author: IRVING, J.,

text:
    Latrell Dewayne ADAMS a/k/a Scott Tremayne Black, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01761-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    Rehearing Denied May 22, 2007.

      Latrell Dewayne Adams, appellant, pro se.

      Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises out of the Laud-erdale County Circuit Court’s denial of Latrell Dewayne Adams’ motion for post-conviction relief. Aggrieved, Adams appeals and claims that the court improperly construed his notice of post-conviction relief as a motion for post-conviction relief, that the court erred in not returning his motion after finding that it failed to state a ground upon which relief could be granted, that the court erred in ordering that sixty days of Adams’ earned time be forfeited, and that the judge erred in not recusing himself from hearing Adams’ motion for post-conviction relief.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Adams was indicted twice as a habitual offender for two separate burglary charges. The second indictment included not only a count for burglary, but also a count for attempted burglary. On January 25, 2005, Adams was convicted of the first burglary charge, number 507-04, by a jury and was sentenced by the court to seven years in the custody of the Mississippi Department of Corrections as a habitual offender. On May 31, 2005, the same day that he was set to go to trial on the second indictment, Adams entered a guilty plea to the second burglary charge, number 580-04. As part of his plea, Adams agreed to withdraw his appeal in cause number 507-04. In return, the State recommended that he be given a sentence of seven years, which would run concurrently with his seven-year sentence in number 507-04. The State also agreed to pass an attempted burglary charge to the files. The court adopted the State’s recommendation.

¶ 4. The court conducted an extensive guilty plea hearing, wherein it went over the rights that Adams was waiving by pleading guilty. The court also questioned Adams extensively regarding whether his guilty plea was truly voluntary. After being satisfied that Adams wanted to plead guilty and that he understood all the ramifications of his plea, the court accepted Adams’ plea and sentenced him in accordance with the State’s recommendation. Shortly thereafter, on July 15, 2005, Adams filed a pro se “Notice of Post-Conviction Collateral Relief,” along with a designation of record and a request to proceed in forma pauperis. Upon receipt of Adams’ filings, the court entered a judgment denying post-conviction relief and ordering the forfeiture of sixty days of Adams’ earned time.

¶ 5. Additional facts, as necessary, will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. We will not reverse a trial court’s decision to deny post-conviction relief unless that decision is clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999).

1. Inteiyretation of Filing as Motion

¶ 7. Adams contends that the court erred in interpreting his “Notice” as a motion for post-conviction relief. Adams claims that he filed his “Notice” “to alert the Court that he would be filing a Motion for Post-Conviction Collateral Relief in the future.... ”

¶ 8. Adams’ claim is belied by the wording of his filings. His “Notice” states: “Comes now, the Petitioner, Latrell Adams, Pro Se and IN FORMA PAU-PERIS, and files this MOTION FOR NOTICE ... for conviction in cause [number] 507-04, To [sic] which petitioner now moves in PosWConvietion Collateral Relief, not for delay ....” (emphasis added).

¶ 9. There is no procedure for “notice” of post-conviction relief. The court did not err in interpreting Adams’ filing as a motion for post-conviction relief, as the filing clearly stated that the document was a motion, and that Adams was moving for post-conviction relief.

2. Return of Motion

¶ 10. Adams also contends that the court erred in not returning his filing to him, as allowed under Mississippi Code Annotated section 99-39-9(4) (Supp.2006).

¶ 11. The trial court found Adams’ motion lacking on the ground that it failed to provide a “concise statement of the claims or grounds upon which the motion is based,” as required by Mississippi Code Annotated section 99 — 39—9(l)(c) (Supp. 2006). Section 99-39-9(4) reads: “If the motion ... does not substantially comply with the requirements of this section, it shall be returned to the prisoner if a judge of the court so directs, together with a statement of the reason for its return.” (emphasis added).

¶ 12. We agree with the court that Adams’ motion failed to state a claim upon which relief could be granted. Under Mississippi Code Annotated section 99-39-5(1) (Supp.2006), the following grounds are valid claims for post-conviction relief: (1) that the sentence or the conviction is violative of either the United States Constitution or Mississippi laws; (2) that the sentencing court lacked jurisdiction; (3) that the statute underlying either the sentence or the conviction is unconstitutional; (4) that the sentence given exceeds the maximum allowed; (5) that there are new material facts that require vacation of the sentence or conviction; (6) that a guilty plea was not voluntary; (7) that a petitioner is being held unlawfully; (8) that the petitioner is entitled to an out-of-time appeal; or (9) that the “conviction or sentence is otherwise subject to collateral attack upon any grounds ... available under any common law, statutory or other writ....” In his filing for post-conviction relief, Adams provided no reason whatsoever for relief. The motion stated merely that “petitioner now moves in Post-Conviction Collateral Relief, not for delay, but solely in the interest of Justice, so that justice may be served.” Therefore, Adams failed to state a basis for a claim upon which relief could be granted.

13. The statute, while stating that the motion “shall” be returned to the prisoner, is clear that the determination of whether to return a motion is left to the discretion of the trial court. At no time during any of these proceedings has Adams alleged any ground for post-conviction relief. The court questioned Adams extensively before accepting his guilty plea, negating any doubt that Adams committed the crimes that he pleaded guilty to. In Carr v. State, 881 So.2d 261, 265(¶ 13) (Miss.Ct.App.2003), we noted that a petitioner’s motion did not “techni-eally comply with the requirements of the pleading” and that the judge; therefore, “could have refused to hear this motion because of its noncompliance.” Clearly, a court is not always required to return a post-conviction relief motion that fails to comply with statutory requirements.

¶ 14. In Ford v. State, 708 So.2d 73, 76(¶ 13) (Miss.1998), the Mississippi Supreme Court noted that a petitioner’s motion should be returned to him when “the appellant can survive summary dismissal under § 99-39-11(2).” Mississippi Code Annotated section 99-39-11(2) (Rev.2000) states: “If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the ease that the movant is not entitled to any relief, the judge may make an order for its dismissal.... ” In this case, it plainly appeared from the face of Adams’ motion that he was not entitled to any relief. Therefore, the court was not required to send Adams’ motion back.

¶ 15. Under these circumstances, the court did not err in declining to return Adams’ motion. This allegation of error is without merit.

3. Forfeiture of Earned Time

¶ 16. Adams next contends that the court erred in ordering the forfeiture of sixty days of earned time. To begin, we note that Adams is serving his sentence day-for-day as a habitual offender, in accordance with Mississippi Code Annotated section 99-19-81 (Rev.2000). Therefore, Adams cannot accrue earned time and cannot be prejudiced by the forfeiture of his non-existent earned time. Furthermore, Mississippi Code Annotated section 47-5-138 (Supp.2006) states that an inmate who files a suit that is “frivolous, malicious or for failure to state a claim upon which relief could be granted ... shall forfeit” sixty days of earned time. Since we have found that the court was correct in finding that Adams failed to state a claim upon which relief could be granted, forfeiture of sixty days of earned time would have been proper if Adams was able to receive earned time, (emphasis added).

¶ 17. Clearly, this issue is without merit.

Jp. Recusal

¶ 18. In his supplemental brief, Adams asserts that the court erred in declining to recuse. The basis of Adams’ argument is that Judge Roberts, who presided over both Adams’ guilty plea hearing and his motion for post-conviction relief, stated at the hearing that “I can make a record here today where if he does file such a [motion for post-conviction relief], it will be a sham.”

¶ 19. We note first that Adams did not request Judge Roberts’ recusal prior to the denial of Adams’ motion for post-conviction relief. Instead, over four months later, Adams filed a motion requesting re-cusal. By that time, Judge Roberts had not only ruled on Adams’ motion for post-conviction relief, but had also left the Lauderdale County Circuit Court to serve on this Court. Therefore, the denial of the recusal motion as moot was clearly proper, and Adams can succeed on his recusal claim only if we find that Judge Roberts should have recused himself from hearing Adams’ post-conviction matter sua sponte.

¶ 20. The Mississippi Supreme Court has indicated that a judge is required to recuse himself from hearing a case only if “a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” Payton v. State, 897 So.2d 921, 943(¶73) (Miss.2003) (quoting Taylor v. State, 789 So.2d 787, 797(¶ 48) (Miss.2001)). There is a “presumption of impartiality ... that a trial judge is qualified and unbiased, and this presumption may only be overcome by evidence which produces a reasonable doubt about the validity of the presumption.” Id. (citations omitted).

¶21. No credible evidence has been produced to present a “reasonable doubt about the validity of the presumption.” Adams offers no evidence in support of his contention other than the court’s statement that a motion filed by Adams would be a “sham.” This statement must be taken in context. Judge Roberts had just finished extensively questioning Adams as to the voluntariness and validity of his desire to plead guilty. In other words, the court was confirming that there was absolutely no reason not to accept Adams’ guilty plea. When Adams’ attorney reminded the court that Adams would be able to file a motion requesting post-conviction relief regardless of the questioning, Judge Roberts explained that he was making a record clearly showing that any motion challenging the validity of the plea would be without merit, ie., a “sham.” Under these circumstances, the court’s observation clearly does not raise a “reasonable doubt about the validity of the presumption.” Since no other evidence supporting Adams’ allegations has been presented, this issue is without merit.

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

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

      . Adams asserts only two issues in his initial brief, and one additional issue in his supplemental brief. However, for clarity’s sake, we have separated Adams’ first issue into two issues.

      . The filing for post-conviction collateral relief in conviction number 580-04 was worded almost identically, except that it omitted the "motion for notice” language, and merely stated that Adams was filing a ''motion.”

      . We note that this is not a simple case of a filing that is "inartfully drafted.” See Ford v. State, 708 So.2d 73, 76(¶ 12) (Miss.1998). Nothing in Adams' filing indicated that he has a "meritorious” complaint. Id.

      . Section 99-19-81 states that a habitual offender like Adams "shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.” (emphasis added).


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Alice LOCKWOOD, Appellant v. ISLE OF CAPRI CORPORATION d/b/a Isle of Capri Casino, Appellee.
    No. 2005-CA-01995-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    Rehearing Denied May 29, 2007.

      Robert Stanley Little, attorney for appellant.
    Christopher Ethan Kittell, Clarksdale, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Alice Lockwood slipped and fell near the buffet table at the Isle of Capri (“IOC”) in Lula, Mississippi in 2003. Lockwood sued the IOC, claiming that the casino had either actual or constructive knowledge of water on the floor, which caused her fall, or that the IOC negligently failed to correct an unreasonably dangerous condition. The Coahoma County Circuit Court granted summary judgment for the IOC, holding that Lockwood did not present sufficient proof as to the origin of the water, that the IOC had actual or constructive knowledge of the condition or that the IOC had breached any duty owed to Lockwood.

¶ 2. Lockwood appeals, arguing that the trial court erred by failing to consider former instances of water on the floor which created a genuine dispute of material fact. Lockwood filed this appeal to determine:

I. WHETHER THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE OF PRIOR INCIDENTS OF WATER ACCUMULATION PURSUANT TO MISSISSIPPI RULE OF EVIDENCE 404(B).

II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHEN EVIDENCE DEMONSTRATED A GENUINE ISSUE OF MATERIAL FACT.

¶3. Finding error, we reverse and remand.

FACTS

¶ 4. On November 7, 2003, Alice Lockwood visited the IOC with her two friends, Alma Bowman and Vivian Davis. After playing several rounds of casino games, the women went to the casino’s Calypso Buffet to eat dinner. On her way to the buffet table, Lockwood slipped and fell on the tile floor, injuring her back and neck.

¶ 5. Witnesses to the accident testified they saw a puddle of water on the floor where Lockwood slipped and fell. Some witnesses speculated that the water came from either the seafood buffet, where the food was served on ice, or from a plate dispenser. An affidavit from another witness stated that she saw water on the floor in the same area on multiple prior occasions. Lockwood could not remember anything from the accident. Immediately after paramedics removed Lockwood from the restaurant, a casino employee mopped the floor.

¶ 6. Lockwood filed a suit for negligence against the casino. She alleged that by failing to remove or warn of the dangerous condition, the casino was negligent. She also maintained that the IOC had either actual or constructive knowledge of the dangerous condition. The IOC filed a motion for summary judgment, which the trial court granted. The court found no genuine issue as to material fact and held that the casino was entitled to a judgment as a matter of law. The trial court ruled certain testimony regarding prior incidents of water on the buffet floor to be inadmissible under Mississippi Rule of Evidence 404(b) to prove whether the casino had either actual or constructive knowledge of the condition which led to Lockwood’s fall. The court also found that Lockwood failed to offer the requisite proof that the IOC negligently created an unreasonably safe condition.

LAW AND ANALYSIS I. WHETHER THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE OF PRIOR INCIDENTS OF WATER ACCUMULATION PURSUANT TO MISSISSIPPI RULE OF EVIDENCE 404(B).

¶ 7. Lockwood asserts that she provided ample evidence to prove that the IOC had constructive notice. She offered testimony from other patrons who testified that on prior visits to the IOC, they saw water in the same spot as where Lockwood fell. The trial court ruled this testimony inadmissible under M.R.E. 404(b), which prohibits evidence of prior crimes, wrongs, or acts to prove conformity therewith. Lockwood argues that this testimony falls under the exception to Rule 404(b), which states that such evidence may be offered as proof of knowledge, which is a necessary part of her 'prima facie case.

¶ 8. This Court will not disturb a lower court’s findings on evidentiary matters absent an abuse of discretion. Lindsey v. State, 754 So.2d 506, 511(¶ 23) (Miss.Ct.App.1999). Reversal is appropriate if the lower court’s ruling affects a substantial right or prejudice or harm results to a party. Smith v. State, 839 So.2d 489, 495(¶ 8) (Miss.2003) (citing Farris v. State, 764 So.2d 411, 428(¶ 57) (Miss.2000)).

¶ 9. In order for Lockwood to overcome summary judgment in the present case, she must show that the IOC created an unreasonably dangerous condition or that the IOC had actual or constructive knowledge of a dangerous condition. Elston v. Circus Circus, Inc., 908 So.2d 771, 773(¶ 8) (Miss.Ct.App.2005). Generally, evidence of prior bad acts is inadmissible to prove a propensity to act in a certain manner. Moore v. K & J Enterprises, 856 So.2d 621, 632(¶ 46) (Miss.2003) (citing M.R.E. 404(b)). However, evidence of pri- or bad acts may be admissible to prove identity, knowledge, intent, motive or to prove scienter. Id.

¶ 10. Lockwood offered an affidavit of Alma Bowman, who stated that she had been to the IOC on several prior occasions and had also eaten at the Calypso Buffet. On those visits, she saw a puddle of water in the same location as that where Lockwood fell. Lockwood asserts that such testimony was not intended to show action in conformity therewith on the part of the casino. Rather, she intended to use the testimony to prove that the IOC either had knowledge or should have known of the recurrent condition of the water accumulation and given that knowledge, should have instituted procedures to protect its patrons.

¶ 11. The IOC has a duty to its business invitees to keep the premises reasonably safe and to warn of any known latent dangers. Little v. Bell, 719 So.2d 757, 760(¶ 16) (Miss.1998). Evidence of prior water accumulation would have been sufficient for a jury to reasonably infer that the IOC had constructive knowledge of the dangerous condition or could have prevented an accident by placing warning signs in the area where water normally collected.

¶ 12. Thus, we hold that the evidence was competent testimony sufficient to create a genuine issue of material fact as to whether water had been present in the same area of the Calypso Buffet on prior occasions.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHEN EVIDENCE DEMONSTRATED A GENUINE ISSUE OF MATERIAL FACT.

¶ 13. This Court reviews the record de novo to determine whether a motion for summary judgment was properly granted. Lowery v. Guaranty Bank and Trust Co., 592 So.2d 79, 81 (Miss.1991). A motion for summary judgment should be granted if it can be shown by the evidence that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). On a motion for summary judgment, a court does not try issues of fact; it can only determine whether there are issues to be tried. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209-10(¶ 6) (Miss.2001). All evidence must be viewed in the light most favorable to the non-movant, and the court should presume that all evidence in the non-mov-ant’s favor is true. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993).

In Mississippi, a premises liability claim can be based on three theories:
(1) that the defendant’s own negligence created a dangerous condition which caused plaintiffs injury; (2) that defendant had actual knowledge of a condition which defendant itself did not cause, but defendant failed to adequately warn plaintiff of the danger she faced as an invitee; or (3) that, based upon the passage of time, defendant should have known of the dangerous condition caused by another party if defendant had acted reasonably, i.e., constructive knowledge of the condition should be imputed to defendant.

Vu v. Clayton, 765 So.2d 1253, 1255(¶ 8) (Miss.2000) (citing Downs v. Choo, 656 So.2d 84, 86 (Miss.1995)). In Downs, our supreme court held:

If there is a doubt as to whether there exists a genuine issue of material fact, the non-movant receives the benefit of that doubt.... It is reversible error for the trial court to substitute summary judgment for a jury’s consideration of disputed factual issues if material to the case.

Id. at 85-86. (citations omitted). Our supreme court has further held:

When a plaintiff has shown that the circumstances were such as to create a reasonable probability that the dangerous condition would occur, he need not also prove actual or constructive notice of the specific condition, in this instance a specific puddle of water.

F.W. Woolworth Co. v. Stokes, 191 So.2d 411, 416 (Miss.1966) (citations omitted).

¶ 14. Witnesses to the accident in the present case stated that Lockwood fell in a puddle of water which had pooled near the buffet line. Although testimony varies as to the amount of water, with some stating that the puddle was as large as a desktop and others stating that the puddle was larger than a plate but smaller than a hoola hoop, it is clear that the amount of water which accumulated was significant.

¶ 15. We find that competent testimony concerning prior instances of water created a genuine issue of material fact which precluded granting summary judgment for the IOC. A jury could have reasonably inferred from the testimony that the water accumulation was recurrent and that the IOC either knew of its condition or should have known. Therefore, we reverse the lower court’s grant of summary judgment and remand the case back to the trial court for further consideration of the excluded evidence.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY GRANTING THE MOTION FOR SUMMARY JUDGMENT IS REVERSED AND REMANDED FOR FURTHER CONSIDERATION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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