Use Tax Law.
Tennessee Gas Pipeline demonstrates the uncomplicated role of use taxes within Mississippi’s taxing program. Identical to this case, there was no third party “sale” (i.e., exchange of natural gas for monetary consideration) of the natural gas used by Tennessee Gas Pipeline Company (“Tennessee Gas”). If there had been a sale, Tennessee Gas would be liable for sales tax on the value of fuel used for the compressors. Instead of a sale, Tennessee Gas used the natural gas, thereby realizing a valuable benefit. Mississippi Code Section 27-67-5 clearly subjects that consumption to use tax (“which is acquired in any manner”).
As a taxing authority, Mississippi taxes the value of the goods consumed.
As an accounting procedure, Pursue classifies the removal of the Plant and Lease Fuel as a sale to itself, valuing the fuel as the average selling price of processed gas sold. Pursue subsequently pays the royalty owners their portion of the “proceeds” from the fuel sold. Pursue turns around and takes a deduction of the same amount as part of its processing fee. Pursue then charges the royalty owners their portion of the processing charge. In the end, treatment of the fuel use is a financial wash as far as Pursue is concerned. However, at no point dues [sic] Purdue pay to the State of Mississippi use tax on the portion of fuel used.
Pursue’s own testimony tells the whole story. Jeff Brasher, Pursue’s Revenue Accounting Manager, testified that Pursue treated the use of the Plant Fuel and Lease Fuel on its own books as a purchase.
Q. So it is a sale to yourself; isn’t it?
A. It’s a sale to our — it’s a part, yes, to ourselves and every other royalty owner, that’s correct.
Mr. Brasher also testified to the relative ease in valuing the fuel gas and how it was treated for royalty owner purposes:
Q. So it (fuel gas) is deducted from the clean gas in a volume basis?
A. Yes.
Q. But if you multiplied it times the price it would also have a value; wouldn’t it?
A. Yes.
Q. And you do — Pursue does multiply that times a value; doesn’t it?
A. Yes, we do.
Q. I mean it’s recorded on your income tax statement as an income and as an expense; isn’t it? Doesn’t it go on both columns? I’ll show you that in a minute.
A. Okay.
Q. But you also value it for royalty purposes; don’t you.
A. Yes, we do.
Q. Are you using the same value for MCF as you’re selling it?
A. Selling what?
Q. The residue gas.
A. Oh, yes.
Q. So what you do is take your average sale price and you would — you would multiply the volume times that and pay the royalty on that basis, right?
A. Yes.
The Commission treated the fuel gas in the same manner as Pursue. It valued the gas on the same basis that the remaining Residue Gas was sold. That fuel consumed by Pursue is taxable under the Mississippi Use Tax Law.

¶ 11. Pursue first argues that there was never a sale; additionally, Pursue argues that it is a wholesaler pursuant to Miss.Code Ann. § 27-65-107(d) (Rev. 2005), which states that sales taxes shall not be levied on “[w]holesale sales of tangible personal property for resale under Section 27-65-19.” Thus, Pursue argues that it is exempt from paying use tax on the gas pursuant to Miss.Code Ann. § 27-67-7(b), which states that use taxes shall not be collected on “[o]n the use, storage or consumption of tangible personal property to the extent that sales of similar property in Mississippi are either excluded or specifically exempt from sales tax or are taxed at the wholesale rate.”

¶ 12. Pursue correctly states that it is a wholesaler, as Pursue sells most of its gas to other companies for resale. However, the gas used at the plant was never sold at wholesale for resale by another company. Instead, Pursue treated the transaction as a sale to itself and used the gas to fuel its own operations. Thus, Pursue cannot avail itself of the wholesaler exemption.

¶ 13. Pursue also argues that the use tax only applies to out-of-state purchases brought into Mississippi for use and directs us to a federal district court decision:

The sales tax is levied against the seller of tangible personal property whereas the use tax is levied against the purchaser or user of such tangible personal property.
Accordingly, the Mississippi Sales Tax can be classified as a tax upon the gross receipts of goods which are sold within the State of Mississippi. On the other hand, the Mississippi Use Tax can be classified as a tax imposed upon the purchaser of goods which are bought outside of the State of Mississippi but are brought into the State of Mississippi by the purchaser thereof to be used, stored or consumed within the State of Mississippi. It should be noted that the rates of both the sales and use taxes imposed by the State of Mississippi are identical. Consequently, it is clear that the intention is for the sales taxes and the use taxes to be complementary and that all tangible personal property, whether bought in the State of Mississippi or purchased outside of the State of Mississippi and brought into the state for use, storage or consumption, is to be subject to the same rate of tax.

United States v. Mississippi 578 F.Supp. 348, 350-351 (D.Miss.1984).

¶ 14. Accordingly, Pursue also argues that Tennessee Gas, on which the chancellor relied extensively, is not controlling in

the ease sub judice. In Tennessee Gas, the issue was whether use taxes were owed “upon the pipeline company’s use of natural gas taken from its interstate gas pipeline as fuel for compressor engines located along the pipeline.” Tennessee Gas, 594 So.2d at 616 (emphasis added). The pipeline company argued that the imposition of Mississippi’s use tax was impermissible under the commerce and due process clauses of the United States Constitution. Id.

¶ 15. Pursue argues that in Tennessee Gas, this Court addressed only the interstate commerce issue. We disagree, as this Court also stated that “[b]oth interstate and intrastate taxpayers, if positioned as this pipeline company is, are required to pay a use tax on fuel consumed in Mississippi.” Id. at 618. Thus, we find Tennessee Gas to be directly on point, as the companies are similarly situated in that both use their own fuel to power their plants. It is irrelevant whether Pursue’s gas came from within Mississippi’s borders or was brought into the state. We also find that United States v. Mississippi is inapplicable, as this Court is not bound by the federal district court’s language, and Tennessee Gas was decided by this Court some eight years after the federal district court’s decision in United States v. Mississippi. Accordingly, we find that the chancellor did not err in finding that Pursue owed the State of Mississippi a use tax; therefore, this issue is without merit.

II. WHETHER THE CHANCELLOR USED THE CORRECT STANDARD OF REVIEW.

¶ 16. The chancellor stated in his Findings of Fact and Conclusions of Law:

The state courts of Mississippi provide “great weight and deference” to the decisions of the State Tax Commission. 3300 Corp. v. Marx, 633 So.2d 1028, 1031 (Miss.1994); State Tax Comm’n v. Edmondson, 196 So.2d 873, 877 (Miss.1967); L.H. Conrad Furniture Co. v. Miss. State Tax Comm’n, 133 So.2d[So.] 652, 655 (Miss.1931). “There is a rebut-table presumption in favor of the agency decision and the burden of proof is on the party challenging that decision.” Montavalo v. Miss. Bd. of Medical Licensure, 671 So.2d 53, 55 (Miss.1996) (quoting Bd. of Ed. of Alcorn County v. Parents & Custodians of Students at Rienzi Sch. Attendance Ctr., [251 Miss. 195,] 168 So.2d 814, 818 (Miss.1964)). The taxpayer bears the burden of proving it is entitled to relief. Miss.Code Ann. § 27-67-27.

¶ 17. Pursue argues that the chancellor should have applied a de novo standard of review, rather than giving great weight and deference to the Commission, pursuant to statute:

At trial of any action brought under this section, the chancery court shall give deference to the decision and interpretation of law and regulations by the commission as it does with the decisions and interpretation of any administrative agency, but it shall try the case de novo and conduct a full evidentiary judicial hearing on the issues raised. Based on the evidence presented at the hearing, the chancery court shall determine whether the taxpayer has proven, by a preponderance of the evidence or a higher standard if required by the issues raised, that he is entitled to any or all of the relief he has requested.

Miss.Code Ann. § 27-77-7(4) (Rev. 2006). Pursue states in its brief that “[w]hile not specifically applicable to the present case ...'. this codification did not mark a change in the law but simply formally expressed it in the Mississippi Code.” While Pursue argues to this Court that it did not receive an evidentiary hearing, Pursue misses the fact that it filed its own motion for summary judgment. In fact, the chancellor, at the conclusion of the hearing on the Commission’s motion for summary judgment, invited Pursue to schedule its own hearing.

MR. KNIGHT: Your honor, we did file a motion for summary judgment for Pursue, and we would like that to be considered by the Court. But the rule, of course, requires ten days’ notice, which we haven’t met at this point. Would the Court like to schedule another hearing for us to present that motion?
THE COURT: That would be totally up to you. If you want to do it, just get with my administrator and set it up for a hearing. You’re certainly entitled to a hearing.

Thus, Pursue could have had a hearing on its motion for summary judgment; however, Pursue apparently chose not to have its motion for summary judgment set for a hearing, as there is no documentation in the record concerning it. We will not hold the chancellor in error based on the record before us.

¶ 18. Accordingly, this issue is without merit.

III. WHETHER THE CHANCELLOR ERRED IN DETERMINING THAT THERE WERE NO OUTSTANDING ISSUES OF MATERIAL FACT.

¶ 19. Pursue argues that the chancellor erred in granting summary judgment in favor of the Commission and further argues that there were outstanding issues of material fact. Pursue is es-topped from arguing this issue, as it filed its own motion for summary judgment. “Because of judicial estoppel, a party cannot assume a position at one stage of a proceeding and then take a contrary stand later in the same litigation.” Dockins v. Allred, 849 So.2d 151, 155 (Miss.2003) (citing Banes v. Thompson, 352 So.2d 812, 815 (Miss.1977)). In its motion for summary judgment, Pursue asserted, inter alia, that “[tjhere is no issue of disputed fact which would prevent this Court from awarding summary judgment to Pursue under Rule 56, MRCP.” Thus, in today’s case, Pursue cannot, on the one hand, file its own motion for summary judgment asserting that there was no genuine issue as to any material fact and that it was thus entitled to a judgment as a matter of law, while on the other hand, arguing on appeal that the chancellor erred in granting the Commission’s motion for summary judgment, since there did exist genuine issues of material facts, causing summary judgment to be improper.

¶20. We thus find this issue to be ■without merit.

CONCLUSION

¶ 21. Pursue’s use of its own gas for its operations is subject to the use tax in the State of Mississippi. Accordingly, we affirm the Rankin County Chancery Court’s final judgment entered consistent with its grant of summary judgment in favor of the Mississippi State Tax Commission, and against the Pursue Energy Corporation, holding that Pursue owed the State of Mississippi use taxes for gas it used and consumed in its operations.

¶ 22. AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ„ CONCUR.

      . From the audit determination that Pursue owed $354,674.00, Pursue paid $41,686.00, which reduced the assessment to $312,988.00.

      . Miss.Code Ann. § 27-65-3(h) states in pertinent part:
      "Gross proceeds of sales” shall include the value of any goods, wares, merchandise or property purchased at wholesale or manufactured, and any mineral or natural resources produced which are excluded from the tax levied by Section 27-65-15, which are withdrawn or used from an established business or from the stock in trade for consumption or any other use in the business or by the owner.

      . The Bankruptcy Court has since determined that Pursue failed to pay other taxes it owed on its operations by Opinion dated February 3, 2006.

      . On September 14, 2004, Pursue filed its complaint in the Rankin County Chancery Court, which served as an appeal from the decision of the Commission, asking for a refund of the use taxes it paid pursuant to Miss.Code Ann. § 27-67-27, which was repealed by Laws, 2005, ch. 499, § 36 effective from and after July 1, 2005.

      . Because notice of ten days is required for a Motion for Summary Judgment, the Chancellor heard only the Commission's Motion for Summary Judgment because Pursue's Motion for Summary Judgment was filed three days before the hearing.

      .Miss.Code Ann. § 27-65-39 states in pertinent part:
      If any part of the deficient or delinquent tax is due to intentional disregard of the provisions of this chapter or authorized rules and regulations promulgated under the provisions of this chapter, or to fraud with intent to evade the law and in such case the whole amount of tax unpaid, including the charges so added, shall become due and payable upon notice and demand by the commissioner, and interest of one percent per month of the tax shall be added from the date such tax was due until paid.

      . Even though this Court expedited this appeal, there were several delays, as revealed by the Clerk’s Docket. The trial court record was not filed until November, 17, 2006, and on the same day, the Clerk of this Court issued a briefing schedule notice. Pursue’s counsel requested and received from the Clerk, on December 18, 2006, and January 22, 2007, additional time to file the appellant’s brief. On February 14, 2007, Pursue's counsel received additional time to file its brief by way of a single-justice order. Once Pursue filed its brief on February 26, 2007, the MSTC filed its brief fourteen days later on March 12, 2007. Pursue’s counsel thereafter filed a motion for additional time to file its reply brief, and was given additional time by a single-justice order entered on March 29, 2007. On the extended due date, April 25, 2007, Pursue filed its reply brief. The MSTC filed a motion for permission to file a surreply brief, which was denied by a single-justice order entered on May 22, 2007.

      . Laws, 2005, ch. 499, § 4, eff. from and after July 1, 2005.

      . This is Pursue’s attorney.

      .' This is merely a different way of stating that there existed genuine issues of material fact.


source: Caselaw Access Project

author: DICKINSON, Justice,

license: Public Domain

text:
    William GOLDEN, Jr. a/k/a William Howard Golden, Jr. v. STATE of Mississippi.
    No. 2006-KA-00767-SCT.
    Supreme Court of Mississippi.
    Sept. 20, 2007.
    Rehearing Denied Nov. 29, 2007.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorneys for appellee.
    Before SMITH, C.J., DICKINSON and LAMAR, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. A defendant who raped two women at different places within a span of three hours was indicted, tried, and convicted of two counts of rape. The issues presented are: (1) the trial court’s refusal to grant the defendant’s request for separate trials for the two rapes; (2) the delay in swearing the jury until after evidence had been introduced; (3) sentencing by the trial court, rather than the jury; and (4) failure of the trial court to sua sponte order a mistrial for ineffective assistance of counsel. Finding no error, we affirm.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. In the early morning hours December 31, 2004, Golden appeared unannounced at Jane Doe’s (“Doe”) apartment at 2:00 a.m., and knocked on her door. Startled, Doe awoke and went to the door to see who was there. After confirming that the unannounced visitor was her third cousin, Golden, Doe admitted him into her apartment. Golden told Doe that his parents would not let him into their home, and that he just needed a place to sit down until he could walk across town to his girlfriend’s house.

¶ 3. Doe did not feel comfortable with Golden in her house so late at night, so she offered to give him a ride. Golden asked for a drink of water and then assured Doe that he was getting ready to leave. He then received a call on his cell phone, which he did not answer. Next, he jumped on top of Doe, who was sitting on her couch, and put a gun to her head and forced her to undress. With her six-month-old child in the room, he raped her.

¶ 4. Afterward, Golden ordered Doe to go to the bathroom and clean herself up. When Golden left, Doe first called her mother, then Golden’s parents, and then, the police. Doe was taken to the hospital where a rape kit was performed. Semen obtained from the rape kit matched Golden’s DNA.

¶ 5. Approximately three hours after Golden raped Doe, Sally Roe (“Roe”) was awakened by a knock at her door. She peered out of her kitchen window to see who was at her door so early in the morning, when she heard Golden’s voice. Roe, a forty-nine-year-old friend of Golden’s family, rushed to open the door because she knew Golden. When Roe opened the door, she began to fuss at Golden, whom she had known since he was thirteen, because he was out so late at night. Golden told Roe that his parents would not let him into their house and he just wanted to lie down for a minute. Roe threw a blanket and pillow on her couch and told Golden he could lie down. Roe decided not to go back to. sleep because she was afraid she would oversleep for work, so she returned to her bedroom and began to watch television. Golden asked Roe for some water, so she told him he could get some. Several minutes later, Golden rushed into Roe’s room and jumped on top of her. He held a gun to her head and began to rip off her clothes. Golden then raped Roe. After-wards, Golden asked Roe for some money, which she gave him, and then he left.

¶ 6. Roe, feeling ashamed and dirty, went into the bathroom and washed herself and her house with peroxide. She was afraid that Golden would attack others in her family, so she called her mother. Too embarrassed to tell her mother that she had been raped, Roe told her mother that Golden had robbed her, and instructed her mother that if Golden showed up at her house, not to let him in. Roe then went to the bathroom and washed herself' again. She then called her sister and told her that Golden had raped her.

¶ 7. When she arrived at work that morning, Roe called Golden’s father, who was her preacher, and asked him if he would come to her house that afternoon and talk to her. Golden’s father went to Roe’s home that afternoon, and shortly after he left, Golden called Roe to apologize for the rape. Roe initially did not report the rape to the police because she felt ashamed. Later that day, however, when she learned that Doe had been raped, she decided to call the police.

¶ 8. Golden was indicted and tried in the Circuit Court of Clay County, Mississippi, for two counts of forcible rape. A jury convicted him, and he was sentenced to serve forty years for each count, to run consecutively. Golden appeals his conviction.

DISCUSSION

I. Motion to Sever

¶ 9. Golden first argues that the trial court erred in overruling his motion to sever the two counts of rape. Specifically, Golden argues that trying the two counts together was highly prejudicial because his conviction of the first rape was supported by DNA evidence while the second one was not. The State argues, however, that the trial court properly overruled Golden’s motion to sever after making a detailed finding, pursuant to Corley v. State, 584 So.2d 769 (Miss.1991). The State points out that the two counts were properly tried together because they were committed within hours of each other. Additionally, Golden knew both of the victims and used the same modus operandi to gain entry into each victim’s home.

¶ 10. Mississippi Code Annotated Section 99-7-2 (Rev. 2007), which sets forth the requirements for trying two offenses together, states:

(1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.
(2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding.

Miss.Code Ann. § 99-7-2 (Rev. 2007).

¶ 11. In addition to the provisions of the statute (which is not today challenged), it is this Court’s obligation to test judicial procedures within the parameters of the Constitution and this Court’s rules. We thus turn to this Court’s decision in Corley, which is applicable to the case at hand. In reviewing the trial court’s ruling on a motion to sever, “this Court will give deference to the trial court’s findings on review, employing the abuse of discretion standard,” when the proper procedures are followed in accordance with Corley. Corley, 584 So.2d at 772.

¶ 12. This Court noted that “[h]is-torically, [we] prohibited multi-count indictments until 1986 when the Legislature adopted a multi-count indictment statute .... ” Corley, 584 So.2d at 772. The Court expressed its unwillingness to “allow separate and distinct offenses to be tried in the same criminal proceeding,” noting the possible danger that a defendant might be convicted of an unproven count due to proof of guilt as to the other. Id. This Court further stated that “[w]hen the defendant raises the issue of severance, we recommend that a trial court hold a hearing on the issue.” Id. This is known as a Corley hearing. This Court gave guidance regarding the burdens of proof at a Corley hearing, stating,

The State ... has the burden of making a prima facie case showing that the offenses charged fall within the language of the statute allowing multi-count indictments. If the State meets its burden, a defendant may rebut by showing that the offenses were separate and distinct acts or transactions. In making its determination, the trial court should pay particular attention to whether the time period between the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts, and whether the crimes are interwoven.

Id.

¶ 13. The record in this case shows that the trial judge conducted a Corley hearing on April 7, 2006. From the transcript of that hearing, it is clear that, when making his determination as to whether the motion to sever should be overruled, -the trial judge meticulously followed the guidelines set forth in Corley. The trial judge stated:

The first factor I have to consider is whether the time period between the occurrences is insignificant, whether the evidence [in] proving each count would be admissible to prove each of the other counts, and whether the crimes are interwoven. Those are the three factors that I must consider under Corley and then Rushing and under the Statute.

¶ 14. The trial judge analyzed each Cor-ley factor, finding that the time period between the two crimes was only four hours, noting that the. only additional witness as to Count 1 would be the DNA geneticist and pointing out the many similarities between .both rapes. Ultimately, the trial court found that the two counts did not merit severance and held that they would be tried together.

¶ 15. We cannot say that the trial judge abused his discretion in allowing the two counts to be tried together. By way of analogy, we look to Rushing v. State, where this Court thoroughly considered each of the Corley factors when reviewing whether a trial court properly overruled Rushing’s motion to sever. Rushing, 911 So.2d 526, 534 (Miss.2005). Rushing was indicted on four counts of prescription forgery for obtaining controlled substances through fraud at various pharmacies over a five-month period. On appeal, we found as to the first Corley factor, that the five month time period over which Rushing committed prescription forgery was “not such a significant amount of time so as to require severance.” Rushing, 911 So.2d at 536. As to the second factor, we found that, although one count would require testimony from one pharmacist, while the other counts would require testimony from another pharmacist, all of the physical evidence admitted at one trial could also be admitted at the other trials. Lastly, we found that there was no doubt that the crimes committed by Rushing were all part of the same common plan or scheme, and were clearly interwoven. Id.

¶ 16. Here, the two rapes occurred only three hours apart. Doe testified that Golden arrived at her apartment at around 2:00 a.m. Roe testified that Golden arrived at her house around 5:00 a.m. Consequently, we find that the trial judge did not abuse his discretion in finding the first Corley factor had been satisfied. Clearly a span of only three hours between the two crimes was not a sufficient lapse of time to weigh in favor of severance.

¶ 17. The second Corley factor appears more problematic. While some of the evidence introduced to prove the rape of Doe would also have been admissible to prove the rape of Roe, Doe immediately went to the hospital, where a rape kit was performed. As such, the State was able to introduce DNA evidence through the testimony of Deedra Hughes (“Hughes”), a DNA technical leader of the Mississippi Crime Lab, and Jamie King (“King”), a DNA analyst. Other witnesses who testified only as to Doe’s rape included Doe’s neighbor, who saw her shortly after the attack; Officer Carl Lampton, who was the responding officer to the crime scene; and the nurse who performed the rape kit on Doe. At the Corley hearing, the trial judge correctly recognized that, in trying the two counts together, there would be some evidence. in common and some not. Therefore, we find the trial court took into account the factors which were common, and those which were not, and we are unable to say that the trial court abused his discretion.

¶ 18. We also find that the trial judge did not abuse his discretion in finding that the third Corley factor had been met. In analyzing the third factor, the - question posed is whether the two rapes committed by Golden were interwoven, that is, part of a common plan or scheme. See Rushing, 911 So.2d at 536. As stated previously, the rapes occurred only three hours apart. Both of Golden’s victims knew him personally — Doe was his cousin and Roe was a close family friend. Golden showed up at both victims’ homes unannounced. He told both victims that he just needed a place to sit down for a minute because his parents would not allow him into their home. Golden asked both victims for a glass of water before he “jumped” on them and raped them. Both victims testified that Golden held a gun to their heads. The trial judge clearly considered these similarities during the Corley hearing, and we find that he did not abuse his discretion in finding the two crimes were so closely interwoven that they were part of a common plan or scheme.

¶ 19. After weighing and considering the three Corley factors, taken together as a whole, the trial judge concluded that the two counts of rape should be tried together. We find that the trial judge did not abuse his discretion by overruling Golden’s motion to sever.

II. Failure to Timely Swear in the Jury with the Capital Oath

¶ 20. Golden next argues that the trial court failed to administer the oath required in a capital case until after the evidence had been presented, and that he was therefore deprived of a fair trial. The State responds that Golden failed to object or move for a mistrial and, therefore, this argument is procedurally barred. Alternatively, the State argues the claim has no merit because the trial court administered the oath.

¶ 21. First, we point out that any failure of the trial court to swear the jury in a capital case is waived where no contemporaneous objection is made. McMillan v. State, 191 Miss. 59, 61, 2 So.2d 823, 824 (1941). Here, the record reflects that counsel for Golden failed to make any objection when the judge administered the oath for capital cases midway through the trial. As such, Golden’s plea on appeal for reversal on this issue is barred. Procedural bar notwithstanding, we will address the merits of Golden’s claim.

¶ 22. Golden states that forcible rape is a capital crime which requires the special oath specified by Mississippi Code Annotated Section 13-5-73 (Rev. 2002), which provides that “[t]he jurors in a capital case shall be sworn to well and truly try the issue between the state and the prisoner, and a true verdict give according to the evidence and law.” In order to determine which crimes fit within the meaning of “capital case,” we turn to Mississippi Code Annotated Section 1-3-4 (Rev. 2005), which states:

The terms “capital case,” “capital cases,” “capital offense,” “capital offenses,” and “capital crime” when used in any statute shall denote criminal eases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary.

(Emphasis added).

¶ 23. Golden was charged with the crime of forcible rape pursuant to Mississippi Code Annotated Section 97-3-65(4)(a) (Rev. 2006), which allows for a sentence of life imprisonment. Therefore, Golden was entitled to have the capital oath administered to the jurors. The record reflects that the trial judge administered this oath midway through the trial. In their briefs, however, the parties state that the trial judge administered the petit oath at the beginning of trial.

¶ 24. Although the record does not indicate that the trial judge administered any oath at the beginning of trial, the trial judge indicated on the record during voir dire that an oath had been given, stating “[ejverybody understands that if you were to do that, you would be violating your oath.” Finding no objection from either party to the judge’s assertion that the oath had been given, we find that the petit oath was given at the beginning of trial, as represented by the trial judge. Furthermore, this Court has stated that when the record is silent, there is a presumption that the jury was properly sworn. Young v. State, 425 So.2d 1022, 1025 (Miss.1988); Ratcliff v. State, 201 Miss. 259, 29 So.2d 821 (1947).

¶ 25. Having found the trial judge did administer the petit oath, we further find that, even had the trial judge failed to administer the oath provided in Mississippi Code Annotated Section 13-5-73, there would be no error because the oaths required under Sections 13-5-73 and 13 — 5— 71 are “substantially equivalent, if not substantially the same.” Wilburn v. State, 608 So.2d 702, 705 (Miss.1992). This Court has held that “[t]he purpose of the judicial oath is to impart to the oath-taker the idea he is bound in conscience to perform an act faithfully and truthfully and to awaken and stimulate his conscience and impress his mind with his duty and responsibility to do so.” Wilburn v. State, 608 So.2d 702, 705 (Miss.1992).

¶ 26. Thus, we find that the oath given in the middle of trial, together with the petit oath given at the beginning of trial, were sufficient to instruct the jury of their duty to “well and truly try all issuefs] and ... a true verdict give according to the evidence and the law.” Miss.Code Ann. § 13-5-73 (Rev. 2002). The trial judge asked the potential jurors to “solemnly swear or affirm that [they would] well and truly try the issues between the State of Mississippi versus William Golden, Junior and give true verdicts ... according to the evidence of the law.” Because the oath reflected in the record was sufficient to insure the solemn duty of the jury, we find no reversible error.

III. Failure to Instruct the Jury

¶27. Golden next argues that he is entitled to a new trial because “no instruction was given to the jury on its sole duty to fix the penalty in the case of forcible rape under Miss.Code Ann. Section 97-3-71.” Golden argues that “failing to allow the jury to perform this function constitutes an illegal sentence which is plain error.” Section 97-3-71(Rev. 2006) states that,

Every person who shall be convicted of an assault with intent to forcibly ravish any female of previous chaste character shall be punished by imprisonment in the penitentiary for life, or for such shorter time as may be fixed by the jury, or by the court upon the entry of a plea of guilty.

(Emphasis added). The State points out, however, that Golden was charged with two completed acts of rape under Mississippi Code Annotated Section 97-3-65(4)(a) (Rev. 2006), and that the reference to Section 97-3-71, which deals with attempted rape, was merely a scrivener’s error in the indictment.

[8] ¶ 28. A review of the indictment evidences that although Section 97-3-71 is referenced in the heading, the substance of the indictment clearly charges Golden with two counts of forcible sexual intercourse. With regard to both counts, the indictment reads:

the aforesaid, did unlawfully, wilfully, and feloniously, have forcible sexual intercourse with [victim], against her will and without her consent; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Mississippi.

This Court has stated on numerous occasions that an indictment serves to alert the defendant of the pending charges, and purely technical errors will not be deemed prejudicial. See Ishee v. State, 799 So.2d 70, 76 (Miss.2001) (citing Westmoreland v. State, 246 So.2d 487, 489 (Miss.1971)). Also, we have recently held that, when dealing with indictments, that we employ a rule of substance over form. Wright v. State, 958 So.2d 158 (Miss.2007). In Wright, we stated that “[ajlthough a typographical error existed concerning the subsection number, the substance of the indictment read that Wright was charged with forcible rape.” Id.

¶ 29. Following our rule regarding purely technical errors in indictments, we find that any reference to Section 97-3-71 in Golden’s indictment is of no moment. The substance of the indictment clearly charged Golden with forcible rape under Section 97-3-65, which states that “[e]very person who shall have forcible sexual intercourse with any person ... shall be imprisoned for life ... if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment, the court shall fix the penalty ... for any term as the court, in its discretion, may determine.” Miss.Code Ann. § 97—3—65(4)(a) (Rev. 2006).

¶ 30. Therefore, Golden’s argument that he was entitled to have the jury fix his sentence upon conviction pursuant to the language of Mississippi Code Annotated Section 97-3-71 has no merit. Mississippi Code Annotated Section 97-3-65(4)(a) clearly allows the court to fix the penalty in the event that the jury fails to do so.

IV. Ineffective Assistance of Counsel

¶ 31. Golden next argues that his trial counsel was ineffective, and sets forth twenty-one alleged deficiencies he argues constitute ineffective assistance of counsel. We begin our analysis by pointing out that all criminal defendants have a Constitutional right to assistance of counsel. U.S. Const. amend. VI. The test is one of reasonableness, that is, whether counsel provided “reasonably effective assistance.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Stated differently, in order to prevail on a claim of ineffective assistance of counsel, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” Id.

¶ 32. The burden to prevail on a claim of ineffective assistance of counsel is twofold. A defendant must show not only that his counsel’s performance was deficient, but also that he was prejudiced by the deficient representation. This second burden requires a showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. This Court has recognized that “a strong presumption of competence exists in favor of the attorney.” Havard v. State, 928 So.2d 771, 780-81 (Miss.2006) (citing Mohr v. State, 584 So.2d 426, 430 (Miss.1991)). No detailed rules are set forth to regulate counsel’s conduct, for “[a]ny such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.” Wilcher v. State, 863 So.2d 776, 803 (Miss.2003) (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052.) With this standard in mind, we will address each of Golden’s arguments in turn, consolidating similar issues into one discussion.

a. Failure to Pursue Hearing on Motion to Sever

¶33. Golden argues that although his trial counsel filed a motion to sever, he failed to pursue an actual hearing. As discussed supra, the trial judge held a Corley hearing, and the transcript of that hearing was supplemented to the record. Therefore, this argument has no merit.

b. Failure to Object to Trial Court’s Failure to Timely Administer Special Oath

¶ 34. Golden points out that it was the defense counsel’s duty to object to the trial court’s failure to administer the special oath. Bell v. State, 360 So.2d 1206, 1215 (Miss.1978). As discussed previously, when a trial judge administers the oath after the start of trial, any perceived error is harmless. Therefore, this argument also fails.

c. Failure to File a Motion for a Speedy Trial

¶ 35. Golden argues that, although a total of 363 days elapsed between his indictment and trial, no motion for a speedy trial was filed. Golden’s argument that this amounts to ineffective assistance of counsel fails for two reasons. First, in his brief, counsel for Golden failed to provide this Court with any information that the requirements for violation of Mississippi Code Annotated Section 99-17-1 (the speedy trial statute) have been satisfied. Section 99-17-1 provides that:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

¶ 36. It is not a per-se violation of the statute for the defendant to be tried later than 270 days following arraignment. The statute will not be violated if good cause is shown and a continuance is granted by the court. State v. Harrison, 648 So.2d 66, 69 (Miss.1994). Golden provides no information as to whether good cause was shown for the delay or whether the court granted any continuances. Golden has failed to present to this Court any viable argument or any authority in support of his argument that his trial counsel was defective for failing to file a motion for a speedy trial. This- Court has stated on numerous occasions that it is not required to address issues not argued or supported with authority or citations to the record. See Edwards v. State, 800 So.2d 454, 468 (Miss.2001).

¶ 37. Second, counsel for Golden failed to raise any speedy-trial violation on appeal.. If trial counsel’s failure to file a motion for a speedy trial equates to ineffective assistance of counsel, then we fail to see how not raising such a violation on appeal would not also be considered ineffective assistance of counsel. For these reasons, this argument likewise has no merit.

d. Failure to Give Opening Statement

¶ 88. Golden argues that his counsel was ineffective for failure to give an opening statement. This Court has held that the decision of whether to make an opening statement is a strategic one. Gilliard v. State, 462 So.2d 710, 716 (Miss.1985). Furthermore, “[f]ailure to give an opening statement is not per se ineffective assistance of counsel.” Branch v. State, 882 So.2d 36, 55 (Miss.2004). Additionally, counsel for the defendant has failed to show how trial counsel’s failure to give an opening statement prejudiced Golden. As such, we find that this argument has no merit.

e. Failure to make any Batson Challenges or Challenges for Cause

¶ 39. Golden’s next assignment of error regarding ineffective assistance of counsel is that his “[t]rial counsel made no objection or record on any possible Batson issue [and][h]ad no challenges for cause to the jury panel.” Again, appellate counsel fails to cite any specific portion of the record or present any argument whatsoever that a Batson issue or challenge for cause could have, or should have, been made. As such, this Court is not required to address this argument. See Edwards, 800 So.2d at 468. Appellate counsel does not specify whether he claims a Batson challenge should have been made on the basis of race, gender or religion. Essentially, this Court is left to read the jury voir dire and determine whether or not any juror was struck on the basis of race, gender or religion in violation of Batson, despite the fact that no Batson challenges were made, and also whether any juror should have been struck for cause. With no guidance or citation to the record from appellate counsel to any possible Batson issues or reasons to strike a juror for cause, we find this argument has no merit.

f. Failure to Object to Statements made by the Prosecutor

¶ 40. Golden points to several instances of trial counsel failing to object to certain statements made by the prosecutor during voir dire. First, Golden argues that defense counsel should have objected to the prosecutor’s comment that in this case “there isn’t a consent issue,” arguing that consent is a core issue of forcible rape. However, when read in full context, the prosecutor was merely making a distinction between statutory and forcible rape. Secondly, Golden argues that trial counsel should have objected to the prosecutor’s statement that an eyewitness account would be “beyond any doubt.” Golden argues that this comment vouched for the witnesses in the case. Again, when read in context, the prosecutor was merely attempting to explain his “beyond a reasonable doubt” burden of proof.

¶ 41. Golden has failed to demonstrate that his attorney’s conduct was defective for failure to make these specific objections during voir dire. Furthermore, Golden has not shown how defense counsel’s failure to object in these two instances prejudiced him in any way. This Court has found that strategy decisions, such as not objecting to a particular statement, are considered tactical, and will not rise to the level of ineffective assistance of counsel. Irby v. State, 893 So.2d 1042, 1048 (Miss.2004).

g. Implicitly Conceding the Defendant’s Crime on Cross-examination

¶ 42. Golden argues that defense counsel implicitly conceded that the rape occurred when he prefaced a question on cross-examination with the phrase “back on December 30, when this happened....” We agree that counsel’s question could have been put differently. However, this Court has pointed out on many occasions that no trial is perfect, and no defendant is entitled to errorless representation. Davis v. State, 897 So.2d 960, 966 (Miss.2004). We find this comment to be no more than a harmless misstatement by defense counsel. Based on the evidence against the defendant in this case, we find the comment had little, if any, effect on the jury’s determination of the defendant’s guilt. This misstatement hardly rises to the level of concession of guilt.

h. Eliciting Prejudicial Testimony on Cross-examination

¶ 43. Golden claims that on several occasions, trial counsel elicited prejudicial testimony on cross-examination. On direct examination, Doe testified that Golden stank, but she did not think he smelled like alcohol. On cross-examination, defense counsel questioned Doe again about the smell, and Doe again stated that she did not think the smell was alcohol. Doe testified that Golden did not appear to be intoxicated, but after he raped her she “knew something was wrong with him.” Golden argues that this testimony put “evidence in front of the jury that Golden was high on something other than alcohol.”

¶ 44. Also, on cross-examination, trial counsel was questioning Roe about her relationship with Golden when she stated that the last time she had seen Golden was “about two years ago after he got out of jail.” Golden argues that this testimony was damaging, irrelevant and prejudicial, and defense counsel erred in making no attempt to stop it.

¶ 45. We find that the decisions made at trial during cross-examination are tactical decisions, and this Court will not analyze these decisions in hindsight to find that certain questions should or should not have been asked of a witness. The general rule is that “an attorney’s decision to call certain witnesses and ask certain questions ‘falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.’ ” Turner v. State, 953 So.2d 1063, 1073 (Miss.2007) (quoting Bell v. State, 879 So.2d 423, 434 (Miss.2004)).

i. Failure to Cross-examine Witnesses

¶ 46. Golden complains of several instances in which trial counsel failed to cross-examine witnesses, once again without any citation or authority or argument that such failure was prejudicial. As stated previously, the decision of whether or not to cross-examine lies within the discretion of the trial counsel. See Turner, 953 So.2d at 1073.

¶47. Appellate counsel does provide some argument regarding trial counsel’s failure to cross-examine Hughes and King, who testified concerning the DNA evidence. Golden argues that his Sixth Amendment right to confrontation was violated by trial counsel’s failure to cross-examine Hughes and King because the reports they testified about were not actually prepared by them. A review of the record reveals otherwise.

¶ 48. During her direct examination, Hughes stated that she actually performed the serological examination, despite her use of the term “we” when testifying concerning trial lab procedures. When asked by the prosecution if she tested the swabs that were taken from the rape kit, Hughes replied, “that’s correct.” King made the same assertion, when asked if she prepared a report in this particular case she replied, “yes.” Therefore, we find that the testimony of Hughes and King clearly indicates that they performed the actual tests and reports that they were testifying about.

¶ 49. Thus, defense counsel’s decision not to cross-examine these two witnesses, as well as the other witnesses he chose not to cross-examine, cannot be said to be unreasonable. The decision of whether or not to cross-examine a witness is a tactical one. And absent a showing of some helpful fact which clearly could—and should—have been developed on cross-examination, such decisions do not warrant a finding of ineffective assistance of counsel. See Murphy v. State, 453 So.2d 1290, 1293 (Miss.1984).

j. Numerous Failures to Object

¶ 50. Golden argues that trial counsel was deficient in failing to object, pointing to numerous instances when he claims an objection should have been made. Again, decisions such as the decision not to object are considered tactical, and do not rise to the level of ineffective assistance of counsel. Irby, 893 So.2d at 1048. We say no more on this point than that counsel might have many reasons for deciding not to object to a question which is technically objectionable. For instance, counsel might conclude that an objection would draw attention to the question and answer. We find this argument has no merit.

k. Failure to Give an Instruction Regarding Defendant’s Right Not to Testify

¶ 51. Golden complains of trial counsel’s failure to prepare a jury instruction concerning the defendant’s right not to testify. Again, appellate counsel has failed to provide this Court with the required authority in support of this argument. As such, this Court need not consider this argument. Edwards, 800 So.2d at 468. Even so, this claim has no merit.

¶ 52. This Court has held that the “[f]ailure to ask for, or the decision not to ask for [an instruction regarding the defendant’s right not to testify] cannot be said to be error, because it is subject to debate whether such an instruction helps or harms the defendant who does not testify.” Schuck v. State, 865 So.2d 1111, 1124 (Miss.2003). Such a decision is considered tactical. Id. at 1125. Furthermore, and most importantly, the trial judge specifically explained to Golden on two occasions that he could give an instruction regarding the defendant’s right not to testify, stating “some people want that instruction, some do not ... do you understand that,” to which Golden replied “uh-huh.” The trial judge further asked, “do you have any concerns about not getting that instruction?” Golden replied, “no.” Therefore, this argument has no merit.

1.Failure to Put on Any Defense

¶ 53. Once more, without any citation of authority, appellate counsel asserts that at trial, “no defense was put on,” specifically criticizing trial counsel’s closing argument. As stated earlier, a defendant is entitled to reasonable and effective—not errorless—counsel. Our review of the record reveals that, as in most cases, Golden’s defense was not perfect. However, we find he received reasonable representation.

¶ 54. Golden’s trial counsel filed a pretrial motion to sever the two counts of rape and argued at the Corley hearing that trying two counts together would be highly prejudicial to his client. Defense counsel conducted voir dire, which included instructing the jury as to the State’s burden of proof. Defense counsel objected to one of the State’s for-cause strikes, arguing that the potential juror “said he could be fair and impartial” despite the fact he had known the defendant his entire life, with which the court agreed. Defense counsel cross-examined four of the State’s eight witnesses. Although this cross-examination yielded little or no damaging testimony against the State’s case, trial counsel seemingly made an effort to get some witnesses to contradict their prior testimony. The defense chose not to call any witnesses, and appellate counsel has identified no witnesses that the defense could have called to testify on behalf of the defendant. The defendant was thoroughly advised of his right to testify, and he told the trial judge he did not want to testify. In closing, defense counsel did not rehash the damaging testimony against his client, but merely reminded the jury of the State’s heavy burden of proof and the defendant’s presumption of innocence. Given the strength of the State’s case against Golden, we find that, under the circumstances, trial counsel provided reasonable, if not perfect, representation to his client.

m. Failure to Put on Any Mitigating Evidence during Sentencing

¶ 55. Golden finally argues that his trial counsel was defective in failing to put on any evidence of mitigation during sentencing. Once again, this Court is provided with no citation of authority or any viable argument that any mitigating evidence even existed. Therefore, we find that this argument lacks merit and should not be considered. Edwards, 800 So.2d at 468.

CONCLUSION

¶ 56. We find that the trial judge held a proper Corley hearing on the defendant’s motion to sever, and did not abuse his discretion in determining that the two counts of rape could be tried together. Also, we fihd no merit in Golden’s claims of error regarding the trial court’s failure to swear the jury with the capital oath at the beginning of trial and the trial court’s failure to have the jury fix the term of imprisonment. Finally, having thoroughly considered each of Golden’s claims regarding ineffective assistance of counsel, we find that Golden’s defense counsel provided “reasonably effective assistance.” Therefore, his claim has no merit.

¶ 57. COUNT 1: CONVICTION OF FORCIBLE RAPE AND SENTENCE OF FORTY (40) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF FORCIBLE RAPE AND SENTENCE OF FORTY (40) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH THE SENTENCE IN COUNT I FOR A TOTAL OF EIGHTY (80) YEARS.

SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, GRAVES RANDOLPH AND LAMAR, JJ., CONCUR.

      . To protect the identity of the victim involved, this Court will refer to the victim by a fictitious name.

      . To protect the identity of the victim involved, this Court will refer to the victim by a fictitious name.

      . Counsel for the defendant represents in his brief that "no actual hearing was held.” However, after the record was supplemented per order of this Court, it is clear that a Corley hearing was held.

      . At the time of Golden's indictment, dated April 5, 2005, the language in his indictment tracked our statute dealing with forcible rape, which was Mississippi Code Annotated Section 97-3-65(3)(a). This section of the Code was amended in 2006, and the subsection applicable in this case is now Section 97-3-65(4)(a). The language in this subsection was not amended — the subsection number merely changed.

      . The speedy trial statute states that the time period for determining whether there 'has been a violation of Section 99-17-1 is 270 days "after the accused has been arraigned." Miss.Code Ann. § 99-17-1 (Rev. 2007) (emphasis added).


author: CARLSON, Justice, DIAZ, Presiding Justice,

text:
    COMMUNITY HOSPITAL OF JACKSON, Mississippi d/b/a Community Nursing Home Foundation, Inc., Michelle Daniel and Derwood Boyles v. Bernadette GOODLETT, by and on Behalf of Sarah GOODLETT.
    Nos. 2006-IA-01596-SCT, 2006-CA-01629-SCT.
    Supreme Court of Mississippi.
    Sept. 20, 2007.
    Rehearing Denied Nov. 29, 2007.

      Marjorie Selby Busehing, Jackson, Steven Mark Wann, Heather M. Aby, attorneys for appellants.
    John Preston Scanlon, John F. Hawkins, attorneys for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. Bernadette Goodlett brought suit against Community Hospital of Jackson, Mississippi, Michelle Daniel, and Derwood Boyles in the Clay County Circuit Court by and on behalf of her mother, Sarah Goodlett, alleging negligence, negligence per se, respondeat superior, and breach of contract due to decubitus ulcers Sarah developed during her stay in the nursing home. After a transfer of venue to the Circuit Court of the First Judicial District of Hinds County, the defendants filed a Motion to Dismiss, or in the Alternative, to Stay Proceedings and Enforce Arbitration Agreement, which was denied by the trial court. This Court granted the defendants’ petition for interlocutory appeal in cause number 2006-IA-01596-SCT, consolidated that cause with cause number 2006-CA-01629-SCT, and stayed all proceedings in the trial court pending this Court’s decision. Finding error in the trial court’s order denying the defendants’ motion to dismiss, we reverse the trial court’s order and remand this case to the Circuit Court of the First Judicial District of Hinds County for entry of an order consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. Sarah Goodlett (Sarah) was admitted to Community Hospital of Jackson, Mississippi (Community), on February 9, 2004. Sarah’s daughters, Bernadette and Carolyn, signed the admission agreement, which also contained an arbitration agreement. Sarah did not sign the admission agreement, as she was unable to sign her name due to complications from a previous stroke. Pat Clack signed as the Facility Representative, and Connie Rex signed as a witness. Neither Bernadette nor Carolyn signed or initialed any individual provision of the contract. Bernadette signed a separate document entitled Resident’s Rights.

¶ 3. Sarah developed two decubitus ulcers during her stay at Community which required surgery on August 20, 2004. Bernadette first gave notice by way of a letter to Community of her intention to file suit and requested assistance to expedite the process on August 31, 2004. This letter erroneously stated that Sarah’s leg had been amputated:

This letter is being sent pursuant to Section 15-1-36(15) of the Mississippi Code of 1972, as amended. This letter is to inform you of our intention to begin action on behalf of Ms. Sarah Goodlett. The basis of the suit is negligence and gross negligence in the care and treatment of Ms. Goodlett at Community Nursing Home, which led to further amputation of her leg.
I have not had the opportunity to obtain records and to have them reviewed by an expert witness. It may be that after such review, we determine that there is no basis for suit. If you are in a position to expedite this process, your assistance would be appreciated.

Michelle Daniel, Community’s administrator, sent a reply letter stating that Sarah’s leg was not amputated and that Bernadette’s counsel must have mistaken Sarah for someone else. On September 8, 2004, Bernadette’s counsel sent Daniel another letter, clarifying that the suit was being filed due to decubitus ulcers and again requesting assistance to expedite the process:

This letter is being sent pursuant to Section 15-1-36(15) of the Mississippi Code of 1972, as amended. Please disregard my August 31, 2004 letter. This letter is to inform you of our intention to begin action on behalf of Ms. Sarah Goodlett. The basis of the suit is negligence and gross negligence in the care and treatment of Ms. Goodlett at Community Nursing Home, which led to hospitalization and surgery to treat her de-cubitus ulcer.
I have not had the opportunity to obtain records and to have them reviewed by an expert witness. It may be that after such review, we determine that there is no basis for suit. If you are in a position to expedite this process, your assistance would be appreciated.

¶4. On October 7, 2004, Bernadette’s counsel sent Daniel another letter, allegedly accompanied by a medical authorization signed by Bernadette authorizing the release of Sarah’s medical records. On October 20, 2004, Daniel sent Bernadette’s counsel a reply letter stating she did not believe that the HIPAA Authorization Form signed by Bernadette was adequate, because Bernadette did not have power of attorney for Sarah. Thus, Daniel refused to provide Sarah’s records without Sarah’s consent, as this would be a violation of HIPAA. On October 26, 2004, Bernadette’s counsel sent Daniel a letter, stating:

With respect to your refusal to provide Ms. Goodlett’s medical chart pursuant to 45 CFR § 164.502, I believe you are in violation of that section rather than complying with it. I direct your attention to 164.502(g)(1) and (4)(sic). These sections clearly state that my client, as the personal representative of the deceased, must be provided the chart. Section 164.502(a)(l)(I) permits you to disclose Ms. Goodlett’s records to my client. I ask again that you provide the complete medical chart immediately pursuant to Section 164.502(a)(l)(I).

(Emphasis added). On October 28, 2004, Daniel responded in a letter, stating:

We recently received a request from you, dated October 26, 2004, for the medical records related to the above-mentioned resident. In your letter, you stated that Ms. Goodlett is deceased. Ms. Goodlett is CURRENTLY a resident, and therefore NOT deceased. In addition, both of her decubitus ulcers have been healed. She has been participating in group activities and states that she is “very happy to be better.” Although we have noted your letter dated October 7, 2004, we do not believe the authorization is adequate. Ms. Good-lett’s daughters (Bernadette and Carolyn) have signed the HIPAA Authorization Form, they do not have Power of Attorney or any other legal authority over their mother. Ms. Sarah Goodlett is paralyzed, but she is of sound mind. To this date, I have no proof of any physician stating Ms. Goodlett is mentally incompetent. It is a violation of Ms. Sarah Goodlett’s rights to give her medical records to an attorney without her consent.

(Emphasis in original).

¶ 5. On December 27, 2004, Bernadette filed suit against Community, Daniel, and Boyles allegedly by and on behalf of Sarah in the Clay County Circuit Court claiming negligence, negligence per se, re-spondeat superior, and breach of contract. Bernadette attached an Attorney Certificate, rather than a Certificate of Expert Consultation as required by Miss.Code Ann. § 11-1-58(1) (Supp.2004), which stated:

2. Plaintiff has requested the decedent’s medical records, and the records have not been produced. Plaintiff will provide a certificate of expert consultation within ninety (90) days of production of the records.

(Emphasis added). On February 15, 2005, Bernadette’s counsel sent Community a letter along -with an authorization to obtain Sarah’s medical records. Also included was a General Power of Attorney, which stated:

I, Sarah Catherine Goodlett, resident of Hinds County, Mississippi, appoint Ber-nardett (sic) Goodlett, a resident of Hinds County, Mississippi, as my true and lawful attorney-in-fact with unlimited power and authority to do and perform every act that [I] might, under any circumstances whatsoever, do myself and to do these things as fully as I might do if I were present.

A review of this document reveals that there is an “X” on the signature line for Sarah Catherine Goodlett, and that the document was executed and notarized on January 19, 2005. Sarah was unable to sign her name due to her stroke.

¶ 6. On April 13, 2005, Community filed a motion for a change of venue in the Clay County Circuit Court, requesting that the case be transferred to the Hinds County Circuit Court, where venue was proper. On August 4, 2005, the Clay County Circuit Court entered an agreed order transferring venue to the Circuit Court of the First Judicial District of Hinds County.

¶ 7. On September 22, 2005, Community filed a Motion to Dismiss, or in the Alternative, to Stay Proceedings and Enforce Arbitration Agreement in the Hinds County Circuit Court. On September 29, 2005, Bernadette’s counsel sent Community’s counsel a letter stating that Sarah had signed a HIPAA release that day at the nursing home, using an “X” for her signature, and requesting Sarah’s medical records. On October 13, 2005, Bernadette executed an affidavit which stated:

1. On February 9, 2004, I signed an Admission Agreement as required to admit my mother, Sarah Goodlett, to the Community Nursing Home. At that time, I did not have a power of attorney or any other legal authorization to enter into contracts or waive my mother’s rights. Nevertheless, the nursing home required my signature and I signed for the purpose of ensuring, as best I could, that my mother received the much needed healthcare I could not provider (sic) for her.
2. In the agreement on page 5 there was a section that said “Arbitration— please read carefully.” By that section, there was a spot for someone’s initials. I reviewed the section and did not agree to arbitrate. By not initialing that section, I indicated that, to the extent my signature or initials could be argued to bind my mother, I would not agree to the arbitration provision.
3. Also, I verbally informed Pat Clack, who was the representative of the Community Nursing Home, that, to the extent she sought my agreement to arbitrate, I would not agree to arbitration. I further told Ms. Clack that if anything happened to my mother, I wanted to be able to sue in a court of law.
4. Ms. Clack pressured me for two weeks to initial the arbitration agreement. I repeatedly informed her that I would not agree to arbitrate or purport to waive my mother’s rights, and she understood that when I signed the admission agreement I was expressly not agreeing to arbitrate.

¶ 8. On November 3, 2005, Bernadette’s counsel filed a document entitled “Certificate of Expert Consultation.” On August 30, 2006, the Hinds County Circuit Court, Judge Tomie T. Green, presiding, denied Community’s Motion to Dismiss, or in the Alternative, to Stay Proceedings and Enforce Arbitration Agreement. In her order, the trial judge stated, inter alia:

The court finds that the Plaintiff has substantially complied with the medical malpractice statutes and further finds that the arbitration agreement is unenforceable in that the nursing home agreement to arbitrate was not signed by Sarah Goodlett. Thus, the motions are not well taken and should be denied.

(Emphasis added). Community thereafter filed a Petition for Interlocutory Appeal and Request for Stay with this Court, which this Court granted on October 24, 2006. In the same order, cause number 2006-IA-01596-SCT was consolidated with 2006-CA-01629-SCT.

DISCUSSION

¶ 9. “This Court reviews de novo a trial court’s grant or denial of a motion to dismiss.” Penn. Nat’l Gaming, Inc. v. Ratliff, 954 So.2d 427, 430 (Miss.2007) (citing Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (Miss.2004)). “When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. at 430-31. “Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief.” Id. at 431 (citing Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995)). “Conelusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss.” Id. “We apply a de novo standard when reviewing a decision on a motion to compel arbitration.” Bedford Care Center-Monroe Hall, LLC v. Lewis, 923 So.2d 998, 999 (Miss.2006) (citing East Ford, Inc. v. Taylor, 826 So.2d 709, 714 (Miss.2002); Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (Miss.2002)).

¶ 10. Community presents two issues to this Court for decision: (1) whether the trial court erred in refusing to grant the Defendants’ Motion to Dismiss for Plaintiffs failure to comply with the mandates of Miss.Code Ann. § 11-1-58 (Supp.2004); and (2) whether the trial court erred in refusing to enforce the arbitration agreement. However, because the case sub ju-dice turns on the first issue, we need only discuss that issue. We restate this issue here for the sake of clarity in discussion.

WHETHER THE TRIAL COURT ERRED IN DENYING THE DEFENDANTS’ MOTION TO DISMISS FOR PLAINTIFF’S FAILURE TO COMPLY WITH THE STATUTE.

¶ 11. Community argues that Bernadette failed strictly to comply with Miss. Code Aim. § 11 — 1—58(l)(a), which states:

(1) In any action against a licensed physician, health care provider or health care practitioner for injuries or wrongful death arising out of the course of medical, surgical or other professional services where expert testimony is otherwise required by law, the complaint shall be accompanied by a certifícate executed by the attorney for the plaintiff declaring that:
(a) The attorney has reviewed the facts of the case and has consulted with at least one (1) expert qualified pursuant to the Mississippi Rules of Civil Procedure and the Mississippi Rules of Evidence who is qualified to give expert testimony as to standard of care or negligence and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action, and that the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action; ...

Miss.Code Ann. § ll-l-58(l)(a) (Supp. 2004). Community argues that since Bernadette’s counsel did not attach this certificate to the complaint, Bernadette’s suit should be dismissed. However, Bernadette argues that she did strictly comply with the statute, and directs this Court to Miss.Code Ann. § 11-1-58(4), which states:

If a request by the plaintiff for the records of the plaintiff’s medical treatment by the defendants has been made and the records have not been produced, the plaintiff shall not be required to file the certificate required by this section until ninety (90) days after the records have been produced.

Miss.Code Ann. § 11-1-58(4) (Supp.2004) (emphasis added). Thus, Bernadette argues that, through her counsel, she requested Sarah’s medical records before filing suit, and that since Community failed to turn over Sarah’s records, Bernadette may avail herself of Miss.Code Ann. § 11— 1-58(4). On the other hand, Community argues that Sarah is the true plaintiff, or real party in interest, and Bernadette did not obtain power of attorney over Sarah’s affairs until after the lawsuit in the case sub judice was filed. Community further argues that since Sarah was never declared incompetent, only Sarah could authorize the release of her medical records; therefore, Sarah, and not Bernadette, was required to sign the authorization prior to filing suit.

¶ 12. We agree that only Sarah had standing to bring suit; therefore, only Sarah had the right to obtain her medical records, as Bernadette, by her own sworn admission, “did not have a power of attorney or any other legal authorization” to act on behalf of her mother “to enter into contracts or waive my mother’s rights” to obtain records. Owen & Galloway, L.L.C. v. Smart Corp., 913 So.2d 174, 178-79 (Miss.2005). Since Bernadette obtained Sarah’s authorization only after filing suit, Bernadette simply jumped the gun in filing suit without meeting the requirements of section 11-1-58.

¶ 13. Additionally, this Court announced in Walker v. Whitfield, 931 So.2d 583, 588-90 (Miss.2006), that a plaintiff must strictly comply with, rather than substantially comply with, the directives of Miss.Code Ann. § 11-1-58. Because Bernadette failed to strictly comply with the statute, the trial court erred in denying the defendants’ motion to dismiss on the basis that the plaintiff had “substantially complied with the medical malpractice statutes.”

CONCLUSION

¶ 14. For the reasons stated, the trial court’s order denying the defendants’ motion to dismiss due to the plaintiffs failure to comply with Miss.Code Ann. § 11-1-58, is reversed; and, since the trial court is in a better position to know whether the order of dismissal should be with or without prejudice, this case is remanded to the Circuit Court of the First Judicial District of Hinds County for entry of an order consistent with this opinion.

¶ 15. REVERSED AND REMANDED.

SMITH, C.J., DICKINSON, RANDOLPH AND LAMAR, JJ„ CONCUR. EASLEY, J„ CONCURS IN PART AND IN RESULT. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. WALLER, P.J., NOT PARTICIPATING.

DIAZ, Presiding Justice,

Dissenting:

¶16. I cannot join the majority for a number of reasons: first, because the defendants have never challenged Bernadette’s standing, they have waived the defense of noncompliance; second, even if dismissal is warranted as the majority concludes, the plaintiff should be afforded an opportunity to remedy any alleged procedural defect; and third, dismissal is not the appropriate sanction for noncompliance.

I. The Defendants Have Waived the Defense of Noncompliance.

¶ 17. Bernadette Goodlettfis the plaintiff in this action and her standing to sue has never been challenged. As the plaintiff, she has strictly complied with all of the statutory prerequisites to filing suit mandated by our case law. Walker v. Whitfield, 931 So.2d 583 (Miss.2006). Bernadette sent a letter of her intent to file suit as required by Mississippi Code Section 15-1-36 on September 8, 2004. On October 7, 2004, she sent an executed HI-PAA form requesting her mother’s medical records. Eighty-one days later, she filed suit without a certificate of consultation under the exception provided in Mississippi Code Section 11-1-58(4). On October 7, 2005, the defendants provided the plaintiff with her mother’s medical records. Less than a month later, and well before the ninety-day deadline provided in Section 11-1-58(4), the plaintiff submitted her certificate of expert consultation.

¶ 18. Because the defendants have never challenged Bernadette’s standing to sue, they have waived this issue as it relates to noncompliance. It is true that standing may be challenged at any time, even sua sponte by this Court. Benedict v. City of Hattiesburg, 693 So.2d 377, 381 (Miss.1997). This is because a lack of standing robs the court of jurisdiction, and a lack of subject matter jurisdiction is a defense that cannot be waived. See Pruitt v. Hancock Med. Ctr., 942 So.2d 797, 801 (Miss.2006) (quoting McNair v. United States Postal Service, 768 F.2d 730, 737 (5th Cir.1985)); Bullock v. Roadway Express, Inc., 548 So.2d 1306, 1308 (Miss.1989); M.R.C.P. 12(h)(3). However, neither the majority nor the defendants address the standing issue in terms of jurisdiction, but rather as a tool for statutory interpretation. While we have stated that noncompliance with notice provisions is jurisdictional, we have also held that failure to assert noncompliance can constitute a waiver. For example, in Gale v. Thomas, 759 So.2d 1150, 1159 (Miss.1999), this Court held that even though the notice provisions of the Mississippi Tort Claims Act are jurisdictional, noncompliance with these provisions may not be raised for the first time on appeal. Accordingly, because this is an issue of compliance with the provisions of Section 11-1-58, and not a jurisdictional question, I find that the defendants have waived the defense of noncompliance by failing to raise the standing issue before standing was acquired.

II. Plaintiffs should be Afforded the Opportunity to Remedy Procedural Defects.

¶ 19. For the second time in just over a year this Court is changing its position on the appropriate remedy for noncompliance by holding that “the trial court is in a better position to know whether the order of dismissal should be with or without prejudice.” In Walker v. Whitfield, 931 So.2d 583, 592 (Miss.2006), this Court held that failure to comply with Section 11-1-58 is equivalent to a failure to state a claim, and therefore, the case was dismissed with prejudice. Later, in Arceo v. Tolliver, 949 So.2d 691, 698 (Miss.2006), the Court also found that failure to comply with the notice provisions failed to state a claim, but dismissed the action without prejudice. Today, the Court takes yet another approach and decides to pass the buck by refusing to address the plaintiffs argument that even if dismissal is warranted, then it should be without prejudice.

¶ 20. In my opinion, even if dismissal is the appropriate remedy, the dismissal should be without prejudice. “[Djismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his claim, and any dismissals with prejudice are reserved for the most egregious cases.” Wallace v. Jones, 572 So.2d 371, 376 (Miss.1990) (citing Rogers v. Kroger Co., 669 F.2d 317 (5th Cir.1982)). In cases where the plaintiff has “simply jumped the gun in filing suit,” we should afford them the opportunity to meet the requirements of Section 11-1-58, without depriving them of a cause of action.

III. Dismissal is Not the Appropriate Sanction for Noncompliance.

¶ 21. There is absolutely no language in either Section 11-1-58 or Section 15-1-36 which provides that the remedy for noncompliance is dismissal. By reading a remedy into the statute that does not exist, our Court is not adhering to the tenets of strict construction, and continues to judicially legislate a remedy which the Court itself has rejected as harsh and extreme. Dinet v. Gavagnie, 948 So.2d 1281, 1285 (Miss.2007) (“dismissals should be granted only when less drastic alternatives have been considered and such lesser sanctions would not serve the best interest of justice”) (citing Wallace, 572 So.2d at 376-77).

¶ 22. I must continue to stress my conviction that requiring strict compliance with statutory provisions infringes upon the fundamental right of access to courts and deprives citizens of property without due process as guaranteed by our federal and state constitutions. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982) (“a cause of action is a species of property protected by the Fourteenth Amendment’s Due Process Clause”); U.S. Const, amend. XI, § 1 (“nor shall any State deprive any person of life, liberty, or property without due process of law”); U.S. Const, amend. I (“Congress shall make no law ... abridging ... the right of the people ... to petition the Government for a redress of grievances”); Miss. Const, of 1890, art. 3, § 24 (“All courts shall be open; and every person for an injury done to him, in his good land, goods, person or reputation, shall have a remedy by due course of the law, and right and justice shall be administered, without sale, denial, or delay”); Miss Const, of 1890, art. 3, § 25 (“No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both”). See also Caldwell v. North Miss. Med. Center, 956 So.2d 888, 895-97 (Miss.2007) (Diaz, J., dissenting); Johnson v. Rao, 952 So.2d 151, 159-65 (Miss.2007) (Graves, J., dissenting); Arceo v. Tolliver, 949 So.2d 691, 698-704 (Miss.2006) (Graves, J., dissenting).

¶ 23. Our Court relentlessly clings to “strict” construction or “plain language” as a justification for dismissing cases for failure to comply with the statute. Caldwell, 956 So.2d at 894-95 (citing Walker, 931 So.2d at 588-89). See also Arceo, 949 So.2d at 696 (stating the plain language of Section 15-1-36 requires dismissal). If the Court is applying a strict constructionist view to the statute,- as it claims, I do not understand why it is so difficult to determine whether dismissal should be with or without prejudice. Perhaps the Court’s confusion, and constantly changing position, stems from the statute’s complete silence as to a remedy.

Conclusion

¶ 24. By failing to timely raise the standing issue, the defendants have waived the defense of failure to comply with Section 11-1-58. Additionally, even if dismissal is warranted, the majority should address the plaintiffs argument that the dismissal should be without prejudice. Finally, because our constitutional guarantees cannot be abridged by this Court’s interpretation of statutory procedural rules, I must dissent.

GRAVES, J., JOINS THIS OPINION.

      .Community Nursing Home Foundation, Inc., is a non-profit corporation formed for the purpose of being a charitable organization to provide support for Community Hospital of Jackson, Mississippi, and was never involved in Sarah’s care. Community Nursing Home Foundation, Inc., filed a Separate Motion to Dismiss on September 22, 2005. The parties agreed to dismiss Community Nursing Home Foundation, Inc.

      . Because ''Bernadette” appears with different spellings throughout the record, we will use "Bernadette,” as styled, for clarity.

      . Community argues that this document was not a request for medical records, but rather a simple notice of intention to file suit, per the language of the letter. Because our decision does not rest on this issue, we decline to discuss this issue today.

      . Community’s brief states that this referenced authorization enclosure was not included with the letter, neither does it appear in the record.

      . We will refer to Defendants Community, Daniel, and Boyles collectively as ''Community” for clarity.

      . Boyles is the licensee of Community.