author: GRIFFIS, J., for the Court.

text:
    Amy R. HOLLINGSWORTH, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2006-CC-01793-COA.
    Court of Appeals of Mississippi.
    March 4, 2008.

      Amy R. Hollingsworth, Appellant, pro se.
    Scott Oliver Nelson, Pascagoula, attorneys for appellant.
    Albert B. White, Leanne Franklin Brady, attorneys for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Amy R. Hollingsworth appeals the decision of the Mississippi Department of Employment Security (MDES) denying her unemployment benefits. She argues that the board of review’s finding that she failed to accept suitable work without good cause is not supported by substantial evidence, and the board of review’s determination, pursuant to Mississippi Code Annotated section 71-5-19(4), that she must repay benefits received was in error. Finding no error, we affirm.

FACTS

¶2. Hollingsworth was an employee of The Eyeglass Factory in Pascagoula, Mississippi. Hollingsworth answered the telephone and distributed contact lenses to The Eyeglass Factory’s customers. Her last day of work was August 26, 2005, which was the Friday before Hurricane Katrina devastated the Mississippi Gulf Coast.

¶3. After the hurricane, The Eyeglass Factory re-opened on September 9, 2005, to clean up the store and supply its customers with needed glasses and contacts. On September 16, 2005, Dr. Brian Spencer, one of the owners, contacted Hollings-worth and asked her to return to work so that she could assist customers. Hollings-worth initially told Dr. Spencer that she could not return until October 3, 2005, because this was when the schools were going to open, and she did not have anyone to watch her three children.

¶ 4. During her hearing before the appeals officer, Hollingsworth testified that she eventually agreed to return to work because Dr. Spencer said she could bring her children to work. Also, Hollingsworth thought her hours would remain 8:00 a.m. to 2:00 p.m. When Dr. Spencer informed her that she would have to work a full day, Hollingsworth told Dr. Spencer that she would not return to work because she could not work those hours with her children present. On appeal to the board of review, the circuit court, and now this Court, Hollingsworth argued that she did not return to work because it was a health hazard for her three sons. She argued that the business did not have electricity, was covered in mold, and was generally unsafe. Hollingsworth did not make these arguments to the claims examiner or the appeals officer. The board of review adopted the factual findings of the appeals officer and affirmed the officer’s decision. The Circuit Court of Jackson County affirmed the board of review’s decision.

STANDARD OF REVIEW

¶ 5. The standard of review of administrative agency decisions is “an agency’s conclusions must remain undisturbed unless the agency’s order: 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights.” Max well v. Miss. Empl. Sec. Comm’n, 792 So.2d 1031, 1032(¶ 7) (Miss.Ct.App.2001). Upon judicial review, “the findings of the board of review as to the facts, if supported by substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Rev.2000). With these standards in mind, we look to the issues raised in this appeal.

ANALYSIS

I. Whether or not the finding of the board of review that Hollingsworth failed to accept suitable work without good cause is supported by substantial evidence?

¶ 6. Mississippi Code Annotated section 71 — 5—513(A)(3) (Supp.2006) states, “[a]n individual shall be disqualified for benefits .... (3) If the department finds that he has failed, without good cause, ... to accept suitable work when offered to him ....” (emphasis added). When determining if work is suitable, this statute considers: “among other factors the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of employment and the distance of available work from his residence.... ” Miss.Code Ann. § 71-5-513(A)(3)(a).

¶ 7. Hollingsworth claims that she was not offered suitable work because the offer required a different working environment than her pre-hurricane job, different duties, and different hours.

A. Unsafe work environment

¶ 8. Hollingsworth says that she cannot be denied benefits for refusing to expose her children and herself to the dangers of a post-hurricane work environment. She argues “that an employee has the right to walk off a job that threatens death or serious bodily injury.” Miss. Empl. Sec. Comm’n v. Noel, 712 So.2d 728, 731(¶ 9) (Miss.Ct.App.1998). Under Noel, we applied earlier supreme court case law to find that employees cannot be denied benefits because they refused to do work that is hazardous to their health. Id. at 731-32 (applying Mississippi Empl. Sec. Comm’n. v. Phillips, 562 So.2d 115, 116-17 (Miss.1990)). Hollingsworth cites Noel for the proposition that the new work her employer offered her was unsuitable because it was hazardous to her and her children.

¶ 9. Hollingsworth did not present this argument to the appeals officer. Instead, Hollingsworth argued to the appeals officer that' she could not handle her children being “under foot” at work. When asked why she did not return to work, Hollings-worth testified:

I have brought my children [to work] before, they have been there a few hours and you could just see, it’s not the place for them to be. You have people who would come in there sick, because we shared the office with a Medical Doctor, and it wasn’t fair to the patients, it wasn’t fair to the patients. The kids running up and down the steps.... I would not have been able to do it. I have had them there before like I said and it stresses me out. And to do it for one day, it would have been fine, but to do it every day for two weeks, there’s no possible way.

¶ 10. Hollingsworth asserted her unsafe work environment theory for the first time on appeal to the board of review. She sent the board of review printouts from the Environmental Protection Agency’s Hurricane Katrina website. These printouts are the only evidence in the record that mention that a post-hurricane environment can be hazardous.

¶ 11. We have previously discussed how this Court should regard evidence such as this in an administrative appeal. We held that “if hearsay, even if not corroborated in the traditional sense, is highly probative because it has strong indicia of reliability, it can at least in many situations be substantial evidence.” McClinton v. Miss. Dep’t of Empl. Sec., 949 So.2d 805, 814(¶ 29) (Miss.Ct.App.2006) (emphasis added).

¶ 12. On appeal, the board of review did not address Hollingsworth’s new argument, and it simply adopted the factual findings of the appeals officer. Thus, we must conclude that the board of review gave little if any weight to this “new” evidence. We agree with the board of review’s decision. This evidence does not exhibit any indicia of reliability because there is no way to determine if the documents presented are authentic or even applicable. These documents merely state that a post-hurricane environment may be dangerous to children. There is no evidence that any of the environmental hazards described in these printouts pertained to The Eyeglass Factory after the hurricane. Looking at the record, we cannot say that there is any evidence, much less substantial evidence, that The Eyeglass Factory constituted a health hazard, which could lead to “death or serious bodily injury.” Noel, 712 So.2d at 731 (¶ 9).

B. Different hours and different duties

¶ 13. Hollingsworth also argues that she was not offered suitable work because the new job had different hours and different duties than her pre-hurricane job. In Hollingsworth’s pre-hurricane job, she dealt with customers in person and on the telephone. She also ordered contacts, dispensed contacts to the customers, and worked from 8:00 a.m. until 2:00 p.m. After the hurricane, The Eyeglass Factory wanted her to continue to assist customers, help with minor repairs to the shop caused by the hurricane, and work from 8:00 a.m. until the end of the day.

¶ 14. In Sunbelt Ford-Mercury, Inc. v. Mississippi Employment Security Commission, 552 So.2d 117 (Miss.1989), an employee left his job because the employer wanted to change his job from that of an account manager to that of a salesman. Id. at 118. The employer increased his hours by one hour, days worked by one day, and decreased his salary. Id. The Mississippi Supreme Court found that this new offer of employment was suitable and that the employee could not refuse it and receive unemployment benefits. Id. at 120.

¶ 15. Hollingsworth’s employer needed her to return to work and agreed to accommodate her by letting her bring her children to work. He also said that she would still be assisting customers and that she would have to help with clean up after the hurricane. Furthermore, he only increased her work day by approximately two to three hours. Like the court in Sunbelt, we cannot say that her employer’s new offer of employment was unsuitable. We find that the board of review’s decision was supported by substantial evidence, and we affirm.

II. Whether or not Hollingsworth must repay her benefits.

¶ 16. Mississippi Code Annotated section 71-5-19(4) (Supp.2006) provides:

Any person who, by reason of nondisclosure or misrepresentation by him or by another of a material fact, irrespective of whether such nondisclosure or misrepresentation was known or fraudulent, or who, for any other reason has received any such benefits under this chapter, while any conditions for the receipt of benefits imposed by this chapter were not fulfilled in his case, or while he was disqualified from receiving benefits, shall, in the discretion of the department, either be liable to have such sum deducted from any future benefits payable to him under this chapter or shall be liable to repay to the department for the Unemployment Compensation Fund a sum equal to the amount so received by him....

(Emphasis added).

¶ 17. Hollingsworth argues that the order requiring her to repay the benefits that she received is not in accordance with Mississippi law. She relies on Caraway v. Mississippi Employment Security Commission, 826 So.2d 100, 102-3 (¶ 8) (Miss.Ct.App.2002). The Caraway court held that the commission cannot actively seek repayment of benefits unless it finds: “1) A person received benefits, 2) at a time when he was ineligible, 3) by reason of a nondisclosure or a misrepresentation of a material fact, 4) made by that person or another, 5) irrespective of fraudulent intent or knowledge of the omitted or misrepresented fact.” Id. at 102-3(¶ 8) (quoting Miss. Empl. Sec. Comm’n v. Sellers, 505 So.2d 281, 283 (Miss.1987)). The Caraway court stated further that “[t]he Commission’s findings do not express that this is a case of fraud. The Commission may not pursue active collection measures against Caraway. The Commission may offset any future payments payable to Caraway by the amount of overage erroneously paid to Caraway.” Caraway, 826 So.2d at 103 (¶8). Thus, Hollingsworth argues that the MDES cannot pursue collection measures against her. Instead, it may only offset future payments she may receive.

¶ 18. MDES acknowledges Caraway as precedent. However, it argues that this Court should reconsider the Mississippi Supreme Court’s interpretation of section 71-5-19(4) because it has failed to account for the phrase “for any other reason.” Miss.Code Ann. § 71-5-19(4). MDES says that this phrase means that it may at its discretion “either ... have such sum deducted from any future benefits payable to [Hollingsworth] under this chapter or ... [make her] liable to repay the amount [she] ... received....” Id. (emphasis added).

¶ 19. The Mississippi Supreme Court adopted Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) in Mississippi Gaming Commission v. Imperial Palace of Mississippi, Inc., 751 So.2d 1025, 1029 (¶ 16) (Miss.1999). The supreme court found that if a statute is ambiguous, a court should “apply a deferential standard under which the issue is whether an agency’s interpretation is a reasonable construction.” Id. at 1029 (¶ 16). The court stated further, “the court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Id. (quoting Chevron U.S.A., Inc., 467 U.S. at 843 n. 11, 104 S.Ct. 2778). While this Court would normally defer to MDES’s interpretation of “for any other reason,” we are bound by the test established by the Mississippi Supreme Court. See Sellers, 505 So.2d at 283.

¶ 20. Therefore, we will apply the Sellers test, which we previously used in Caraway, to the facts of this case. The following facts are undisputed. MDES paid benefits to Hollingsworth. She was ineligible to receive benefits at that time because she had refused suitable work. MDES paid these benefits because Holl-ingsworth did not tell MDES that she had refused suitable work, which was a material fact. MDES did not acquire this knowledge until The Eyeglass Factory informed the department that they had offered Hollingsworth a new job. This omission or misrepresentation is directly attributable to Hollingsworth. Therefore, MDES has met all of the requirements of the test in Caraway, and we affirm the decision of the board of review that MDES may actively pursue collection measures against Hollingsworth.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS AFFIRMED.

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

      . During the hearing with the appeals officer, Hollingsworth stated that she assumed “end of the day” meant 5:30 p.m. However, the employer's witness said that they only worked until 4:00 p.m. until sometime around October because of the curfew imposed after the hurricane.

      . Effective July 1, 2007, Section 71-5-19(4) has been amended.


source: Caselaw Access Project

license: Public Domain

text:
    Billy Lloyd RAY, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01824-COA.
    Court of Appeals of Mississippi.
    March 4, 2008.

      Billy Lloyd Ray, Appellant, pro se.
    Office of the Attorney General By John R. Henry, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J., for the Court.

¶ 1. After entering a guilty plea to the charge of sexual battery, Billy Lloyd Ray was sentenced to ten years with one year to serve and nine years suspended. Ray was placed on post-release supervision for nine years. Following a revocation hearing held on April 30, 2004, the circuit court found that Ray had violated the conditions of his post-release supervision and sentenced him to serve the remaining nine years of his sentence in the custody of the Mississippi Department of Corrections. Ray then filed a motion for post-conviction relief that was denied by the circuit court. On appeal, Ray argues that: (1) there is insufficient credible evidence to support his convictions for domestic violence and disorderly conduct, (2) he entered guilty pleas to domestic violence and disorderly conduct only because his attorney told him to do so, (3) his sentence is illegal, (4) the circuit court did not have jurisdiction to revoke his post-release supervision, (5) his due process rights were violated at the revocation hearing, and (6) he was denied effective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. Ray was indicted as a habitual offender in Washington County on charges of kidnaping, rape, sexual battery, and directing or causing a felony to be committed by a person under seventeen years of age. On November 17, 1999, he entered a guilty plea to the crime of sexual battery and was sentenced to ten years with one year to serve and nine years suspended. Ray was placed on post-release supervision for nine years.

¶ 3. On April 30, 2004, a revocation hearing was held in the Circuit Court of Jackson County to determine whether Ray had violated the terms of his post-release supervision. At that hearing, the State alleged that Ray had violated the following conditions:

1. offender failed to remain free from controlled substances by testing positive for the illegal drug, marijuana, in samples obtained on March 3, 2003, and December 16, 2003,
2. offender failed to remain free of firearms by having several weapons in his residence,
3. offender failed to abide by the law by being arrested and charged with possession of a weapon by a convicted felon, domestic violence, simple assault, possession of spotted fawn, and illegal possession of a deer at night,
4. offender failed to avoid injurious and vicious habits by testing positive for controlled substances and using alcoholic beverages, and
5. offender failed to pay the Court of Washington County.

¶ 4. At the revocation hearing, Ray, through counsel, confessed that he had violated the terms of his post-release supervision by testing positive for marijuana on March 3, 2003, and December 16, 2003. Each of the other alleged violations arose from an incident involving Ray’s wife, which occurred on December 16, 2003.

¶ 5. That day, Mrs. Ray called 911 to report that Ray was pointing a rifle at her and threatening to kill her. The following day, the police placed Ray in custody and conducted a search of the home. They found a muzzle loader, a .22 rifle, and a 12-gauge shotgun inside the house. A .270 bolt action rifle was found in a shed behind the house. Mrs. Ray told the investigating officer that, on the previous night, she walked behind the shed and found Ray fondling her eighteen-year-old daughter while his pants were down. Then, as she tried to leave with her children, Ray stood at the doorway of the vehicle, pointed the rifle at her, and threatened to kill her. As a result of the incident, Ray pleaded guilty to misdemeanor charges of domestic violence and disorderly conduct.

¶ 6. During her testimony at the revocation hearing, Mrs. Ray changed her account of the events of December 16, 2003. She testified that she saw Ray and her daughter behind the shed but his pants were not down, and he was not fondling her daughter. She also testified that Ray tried to keep her from leaving, but he did not threaten her with a gun. Mrs. Ray further claimed that none of the guns found in the home belonged to Ray.

¶ 7. After the hearing, the circuit court revoked Ray’s suspended sentence and post-release supervision, sentencing him to serve nine years in prison. The circuit court stated that the grounds for the revocation were Ray’s admission that he smoked marijuana and his guilty pleas for domestic violence and disturbing the peace. We now consider the appeal of the circuit court’s denial of Ray’s motion for post-conviction relief.

STANDARD OF REVIEW

¶ 8. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

1. Sufficiency of the Evidence

¶ 9. The majority of Ray’s argument on appeal is that the circuit court’s revocation of his post-release supervision was based on events fabricated by his wife; thus, there is not sufficient evidence to uphold his convictions for domestic violence and disorderly conduct. Ray argues that “this entire case was based on Mrs. Ray’s lies to have him put in prison.” Both he and Mrs. Ray now contend that Ray did not fondle her daughter or threaten to kill her with the rifle. Instead, Ray argues that, because his wife allegedly lied about Ray’s actions that resulted in charges of domestic violence and disorderly conduct, his post-release supervision should not have been revoked based on those allegations.

¶ 10. Ray entered guilty pleas to both domestic violence and disorderly conduct. “A guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.” Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989).

¶ 11. This Court decided a similar issue in Steele v. State, 845 So.2d 758 (Miss.Ct.App.2003). There, the defendant also argued that the evidence was insufficient to uphold his conviction despite the fact that he entered a guilty plea. Id. at 759(¶ 4). We declined to address the issue because, by pleading guilty, the opportunity to have a jury review the sufficiency of the evidence had been waived. Id. Similarly, Ray argues that there is insufficient evidence to uphold his criminal convictions which resulted in the revocation of his post-release supervision. However, Ray waived this argument by entering his guilty pleas. That being so, we decline to review the issue.

2. Validity of Ray’s Guilty Pleas

¶ 12. Ray argues that the only reason he pleaded guilty to domestic violence and disorderly conduct was because he was told to do so by the public defender. Ray fails to offer any evidence of this allegation. This Court is required to “decide each case by the facts shown in the record, not assertions in the brief, however sincere [Ray] may be in those assertions. Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.” Mason v. State, 440 So.2d 318, 319 (Miss.1983).

¶ 13. Ray failed to raise this issue until his motion for post-conviction relief. No evidence was presented at the revocation hearing about the validity of his guilty pleas. Because there is no proof in the record that the pleas are invalid, this issue has no merit.

S. Illegal Sentence

¶ 14. Ray claims that his sentence for sexual battery is an illegal sentence. He was sentenced to ten years, the first year to serve and the remaining nine years suspended conditioned upon his obedience to the terms of nine years of post-release supervision. Ray argues that the nine years of post-release supervision violates the maximum of five years of post-release supervision by the Mississippi Department of Corrections (“MDOC”) that is allowed by statute. Mississippi Code Annotated section 47-7-34(3) (Rev.2004) states that the “maximum amount of time that the Mississippi Department of Corrections may supervise an offender on the post-release supervision program is five (5) years.”

¶ 15. However, the supreme court has made it clear that post-release supervision is not limited to five years. “While the statute unquestionably limits to five years the period of time that the MDOC may supervise an offender who is on post-release supervision, the clear language of the statute does not limit the total number of years of post-release supervision to five years.” Miller v. State, 875 So.2d 194, 199(¶ 10) (Miss.2004). The MDOC has the responsibility of monitoring the convicted defendant for the first five years after which the court assumes that responsibility for the remainder of the term of post-release supervision. Johnson v. State, 925 So.2d 86, 102(¶ 30) (Miss.2006). This period after the first five years is known as “unsupervised” or “non-reporting” post-release supervision. Id. The statute imposes a limit on the burden that a court may place on the MDOC to supervise a defendant. But, as the supreme court noted, “the court is not so limited concerning the burden it may place on itself by way of monitoring a defendant’s behavior while the defendant is serving a [term of] ‘non-reporting’ post-release supervision.” Id. Thus, Ray’s argument that his sentence was illegal is flawed because, while it is true that he will only be supervised by the MDOC for a maximum of five years, he remains under the supervision of the court for the portion of the sentence above that five years. We find that Ray’s sentence imposed by the circuit court is valid; thus, this issue has no merit.

h. Jurisdiction of the Circuit Court of Jackson County

¶ 16. Ray contends that the Circuit Court of Jackson County did not have jurisdiction to revoke his post-release supervision that was imposed by a different court. This argument fails because the circuit court of the district where the defendant is arrested has the power “to continue or revoke all or any part of [post-release supervision].” Miss.Code Ann. § 47-7-37 (Rev.2004). In its order denying Ray’s motion for post-conviction relief, the circuit court properly held that it had jurisdiction to revoke Ray’s post-release supervision because Ray was arrested and pleaded guilty to crimes that occurred in Jackson County. Accordingly, this issue has no merit.

5. Violation of Due Process

¶ 17. Ray claims that there were several violations of his right to due process, which occurred during the revocation hearing. Such alleged violations include: (1) the circuit judge showed bias by allowing the district attorney to bring forth false allegations by Ray’s wife, (2) the district attorney made false statements about Ray, and (3) the district attorney improperly introduced evidence of Ray’s conviction for sexual battery.

¶ 18. The minimum requirements of due process, applicable in a revocation hearing, include written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, an opportunity to be heard and to present witnesses and evidence, the right to confront and cross-examine adverse witnesses, a neutral and detached hearing body, and a written statement by the fact-finders as to the evidence relied on and the reasons for revoking probation. Riely v. State, 562 So.2d 1206, 1210 (Miss.1990). There is no indication in the record, and, in fact, Ray does not argue, that any of these requirements were not met here.

¶ 19. Almost the entire hearing consisted of controverted evidence about whether Mrs. Ray lied about Ray’s actions on December 16, 2003. There was also mention of Ray’s prior conviction of sexual battery. However, this evidence was not necessary to revoke Ray’s post-release supervision. Indeed, the circuit judge based the revocation on the guilty pleas entered by Ray and his admission that he tested positive for marijuana. The circuit judge stated:

Well, Mr. Ray, I could put a lot in the record about the credibility of [your wife], but that’s not necessary to the Court. You’ve violated the terms of your probation. You admitted smoking marijuana, you’ve pled guilty to two charges in county court, and that’s all I need to hear.

Because the alleged due process violations listed above in no way affected the circuit judge’s decision to revoke Ray’s post-release supervision, we find no reversible error.

¶ 20. Additionally, Ray claims that it was a violation of due process that: (1) only statements and not actual evidence of the drug test were admitted and (2) his probation officer refused to allow him to take a second drug test after he informed her that he was taking prescription medication that caused him to test positive for marijuana. Again, the record of the revocation hearing shows no evidence of any violation of the minimum due process requirements. Most importantly, Ray had an opportunity to present this argument at the revocation hearing. There, he had the chance to produce witnesses and evidence regarding his medical condition and the drugs prescribed by his physician. Instead, Ray admitted that he had used marijuana and eliminated the need for the district attorney to produce further evidence of the drug test.

¶ 21. We also note that Ray’s admission regarding the marijuana use was not necessary for the circuit judge to revoke his post-release supervision. His convictions for domestic violence and disorderly conduct were sufficient in and of themselves to support the revocation; thus, error as to evidence of his marijuana use, if any, was harmless in nature. This issue has no merit.

6. Ineffective Assistance of Counsel at the Revocation Hearing

¶ 22. Ray claims that he was denied his right to effective assistance of counsel because of deficiencies in his representation at the revocation hearing. He asserts the following errors: (1) counsel admitted that Ray had tested positive for marijuana use and (2) counsel did not object to the introduction into evidence of “false allegations” of charges that had previously been dismissed.

¶ 28. To prove ineffective assistance of counsel, a defendant must show that: (1) his counsel’s performance was deficient and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with the defendant to show both prongs of the Strickland test. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In cases involving post-conviction relief, “where a party offers only his affidavit, then his ineffective assistance claim is without merit.” Vielee v. State, 658 So.2d 920, 922 (Miss.1995).

a. Admission of Marijuana Use

¶ 24. During the revocation hearing, Ray’s counsel announced to the circuit court that Ray admitted testing positive for marijuana on March 3, 2003, and December 16, 2003. Now Ray claims that he never admitted to counsel that he smoked marijuana, but instead he told counsel that he was on medication prescribed by his doctor that caused the drug test to come back positive. Even assuming that this is true, Ray has failed to show any prejudice caused by this admission. The admission was one of the circuit judge’s reasons for revoking Ray’s post-release supervision; however, his guilty pleas for domestic violence and disorderly conduct were sufficient for revocation without considering the marijuana violation. Ray has not shown that, but for the alleged error, the outcome of the hearing would have been any different. According, this issue has no merit.

b. Evidence of Charges That Were Dismissed

¶ 25. Ray further claims that counsel’s lack of objection to his probation officer’s testimony constitutes ineffective assistance of counsel. He states that the probation officer testified to “false allegations of charges that had been dismissed,” including charges of being a felon in possession of a weapon, possession of a spotted fawn, and illegal possession of a deer at night. Once again, he fails to show how this alleged error resulted in any type of prejudice. Even if counsel had objected and there had been no testimony about the charges that were dismissed, that still leaves Ray’s convictions for domestic violence and disorderly conduct. Those alone were enough to revoke his post-release supervision; thus, Ray has not shown that the outcome would have been different absent the alleged error by counsel. We find no showing of ineffective assistance of counsel. This issue has no merit.

7. Ineffective Assistance of Counsel at the Plea Hearing

¶ 26. Ray also contends that his attorney, who provided representation when he entered his guilty pleas for domestic violence and disorderly conduct, was ineffective. Specifically, he claims that he would not have entered guilty pleas if counsel had warned him that such pleas would be grounds for revoking his post-release supervision. However, Ray has not presented any proof of this alleged deficiency. He offers only his affidavit; thus, his ineffective assistance claim is without merit. See Vielee, 653 So.2d at 922.

8. Inconsistency Between the Circuit Court’s Oral Pronouncement of Revocation and the Written Sentencing Order

¶ 27. In its brief, the State brings our attention to the inconsistency that exists between the oral pronouncement of revocation and the written sentencing order. At the conclusion of the revocation hearing, the circuit judge found that Ray had admitted to smoking marijuana and had pleaded guilty to criminal charges. These were the sole reasons that the circuit judge announced as grounds for the revocation. However, in the written order, the circuit judge not only included the foregoing reasons, but also, he included all of the other violations alleged by the district attorney at the hearing. Ray does not specifically state this as an error, but we may infer that he claims such as error due to his extensive argument concerning violations that were not orally pronounced by the circuit judge.

¶ 28. A majority of jurisdictions hold that, where an oral pronouncement and a written order conflict, the oral pronouncement controls. See Boutwell v. State, 847 So.2d 294, 295-96 (¶¶ 6-8) (Miss.Ct.App.2003). Here, however, it is not necessary that we consider the differences between the oral pronouncement and the written order. The violations pronounced by the circuit judge included Ray’s admission of marijuana use and his guilty pleas for domestic violence and disorderly conduct. Either of these violations was more than sufficient to revoke his post-release supervision. The only inconsistency is that the court’s written order contains violations that were not included in the court’s oral pronouncement. Indeed, this does not create a true ambiguity because the same violations pronounced by the circuit judge at the hearing were also included in the written order. The intent of the circuit judge is clear and no direct conflict exists.

¶ 29. Indeed, there is no ambiguity that would allow Ray to be entitled to relief. Ray’s sentence was clear and not ambiguous. Both the circuit court’s oral pronouncement and the written order sentenced Ray to serve nine years in prison. Since there is no ambiguity as to the violations in both the oral pronouncement and the written order, we hold that the additional violations included in the written order constitute harmless error.

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

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., • CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


text:
    Darious CALVERT a/k/a D.C. a/k/a D-Gully, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CA-00604-COA.
    Court of Appeals of Mississippi.
    March 4, 2008.
    Robert Sneed Laher, Corinth, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., GRIFFIS, ROBERTS and CARLTON, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Darious Calvert appeals the denial of his motion to withdraw his guilty plea. As error, Calvert argues that: (1) his guilty plea was entered involuntarily and (2) he was denied effective assistance of counsel. We find that this Court is without jurisdiction to hear a direct appeal from a guilty plea and must dismiss the appeal.

FACTS

¶ 2. Calvert was indicted by a Lee County grand jury for possession of methamphetamine with intent to sell, transfer, or distribute while in possession of a firearm. Under Mississippi Code Annotated section 41-29-139(b)(l) (Rev.2005), Calvert faced a maximum sentence of thirty years and up to a $1,000,000 fine for the sale of methamphetamine. Because Calvert possessed a firearm, that maximum sentence and fine could be doubled by the court pursuant to Mississippi Code Annotated section 41-29-152 (Rev.2005).

¶ 3. On August 18, 2006, Calvert entered a guilty plea. The circuit court sentenced Calvert to the State’s recommended sentence of sixteen years, with ten years suspended, and a fíne of $5,000, with $3,500 suspended. On December 6, 2006, after retaining new counsel, Calvert filed a motion to withdraw his guilty plea. The circuit court found that the motion was not well taken and denied it by order dated March 21, 2007. It is from this judgment that Calvert now appeals.

ANALYSIS

¶ 4. The initial issue before this Court is whether an appellate court has jurisdiction to hear a direct appeal from the circuit court’s denial of Calvert’s motion to withdraw his guilty plea. Of course, that is not the issue argued by Calvert. Calvert does not mention the jurisdiction issue. This Court, however, is always mindful of its jurisdiction. This Court does not have jurisdiction to consider Calvert’s appeal from the circuit court’s order because a direct appeal is not proper once a defendant enters a guilty plea. Miss.Code Ann. § 99-35-101 (Rev.2007).

¶ 5. The supreme court addressed this exact issue in Berry v. State, 722 So.2d 706, 707(¶ 5) (Miss.1998). There, like Calvert, the defendant filed a motion to set aside his guilty plea that was denied. Berry contended that the trial court erred in denying his motion because his plea was not entered voluntarily. Id. at (¶ 4). The supreme court held that it did “not have jurisdiction on direct appeal when only a guilty plea is being challenged. Miss.Code Ann. § 99-35-101 (1994). Instead a defendant must file a motion for collateral conviction relief pursuant to Miss.Code Ann. § 99-39-5 (1994).” Berry, 722 So.2d at 707(¶ 5).

¶ 6. Calvert argues that the circuit court erred in denying his motion to withdraw his guilty plea because he received ineffective assistance of counsel and because his plea was not entered voluntarily. If Calvert had appealed the sentence issued by the circuit court after he entered his guilty plea, this Court would have jurisdiction. Berry, 722 So.2d at 707(¶ 5) (citing Trotter v. State, 554 So.2d 313, 315 (Miss.1989)). Because Calvert only attacks the plea itself and makes no assignment of error regarding the validity of his sentence, we must find that this Court is without jurisdiction and must dismiss this appeal. Indeed, Calvert may assert his claims of ineffective assistance of counsel and the involuntariness of his plea in a motion for post-conviction collateral relief. See Berry, 722 So.2d at 708(¶ 7); Miller v. State, 794 So.2d 1065, 1067(¶6) (Miss.Ct.App.2001).

¶ 7. THE APPEAL FROM THE CIRCUIT COURT OF LEE COUNTY IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: MYERS, P.J., for the Court.

text:
    Patrick JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CA-00133-COA.
    Court of Appeals of Mississippi.
    March 4, 2008.

      Charles E. Miller, McComb, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   MYERS, P.J., for the Court.

¶ 1. Patrick Jones pleaded guilty to one count of simple assault on a police officer and was sentenced to serve five years in the Mississippi Department of Corrections. However, he was given credit for time served with the balance suspended in lieu of serving four years of post-release supervision. Jones violated the terms of his post-release supervision and was ordered to serve the remainder of his sentence.

¶ 2. Jones appeals the revocation of his suspended sentence, arguing: (1) that the trial court erred in revoking his post-release supervision, (2) that the original sentence was excessive and unconstitutional, and (3) that he received ineffective assistance of counsel.

FACTS AND PROCEDURAL HISTORY

¶ 3. Jones pleaded guilty on February 25, 2004, to one count of simple assault on a police officer. He was ordered to serve five years in the custody of the Mississippi Department of Corrections. However, he was given credit for time served with the balance suspended, provided he successfully complete four years of post-release supervision.

¶ 4. While serving his post-release supervision, Jones tested positive for drugs and was found to be in possession of both alcohol and drugs in violation of the terms of his supervision. At a revocation hearing, the trial court found that Jones was in violation of his post-release supervision and ordered him to serve the remainder of his five-year sentence. Jones sought post-conviction relief, which the trial court dismissed, and Jones now appeals.

STANDARD OF REVIEW

¶ 5. A trial court’s finding of fact in post-conviction relief cases will not be overturned by an appellate court unless found to be clearly erroneous. Hill v. State, 940 So.2d 972, 973(¶ 3) (Miss.Ct.App.2006) (citing Boyd v. State, 926 So.2d 233, 235(¶ 2) (Miss.Ct.App.2005)). However, questions of law are reviewed de novo. Id.

DISCUSSION

I. WHETHER JONES RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 6. Jones first asserts that he received ineffective assistance of counsel in the trial court because his attorney allegedly did not address his available defenses and the issues of change of venue and probable cause. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) provides a two-part test to determine whether claims of ineffective assistance of counsel have merit. See Adams v. State, 950 So.2d 259, 261(¶ 7) (Miss.Ct.App.2007) (applying Strickland’s two-part test). In order to prove Jones’s ineffective assistance of counsel claim, he must show by a preponderance of the evidence “(1) that counsel’s performance was deficient, and (2) but for the deficiencies, the trial court outcome would have been different.” Ward v. State, 914 So.2d 332, 336(¶12) (Miss.Ct.App.2005) (citing Gatewood v. State, 909 So.2d 754, 756(¶ 5) (Miss.Ct.App.2005)). Additionally, an appellate court must recognize on review that “[trial] counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. We are to look at the totality of the circumstances when making that determination.' Id. at 699, 104 S.Ct. 2052.

¶ 7. In this case, Jones has failed to meet his burden of proof on either prong of the Strickland test. Jones has produced no evidence which would show that, but for his attorney’s errors, the outcome of his trial would have been different. Jones, in a bare statement, alleged ineffective assistance of counsel. Ultimately, Jones has failed to elaborate sufficiently, with supporting evidence, to overcome the strong presumption in favor of the previous trial counsel.

¶ 8. Additionally, this Court notes that Jones failed to include a sworn affidavit to support his claims of ineffective assistance of counsel or explain why it was not included with his post-conviction relief motion as required by Mississippi Code Annotated section 99-39-9(1) (Rev.2007). See Hill v. State, 940 So.2d 972, 974(¶ 10) (Miss.Ct.App.2006) (finding no error in trial court’s denial of post-conviction relief motion when defendant failed to include an affidavit to support his claims of ineffective assistance of counsel and failed to provide a reason why an affidavit was not included with his motion); see also Young v. State, 877 So.2d 552, 554(¶ 9) (Miss.Ct.App.2004) (found that under Mississippi Code Annotated section 99-39-9(l)(d) and (e) (Supp. 2003), post-conviction relief motions should include either an affidavit swearing the facts needed for relief or showing how those allegations will be proven). In light of the failure to prove all these factors, we find that this issue lacks merit.

II. WHETHER THE TRIAL COURT ERRED IN ACCEPTING A GUILTY PLEA AND WHETHER JONES MAY ESTABLISH ACTUAL INNOCENCE ON APPEAL FROM DENIAL OF POST-CONVICTION RELIEF.

¶ 9. Jones argues on appeal that there was no factual basis for his guilty plea. Jones also asserts that he was actually innocent because he had a severe chemical dependency, and the trial court should have held a hearing to address the issue of his chemical dependency. “[A] criminal defendant who has entered a guilty plea cannot litigate his actual guilt on appeal from a denial of post-conviction relief, unless the defendant can show that the guilty plea was not knowingly, voluntarily, or intelligently entered.” Jones v. State, 948 So.2d 499, 505(¶ 17) (Miss.Ct.App.2007) (citing Graham v. State, 914 So.2d 1256, 1259(¶ 8) (Miss.Ct.App.2005)). “In reviewing a defendant’s claim that his guilty plea was not entered knowingly and voluntarily, [an appellate court] must determine if the trial court’s finding was clearly erroneous.” Hall v. State, 906 So.2d 34, 36(¶ 5) (Miss.Ct.App.2004) (citing Swindoll v. State, 859 So.2d 1063, 1065(¶ 9) (Miss.Ct.App.2003)).

¶ 10. Here, from a simple reading of the record, this Court notes that Jones admitted committing simple assault on a police officer, and pleaded guilty. The State argues, and we agree, that a “factual basis for a plea may be established by the admission of the defendant.” Templeton v. State, 725 So.2d 764, 766(¶2) (Miss. 1998). The trial court in this case found that there was a factual basis for the entry of Jones’s guilty plea and that his plea of guilty was intelligently, knowingly, understandingly, freely, and voluntarily given. Our review of the record finds that the trial court thoroughly examined Jones during the proceedings to ascertain whether he was competent to enter the guilty plea. Jones bears the burden to show that his guilty plea was not voluntarily and intelligently given. However, Jones has failed to provide any evidence indicating that his guilty plea was not voluntarily and intelligently given. Therefore, we affirm the trial court’s acceptance of Jones’s guilty plea.

III. WHETHER THE TRIAL COURT ERRED IN DENYING JONES AN EVIDENTIARY HEARING.

¶ 11. Jones argues that the trial court erred in denying him an evidentiary hearing on his post-conviction relief motion. The trial court did not order an evidentiary hearing when it reviewed Jones’s motion for post-conviction relief. If, after a trial court’s complete review of the record, the court finds that “it is clear that there is no entitlement to relief, the judge may enter an order dismissing the action.” Caston v. State, 949 So.2d 852, 855(¶ 5) (Miss.Ct.App.2007) (citing Miss. Code Ann. § 99-39-11(2) (Rev.2000)). “A post-conviction claim for relief is properly dismissed without the benefit of an eviden-tiary hearing where it is manifestly without merit.” Caston, 949 So.2d at 855(¶ 5) (citing Robertson v. State, 669 So.2d 11, 13 (Miss.1996)). The trial court found that the record clearly contradicted the allegations made in Jones’s motion for post-conviction relief and that the record revealed there was no merit to his claims. Further, Jones failed to show by an affidavit, or otherwise, that there was a legitimate basis or reasonable evidence to provide him relief. Based on our review of the record, we affirm the trial court’s ruling.

IV. WHETHER JONES WAS COMPETENT TO STAND TRIAL AND ENTER A GUILTY PLEA.

¶ 12. Jones argues on appeal that he was incompetent to stand trial. Jones also argues he was incompetent to enter a guilty plea because he had a pre-existing medical condition that impaired his mental ability.

¶ 13. The Mississippi Supreme Court noted in Emanuel v. State, 412 So.2d 1187, 1188 (Miss.1982), “when it appears to the trial court that there is a probability that defendant is incapable of making a rational defense, the trial court should not proceed until the defendant’s mental condition has been investigated and it appears that he is sufficiently rational to make a defense.” In addition, “the burden of proof ... rests upon the movants [the defendant] to prove by substantial evidence that the defendant is mentally incompetent to stand trial.” Richardson v. State, 767 So.2d 195, 203(¶ 41) (Miss.2000) (quoting Medina v. California, 505 U.S. 437, 448, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992)).

¶ 14. Here, there was no indication that Jones’s mental capabilities were at issue, íhe trial court found him competent to stand trial and enter a guilty plea, and Jones’s counsel stated that she believed Jones was capable of understanding the court proceedings and intelligently entering his guilty plea. Jones has failed to demonstrate that he was incapable of making a rational defense. Therefore, we uphold the trial court’s determination that Jones was competent to stand trial.

¶ 15. As to Jones’s argument that he was incompetent to enter a guilty plea, we note that there exists a “strong presumption of validity that goes with solemn declarations made in open court.” Hannah v. State, 943 So.2d 20, 25(¶ 11) (Miss.2006) (citing Baker v. State, 358 So.2d 401, 403 (Miss.1978)). Therefore, “[t]he burden of proof is on the petitioner to prove that [his] plea was not voluntarily, knowingly and intelligently given.” Hannah, 943 So.2d at 25(¶ 11) (citing Gardner v. State, 531 So.2d 805, 810 (Miss.1988)). Additionally, “[f]or a guilty plea to be voluntarily and intelligently entered, a defendant must be advised about the nature of the crime charged against him and the consequences of the guilty plea.” Jones v. State, 904 So.2d 1107, 1109(¶ 5) (Miss.Ct.App.2004) (citing Banana v. State, 635 So.2d 851, 854 (Miss.1994)).

¶ 16. As the State notes in its brief, and from our review of the record, the competency or mental condition of Jones was never raised at trial by Jones or by the State. The record before this Court does not indicate any inference that the guilty plea was not voluntarily and intelligently made. During questioning by the trial court, Jones answered each question raised to him. Jones testified that he was not under the influence of anything which would impair his ability to understand the hearing. He testified further that he fully understood the charges against him and that he was voluntarily and knowingly pleading guilty. The trial court also questioned Jones’s attorney regarding Jones’s understanding of the proceedings before the court. Jones’s attorney represented that she believed Jones was capable of fully understanding the proceedings.

¶ 17. Here, there is no evidence in the record indicating that Jones was mentally incapable of pleading guilty, nor has Jones presented any new evidence or arguments that call his mental capacity at the time of pleading into question. Jones has failed to show that his guilty plea was not voluntarily and intelligently made. We find no merit in this argument and affirm the trial court’s determination that Jones was competent to stand trial and to enter a guilty plea.

V. WHETHER THE TRIAL COURT ERRED IN REVOKING JONES’S POST-RELEASE SUPERVISION AND IMPOSING A SUSPENDED SENTENCE.

¶ 18. Jones argues that the trial court committed error by revoking his post-release supervision. Jones further asserts that the trial court’s adjudication of guilt at trial was against the overwhelming weight of the evidence.

¶ 19. In order to revoke probation, the supreme court has held it must be shown that “the defendant ‘more likely than not’ violated the terms of [his] probation.” Forshee v. State, 853 So.2d 136, 140(¶20) (Miss.Ct.App.2003) (citing Younger v. State, 749 So.2d 219, 222(¶12) (Miss.Ct. App.1999)). James Sherman, Jones’s probation officer, testified at the hearing that Jones had violated his probation on several different occasions. Sherman testified that Jones tested positive for marijuana on two separate occasions, was caught drinking alcohol, and was in possession of a single rock of cocaine, all in violation of the terms of his post-release supervision. Jones also acknowledged at the hearing that he had tested positive for marijuana. As a result of the testimony at the hearing, the trial court found that Jones had violated the conditions of his post-release supervision and revoked the suspended sentence. The trial court ordered Jones to serve the balance of his five-year sentence and to complete the therapeutic drug and alcohol program. Considering the testimony the trial court had before it, this Court cannot say that the trial court erred in finding Jones violated the terms of his post-release supervision. This issue is without merit.

¶ 20. Additionally, Jones argues that his probation was revoked without benefit of notice, an attorney, and reasonable cause for arrest. However, “a probationer is not always entitled to counsel at a revocation hearing.” McGaughy v. State, 954 So.2d 452, 458(¶ 4) (Miss.Ct.App.2006) (citing Riely v. State, 562 So.2d 1206, 1209 (Miss.1990)). Counsel will generally be provided when a case is particularly difficult or complex in nature. Id. (citing Riely, 562 So.2d at 1209). Finally, “a probation revocation will be affirmed, even when the petitioner was not informed of his potential access to appointed counsel, as long as the petitioner’s case is not complex or difficult to understand.” McGaughy, 954 So.2d at 454(¶ 7). In this case, a reading of the record demonstrates a very straightforward case where the probationer violated the terms of his post-release supervision on multiple occasions. Thus, because the case was not complex, Jones had no entitlement to counsel at the revocation hearing.

¶ 21. We also note that the trial record shows that a notice of preliminary probation revocation hearing was received and signed by Jones on May 31, 2006. The notice related that Jones would be allowed to be present, speak, present evidence, call witnesses, and cross-examine any other witnesses. The notice also notified Jones that he had the right to retain counsel for the hearing. Further, the notice listed the alleged probation violations and the date, time, and location of the probation revocation hearing. We find that Jones’s assertion that he did not receive proper notice to be unfounded. Therefore, this Court cannot say that the trial court erred in finding Jones violated the terms of his probation. This issue is without merit.

VI. WHETHER JONES’S SENTENCE IS EXCESSIVE AND UNCONSTITUTIONAL.

¶ 22. Jones contends that his sentence to serve five years in the custody of the Mississippi Department of Corrections constitutes cruel and unusual punishment and is disproportionate under the Eighth Amendment of the United States Constitution.

¶23. “Sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Nichols v. State, 826 So.2d 1288, 1290(¶ 10) (Miss.2002). “However, when a comparison threshold of the crime committed to the sentence imposed leads to an inference of gross disproportionality, a three-pronged analysis is used to see if the sentence is out of proportion with the crime.” Rodriguez v. State, 839 So.2d 561, 564(¶11) (Miss.Ct.App.2003).

¶ 24. From our reading of the record, there is no clear inference of gross dispro-portionality when comparing the crime committed to the sentence Jones received. Jones received the statutory maximum of five years for his simple assault on a police officer. Ultimately, Jones has failed to make an initial showing that there was a disproportionate sentence in this case. Without meeting the threshold showing of an inference of gross disproportionality, we have no need to delve further into the analysis. We, accordingly, affirm the judgment of the trial court.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY DISMISSING MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.

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


author: KING, C.J., for the Court.

text:
    Robert WHITE, Jr. Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00313-COA.
    Court of Appeals of Mississippi.
    March 4, 2008.

      James H. Arnold, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J., for the Court.

¶ 1. On March 7, 2005, Robert White, Jr., (Robert) was indicted for the murder of Edward Earl Shelly. After a jury trial held on November 14, 2005, Robert was convicted of manslaughter. Aggrieved, he appeals his conviction and alleges the following issues: (1) whether the State improperly bolstered its witness’s testimony; (2) whether the State improperly characterized the testimony of a defense witness; (3) whether the evidence was insufficient as a matter of law, or whether the evidence was contrary to the weight of the evidence; and (4) whether there existed cumulative error that should cause a new trial.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. In the early morning hours of May 9, 2004, Robert drove his ear to the Watts Club, a nightclub in Schlater, Mississippi. When he arrived at the club, he never went inside the club. Instead, he stayed outside and talked with James Davis, a friend of his. They left the front of the nightclub and went to look at Robert’s eighteen-wheel truck, which was parked a short distance from the nightclub. At the same time, Tyrone Brown, Jr., Shelly’s cousin, was sitting on the back of Shelly’s car speaking with an unnamed female in front of the club. Shelly came out of the club and joined Brown and the female.

¶ 4. Shortly thereafter, Robert left Davis and got into his car. As he drove past Shelly and Brown, he said something. However, at trial there was some disagreement as to what Robert said as he drove past. Brown testified that Robert said, “disrespectful niggers” as he passed. However, Robert testified that he merely said, “y’all be cool, I’ll catch y’all when I get back.”

¶ 5. Robert continued on and then stopped at the end of the street and proceeded to put his car in reverse. When Robert stopped and exited the vehicle, Shelly started to proceed toward Robert. As Shelly was moving toward Robert, he began yelling, cussing, and threatening Robert. After the two exchanged words, Robert turned to walk away. As Robert turned away, Shelly continued toward him. Robert then turned back around and fired one shot from a pistol he was carrying. The shot struck Shelly slightly above his left eye. The shot was later determined to be fatal.

¶ 6. After firing the shot, Robert got in his car and left the immediate area of the club. Investigator Theo White (Investigator White), took Robert into custody. While in custody, Robert gave a statement about the previous events to Investigator White. Additionally, Investigator White recovered a pistol from Robert’s vehicle. Starks Hathcock, an expert witness, was able to testify conclusively that the bullet recovered from Shelly’s body was fired from Robert’s pistol.

¶ 7. Robert was then arrested and subsequently indicted for the murder of Shelly. After a full trial, a jury found Robert guilty of the lesser-included offense of manslaughter. Robert filed a motion for a new trial or, in the alternative, judgment notwithstanding the verdict, which the trial court denied.

¶ 8. Robert then timely appealed.

ANALYSIS

¶ 9. On appeal, Robert alleges that four separate errors were committed. These errors are: (1) whether the State improperly bolstered its witness’s testimony; (2) whether the State improperly characterized the testimony of a defense witness; (3) whether the evidence was insufficient as a matter of law, or whether the evidence was contrary to the weight of the evidence; and (4) whether there existed cumulative error that should cause a new trial.

I. Whether the State improperly bolstered its witness’s testimony.

¶ 10. Robert’s first allegation of error is that the trial court erred when it overruled his objection to the prosecution’s bolstering of Brown on redirect. During the State’s redirect of Brown, the following occurred:

STATE: Okay. And you’re here as a witness on behalf of who?
BROWN: Edward Shelly.
STATE: Okay. The deceased, right.
BROWN: Correct.
STATE: So you could have come in here and yeah, I saw him but you didn’t; right?
BROWN: Correct.
DEFENSE COUNSEL: Your Honor, that’s improper redirect.
STATE: Because you’re telling the truth.
BROWN: Correct.
DEFENSE COUNSEL: He’s bolstering his witness, or attempting to.
BY THE COURT: Well, I’m going to overrule.

¶ 11. The admission and exclusion of evidence is left to the discretion of the trial court. Stewart v. State, 881 So.2d 919, 924(¶ 17) (Miss.Ct.App.2004). Robert correctly states in his brief that “a witness’s unimpeached or unquestioned credibility may not be bolstered by any means[.]” Manning v. State, 929 So.2d 885, 895(¶ 29) (Miss.2006) (quoting Conner v. State, 632 So.2d 1239, 1258 (Miss.1993) (overruled as to the admissibility of the willingness to take a lie detector test)). In Manning, the supreme court dealt with the issue of whether a witness’s willingness to take a lie detector test was admissible. While this ease does not address a lie detector test in any form, the premise that a witness’s credibility should not be bolstered, unless it has been attacked still holds true.

¶ 12. The State responds by alleging that Brown’s credibility had been attacked during cross-examination and that it was permissible to allow the bolstering of Brown’s testimony. The State cites to Stringer v. State, 548 So.2d 125, 132-33 (Miss.1989), for support that questions such as those posed by the State are proper on redirect examination when the witness’s credibility has been challenged on cross-examination. While Stringer did involve “bolstering” questions asked on redirect, the witnesses had been confronted with prior inconsistent statements on cross-examination.

¶ 13. The issues that were addressed on cross-examination did not impeach or question the credibility of Brown. The State alleges that Robert’s counsel attempted to impeach how and under what lighting conditions he saw Robert lower his hand with a pistol in it after a shot was fired. However, defense counsel never impeached or questioned the credibility of Brown. Brown was questioned about how he saw Robert after the shot was fired. He testified that he was sitting on the back of Shelly’s car paying attention to a female. He further testified that Shelly and Robert were several feet from the front of the same car.

¶ 14. Then the following exchange occurred between defense counsel and Brown:

BY DEFENSE COUNSEL: Okay. And, now, when you say that when you heard the shot, you went to the ground?
BROWN: No, sir.
BY DEFENSE COUNSEL: Well, didn’t you say that when you heard the shot, you went to the ground?
BROWN: No. I said I ducked.
BY DEFENSE COUNSEL: I thought you said you ducked to the ground.
BROWN: No, I did not.
BY DEFENSE COUNSEL: Did not. You just did like this (indicating), or demonstrate—
BY DEFENSE COUNSEL: If I may ask him to, Your Honor.
BY THE COURT: You may.
BY DEFENSE COUNSEL: Demonstrate what you mean by you ducked.

After Brown demonstrated how he ducked to the jury, the defense counsel moved on to a different topic. As for the lighting in the area, Brown stated that the area was very well lit, with a city light right next to the car.

¶ 15. While defense counsel brought out testimony and expounded on points more thoroughly than the prosecution, it did not impeach or question Brown’s credibility. Therefore, the bolstering of his testimony was improper, and the trial court should have sustained the objection. However, this error was merely harmless. On redirect, the bolstering comment focused on whether Brown saw Robert lowering his hand with a pistol in it after the shot was fired. There was very little doubt from the evidence presented at trial that Robert shot Shelly. The bullet found in Shelly’s body was matched to Robert’s pistol. Further, Dr. Hayne testified that the shot was fired from a close proximity to Shelly. Shortly after the incident, Robert gave a statement to Investí-gator White that he was the one who shot Shelly.

¶ 16. These facts were uncontested by the defendant. The question in this case was whether Robert shot Shelly in self-defense. Even Robert acknowledges this fact in his brief. Since Brown admitted several times that he did not know what happened between Shelly and Robert prior to hearing the shot fired, he was unable to provide any relevant information to this important issue. Therefore, this error was harmless.

II. Whether the State improperly characterized the testimony of a defense witness.

¶ 17. Robert alleges that the prosecution wrongfully stated that Davis, one of the defense witnesses, “lied in open court.” Robert alleges that this improper characterization occurred during the prosecution’s cross of Davis. The prosecution was attempting to cross-examine Davis about whether he saw a gun in Robert’s hand when Robert got out of the car.

1118. On cross-examination, Davis was questioned about the statement he had previously made to police. In the statement, Davis had said Robert had a gun in his hand when he got out of the car. However, Davis alleged that the statement had been changed from what he actually told police. When asked at trial, he refuted that he could see the gun when Robert got out of the car. He stated that Robert had a gun previously and that everyone saw it.

DAVIS: I didn’t say I could see the gun in his hand. I said he had a gun previously that night. Everybody saw it.
STATE: Okay. So everybody saw that he had a gun previously that night.
DAVIS: Previously that night.
STATE: That’s your testimony today.
DAVIS: Right.
STATE: Okay. So if Investigator White got up and said that you did, in fact, say that, he’d be lying[?]
DAVIS: If it’s really like that, that I say I saw a gun when he got out of the car, yes.
STATE: Okay. We’re getting somewhere now. So you need to go on and tell the truth.
DAVIS: I am telling the truth.
STATE: Well, then why a second ago did you say no, he didn’t have a gun when he got out of the car. You lied in open court.
DAVIS: What exactly do you mean?

At this point, the defense noted to the trial court that this was an improper depiction of Davis’s testimony.

¶ 19. The State argues that this point is waived, because the defense never “objected” to the testimony. However, the judge held a bench conference and acknowledged that the State had improperly characterized Davis’s testimony and that there had been an objection. The discussion during the bench conference further revealed that the State thought Davis had acknowledged on the witness stand that he saw Robert with a gun when he exited the vehicle. After the bench conference, the trial court instructed the State to ask Davis again whether he saw Robert exit the vehicle with a gun. After asking the question several times in several different ways, Davis consistently stated that he did not see Robert with a gun when he exited the vehicle.

¶ 20. Robert now argues that the trial court did not sustain its objection and correct the error of the State. Further, Robert states that the error was highly prejudicial and requires reversal. Robert cites to Dunaway v. State, 551 So.2d 162, 163 (Miss.1989) for support. Dunaway provides that “the test to determine if an improper argument by a prosecutor requires reversal is whether the natural and probable effect of the prosecuting attorney’s improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice.” Id.

¶ 21. We cannot now say that the comment made by the State should result in reversal. Further, Robert states in his brief that “had the [t]rial [c]ourt simply sustained the objection, the prosecution’s error might have been corrected.” While the trial court did not specifically “sustain” the objection, it did attempt to correct the situation. It was clear from the bench conference, that the only individual confused as to what Davis had testified to was the State. To clear up any confusion as to the statement, the trial court had the State ask the question again. The State then proceeded to ask Davis several different ways if he saw Robert exit the vehicle with a gun. Each time, Davis repeated that he did not see a gun at that time.

¶ 22. Since the trial court had the State ask the question again, it helped to cure any prejudice that might have resulted. Therefore, the trial court did not commit error when it was presented with this situation. This allegation of error is without merit.

III. Whether the evidence was insufficient as a matter of law, or whether the verdict was contrary to the weight of the evidence.

¶23. Robert attempts to include two issues in this allegation of error. While we would normally address these issues separately, Robert couches these issues on the premise that the State was not able to overcome his theory of justifiable self-defense. The supreme court has held that “[t]he issue of justifiable self-defense presents a question of the weight and credibility of the evidence rather than sufficiency and is to be decided by the jury.” Dubose v. State, 919 So.2d 5, 7(¶ 11) (Miss.2005) (quoting Wade v. State, 748 So.2d 771, 774(¶ 11) (Miss.1999)).

¶ 24. Therefore, we will address whether the verdict was contrary to the weight of the evidence. “[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). The supreme court has further held that:

[i]f there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgement [sic] might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.

Dunn v. State, 891 So.2d 822, 826(¶ 25) (Miss.2005)(quoting McFee v. State, 511 So.2d 130, 133-34 (Miss.1987)). The evidence should be weighed in the light most favorable to the verdict. Bush, 895 So.2d at 844(¶ 18).

¶ 25. From the evidence presented at trial, we cannot say that the verdict is against the overwhelming weight of the evidence. While Shelly approached Robert in a threatening manner, Robert’s pretrial statement to Investigator White was that he saw Shelly ball-up his fists. He never stated that he saw any kind of weapon on Shelly. Further, no one saw Shelly with a weapon on the night of the shooting, and no weapon was found on Shelly after he had been shot. Shelly was drunk as he advanced toward Robert, cursing and threatening him. In addition, Robert testified that Shelly spit in his face prior to the shooting.

The supreme court has held that:
where an attacker is much larger than the one attacked, the nature of the assault, though only with fists, might be such as to reasonably show that the one being attacked is in danger of great bodily harm, and therefore is justified in the use of a deadly weapon to defend [himjself.

Manuel v. State, 667 So.2d 590, 592 (Miss. 1995). However, Robert and Shelly were about the same size, with Robert weighing about ten more pounds and an inch taller than Shelly. While Robert testified that he received an injury to his arm several years before and was missing a few fingers on his left hand, the jury could have still concluded that he could have defended himself without a weapon when approached by an unarmed man. This was clearly an issue properly left for the jury.

¶ 26. After taking into account the evidence found in the record, we cannot say that reasonable jurors might have reached different conclusions. Therefore, the verdict was not against the overwhelming weight of the evidence.

IV. Whether cumulative error existed.

¶ 27. Robert alleges that in the event that any of the alleged errors are not sufficient to constitute a new trial, if they are taken together, a new trial should be granted. “This Court may reverse a conviction and sentence based upon the cumulative effect of errors that independently would not require reversal.” Coleman v. State, 697 So.2d 777, 787 (Miss.1997). While we previously found that the trial court erred by not sustaining an objection to bolstering, it was harmless. Further, it was the only allegation of error, while harmless, that had any merit. It is important to note that Robert is not entitled to a perfect trial. Clark v. State, 891 So.2d 136, 141(¶ 19) (Miss.2004). He is merely entitled to a fair one. Id.

¶ 28. We find that Robert received a fair trial. Therefore, this assignment of error is without merit.

CONCLUSION

¶29. While the trial court committed harmless error in not sustaining an objection to improper bolstering, it ensured that Robert received a fair trial. Further, the trial court corrected the State when it improperly characterized what a defense witness said by having the State restart the line of questioning. Further, the verdict of manslaughter was not against the overwhelming weight of the evidence presented to the jury. Therefore, the judgment of the trial court is affirmed.

¶ 30. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF A TERM OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS TO SERVE FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Dr. Hayne testified that Shelly had a B.A.C. of .18.


author: ROBERTS, J., for the Court. LEE, P.J.,

text:
    Ron PARMLEY d/b/a A Classic Wrecker, Appellant v. Woodrow W. PRINGLE, III, Ben F. Galloway and Owen and Galloway, PLLC, Appellees.
    No. 2006-CA-00017-COA.
    Court of Appeals of Mississippi.
    March 4, 2008.

      Michael G. Piazza, Jackson, attorney for appellant.
    Woodrow W. Pringle, Gulfport, attorney for appellees.
   MODIFIED OPINION ON MOTION FOR REHEARING

ROBERTS, J., for the Court.

¶ 1. The motion for rehearing is granted. The original opinion is withdrawn, and this modified opinion is substituted in lieu of our previous opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 4, 1999, Woodrow W. Pringle, III, Ben F. Galloway, and Owen & Galloway, PLLC (collectively “Pringle”) filed a complaint on Ron Parmley’s behalf asserting various breach of contract claims. Over the course of their representation, Parmley alleged that Pringle failed to assert certain causes of action and that Pringle settled claims with all but one defendant without his consent. Aggrieved, Parmley, d/b/a A Classic Wrecker, filed a complaint on January 31, 2005, against Pringle, Galloway, and Owen & Galloway in the Circuit Court of the First Judicial District of Harrison County asserting legal malpractice. Parmley, represented by Michael Hill, incorrectly served process on Pringle, an in-state defendant, by certified mail in violation of Mississippi Rule of Civil Procedure 4(d)(4). Parmley failed to properly serve process within 120 days of filing the complaint. Thereafter, and while his first lawsuit was still pending, Parmley filed another complaint on June 7, 2005, asserting the same causes of action. Summons was properly served on the second complaint within 120 days.

¶ 3. On July 5, 2005, Pringle filed a motion to dismiss both complaints for failure to serve process and for failure to file the second complaint within the three-year statute of limitations. The trial court granted Pringle’s motions to dismiss both complaints with prejudice. The first complaint was dismissed for failure to serve process within 120 days as required by Mississippi Rule of Civil Procedure 4. The second complaint was dismissed for failure to file the action before the expiration of the applicable statute of limitations. Parmley now appeals to this Court, asserting the following issue: the trial court erred in granting Pringle’s motion to dismiss the June 7, 2005, complaint.

¶ 4. Finding that the trial court did not err in dismissing the June 7, 2005, complaint, we affirm.

STANDARD OF REVIEW

¶ 5. “The lower court’s grant of a motion to dismiss based upon the statute of limitations presents a question of law to which this Court applies de novo review.” Anderson v. R & D Foods, Inc., 913 So.2d 394, 397 (¶ 7) (Miss.Ct.App.2005).

DISCUSSION

¶ 6. Parmley’s main argument is that the complaint filed on June 7, 2005, was filed prior to the running of the statute of limitations and should not have been dismissed. Parmley also argues that, while the trial court properly dismissed the original complaint, the trial court incorrectly dismissed the complaint “with prejudice.”

A. JANUARY 31, 2005, COMPLAINT

¶ 7. The statute of limitations on a legal malpractice action is three years. Miss.Code Ann. § 15-l-49(l)(Rev.2003). The statute of limitations begins to run on the date the client learns, or through the exercise of reasonable diligence should have learned, of the negligence of his lawyer. Smith v. Sneed, 638 So.2d 1252, 1253 (Miss.1994). The parties seem to agree that the statute of limitations began to run on May 16, 2002, the day the trial court enforced the settlement order concerning certain defendants in the lawsuit handled by Pringle. Thus, the statute of limitations expired on May 16, 2005.

¶ 8. The three-year statute of limitations in this case was altered by the fact that the complaint was filed on January 31, 2005, but no process was served. The filing of a complaint even without service of process tolls the three-year statute of limitations for the 120-day period allowed pursuant to Mississippi Rule of Civil Procedure 4(h). Owens v. Mai, 891 So.2d 220, 223(¶ 16) (Miss.2005). In the trial court’s well-reasoned order dismissing Parmley’s two complaints with prejudice, the court reasoned that “[t]here is a distinction between ‘toll’ and ‘extension.!’] Once a suit is filed it tolls the statute of limitation[s]. It does not extend the statute of limitationfc].” However, we must follow the analysis of the supreme court in applying the tolling period in Rule 4(h). In this regard, the supreme court was clear in Triple “C” Transport, Inc. v. Dickens, 870 So.2d 1195, 1199-1200 (¶¶ 34-35) (Miss.2004) on the court’s intention regarding the tolling effect a complaint has on a statute of limitations. The supreme court stated:

[The] “filing of a complaint tolls the applicable statute of limitations 120 days, but if the plaintiff fails to serve process on the defendant within that 120-day period, the statute of limitations automatically begins to run again when that period expires.” In order to further toll the statute of limitations, the plaintiff must then refile the complaint before the statute of limitations ends, or show good cause for failing to serve process on the defendant within that 120-day period; otherwise, dismissal is proper.

Id. at 1200 (¶ 34) (internal citations omitted). Explaining the application of the language quoted above to the facts before it, the supreme court reasoned:

Here, the accident occurred on October 6, 1994. Dickens filed suit on July 14, 1997, 84 days before the expiration of the three years. Dickens did not attempt process on Henry during the 120 days, which ended November 11, 1997. Since process was not served on Henry as of that date, the statute of limitations began to run again, and it expired 84 days later, on February 3,1998.

Id. at (¶ 35). See also Owens, 891 So.2d at 223-24 (¶¶ 13-17).

¶ 9. In the case sub judice, the statute of limitations began to run on May 16, 2002. The initial complaint was filed on January 31, 2005, 105 days before the expiration of the three years. The 120-day tolling period passed without process being correctly served as process on a resident defendant by certified mail amounts to no process at all. Dickens, 870 So.2d at 1199 (¶ 21). Since Parmley filed a complaint but failed to properly serve process within 120 days, the running of the statute of limitations resumed at the end of the 120-day tolling period. Id.; Fortenberry v. Mem’l Hosp. at Gulfport, Inc., 676 So.2d 252, 254 (Miss.1996). Therefore, the filing of the first complaint stopped the statute of limitations from running for 120 days.

¶ 10. Notwithstanding the extension of the statute of limitations, Parmley’s initial complaint was correctly dismissed, although with the wrong classification. Failure to serve process within 120 days of the filing of a complaint, absent proof of “good cause,” shall warrant dismissal upon the court’s initiative or upon motion. M.R.C.P. 4(h); Heard v. Remy, 937 So.2d 939, 941 (¶ 8) (Miss.2006). However, Rule 4(h) dismissals should be made without prejudice, not with prejudice as the trial court did here. M.R.C.P. 4(h). Therefore, we find that the trial court’s holding dismissing Parmley’s January 31, 2005, complaint with prejudice was error. The January 31, 2005, complaint should have been dismissed without prejudice for failure to properly serve process within 120 days.

B. JUNE 7, 2005, COMPLAINT

¶ 11. In reaching our decision regarding the second complaint, we are mindful of the possible nullification of the practical application of statutes of limitations given the supreme court’s holding in Dickens and similarly reasoned cases. Taking the supreme court’s interpretation in Dickens of the effect Rule 4(h) has on a statute of limitations to its logical conclusion, we find that allowing a plaintiff to file a second or subsequent complaint while a previously filed complaint is still pending in the same cause of action would extend the statute of limitations ad infinitum. This result would be the case no matter what the statute of limitations’s initial duration.

¶ 12. With the above possibility in mind, we find the supreme court’s reasoning in Owens to be particularly instructive. The supreme court in Owens concerned itself primarily with issues surrounding the saving statute, Mississippi Code Annotated section 15-1-69 (Rev.2003); thus, its analysis is not directly pertinent to the case at hand. However, in holding that the savings statute did not apply to dismissals of a suit for failure to timely serve process, the supreme court indicated its protective nature with regard to statutes of limitations. Owens, 891 So.2d at 222-24 (¶¶ 13-17). The supreme court reasoned that labeling failure of service as a “matter of form” under the savings statute “would essentially allow plaintiffs who fail to serve process under Rule 4 to utilize the savings statute to preserve their claim(s) and/or extend the life of their claim(s),” and “to allow otherwise would circumvent the effect and purpose of statutes of limitations.” Id. at (¶¶ 13, 17). “The primary purpose of statutory time limitations is to compel the exercise of a right of action within a reasonable time. These statutes are founded upon the general experience of society that valid claims will be promptly pursued and not allowed to remain neglected.” Mitchell v. Progressive Ins. Co., 965 So.2d 679, 683(¶ 13) (Miss.2007) (quoting Miss. Dept. of Public Safety v. Stringer, 748 So.2d 662, 665 (¶ 13) (Miss.1999)). The supreme court’s current interpretation of Rule 4(h) may well frustrate this purpose, and while staying true to the court’s language in Dickens, this Court believes Dickens should be narrowly construed on the facts before us today.

¶ 13. In Harrison County Development Commission v. Daniels Real Estate, Inc., 880 So.2d 272, 276(¶9) (Miss.2004), overruled on other grounds by, City of Jackson v. Estate of Stewart, 908 So.2d 703, 711(¶ 39) (Miss.2005), the supreme court stated:

It is fundamental that a plaintiff is not authorized simply to ignore a prior action and bring a second, independent action on the same state of facts while the original action is pending. Hence a second action based on the same cause will generally be abated where there is a prior action pending in a court of competent jurisdiction within the same state or jurisdictional territory, between the same parties, involving the same or substantially the same subject matter and cause of action, and in which prior action the rights of the parties may be determined and adjudged.

¶ 14. While the supreme court in Daniels Real Estate applied the above language to a priority of jurisdiction issue, it is a logical extension to apply it to the case at hand. We find the supreme court’s reasoning in Daniels Real Estate to apply equally to subsequent complaints not only filed in different courts, but identical courts as well. Therefore, Parmley’s second complaint was properly dismissed; however, the trial court nonetheless erred in dismissing it with prejudice.

¶ 15. Parmley’s first complaint was still a pending and viable lawsuit when he filed his second identical complaint on June 7, 2005. Pursuant to the logic of Daniels Real Estate, this second identical suit should have been abated. However, the trial judge should have dismissed it without prejudice because the prior identical lawsuit was still a pending claim. Therefore, both complaints were properly dismissed, although they should have been dismissed without prejudice.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED IN PART AND REVERSED IN PART. BOTH THE JANUARY 31, 2005, AND JUNE 7, 2005, COMPLAINTS ARE DISMISSED WITHOUT PREJUDICE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

MYERS, P.J., CHANDLER, GRIFFIS, ISHEE AND CARLTON, JJ., CONCUR. LEE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY KING, C.J., AND IRVING, J. BARNES, J., JOINS IN PART AND RESULT.

LEE, P.J.,

Concurring In Part, Dissenting In Part:

¶ 17. Based on the precedent before this Court, I would find that the trial court erred in finding that the statute of limitations had run on Parmley’s claim.

¶ 18. As the majority correctly states, the controlling law on the tolling period in Rule 4(h) is Triple “C” Transport, Inc. v. Dickens, 870 So.2d at 1199-1200 (¶¶ 34-35). I agree with the majority that the “primary purpose of statutory time limitations is to compel the exercise of a right of action within a reasonable time,” and the current interpretation “frustrates this purpose.” However, regardless of whether or not we think the current interpretation frustrates the purpose of Rule 4(h), we must follow the analysis set out by the supreme court in applying the tolling period in Rule 4(h).

¶ 19. Following the analysis in Dickens, the running of the statute of limitations resumed at the end of the 120-day tolling period after Parmley filed the first complaint. Id. The statute of limitations began to run again after 120 days and expired 105 days later on September 13, 2005. Thus, the complaint filed on June 7, 2005, was filed within the statute of limitations.

¶ 20. Until it rules differently, the supreme court has spoken and could not be any clearer. While the majority so acknowledges, it fails to follow the precedent set before it as this Court is compelled to do. I would find that the order dismissing the complaint filed on January 31, 2005, with prejudice was in error, and that the complaint filed on June 7, 2005, should be reinstated.

KING, C.J., AND IRVING, J„ JOIN THIS OPINION. BARNES, J., JOINS IN PART AND IN RESULT.

      . Pringle asserts that Parmley gave his attorneys permission to settle with the various defendants, but later he changed his mind and refused to execute the settlement documents. This was their basis for withdrawing as counsel. This is not, however, an issue on appeal.

      . Similar to the trial court's interpretation of the effect of tolling on a statute of limitations, federal courts employ an equitable tolling mechanism to situations such as the one before the Court. See Lambert v. United States, 44 F.3d 296, 299 (5th Cir.1995) (stating that equitable tolling would not apply to situations where the plaintiffs lack of diligence in serving the defendant within 120 days caused his action to be dismissed because Federal Rule of Civil Procedure 4(m) provides a procedure for an extension for good cause shown).

      . We note that given the supreme court’s interpretation in Dickens, filing a subsequent complaint just one day after properly dismissing a previous complaint would extend a statute of limitations exponentially if it were a repeated process.