author: RANDOLPH, Justice,

text:
    MAYOR AND BOARD OF ALDERMEN, CITY OF OCEAN SPRINGS, Mississippi v. HOMEBUILDERS ASSOCIATION OF MISSISSIPPI, INC., et al.
    No. 2004-CC-01278-SCT.
    Supreme Court of Mississippi.
    June 15, 2006.

      Ralph Preston King, II, Robert H. Frei-lich, E. Tyson Smith, John B. Edwards, II, attorneys for appellants.
    Steven H. Smith, Benny McCalip “Mac” May, Jackson, Robert Quentin Whitwell, Jr., Ashland, William Lee Guice, III, Biloxi, attorneys for appellees.
    Before COBB, P.J., DICKINSON and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. The Mayor and Board of Aldermen of the city of Ocean Springs (collectively “City”) adopted a Comprehensive Plan, which included separate impact fee ordinances which authorized the assessment, collection, and expenditure of “development impact fees” for various municipal improvements, services, equipment, and vehicles. In its Development Impact Fee Procedures Ordinance, the City defined a development impact fee as:

A fee relating to a capital expenditure or service provided by the City which is imposed on new development as a condition of approval of such development as a pre-requisite to obtaining development approval and which is calculated to defray all or a portion of the costs of capital improvements required to accommodate new land development at city-designated level of service standards and which reasonably benefits the new land development.

¶2. The Home Builders Association of Mississippi, Inc. appeared at three public hearings conducted by the City regarding impact fees. Representatives of the Home Builders repeatedly commented on and protested each of the ordinances, to no avail, as the ordinances were approved by the City. The impact fees were to be paid in addition to any and all other applicable land-use, zoning, planning, adequate public facilities, platting, or other related fees, requirements, standards, and conditions imposed by the City.

¶ 3. After the City’s adoption of the ordinances, The Home Builders Association of Mississippi, Inc.; Home Builders Associations of the Mississippi Coast, Inc.; Southeast Mississippi Home Builders Association, Inc.; Mississippi Association of Realtors, Inc.; Gulf Properties, Sole Proprietorship; Greg Williams; Kim Williams; Gulf Coast Association of Realtors, Inc.; WRH Properties, Inc.; Singleton Development; Carl B. Hamilton, Inc.; Louis W. Breland; Adams Homes, LLC; Cove Partners, LLC; Troy Vincent Homes, LLC; L.H.F., Inc.; Randall Corp. of Mississippi; James E. Platt; Pierce Blakenship; Gulf Coast Properties, Inc./Secured Mini Storage; Lifestyles 2000, Inc.; Anchor Realty & Development, Inc.; Mangum One, LLC; Charles Carr; and Magnolia State Development Group, LLC (collectively “Appel-lees”) filed a Bill of Exceptions appealing the adoption of the impact fee ordinances. Appellees claimed that the impact fees constituted facial and per se illegal taxes which the City did not have the power to enact. The City filed a Receipt and Addendum to the Bill of Exceptions, objecting to certain alleged facts and law asserted in the Bill of Exceptions.

¶ 4. The parties submitted the case to the Jackson County Circuit Court (“Circuit Court”), and after briefing and oral argument, the Circuit Court held the impact fees to be a void taxing measure. By subsequent order, the Circuit Court denied the City’s Motion for a Stay and enjoined further collection of impact fees by the City. The City was directed to submit an accounting of fees already collected and a plan for their refund. The City appeals the ruling of the Circuit Court.

STANDARD OF REVIEW

¶ 5. “The appellate court should not determine whether it would adopt the ordinance in question; instead it should determine whether the City’s decision to adopt the ordinance is reasonable and supported by substantial evidence.” City of Biloxi v. Hilbert, 597 So.2d 1276, 1281 (Miss.1992). “The law is well settled that a decision of the Mayor and Board of Aldermen in such matters will not be disturbed unless the decision was arbitrary, capricious, discriminatory or beyond the legal authority of the board.... ” City of New Albany v. Ray, 417 So.2d 550, 552 (Miss.1982) (citations omitted).

¶ 6. The Circuit Court found the impact fees were actually taxes, and the ordinances were unconstitutional, ie., beyond the legal authority of the City. The learned circuit judge opined the issue is one for the Legislature rather than the courts. “On appeal of a trial court judgment rendered subsequent to a bench trial where the judge has sat as the fact-finder, we afford deference to the trial judge.” Chantey Music Pub., Inc. v. Malaco, Inc., 915 So.2d 1052, 1055 (Miss.2005). “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000). We are required to give deference to the findings of the trial judge unless they are “manifestly wrong or clearly erroneous.” Martin v. Lowery, 912 So.2d 461, 464 (Miss.2005) (quoting Bowers Window & Door Co. v. Dearman, 549 So.2d 1309, 1312 (Miss.1989)).

STATEMENT OF THE FACTS

¶ 7. The impact fee ordinances (collectively “Ordinances”) adopted by the City established and authorized the procedures for the assessment, collection, and expenditure of impact fees for various public improvements and services.

¶ 8. The Ordinances at issue are as follows:

(1) Development Impact Fee Procedures Ordinance
(2) General Municipal Facilities Development Impact Fee Ordinance
(3) Fire Facilities Development Impact Fee Ordinance
(4) Park and Recreation Facilities Development Impact Fee Ordinance
(5) Police Facilities Development Impact Fee Ordinance
(6) Major Roadways Development Impact Fee Ordinance
(7) Water Facilities Development Impact Fee Ordinance

¶ 9. In order to establish the necessity and amount of impact fees, the City commissioned a needs study that projected the extent of capital facilities and infrastructure that each new unit of development generates; the level of service required; the projected costs of providing infrastructure per unit of development; and then established impact fees required to be paid, as a condition to development approval, to assure the development’s adequate provision for infrastructure. The Preamble to the Procedures Ordinance states, in pertinent part,

Whereas the Board of Aldermen has studied the necessity for and implications of the adoption of development impact fees for public facilities and has prepared a detailed development impact fee calculation methodology for each public facility for which a development impact fee shall be imposed, which calculation methodology shall result in development impact fees which impose upon the fee payor no more than a proportionate share of the costs incurred by the city in providing system improvements to serve the new development; and
Whereas the City has retained Freilich, Leitner, Carlisle Planning Works, LLC and Kemp Associates, PA, to prepare a development impact fees report, to evaluate existing development impact fees and consider additional development impact fees and has commissioned a development impact fee report; and
Whereas the Board of Aldermen has found the use of development impact fees to be consistent with the Ocean Springs Comprehensive Plan.

¶ 10. In conformance with the Development Impact Fees Report, the City considered the following factors in establishing impact fees:

1)Land use assumptions, .
2) Population projections,
3) City adopted level of service standards,
4) City capital improvement plans for each public facility,
5) City capital improvement cost figures.

¶ 11. Section 15 of the Procedures Ordinance, which gave the power to the City’s Board of Aldermen to make annual adjustments to the fees, stated:

On July 1, 2004, and on July 1st of each year thereafter in which this Ordinance is in effect, the amount of any development impact fee may be automatically adjusted to account for inflationary increases in the cost of providing public facilities utilizing the most recent 20-city annual national average data from the Engineering News Record Construction Cost Index. The City Clerk shall make the automatic annual adjustment unless the Board, of Aldermen has, in its Annual Review, determined an alternate adjustment. Nothing herein shall prevent the Aldermen from electing to retain existing development impact fees or from electing to waive the inflation adjustment for any given fiscal year.

(emphasis added).

¶ 12. Under Section 16 of the Procedures Ordinance, the City will not approve a final plat or issue a building permit or certificate of occupancy until the applicant demonstrates that all impact fees have been paid to the City.

¶ 13. The Development Impact Fees report further states the calculation methodology used by Ocean Springs in the adoption of the ordinances is “not cast in stone” and that “all assumptions and variables are subject to change over time.”

¶ 14. The City submits that adoption of impact fee ordinances are permissible as a police power measure, and are reasonably authorized by the City’s Home Rule authority under Miss.Code Ann. Section 21-17-5; or, in the alternative, by general planning and zoning statutes. The City argues the regulations are reasonably related and roughly proportional to the need generated by the development, and the City submits the impact fee ordinances are reasonable and proportionate to the needs of Ocean Springs.

¶ 15. Appellees contend that the City officials assumed authority in violation of Article 4, Section 80 of the Mississippi Constitution and that regardless of how reasonable the City’s fees are, the City was without authority to adopt the fees, and whether the impact fees are reasonably related or roughly proportional to the needs of Ocean Springs is of no import. Appellees argue there exists no Constitutional, statutory or common law authority which authorized the adoption of the development impact fees. Appellees specifically contend Miss.Code Ann. Section 21-17-5 does not bestow authority upon the City to implement impact fees. Finally, appellees argue that if the City were to have authority to implement such fees, all municipalities would be allowed to levy fees or assessments for general public improvements. Plainly stated, Appellees assert the adoption of these fees are beyond the scope of the City’s authority.

ISSUES

¶ 16. The parties framed the issues as follows:

I.Whether there is a Mississippi Constitutional provision, state statute or common law which authorizes the lawful adoption and implementation of developmental impact fee ordinances and fees such as those adopted by Ocean Springs or otherwise.

II. If the ordinance was related to police power, whether the adoption of the ordinance authorized under:

(a) The home rule power of the City to enact police power measures in the absence of a prohibitory statutory enactment; and/or
(b) The general planning and zoning statutes.

III. Whether the Circuit Court erred as a matter of law in holding that the City’s impact fee ordinance on its face was not a valid exercise of the police power, but an invalid tax.

IV. Whether the Appellees estopped and precluded from challenging the City’s impact fee ordinance by the consent decree entered in Appellees’s suit against the City of Madison in which Appellees authorized the collection of impact fees.

V. Whether the Circuit Court precluded from looking behind the facial validity of the ordinance where the appellants failed to provide any evidence of unreasonableness at the City’s hearing adopting the ordinance; and where substantial evidence based on the City’s Needs Study, the Comprehensive Plan, the Capital Facilities Element and the City’s expert witness demonstrated that the ordinance was reasonable.

ANALYSIS

I. Whether a Constitutional provision, state statute or the common law authorize the lawful adoption and implementation of impact fees such as those adopted by the City.

¶ 17. The State of Mississippi does not have a specific constitutional provision or statute regarding implementation of development impact fees, nor can authority be found in the common law. This truth has been implicitly, if not explicitly, recognized by the Executive and Legislative branches of state government, and the City. The “Development Impact Fee Report” prepared for the City in 2002, stated, “[w]e believe that the Impact Fee Program reflects the city’s needs, will be entirely consistent with the proposed Mississippi development impact fee enabling legislation .... ” (emphasis added). To date, the Mississippi legislature has not adopted a statute authorizing development impact fees or enabling legislation to authorize a city to adopt and implement impact fees.

¶ 18. There are twenty-seven (27) states which have adopted development impact fee statutes, although five of the states’ statutes related exclusively to roads. For the sake of brevity, the specific statutes of each of these states will not be listed herein. However, Section 66-5-211(3) of Tennessee Code Annotated and Section 7-20-4 of the Annotated Code of West Virginia may be deemed analogous and are illustrative of states whose Legislature have adopted impact fee statutes.

¶ 19. Tenn.Code Ann. § 66-5-211(3) states:

“Impact Fee” means a monetary charge imposed by a county or municipal government pursuant to any act of general or local application, to regulate new development on real property. The amount of impact fees are related to the costs resulting from the new development and the revenues for this fee are earmarked for investment in the area of the new development.

¶20. W. Va.Code § 7-20-4 reads as follows:

County governments affected by the construction of new development projects are hereby authorized to require the payment of fees for any new development projects constructed therein in the event any costs associated with capital improvements or the provision of other services are attributable to such project. Such fees shall not exceed a proportionate share of such costs required to accommodate any such new development. Before requiring payment of any fee authorized hereunder, it must be evident that some reasonable benefit from any such capital improvements will be realized by any such development project.

¶ 21. Four additional states have determined, in the absence of specific impact fee legislation, that such fees are otherwise authorized. Courts in Kansas, Wyoming, Florida and Ohio have held that municipalities have the authority to adopt impact fees, even though there is not a specific statute to allow for it. In McCarthy v. City of Leawood, 257 Kan. 566, 894 P.2d 836, 844 (1995), the Kansas Supreme Court held reasonable impact fees may be enacted under that state’s constitutionally granted Home Rule authority. In Home Builders Ass’n of Dayton & Miami Valley v. City of Beavercreek, 89 Ohio St.3d 121, 729 N.E.2d 349, 353, 97 A.L.R.5th 657 (2000), the Ohio Supreme Court cited its Constitution and held:

This’ court has consistently held that Section 3 of Article XVIII, or the Home-Rule Amendment, gives municipalities the authority to impose exac-tions, provided that the municipality is not statutorily forbidden from doing so, and the exactions meet constitutional standards. The focus here is whether the impact fee ordinance enacted by the city of Beavercreek violates either the United States or Ohio Constitution.

The pertinent section of the Ohio Constitution with which the impact fee must comport is: “[m]unicipality shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary, and other similar regulations, as are not in conflict with general laws.” OH. Const. Art. XVIII, § 3.

¶ 22. Article IV, Section 80 of the Mississippi Constitution declares, “[provision shall be made by general laws to prevent the abuse by cities, towns, and other municipal corporations of their powers of assessment, taxation, borrowing money, and contracting debts.” Appellees argue this provision of the Mississippi Constitution prohibits assessments or taxation, unless there is specific statutory authority allowing the City to do so. In Adams v. Kuykendall, 83 Miss. 571, 35 So. 830, 835 (1904), this Court stated, “[w]e hold the taxing power of the sovereign is vested solely in the State and its relinquishment is never to be inferred.”

II. If the ordinance was related to police power, whether the adoption of the ordinance authorized under:

(a) The home rule power of the City to enact police power measures in the absence of a prohibitory statutory enactment; and/or
(b) The general planning and zoning statutes.

¶ 23. In their amicus brief, the American Planning Association and the Mississippi Chapter of the American Planning Association submit the holdings of these foregoing state courts prove specific impact fee legislation is not necessary, claiming, “[a]lthough state enabling authority for impact fees is certainly preferable so that these standards can be uniformly applied, the absence of such enabling authority is not fatal to the validity of a local impact fee program.”

¶ 24. The City argues the authority to adopt impact fees is derived from Mississippi general planning and zoning statutes, as well as Miss.Code Ann. Section 21-17-5, the Home Rule statute. Appellees counter that, “Mississippi municipalities are creatures of the state, and they have only those powers delegated to them by statute,” otherwise the City has no legal authority with which to adopt these fees.

¶25. Miss.Code Ann. Section 17-1 — ll(l)(a) provides, “[t]he governing authority of each municipality and county may provide for the preparation, adoption, amendment, extension and carrying out of a comprehensive plan for the purpose of bringing about coordinated physical development in accordance with present and future needs.... ” The City argued a Comprehensive Plan was adopted by the City in 2001 and contained, as a condition to development approval, a provision for payment of impact fees. The City argues Miss.Code Ann. Section 17-1-11 grants authority for the City to impose impact fees even absent Home Rule authority.

¶26. Miss.Code Ann. Section 17-1-11 has been interpreted as applying primarily to zoning ordinances enacted by municipalities. See Woodland Hills Conservation Ass’n v. City of Jackson, 443 So.2d 1173, 1179 (Miss.1983), (involving validity of rezoning ordinance which quoted Miss.Code Ann. Section 17-1-11 and emphasized its “future needs” language).

¶ 27. The Circuit Court found no express grant of authority under the Municipal Planning statutes. We agree. Under the Municipal Planning Statutes, Miss. Code Ann. Section 17-1-1, et seq., there are no provisions which grant authority to adopt impact fees or other revenue raising mechanisms to implement the City’s Comprehensive Plan.

¶ 28. The City further urges the authority to impose impact fees exists under Miss.Code Ann. Section 21-17-5, commonly known as the Home Rule Statute. The City relies on the language of Section 21-17-5(1), “[e]xcept as otherwise provided in subsection (2) of this section, the powers granted to governing authorities of municipalities in this section are complete without the existence of or reference to any specific authority granted in any other statute or law of the state of Mississippi” as its authority, and does not require a specific legislative mandate.

¶ 29. The City argues the Circuit Court erred in relying on cases pre-dating amendments to the Home Rule Statute, including City of Jackson v. Pittman, 484 So.2d 998 (Miss.1986) and Delta Elec. Power Ass’n v. Miss. Power & Light, 250 Miss. 482, 149 So.2d 504 (1963) (citing Kuykendall, 35 So. 830). This Court held in Delta, “[a] municipality in Mississippi is a creature of the state and has only such power and authority as may be granted to it by statute.” Id. at 510. The City argues this holding is inconsistent with the Home Rule Statute, as well as with this Court’s holding in Nichols v. Patterson, 678 So.2d 673, 681 (Miss.1996), which was decided subsequent to Legislative amendments to the Home Rule Statute. Patterson holds, “Miss.Code Ann. § 21-17-5, gives municipalities discretion in managing municipal affairs.” Maynard v. City of Tupelo, 691 So.2d 385 (Miss.1997) was also decided subsequent to the amendments to the Home Rule statute. In Maynard, this Court held, “the Home Rule statute grants municipalities the right to adopt ordinances with regard to their ‘municipal affairs,’ but only if said ordinances are not inconsistent with state legislation and/or the Mississippi Constitution.” Id. at 387.

¶ 30. The City relies on the Home Rule Statute and argues the foregoing cases grant authority to impose impact fees. In part, we agree. Consistent with our holding in Maynard, we find that Home Rule authority grants municipalities authority to impose fees, as long as the imposition is not inconsistent with legislative mandate or the Mississippi Constitution, and is a fee, as opposed to a tax, as discussed infra.

¶ 31. We conclude there is no constitutional basis, legislative enactment, or common law doctrine, which empowers cities to adopt and impose development impact fees.

III. Whether the Circuit Court erred as a matter of law in holding that the City’s impact fee ordinance on its face was not a valid exercise of the City’s police power but an invalid tax.

¶ 32. The Circuit Court held, “[t]he fact that the City labeled this exaction ‘fee’ rather than ‘tax’ is not important; the purpose of the enactment governs over terminology.” The City argues that because the impact fees were reasonably related to the infrastructure needs created by new development and the fees were earmarked and deposited into a special fund, the impact fees meet the criteria for fees. Appellees successfully argued before the Circuit Court that the City was utilizing the fees for general municipal purposes and as a revenue-raising mechanism, therefore they were a tax. The United States Supreme Court addressed the distinction between a tax and a fee in Illinois Cent. R. Co. v. City of Decatur, 147 U.S. 190, 198-99, 13 S.Ct. 293, 37 L.Ed. 132 (1893) (quoting Cooley on Taxation, pg. 416), and held:

Special assessments are a peculiar species of taxation, standing apart from the general burdens imposed for state and municipal purposes, and governed by principles that do not apply generally. The general levy of taxes is understood to exact contributions in return for the general benefits of government and it promises nothing to the persons taxed beyond what may be anticipated from an administration of the laws for individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be especially and peculiarly benefited, in the enhancement of the value of the property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it.

¶ 33. More recently, the United States Court of Appeals for the Fifth Circuit was called upon to address the distinction between a tax and a fee in Home Builders Ass’n of Miss. v. City of Madison, Miss., 143 F.3d 1006, 1011 (6th Cir.1998), and held:

Workable distinctions emerge from the relevant case law, however: the classic tax sustains the essential flow of revenue to the government, while the classic fee is linked to some regulatory scheme. The classic tax is imposed by a state or municipal legislature, while the classic fee is imposed by an agency upon those it regulates. The classic tax is designed to provide benefit for the entire community, while the classic fee is designed to raise money to help defray an agency’s regulatory expenses.

¶ 34. The State of Mississippi has adopted similar distinctions stating, “[t]he chief distinction is that a tax is an exaction for public purposes while a fee relates to an individual privilege or benefit to the payer.” Miss. Att’y Gen. Op. 1996-0425 (1996) (quoting United States v. River Coal Co., 748 F.2d 1103, 1106 (6th Cir.1984)).

¶ 35. Aside from claiming authority from the Home Rule Statute and general zoning and planning powers, the City asserts it may impose impact fees as necessary regulatory fees, under its police power. The City cites Sweet Home Water & Sewer Ass’n v. Lexington Estates, Ltd., 613 So.2d 864 (Miss.1993), as authority to impose impact fees if they are reasonably proportionate to the amount of need created by the developer.

¶ 36. In Sweet Home, a water and sewer utility was found not to have statutory authority to charge an apartment complex an impact fee for use of the water system, because the Association did not provide a purpose for the fee, or an identification of any increased costs associated with providing service to the complex. Id. This Court held, “[w]hile Sweet Home may, under § 19-5-195, assess ‘rates, fees, tolls, or charges,’ those assessments must be reasonably calculated to provide for the system’s functioning and growth.” Id. at 870.

¶ 37. “Properly understood, regulatory fees are charges to cover the cost of the state’s use of its regulatory powers which can be allocated to those who are either voluntarily or involuntarily receiving special attention from government regulators.” Hugh Spitzer, Taxes v. Fees: A Curious Confusion, 38 Gonz. L.Rev. 335, 353 (2003) (quoting Covell v. City of Seattle, 127 Wash.2d 874, 879, 905 P.2d 324, 327 (1995)). “Such fees cover public expenditures on inspection, record-keeping, and processing, and are correctly limited to the proportionate cost of giving the fee payer that special attention.” Id. (quoting Teter v. Clark County, 104 Wash.2d 227, 234, 704 P.2d 1171, 1177 (Wash.1985)).

¶ 38. In its amicus brief, the State of Mississippi submits, “[t]o qualify as a regulatory fee, the impact fees must cover only the administrative expenses of the City in regulating development or be compensation for a specific benefit or service on those paying the impact fees.” See also Huston v. Mayo, 120 Miss. 523, 82 So. 334, 335 (1919).

¶ 39. The fees at issue do not qualify as regulatory in nature. These fees cannot be said to cover “administrative expenses” incurred by the City. In order to obtain a building permit, these fees must be paid; however, the fees are not based on the administrative expense the City incurs in issuing the building permit.

¶ 40. Further, to be regulatory in nature, there must be a specific benefit conferred on the payer of the fee. The Circuit Court found the City’s impact fees did not provide any special benefit to the parties paying the fees. The City submits, “[b]enefit is guaranteed by earmarking impact fee revenue in a separate fund from the general fund and restricting the use of impact fee revenue to new infrastructure that will benefit new development.” The parties agree the fees were deposited into a separate account from the City’s general municipal fund. However, to be determined is whether the developers upon whom the impact fees were imposed were receiving the benefit or if the benefit of the fees was being received by the municipality as a whole.

¶ 41. Section 5 of the Procedures Ordinance, states the purpose and intent of the impact fees “is to promote the health, safety, and general welfare of the residents of the City.” Section 11 of the Procedures Ordinance, outlines the service area to which the fees would be applied:

(1) This Ordinance shall apply to all new development within the City. Development impact fees for particular public facilities may apply to less than the entire city. The particular Ordinance adopting each specific development impact fee shall state whether, or the extent to which such development impact fee is applicable to less than the entire city.
(2) Impact fees imposed by the City, shall, if necessary and appropriate, be collected by other municipalities or by the County on new development within the City’s planning area, as indicated in the Comprehensive Plan, but outside of the City limits, pursuant to an intergovernmental agreement which provides that the impact fees collected be transferred to the appropriate City fund for expenditure in accordance with the terms of this Ordinance.

¶ 42. The learned trial judge observed, “[t]his is little, if any, assurance that such funds provide a special benefit to the class upon whom the burden is imposed. Simply opening a special account earmarked for particular city services or facilities is insufficient to provide a ‘special’ benefit to those utilizing the service or facility.”

¶ 43. In conjunction with the City’s Procedures Ordinance, the six Ordinances were adopted for general municipal purposes, fire department purposes, park and recreation purposes, police department purposes, major roadways and water facility purposes. At a 2002 public hearing, Bruce Peshoff, the principal in the design of the City’s impact fees, stated the “first round” of impact fees were being developed for fire, parks and for general municipal services.

¶ 44. The public services identified in the Ordinances have traditionally been funded by tax revenues. The City is responsible for general municipal services that benefit the City as a whole. The Circuit Court noted such in its opinion:

[T]he ordinances do exactly that: raise money for ... traditional, general municipal services and facilities normally funded by tax revenues raised by legislatively authorized schemes. If the rationale of the City were sufficient to impliedly vest municipalities with revenue-raising authority by implication, there would cease to be a need for exercising the taxing power of the State. A municipality could classify any exaction as a ‘fee’ for the provision of services or facilities and evade the Constitutional and Legislative limitations placed upon governing authorities in regard to taxation.

¶ 45. Appellees cite the Iowa Supreme Court to best define the distinction between a fee and a tax and argue Iowa law is “almost identical to that of Mississippi’s.” See Home Builders Ass’n of Greater Des Moines v. City of West Des Moines, 644 N.W.2d 339 (Iowa 2002). In City of West Des Moines, a Mandatory Park Dedication Fee Ordinance was challenged. “Specifically, whenever a parcel of land within the City was ‘subdivided and presented to the City for residential development purposes, the developer [was] required to make a fee payment of $100.00 per acre.” Id. at 343. The Ordinance also imposed a fee on residential building permits. The fees generated were to be deposited into a sub-fund of the City’s general fund, and according to the Ordinance, “were to be used exclusively for park site acquisition and/or physical improvement of the Neighborhood Park System.” Id. at 344. A home builder association claimed the park fee was an illegal tax, while West Des Moines claimed the fee was authorized under its Home Rule power. Id. at 345.

¶46. Iowa, like Mississippi, does not have specific statutory authority to enact development impact fees. Municipalities in Iowa were granted Home Rule authority under the Home Rule Amendment to the Iowa Constitution. Under Iowa’s Home Rule Amendment, a city “has the power and authority, not inconsistent with the laws of the general assembly, to determine [its] local affairs and government, except that [it does] not have power to levy any tax unless expressly authorized by the general assembly.” Iowa Const. Art. Ill, § 38A. Iowa further addresses Home Rule authority by statute: “[a] city may, except as expressly limited by the Constitution, and if not inconsistent with the laws of the general assembly, exercise any power and perform any function it deems appropriate ... to preserve and improve the peace safety, health, welfare, comfort, and convenience of its residents.” Iowa Code Annotated § 364.1.

¶47. The Iowa Supreme Court declared, “[t]axes are for the primary purpose of raising revenue. If the fee at issue here is determined to be a tax, it would fall within the category of an excise taxa tax imposed on a transaction or as a condition to the exercise of a privilege.” Id. at 346 (citations omitted). The Iowa court stated there was no legislative authority allowing the City to impose excise taxes. Id. at 347.

¶ 48. The Iowa Supreme Court then examined the City’s authority under its police powers:

A city may charge a fee to cover its administrative expenses in exercising its police power. Thus, the reasonable cost of inspecting, licensing, supervising, or otherwise regulating an activity may be imposed on those engaging in the activity in the form of a license fee, permit fee, or franchise fee. In addition to regulatory fees, a municipality may charge a citizen when it provides a service to that citizen.

Id. (citations omitted).

¶ 49. The Iowa Supreme Court held the impact fee did not qualify as a regulatory fee authorized by the City’s police powers as regulatory or service fees, because to qualify as one of these fees, “the parks fee must cover the administrative expenses of the city in regulating residential development or be compensation for a specific benefit or service conferred on those paying the fee.” Id. at 348.

[The] [fees] were not based on the cost of regulating development or issuing building permits, but rather are based on the impact the development of the property owner’s land will have on the public infrastructure. Because the fee has no relation to the expenses of the city in approving subdivision plats or building permits, it cannot be justified as an incident of the exercise of its police powers.

Id.

¶ 50. The Iowa Supreme Court then considered West Des Moines’s argument that the monies collected through the park fees were spent solely on the neighborhood parks for the benefit of the developers who have generated this need. Id. The Court found this argument to be without merit. The Court stated, “a neighborhood park is not provided specifically to the residents of a development or even the neighborhood in which it is located. A neighborhood park is available for general public use and benefits the entire community.” Id.

¶ 51. The Iowa Supreme Court held the imposition of the Parks Impact Fee Ordinance was outside the powers granted by the Legislature to municipalities. The Court stated, “[t]he fee is not compensation for a direct service to the developer or homebuilder paying the fee, nor is it intended to cover the administrative costs of the City. To the contrary the fee is, pure and simple, a measure to raise revenue for public infrastructure.” Id. at 350 (citations omitted).

¶ 52. Our sister state, Alabama, was faced with a similar dispute regarding the right to assess property for a benefit conferred when there was no specific legisla-five authority to do so. Similar to Iowa, the Alabama Supreme Court held, “[t]he power to assess private property for benefits received from local municipal improvements to streets and sewers is a taxing power vested in the legislature and to be exercised by a municipality must be expressly conferred by statute and when so conferred include necessary incidental powers.” Armstrong v. City of Montgomery, 251 Ala. 632, 38 So.2d 862, 863 (1949).

¶ 53. The Iowa and Alabama decisions comport with holdings of our federal courts interpreting Mississippi law in a series of cases involving the city of Madison. The City of Madison (“Madison”) adopted impact fee ordinances in 1986. In Home Builders Ass’n of Mississippi, et al. v. City of Madison, Miss., 10 F.Supp.2d 617 (S.D.Miss.1997), the plaintiffs brought a 42 U.S.C. § 1983 action challenging a Madison ordinance which required developers to pay a fee at the filing of a preliminary plat for a proposed subdivision, and, once the plat was approved, an additional fee was to be paid in order to obtain a building permit. Id. at 619.

¶ 54. The U.S. District Court for the Southern District of Mississippi dismissed the case for lack of subject matter jurisdiction over the claim, stating, “[tjhere is no showing in the instant case that the City of Madison’s impact fees are being used to support administrative or regulatory functions. Furthermore, the impact fee ordinance specifically says that impact fees are to be used for improvements to police and fire departments, streets, and parks-areas of expenditure ordinarily funded by the general revenue of any city. Therefore, in light of the foregoing authority, this court concludes that the impact fee ordinance of the City of Madison imposes a tax for purposes of the Tax Injunction Act.” Id. at 626. Because the court found the Tax Injunction Act was applicable to the plaintiffs claim, an adequate state remedy could be pursued and the District Court was without subject matter jurisdiction to hear the case. Accordingly, the case was dismissed without prejudice. Id. at 619.

¶ 55. The plaintiffs appealed the dismissal of the complaint by the District Court in Home Builders Ass’n of Miss., et al. v. City of Madison, Miss., 143 F.3d 1006 (5th Cir.1998). The Fifth Circuit held, “[i]t is difficult to imagine that an ordinance designed to protect and promote the public health, safety and welfare of an entire community could be characterized as anything but a tax.” Id. at 1012. The Fifth Circuit affirmed the District Court’s ruling, stating the impact fee constituted a tax for purposes of the Tax Injunction Act.

¶ 56. Madison was then sued by the developers in state court, claiming the Impact Fee Ordinance (“IFO”) violated Mississippi law and were an unconstitutional taking. The developers then settled with Madison for $250,000. In a separate agreement, Twin City Fire Insurance, as Madison’s insurer, agreed to pay - this amount to the developers, while reserving the right to seek recoupment from Madison. Twin City Fire Insurance v. City of Madison, 309 F.3d 901, 904 (5th Cir.2002).

¶ 57. Twin City filed suit in the aforementioned U.S. District Court, which held the IFO constituted a tax and found no legislative authority for the tax. The district court further found the IFO funds were illegal tax revenues. Id.

¶ 58. The Fifth Circuit agreed with the district court’s finding the IFO was an illegal tax that provided Madison with illegal financial gain. The Fifth Circuit further found the Home Rule Statute addressed the limited power of a city to tax, and “under a plain reading of this statute, we reject [Madison’s] contention that it had authority to enact an IFO as part of the Home Rule Act.” Id. at 905. The court additionally held, “[t]he power to levy taxes is not embraced in a general grant of power such as police power. Pitts v. Mayor of Vicksburg, 72 Miss. 181, 16 So. 418, 419 (1894). Nor will we characterize the impact fees as a regulatory fee rather than a tax, as Madison urges us to do, to avoid application of the plain terms of the Home Rule Act.” Id.

¶ 59. It is the opinion of this Court that the Circuit Court in the matter sub judice did not err in holding the City’s impact fees constituted an illegal tax. Impact fees are not per se illegal; however, the authority to implement the fees rests with the Legislature.

¶ 60. “The county and city are not authorized to impose taxes without direct authorization from the Legislature. Even under home rule provisions ... the city and county are explicitly barred from levying taxes other than those authorized by statute.” Miss. Att’y Gen. Op. 1989-124 (1989). In City of Jackson v. Freeman-Howie, Inc., 239 Miss. 84, 121 So.2d 120, 123 (1960) we held, “[a] city derives its existence and powers by its charter from the State, and can perform the acts for which it has authority thereunder except such as may be in conflict with the ConstL tution.”

IV. Whether Appellees are precluded from challenging the City’s authority because of the entry of the Consent Judgment in the City of Madison case.

¶ 61. “The doctrine of collateral estoppel serves a dual purpose. It protects litigants from the burden of relit-igating an identical issue with the same party or his privy. It promotes judicial economy by preventing needless litigation.” Miss. Employment Security Commission v. Philadelphia Mun. Separate School Dist. of Neshoba County, 437 So.2d 388, 396 (Miss.1983).

¶ 62. As dictated by the rulings of the U.S. District Court and the United States Court of Appeals for the Fifth Circuit, some of the Appellees filed suit in state court, supra, against Madison. A settlement agreement and a Consent Judgment were entered in the Madison County Chancery Court.

¶ 63. The City asserts that because some Appellees consented to judgment, and that in the settlement, some Appellees admitted that cities in Mississippi have the authority to adopt impact fees if they are reasonable, this admission collaterally es-tops and precludes Appellees from re-litigating this issue. Appellees counter they did not agree or acknowledge Mississippi municipalities have the lawful authority to adopt impact fees. These suits were predicated upon Madison’s 1986 impact fee ordinances and the 1986 ordinances were the basis of the suit. Subsequent to the filing of Appellees’ first federal suit, Madison adopted its new ordinances in 1996.

¶ 64. Under the doctrine of collateral estoppel, “[an] appellant is precluded from relitigating in the present suit specific questions actually litigated and determined by and essential to the judgment in the prior suit, even though a different cause of action is the subject of the present suit.” Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289, 293 (1956). Further, “collateral estoppel, unlike the broader question of res judicata, applies only to questions actually litigated in a prior suit, and not to questions which might have been litigated.” Dunaway v. W.H. Hopper & Associates, 422 So.2d 749, 751 (Miss.1982) (quoting Johnson v. Bagby, 252 Miss. 125, 171 So.2d 327 (1965)). In Dunaway, this Court held the doctrine of collateral estoppel did not apply, as, “[t]here were no factual issue resolved in the [prior] case which are involved in the latter suit.” Id. at 752.

¶ 65. This Court has not been presented with Madison’s 1986 or 1996 ordinances. It is not known whether these ordinances mirror those enacted by Ocean Springs. Madison’s 1986 impact fee ordinance was the issue of contention, in the City of Madison line of cases. In this case, the issue is the authority of Ocean Springs to adopt its impact fee ordinance.

[T]he doctrine of collateral estoppel must never be seen as anything other than an unusual exception to the general rule that all fact questions should be litigated fully in each case.
The several predicates to application of the preclusive effect of the doctrine ... are designed to promote substantial judicial and litigant interests. They are also designed to assure substantial reliability in the facts found in the first proceedings. Where there is room for suspicion regarding the reliability of those first fact findings, collateral estoppel should never be applied.

Miss. Employment Sec. Comm., 437 So.2d at 396.

¶ 66. Madison’s ordinances are not being considered in this matter, but rather, we have been asked to review the propriety of the Ocean Springs ordinances. Furthermore, the parties are not the same, nor do they fall within the definition of parties in privity as enumerated by this Court in Hogan v. Buckingham, 730 So.2d 15 (Miss.1998) (quoting Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1339 (Miss.1997)).

¶ 67. The City’s argument that Appel-lees are precluded from challenging the ordinances because of the consent judgment entered in the City of Madison cases is without merit.

V. Whether the Circuit Court precluded from looking behind the facial validity of the ordinance where the appellants failed to provide any evidence of unreasonableness at the City’s hearing adopting the ordinance; and where substantial evidence based on the City’s Needs Study, the Comprehensive Plan, the Capital Facilities Element and the City’s expert witness demonstrated that the ordinance was reasonable.

¶ 68. As the other issues were case dispositive, this Court finds Issue V to be moot and declines to address same.

CONCLUSION
Courts cannot fault the logic or the foresight that induces the municipality to consider the long term impact of permitted development on municipal resources and public facilities. However, in the absence of legislative intent, municipalities cannot depart from traditionally authorized methods of financing public facilities so as to allocate the costs of substantial public projects among new developments on the basis of their anticipated impact.

8 McQuillin, Municipal Corp.3rd Ed., Rev. 2000, § 25.118.50 at 384.

¶ 69. While sound argument may be made, especially in the aftermath of Hurricane Katrina, the City is in need of the added revenue impact fees would bring, the ability to assess such fees is a decision for the citizens of this state, either through a constitutional amendment or legislative action.

¶ 70. Because these fees constitute a tax, the municipality must have enabling legislation in order to levy and collect this tax. The municipality has been given no such authority and in imposing such fees has stepped outside of its authority. Section 2 of the Home Rule Statute, reads: “[u]nless such actions are specifically authorized by another statute or law of the State of Mississippi, this section shall not authorize the governing authorities of a municipality to (a) levy taxes.... ” Miss. Code Ann. § 21-17-5(2).

¶ 71. The impact fees constitute a tax because the fees are simply a revenue-raising measure, and the Circuit Court was eminently correct in so holding. Accordingly, the impact fees adopted by the City constitute a tax the municipality has no authority to assess. The decision of the Circuit Court is hereby affirmed.

¶ 72. AFFIRMED.

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

      . An amicus brief was filed in support of the Appellees' cause by the State of Mississippi, through the Attorney General.

      . Amicus briefs were filed in support of the City’s cause by The American Planning Association and the Mississippi Chapter of the American Planning Association; the City of Madison, Mississippi; the Mississippi Association of County Board Attorneys; the City of Ridgeland, Mississippi; and the Mississippi Municipal League, Inc.

      . In Governor Haley Barbour's State of the State speech on January 6, 2006, he stated that in the wake of Hurricane Katrina, and in order to benefit Mississippi's lower six counties, ''[I] will ask the Legislature to authorize — authorize, not require — impact fees to be assessed by these local governments on new development projects in their communities.” Gov. Haley Barbour, State of the State Address (Jan. 6, 2006).

      . The following states have adopted development impact fees: AR, AZ, CA, CO, DE, GA, HI (roads only), ID, IL (roads only), IN, MT, NV, NH, NM, NJ (roads only), PA (roads only), RI, SC, TX, UT, VA (roads only), VT, WV, WA and WI.

      .Article 12, § 5 of the Kansas Constitution, the Cities’ Powers of Home Rule, states, in pertinent part:
      (b) Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class....

      . Miss.Code Ann. § 19-5-195 states:
      The board of commissioners of the district issuing bonds pursuant to Sections 19-5-151 through 19-5-207 shall prescribe and collect reasonable rates, fees, tolls, or charges for the services, facilities and commodities of its system or systems; shall prescribe penalties for the nonpayment thereof; and shall revise such rates, fees, tolls or charges from time to time whenever necessary to insure the economic operation of such system or systems. The rates, fees, tolls or charges prescribed shall be, as nearly as possible, such as will always produce revenue at least sufficient to: (a) provide for all expenses of operation and maintenance of the system or systems, including reserves therefor, (b) pay when due all bonds and interest thereon for the payment of which such revenues are shall have been pledged, charged or otherwise encumbered, including reserves therefor, and (c) provide funds for reasonable expansions, extensions and improvements of service.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Kenneth O. ANDREWS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-CP-01724-COA.
    Court of Appeals of Mississippi.
    April 18, 2006.
    Certiorari Dismissed June 22, 2006.
    Kenneth O. Andrews, appellant, pro se.

      Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and BARNES, JJ.
   MYERS, P.J.,

for the Court/

¶ 1. Kenneth Andrews pled guilty to sexual battery on June 12, 2001, in the Circuit Court of Pike County. He was sentenced to twenty years, ten to serve in the custody of the Mississippi Department of Corrections with the remainder to be served under post-release supervision. Andrews filed a motion for post-conviction relief on July 6, 2004, in the Circuit Court of Pike County, which was denied.

FACTS

¶ 2. On June 12, 2001, Andrews entered a guilty plea to the charge of sexual battery. On July 6, 2004, Andrews filed a motion for post-conviction relief in the Pike County Circuit Court. The Pike County Circuit Court on July 17, 2004, denied Andrews’ motion as being time-barred by the applicable three years statute of limitations in accordance with Mississippi Code Annotated § 99-39-5 (Supp. 2005). Andrews filed a notice of appeal on August 27, 2004. The circuit court ruled Andrews’ notice untimely according to Rule 4(a) of the Mississippi Rules of Appellate Procedure on September 20, 2004. Andrews filed a motion requesting an allowance for an out-of-time appeal based upon mental incompetence, and after the court reviewed Andrews’ medical records, it ruled Andrews competent and denied this motion on November 12, 2004. Andrews appeals the ruling of the trial court.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 3. Post-conviction collateral relief is “to provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues, or errors which in practical reality could not have been or should not have been raised at trial or on direct appeal.” Miss. Code Ann. § 99-39-3(2) (Rev.2000). Post-conviction relief is not the same or a substitute for direct appeal. See Cole v. State, 666 So.2d 767, 772-73 (Miss.1995).

STANDARD OF REVIEW

¶ 4. This court will not disturb the trial court’s factual findings, when reviewing a decision to deny a petition for post-conviction relief, unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). However, the applicable standard of review is de novo where questions of law are raised. Id. at 598(¶ 6).

¶ 5. According to M.R.A.P 4(a), Andrews had thirty days from the entry of judgment to file his notice of appeal. The trial court denied Andrews an extension of time. However, this Court may suspend Rule 4, for good cause shown, and allow out-of-time appeals in criminal cases but not civil. M.R.A.P. 2. The rules controlling criminal appeals govern post-conviction relief proceedings. See Miss.Code Ann. § 99-39-25(1) (Rev.2000); Williams v. State, 456 So.2d 1042, 1043 (Miss.1984). The party seeking an out of time appeal carries the burden of persuasion regarding the lack of a timely notice. M.R.A.P 4; Denton v. State, 762 So.2d 814, 817(¶ 6) (Miss.Ct.App.2000). However, we agree with the trial court’s ruling that Andrews has not shown good cause for an out of time appeal; therefore, this Court does not have jurisdiction over this matter.

¶ 6. Even if Andrews’ notice of appeal was timely filed giving this Court jurisdiction, we still agree with the circuit court’s ruling. The Pike County Circuit Court dismissed Andrews’ post-conviction relief motion for being time barred in accordance with Mississippi Code Annotated § 99-39-5(2) (Supp.2005). Andrews pled guilty on June 12, 2001, and he waited over three years to file his motion. Mississippi Code Annotated § 99-39-5(2) sets forth certain exceptions which if the prisoner can demonstrate will override the three year limitation, those exceptions include: an intervening decision by either the United States Supreme Court or the Mississippi Supreme Court which would have actually adversely affected the outcome of the prisoner’s conviction or sentence; the prisoner’s possession of evidence which was not reasonably discoverable at the time of the trial, but had such evidence been introduced at trial it would have caused a different result; and the prisoner claims that his sentence has expired or his probation, parole or conditional release have been unlawfully revoked. (Supp.2005). Andrews makes no claim within these exceptions. Andrews’ claims are all included in Mississippi Code Annotated § 99-39-5(1), and are therefore time barred when not brought within the three year time limitation. Therefore, we find no need to address Andrews’ issues set forth in his motion.

¶ 7. We would, however, like to point out that Andrews argues that his sentence is illegal because he was sentenced to ten years of post-release supervision. Andrews asserts that according to Mississippi Code Annotated § 47-7-34 (Rev.2004), the maximum amount of time that the Mississippi Department of Corrections may supervise an offender on the post-release supervision program is five years. However, the Mississippi Supreme Court has held that the statute limits five years for the period of time that Mississippi Department of Corrections may supervise an offender who is on post-release supervision, but 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, 200(¶ 11) (Miss.2004); See Johnson v. State, 925 So.2d 86 (Miss.2006). Therefore, according to the Mississippi Supreme Court, Andrews sentence was not illegal.

¶ 8. Accordingly we find the trial court committed no error, and we dismiss Andrews’ motion for post-conviction relief.

¶ 9. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

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


author: ISHEE, J.,

text:
    Willie E. NORWOOD and Louciel G. Norwood, Appellants, v. John Michael MOORE, Appellee.
    No. 2005-CA-00300-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.

      John C. McLaurin, Brandon, attorney for appellants.
    Ronald Henry Pierce, attorney for ap-pellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On November 24, 2003, after Willie E. Norwood and Louciel G. Norwood, pursuant to a tax sale, obtained a tax deed against property John Michael Moore owned in Rankin County, Mississippi, Moore filed a complaint to set aside the tax deed. The Norwoods filed a counterclaim to acquire clear title to the property. On December 10, 2004, the Chancery Court of Rankin County set aside the tax deed obtained by the Norwoods. The Norwoods filed a motion to alter or amend judgment, but the chancery court held that Moore’s failure to pay taxes should not deprive him of the land, and thus required Moore to pay all back taxes plus interest and reimburse the Norwoods for a survey conducted with respect to the property. Aggrieved by the chancellor’s decision, the Norwoods appeal. Finding no error, we affirm.

FACTS

¶ 2. On June 15, 1998, Moore acquired fee simple title to property located in Rankin County, Mississippi through a quitclaim deed. The deed was recorded in the office of the Rankin County Chancery Clerk. However, the phone number and address of Moore (the grantee) on the deed were for some reason mistakenly reversed with the grantor’s address/phone number. The address listed as Moore’s on the deed was in Littleton, Colorado, while his actual address at the time was in Marion, Alabama. When the tax assessor attempted to assess the property subsequent to Moore’s acquisition of the property, she used the Littleton, Colorado address. Consequently, Moore never received notice of the taxes due, nor paid the taxes on the property. When Moore failed to pay the 1999 taxes on the property, which were due and payable on January 1, 2000, the property was listed as delinquent in the Rankin County News. The property was then placed in a tax sale on Monday, August 28, 2000. Willie Norwood bought the property at the tax sale.

¶ 3. During the next two years, while the right of redemption was in effect, Norwood continued to pay the taxes on the property. The property remained unredeemed, and Norwood received a tax deed for the property on May 21, 2003. The deed was recorded, and Norwood quit-claimed the property to himself and his spouse, Louciel G. Norwood, as joint tenants with the right of survivorship and not as tenants in common.

¶ 4. Following the tax sale, but prior to the expiration of the two year period for redemption, the chancery clerk, as required by Mississippi Code Annotated Section 27-43-1 (Rev.2002), put forth efforts searching for Moore in order to attempt to give him notice of the property’s status and give him a chance to redeem the property. The chancery clerk, an eight-year veteran of the Rankin County Chancery Clerk’s office, formerly employed in the Hinds County Clerk’s office for fifteen years, testified that she mailed a certified letter to the Littleton, Colorado address; the letter was returned unclaimed. She next attempted to use the internet to find Moore and resent the letter to another Colorado address, which proved futile as well. She further searched the phone directory for Rankin County and the Jackson area, the Rankin County Tax Collector’s office, the Rankin County Tax Assessor’s office, the voter registration records of Rankin County, the tag division of the Rankin County Tax Collector’s office, the telephone company’s information department, the Rankin County Court Department, and the UCC files. When questioned at trial as to why she did not mail anything to the address listed for the grantor on the deed (which, because of the accidental reversal of names on the deed, was actually Moore’s address), the chancery clerk replied that such was not the standard practice. Further issue was made as to why she failed to contact the attorney who prepared the deed, and she again stated that this also was not typically done. The attorney who prepared the deed was aware of Moore’s correct address in Alabama. Despite the chancery clerk’s efforts, Moore never received notice of his right of redemption on the property. Because the chancery clerk neither contacted the attorney who prepared the deed nor sent a letter to the address listed as the grantor on the deed, the chancellor found that she had not taken sufficient steps to comply with Mississippi Code Annotated Section 27-43-1 (Rev.2002). He thus set aside the tax deed in favor of Moore, stating that Moore’s failure to pay the taxes should not deprive him of his land. He further ordered Moore to pay all back taxes, plus interest, as well as to reimburse the Nor-woods for a survey conducted with respect to the property. Aggrieved, the Nor-woods appeal.

STANDARD OF REVIEW

¶ 5. This Court will not disturb a chancellor’s findings of fact when supported by substantial evidence, unless there is a reasonable certainty that the chancellor was manifestly wrong, applied an erroneous legal standard, or abused his discretion. Nosser v. B.P. Buford, 852 So.2d 57, 60(¶ 11) (Miss.Ct.App.2002) (citing Morgan v. West, 812 So.2d 987, 990(¶7) (Miss.2002)). When dealing with questions of law, this Court applies a de novo standard and will only reverse for erroneous interpretation or application of law. Morgan, 812 So.2d at 990(¶ 8) (citing Bank of Mississippi v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992)).

ISSUES AND ANALYSIS

¶ 6. Mississippi Code Annotated Section 27-43-1 (Rev.2002) requires the chancery clerk, within 180 days and not less than sixty days prior to the expiration of the time for right of redemption with respect to the property sold through a tax sale, to issue notice to the record property owner. Mississippi Code Annotated Section 27-43-3 (Rev.2002) states, in pertinent part:

The clerk shall ... mail a copy of [notice that property was sold through a tax sale] to the [record owner of the property sold] at his usual street address, if same can be ascertained after diligent search and inquiry, or to his post office address if only that can be ascertained, and he shall note such action on the tax sales record. The clerk shall also be required to publish the name and address of the reputed owner of the property and the legal description of such property in a public newspaper of the county in which the land is located, or if no newspaper is published as such, then in a newspaper having a general circulation in such county. Such publication shall be made at least forty-five (45) days prior to the expiration of the redemption period.
If said reputed owner is a nonresident of the State of Mississippi, ... personal notice served by the sheriff shall not be required.
Notice by mail shall be by registered or certified mail. In the event the notice by mail is returned undelivered ..., then the clerk shall make further search and inquiry to ascertain the reputed owner’s street and post office address. If the reputed owner’s street or post office address is ascertained after the additional search and inquiry, the clerk shall again issue notice as hereinabove set out. If ... notice by mail is again returned undelivered, then the clerk shall file an affidavit to that effect and shall specify therein the acts of search and inquiry made by [her] in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be retained as a permanent record in the office of the clerk and such action shall be noted on the tax sales record. If the clerk is still unable to ascertain the reputed owner’s street or post office address after making such search and inquiry for the second time, then it shall not be necessary to issue any additional notice but the clerk shall file an affidavit specifying therein the acts of search and inquiry made by [her] in an effort to ascertain the reputed owner’s street and post office address and said affidavit shall be returned as a permanent record in the office of the clerk and such action shall be noted on the tax record.
.... The failure of the landowner to actually receive the notice herein required shall not render the title void, provided the clerk and sheriff have complied with the duties herein proscribed for them.

Miss.Code Ann. § 27-43-3 (Rev.2002) (emphasis added).

¶ 7. “In Mississippi, it is public policy to favor and protect landowners from [sale of their land] for taxes.” Lawrence v. Rankin, 870 So.2d 673, 676(¶ 13) (Miss.Ct.App.2004) (citing Carmadelle v. Custin, 208 So.2d 51, 55 (Miss.1968)). Further, we must strictly construe sections 27-43-1 and 27-43-3 (Rev.2002). Lawrence, 870 So.2d at 676(¶ 14). Failure of the chancery clerk to file the requisite affidavits renders a tax deed void. Id.

¶ 8. In the case sub judice, it is undisputed that, while the chancery clerk filed the first necessary affidavit required by Section 27-43-3, she failed to file the second required affidavit. Her failure to strictly adhere to the statute renders the tax deed void. The chancellor did not err, and we affirm his decision.

¶ 9. THE JUDGMENT OF THE CHANCERY COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, BARNES AND ROBERTS, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, J., NOT PARTICIPATING.


author: CHANDLER, J.,

text:
    James GATLIN a/k/a Jamie Gatlin, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CP-00759-COA.
    Court of Appeals of Mississippi.
    June 20, 2006.

      James Gatlin, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., SOUTHWICK, CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. On January 7, 2005, James Gatlin filed a motion for post-conviction relief (PCR) pertaining to his February 7, 1992 conviction of armed robbery and capital murder. On March 3, 2005, the Circuit Court of Walthall County dismissed Gat-lin’s PCR as time-barred. Gatlin appeals, arguing that his PCR fits within the newly discovered evidence exception to the time bar and that an evidentiary hearing is warranted on his claims of an involuntary guilty plea and ineffective assistance of counsel.

¶2. We affirm. We find that Gatlin’s PCR was properly dismissed pursuant to the time bar. Moreover, we find that Gat-lin’s PCR was barred as a successive pleading.

PROCEDURAL HISTORY

¶ 3. On February 7, 1992, Gatlin pled guilty to armed robbery, for which he was sentenced to twenty years, and to capital murder, for which he was sentenced to life in prison. On May 11, 1993, Gatlin timely filed a PCR seeking to vacate and set aside his guilty plea. In that PCR, Gatlin argued that his guilty plea was involuntary because he entered the plea in reliance on the erroneous advice of his appointed counsel. He further argued that he received ineffective assistance of counsel. After an evidentiary hearing, the circuit court denied post-conviction relief. Gatlin appealed the denial of post-conviction relief to the supreme court, which affirmed the judgment of the circuit court in an unpublished opinion. Gatlin v. State, No. 94-KP-00133-SCT, 693 So.2d 383 (Miss. Apr.24, 1997). Later, Gatlin was denied habeas corpus relief in federal court.

¶ 4. Gatlin filed the instant PCR on January 7, 2005. In this second PCR, Gatlin makes arguments identical to those he advanced in his first PCR. However, in this PCR, Gatlin avers that he has recently discovered that his appointed counsel at the plea hearing was suspended from the practice of law. Gatlin argues that this “newly discovered evidence” both excepts his PCR from the time bar and demonstrates the merit of his claims that his plea was involuntary and that his counsel was constitutionally ineffective.

STANDARD OF REVIEW

¶ 5. Mississippi Code Annotated 99-39-11(2) (Rev.2000) provides that the circuit court may summarily dismiss a PCR “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief....” This Court will affirm the circuit court’s dismissal of a PCR pursuant to section 99-39-11(2) if, after subjecting the PCR to de novo review, we conclude that the petitioner has failed to “demonstrate ‘a claim procedurally alive substantially] showing denial of a state or federal right....’ ” Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999) (quoting Myers v. State, 583 So.2d 174, 176 (Miss.1991)).

LAW AND ANALYSIS

¶ 6. We have consolidated Gatlin’s arguments for consideration under the following heading:

I. WHETHER THE CIRCUIT COURT PROPERLY DISMISSED GATLIN’S PCR WITHOUT A HEARING.

¶ 7. Mississippi Code Annotated section 99-39-5(2) (Supp.2005) provides that, in the case of a guilty plea, a motion for post-conviction relief must be made “within three (3) years after the entry of the judgment of conviction.” The instant PCR was filed almost thirteen years after Gatlin’s conviction. Therefore, unless an exception applies, the circuit court properly dismissed Gatlin’s PCR as time-barred.

¶ 8. Section 99-39-5(2) excepts from the three-year time bar:

those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

¶ 9. Gatlin contends that the exception to the time bar for newly discovered evidence applies to his PCR. Gatlin avers that, in February 2000, he learned that his appointed counsel, Robert D. Underwood, had been suspended from the practice of law before he represented Gatlin at the plea hearing. Gatlin argues that, because this newly discovered evidence would have conclusively established the merits of his first PCR, his claims should be excepted from the time bar.

¶ 10. Gatlin’s argument is without merit. By its language, the newly discovered evidence exception applies to evidence that practically conclusively would have caused a different result had it been introduced at trial. Thus, contrary to Gat-lin’s reasoning, the exception to the time bar for newly discovered evidence pertains to evidence that would have affected the outcome of the collaterally attacked proceeding, not information that would have bolstered an earlier motion for post-conviction relief from the results of that proceeding.

¶ 11. Gatlin’s allegedly newly discovered evidence of his attorney’s suspension would not have practically conclusively changed the outcome of the guilty plea hearing that Gatlin collaterally attacks. The supportive documentation attached to Gatlin’s PCR includes an opinion from the Mississippi Supreme Court affirming attorney Underwood’s suspension from the practice of law for one year from February 11, 1993. Underwood v. Mississippi Bar, 618 So.2d 64 (Miss.1993). Underwood represented Gatlin at the plea hearing on February 7,1992. Therefore, Gatlin’s supportive documentation does not establish that his appointed counsel was suspended from the practice of law during his representation of Gatlin at the plea hearing. Accordingly, even if Gatlin’s newly acquired knowledge of his counsel’s suspension otherwise qualified as newly discovered evidence, and we do not opine that it does, that information would not have practically conclusively changed the result of his plea hearing. Gatlin also makes various arguments to the effect that Underwood’s suspension from the practice of law makes it more likely that Underwood committed misconduct in Gatlin’s own case. We do not consider these arguments because the exception to the time bar for newly discovered evidence applies to evidence, not to a petitioner’s newly crafted legal theories. Frost v. State, 781 So.2d 155, 158(¶ 7) (Miss.Ct.App.2000).

¶ 12. We find that the trial court properly dismissed Gatlin’s PCR as time-barred. We further observe that Gatlin’s PCR was his second from his armed robbery and capital murder conviction. Therefore, it was barred as a successive pleading pursuant to Mississippi Code Annotated section 99-39-23(6) (Supp.2005), which states that “any order dismissing the prisoner’s motion or otherwise denying relief under this article is a final judgment and ... shall be a bar to a second or successive motion under this article.”

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

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

      . This opinion reflects that Underwood’s suspension was unrelated to his representation of Gatlin.


author: GRIFFIS, J.,

text:
    Robert Kent HARDIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-00576-COA.
    Court of Appeals of Mississippi.
    June 20, 2006.

      David Fitzgerald Linzey, attorney for appellant.
    Office of Attorney General by Charles W. Maris, Billy L. Gore, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Robert Kent Hardin was convicted on two counts of burglary of a dwelling, one count of conspiracy to commit burglary of a dwelling, one count of armed robbery, and one count of kidnaping. Hardin was sentenced to serve twenty-five (25) years on count one, burglary of a dwelling, with ten (10) years to serve in the custody of the Mississippi Department of Corrections and the remaining fifteen (15) years on post-release supervision; twenty-five (25) on count two, burglary of a dwelling, with ten (10) years to serve in the custody of the Mississippi Department of Corrections and the remaining fifteen (15) years on post-release supervision; five (5) years on count three, conspiracy to commit the crime of burglary of a dwelling, to be served on post-release supervision; thirty-five (35) years on count four, armed robbery, with fifteen (15) years to serve in the custody of the Mississippi Department of Corrections and twenty (20) years on post-release supervision; five (5) years on count five, kidnaping, to be served on post-release supervision. Hardin’s total sentence resulted in thirty-five (35) years incarceration and the remaining sixty (60) years on post-release supervision. On appeal, Hardin argues that his conviction is not supported by legally sufficient evidence. We affirm.

FACTS

¶ 2. Robert Kent Hardin and Johnny Lee Wallace met at the Hinds County Restitution Center. On March 2, 2002, Hardin and Wallace signed out of the center and went to McDonald’s where Wallace worked. Wallace testified that they had marijuana and that they smoked it on the way to McDonald’s. After Wallace’s shift, they still had marijuana and did not want to return to the restitution center. They went to the bus station and bought tickets to Brookhaven.

¶ 3. When the pair arrived in Brookha-ven, Wallace called a friend to pick them up. Randy King picked the two up at a gas station and took them to his dorm room at Copiah-Lincoln Community College. The following day, King dropped them off at one of Wallace’s friend’s house, somewhere near McComb. Wallace testified that about an hour after they were dropped off he was picked up by another friend, and Hardin’s girlfriend picked him up. According to Wallace’s testimony, he never saw Hardin again. Wallace was then asked:

Q. Do you recall pleading guilty to the crimes of two counts of burglary of a dwelling, conspiracy to commit burglary, armed robbery, and kid-naping?
A. Yes, ma'am.
Q. Did you have counsel at the time of the guilty plea?
A. Yes, ma'am.
Q. Mr. Wallace, count three is an indictment for conspiracy. And you just testified that you pled guilty to that. That count of conspiracy says that you conspired with Robert Kent Hardin to commit these crimes, and you pled guilty under oath to that, didn’t you?
A. Yes, I did.

¶ 4. The court then allowed the State to call Investigator Lance Falvey, of the Lincoln County Sheriffs Department, to testify about the statement Wallace gave on April 22, 2002, after he was arrested. This statement was played for the jury and to contradict Wallace’s testimony. In the recorded statement, Wallace gave a very different version of the events.

¶ 5. In Wallace’s recorded statement, he implicated Hardin as his co-conspirator. He gave a detailed account of the burglary, robbery, and kidnaping as well as flight to Mexico. Wallace’s statement contains internal inconsistencies, notably he alternates calling his co-conspirator “Robert” or “Sean.” At Hardin’s trial, Wallace admitted that he gave the statement that implicated Hardin in an effort to get a plea bargain.

STANDARD OF REVIEW

¶ 6. In reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844(¶ 16) (Miss.2005). If any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we uphold the verdict. Id. Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Id. (citing Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

ANALYSIS

¶ 7. Hardin argues that no prosecution witness ever identified him as the person who was with Johnny Wallace the day the crimes were committed. “The character and adequacy of evidence of identification of an accused in a criminal case is primarily a question for the jury, provided the evidence could reasonably be held sufficient to comply with the requirement of proof beyond a reasonable doubt.” Passons v. State, 239 Miss. 629, 634, 124 So.2d 847, 848 (Miss.1960). Our review of the record reveals that Hardin is incorrect. Indeed, Hardin claims that the prosecution failed to offer any evidence of the identity of the defendant. However, it is clear from the transcript that the prosecution expected Wallace to identify Hardin as his co-conspirator and to connect Hardin to each of the crimes. When Wallace recanted his story, the prosecution was left with a difficult task of proving Hardin’s identity and connection to the crimes without Wallace testifying consistent with his statement to Officer Falvey.

¶ 8. Hardin claims that during trial nine witnesses testified for the prosecution. Investigator Falvey was the only one who was asked to identify Hardin in court. He asserts that there was no in — court identification of Hardin that placed him with Johnny Wallace immediately prior to, during or immediately following the alleged crimes.

¶ 9. The prosecution elicited testimony from the three witnesses who possibly could have identified Hardin. However, their testimony focused on the race, age, physical build and lack of tattoos of the perpetrators. Each witness was asked to describe the perpetrators, and they all described the perpetrators as white males. Each witness testified that one was slightly taller than the other, but of about the same build.

¶ 10. Investigator Lance Falvey testified that Johnny Wallace is five feet nine inches tall and approximately 135 or 140 pounds. Falvey also testified that Hardin is five feet six inches tall and weighs approximately 135 pounds.

¶ 11. Dorothy Featherly, Wallace’s aunt, was the victim of the armed robbery. She testified that she knew Wallace was there. The prosecutor did not ask Ms. Featherly if she could identify the other person who robbed her. Featherly’s testimony did not result in an identification of Robert Hardin as the second perpetrator. Featherly testified that she was robbed by two young men of medium build, who were wearing white tee shirts, black pants and masks covered their faces.

¶ 12. Randy King testified that Johnny Wallace called King to pick him up in Brookhaven on the night Wallace and Hardin left the restitution center. King recalled that he picked Wallace and another person up and was told the other person was named Sean. According to King, Sean was white and built about the same as Wallace, but Sean was shorter than Wallace. King also testified that Sean was a smaller build, and he would describe Wallace as taller and thinner. The prosecutor did not ask King if he could identify Hardin as the person who was with Wallace. King was asked if he noticed any tattoos on Johnny’s friend’s arms. King responded that he did not notice any at all.

¶ 13. The prosecutor did not ask King if he could recognize the person who was with Wallace that night. Even though King possibly could have corroborated the allegation that Robert Hardin was also known as Sean, the prosecutor did not ask King if the person who he picked up and allowed to spend the night in his dorm room was in the courtroom.

¶ 14. Keith Boyd also testified for the prosecution. Keith Boyd lived a short distance from the scene of crimes. Boyd testified that, on the day the crimes were committed, he was awakened at his home and found two young white men at his door. They asked him for a ride to Blisters’ store. Boyd testified that he was not going to take them until one of them offered him one hundred dollars to get them to the store before three o’clock. Boyd then drove the pair to the store.

¶ 15. Boyd saw the faces of both perpetrators very shortly after the crimes occurred. However, the prosecutor did not ask Boyd if he could identify the person that was with Johnny Wallace that day. Boyd was also asked about the race and build of the men, and described them as white, young guys. Boyd did testify that one of them was three or four inches shorter than the other. Boyd was also asked about the presence of tattoos on the forearms of either of them, and he testified that he did not notice any tattoos.

¶ 16. As discussed above, the prosecution called Johnny Wallace to the stand to testify he identified Robert Hardin. However, Wallace testified that Hardin was not the one who committed the crimes with him. The prosecutor then questioned Wallace about his guilty plea, where he identified Robert Hardin as his co-conspirator. The prosecution offered, without objection by the defense counsel, the taped statement given by Johnny Wallace to Investigator Falvey shortly after Wallace was arrested. On this tape, Wallace gives a long statement detailing the events from when he and Hardin left the restitution center until Wallace was arrested. The taped statement implicates Hardin as his cohort, but also refers to “Sean” as the person who committed the crimes with him. The names are used interchangeably.

¶ 17. Hardin argues that the “taped statement is unreasonable, not probable, and substantially impeached. According to the Court, that would render his testimony unusable.” Nason v. State, 840 So.2d 788, 791(¶ 11) (Miss.Ct.App.2003). In Nason, Smith, a co-defendant, was called to testify to identify Nason as the “perpetrator of the crime.” Id. at 790(¶ 7). Nason argued that the testimony was unreliable, self serving and not credible. Id. at (¶ 8). This Court held

Even though Smith’s testimony should be viewed with caution and suspicion, it was the trial judge’s responsibility to weigh the probative value of the testimony versus the prejudicial aspect of the testimony. Even though Smith’s testimony contained inconsistencies, it is the duty of the jury to determine “the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory, and sincerity.” Noe v. State, 616 So.2d 298, 303 (Miss.1993) (citing Jones v. State, 381 So.2d 983, 989 (Miss.1980)).
Furthermore, the testimony of Smith was not uncorroborated. Testimony can be corroborated by either evidence or by other testimony. The State presented at least two witnesses, all of whom testified closely if not exactly to what Smith testified to. As for the testimony being “reasonable, not improbable, self-contradictory or substantially impeached,” Smith’s testimony was well within reason and not improbable. Smith was even warned about this possibility right before he was to testify and was given the chance to back out of testifying. In addition, Nason had an opportunity to cross-examine Smith, which would have enabled Nason to bring to light any inconsistencies, ulterior motives, fear or duress.

Nason, 840 So.2d at 791 (¶¶ 10-11). Na-son does not support Hardin’s argument.

¶ 18. We must first consider the effect of Wallace’s taped statement. Hardin argues that Wallace’s testimony in court is inconsistent with the statement given on the tape, and the recorded statement is internally inconsistent. Wallace’s statement would be considered under the definition of hearsay. It is an out of court statement that is being offered to prove the truth of the matter asserted. However, Mississippi Rule of Evidence 801(d)(1)(A) provides that “[a] statement is not hearsay if: ... The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition.... ” Thus, Wallace’s testimony that he previously pled guilty and as part of the plea testified under oath that he “conspired with Robert Kent Hardin to commit these crimes” is sufficient to identify Hardin as a participant in the crimes.

¶ 19. Next, we must consider the corroborating evidence. “Only slight corroboration of an accomplice’s testimony is required to sustain a conviction.” Young v. State, 425 So.2d 1022, 1024 (Miss.1983). In addition to Wallace’s guilty plea, the following evidence provides corroboration:

1. Wallace met Hardin at the restitution center. They left together without authorization smoked marijuana together, rode the bus to Brookhaven together, and were together the following day at the home of a guy named Wesley.
2. The jury was entitled to consider similar descriptions elicited from Featherly, King, and Boyd concerning the physical features and builds of the two men they encountered.
3. The jury was entitled to consider the similarity of clothing. Hardin wore a 9 ½ size shoe while Wallace wore size 11. There was testimony describing white T-shirts and black pants.
4. The jury was entitled to consider the clothing with Mexican labels and tags which reflected it was either made or purchased in Mexico.
5. The jury was entitled to consider the fact that Hardin was arrested in Laredo, Texas, a border town.
6. The jury was entitled to consider the testimony concerning the gang-related tattoos on the forearms of both Wallace and Hardin which were never noticed by anyone until after the trip to Mexico.
7. The jury was entitled to consider the fact that over $8,000 was taken during the burglaries and the robbery of Featherly. Thus, both men had sufficient funds to travel to Texas and Mexico.
8. The jury was entitled to consider that “Poker” was too non-descriptive to be anything other than a fabrication by Wallace.
9. The jury was entitled to consider Hardin’s abandoned clothing found at the crime scene.

¶ 20. Ordinarily it would be within the jury’s province to determine which statement was most credible. It is for jurors to resolve conflicts in testimony. McGee v. State, 828 So.2d 847, 850(¶ 13) (Miss.Ct.App.2002) (citing Jackson v. State, 614 So.2d 965, 972 (Miss.1993)).

¶21. We find the evidence was sufficient to support Hardin’s conviction. Therefore, we affirm.

¶ 22. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I — BURGLARY OF A DWELLING AND SENTENCED TO TWENTY-FIVE YEARS WITH TEN YEARS TO SERVE AND FIFTEEN YEARS OF POST-RELEASE SUPERVISION; COUNT II— BURGLARY OF A DWELLING AND SENTENCED TO TWENTY — FIVE YEARS WITH TEN YEARS TO SERVE AND FIFTEEN YEARS OF POST-RELEASE SUPERVISION; COUNT III— CONSPIRACY TO COMMIT BURGLARY OF A DWELLING AND SENTENCED TO FIVE YEARS OF POST-RELEASE SUPERVISION; COUNT IV — ARMED ROBBERY AND SENTENCED TO THIRTY-FIVE YEARS WITH FIFTEEN YEARS TO SERVE AND TWENTY YEARS OF POST-RELEASE SUPERVISION; . COUNT V KIDNAPING AND SENTENCED TO SERVE FIVE YEARS OF POST-RELEASE SUPERVISION FOR A TOTAL OF THIRTY-FIVE YEARS TO SERVE ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND SIXTY YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. THIS SENTENCE WILL ALSO RUN CONSECUTIVE TO HIS PROBATION REVOCATION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

KING, CJ., LEE and MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE and ROBERTS, JJ., CONCUR.