author: CARLSON, Presiding Justice, CHANDLER, Justice,

text:
    Andrew MATTHIES a/k/a Andrew K. Matthies v. STATE of Mississippi.
    No. 2010-CT-00783-SCT.
    Supreme Court of Mississippi.
    April 12, 2012.

      Kevin Dale Camp, Jackson, John Michael Duncan, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. We granted certiorari in this case to address the issue of whether, in a driving-under-the-influence trial, the admission of intoxilyzer calibration records, in lieu of the live testimony of the person who calibrated the intoxilyzer, is a violation of the Confrontation Clause contained in the Sixth Amendment to the United States Constitution. Finding no constitutional violation, we affirm the judgments of the Court of Appeals and the Madison County Circuit Court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Dr. Andrew K. Matthies lived in Ocean Springs and was stationed at Kees-ler Air Force Base in Biloxi; however, during the period of time relevant to today’s discussion, Matthies was working a rotation as a resident surgeon at the University of Mississippi Medical Center (UMMC) in Jackson, fulfilling a six-week assignment. His temporary residence was at the Marriott Residence Inn on Centre Street in Ridgeland.

¶ 3. Matthies had met Jennifer Gedemer at work. Gedemer invited Matthies to a party hosted by her and her husband in their Madison County home. The party was to take place on Saturday evening, September 13, 2008. Around noon on September 13, 2008, Matthies had completed a thirty-hour shift at UMMC in the kidney transplant service, and he went to his hotel room, where he slept for approximately four hours. Upon awakening from his nap, Matthies prepared for the party and used MapQuest to locate the Gedemers’ home, since he was unfamiliar with the Madison area. Matthies left his hotel room around 6:00 p.m. and traveled to the Gedemers’ home for the party, arriving at approximately 6:30 p.m. By his own admission, Matthies consumed approximately four beers, along with some food. Approximately fifteen guests were in the Gedem-ers’ home that evening.

¶ 4. Upon leaving the Gedemers’ home alone, en route back to his hotel room in Ridgeland, Matthies traveled south on Old Canton Road in Madison. At the time, James Craft, a police officer for the City of Madison, was patrolling northbound on Old Canton Road, approaching Madison Avenue in the City of Madison. Craft observed a Toyota Camry traveling southbound on Old Canton Road, immediately south of the Old Canton Road/Madison Avenue intersection. In this area of Old Canton Road, the posted speed limit was thirty miles per hour. According to Craft, the vehicle appeared to be traveling at an excessive rate of speed, and upon passing the vehicle, Craft activated the rear radar of his patrol car. The radar clocked the speed of the Toyota Camry at fifty-two miles per hour. Craft turned around and pursued the southbound Toyota Camry, eventually initiating a traffic stop on Old Canton Road near Calumet Drive at 11:43 p.m.

¶ 5. Upon request, the driver of the Toyota Camry produced a driver’s license and proof of insurance, revealing the identity of the driver to be Matthies. Craft observed that Matthies’s eyes were red, and Craft smelled an odor of alcohol coming from the interior of the vehicle. Upon interrogation, Matthies admitted to Craft that he had consumed “three or four beers” that evening, with the last beer being consumed about thirty minutes before the traffic stop. Matthies consented to a field sobriety test, including horizontal gaze nystagmus. (See Stodghill v. State, 892 So.2d 236, 238 n. 3 (Miss.2005)). After conducting this test, Craft suspected that Matthies was impaired due to alcohol and thus, administered the preliminary breath test, in which Matthies tested positive for the presence of alcohol in his system. Craft handcuffed Matthies and transported him to the City of Madison Police Department to conduct an intoxilyzer test.

¶ 6. Officer Craft is authorized to conduct tests on the equipment known as the Intoxilyzer-Alcohol Analyzer Model 8000. Craft followed the normal procedures in administering the intoxilyzer test on Mat-thies. These tests determined that Mat-thies had a blood alcohol content (BAC) of 0.11%, that being above the legal limit of 0.08% in the State of Mississippi.

¶ 7. Matthies was charged with driving under the influence (DUI) (first offense) and entered a plea of nolo contendere to that charge in the City of Madison Municipal Court, Judge Cynthia Speetjens presiding. Judge Speetjens adjudicated Mat-thies guilty of the crime of DUI (first offense), and sentenced Matthies to suspended jail time, a fine, and court costs. Matthies also was required to satisfactorily complete the Mississippi Alcohol Safety Education Program (MASEP). Matthies then appealed to the County Court of Madison County and received a trial de novo conducted by Judge William S. Agin without a jury. During the bench trial, Officer Craft testified concerning the in-toxilyzer test and Matthies’s BAC. Intoxi-lyzer calibration certificates were admitted over Matthies’s Confrontation-Clause objection. These certificates, each entitled “Intoxilyzer 8000 Calibration Certificate,” and completed on September 1, 2008, and October 2, 2008, respectively, indicated, inter alia, that:

The above instrument, used for breath analysis to determine alcohol content, was tested on below date and found to be in working condition. Calibration of instrument certified to meet acceptable standards of accuracy. This certificate approved by the Mississippi State Crime Laboratory pursuant to Implied Consent Act, Sec. 63-11-19, Mississippi Code of 1972, Annotated.

Both certificates were signed by Robert Bickley, who did not testify at the trial before Judge Agin.

¶ 8. At the county-court trial, Matthies also contested the prosecutor’s allegation that his alcohol consumption that evening had caused him to be legally impaired to operate a motor vehicle. Without objection, Matthies testified at length, based on his medical expertise, on such matters as the effect of alcohol consumption on different people based on body mass index, gender, food intake, and the amount of alcohol consumed over a certain period of time. Matthies also enumerated the medical reasons or conditions, other than alcohol consumption, that could cause a person to have red eyes. He explained the reasons why he had performed poorly during the horizontal-gaze nystagmus test (walk and turn, and one leg stand). Matthies explained that he had sports-related injuries, and his footwear caused an occasional loss of balance.

¶ 9. At the conclusion of the bench trial, Judge Agin found Matthies guilty of DUI (first offense) and sentenced Matthies, inter alia, to a forty-eight-hour jail sentence, suspended; completion of the MASEP program; unsupervised probation for a two-year period; and payment of certain costs, fees, and assessments, which were due within sixty days of the date of the judgment. Judge Agin’s final judgment was dated July 14, 2009, and entered on July 15, 2009. Thereafter, Matthies timely filed an appeal to the Circuit Court of Madison County. In due course, under the provisions of Mississippi Code Section 11-51-81 (Rev. 2002), the Circuit Court of Madison County, sitting as an appellate court, Judge William E. Chapman, III, presiding, entered an Order and Opinion affirming the county-court conviction and remanding the case to the County Court of Madison County for execution of the county court’s final judgment. Under the provisions of Section 11-51-81, Matthies filed a motion for allowance asking the circuit court to permit him to appeal the circuit court’s judgment to this Court. On April 12, 2010, Judge Chapman entered an order allowing an appeal to this Court, and Mat-thies timely appealed to us. We assigned this case to the Court of Appeals.

¶ 10. Before proceeding further, we pause to note that, although Matthies’s counsel and Judge Chapman correctly proceeded under Section 11-51-81 concerning permission to proceed to this Court on appeal after Judge Chapman, sitting as an appellate judge under the statute, had affirmed the county-court judgment, such permission is no longer required under the “three-court rule” based on our decision handed down more than seven months after Judge Chapman’s entry of the order allowing an appeal to this Court. See Jones v. City of Ridgeland, 48 So.3d 530, 538-39 (Miss.2010).

PROCEEDINGS IN THE COURT OF APPEALS

¶ 11. The Court of Appeals reviewed the recent caselaw of the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009), concerning testimonial statements. The Court of Appeals found the certificates in the instant case to be distinguishable from the records in those cases. See Matthies v. State, 85 So.3d 872, 875 (¶ 13) (Miss.Ct. App.2011).

¶ 12. Furthermore, since Melendez-Diaz did not expressly address the instant question, the Court of Appeals examined the persuasive opinions of other jurisdictions. The Court of Appeals determined that most courts which had examined the question of intoxilyzer calibration records had found them to be nontestimonial in nature. Matthies, 85 So.3d 872, 875 (¶ 11). The Court of Appeals found that the certificates at issue were nontestimonial, and therefore Matthies’s Confrontation-Clause rights had not been violated. Matthies, 85 So.3d 872, 875-76 (¶ 14).

DISCUSSION

¶ 13. In his petition for writ of certiora-ri, Matthies argues that the intoxilyzer certificates presented at his trial were testimonial in nature and thus subject to the protections of the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and Article 3, Section 26 of the Mississippi Constitution. The Attorney General did not oppose granting certiorari and invited this Court “to uphold the integrity of the decision of the Court of Appeals,” since the case requires the resolution of a substantial question of law of general significance. See M.R.A.P. 17(a). We granted the petition so this Court could address the question in the light of recent United States Supreme Court decisions.

¶ 14. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]” U.S. Const, amend. VI. It is applicable to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Matthies admits that this Court has rejected his argument in the past. Harkins v. State, 735 So.2d 317, 319 (Miss.1999). In Harkins, this Court determined that admitting the “calibration certificates [for the intoxilyzer] without testimony from the calibration officer does not, in general, violate ... the confrontation clauses in the Mississippi or United States constitutions.... ” Harkins, 735 So.2d at 321. However, Matthies urges this Court to consider more recent precedent from the United States Supreme Court post-Harkins.

¶ 15. In Crawford, v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court introduced the rule that, when an out-of-court statement is testimonial, it is inadmissible unless (1) the declarant is unable to testify, and (2) the defendant had a prior opportunity to -examine the defendant. The Supreme Court has not provided a comprehensive definition of “testimonial” statements, complicating Confrontation-Clause analysis. However, the Supreme Court did note that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354.

¶ 16. In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009), a Supreme Court plurality held that a Confrontation-Clause violation occurred when “certificates of analysis” of the chemical content of a drug were admitted without the testimony of the lab analyst who prepared them. Melendez-Diaz involved certificates of analysis finding that a suspicious substance was cocaine, with these certificates being sworn to by analysts at a state laboratory. Id. at 2531. The analysts who examined the substance did not appear in person at trial. Id. The Supreme Court found that these certificates were testimonial, and that the defendant’s Confrontation-Clause rights were violated, since these analysts did not testify. Id. at 2542. But the Supreme Court also stated that it does “not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device-, must appear in person as part of the prosecution’s case.” Id. at 2532, n. 1.

¶ 17. The Court of Appeals did not address the United States Supreme Court’s decision in Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 2706, 180 L.Ed.2d 610 (2011). However, there is good reason for this. The Court of Appeals’ decision in today’s case was handed down on May 31, 2011, and Bull-coming was not decided until June 23, 2011. Matthies’s counsel filed a motion for rehearing with the Court of Appeals on June 13, 2011, ten days before Bullcoming was decided. Although the Court of Appeals did not enter an order denying Mat-thies’s motion for rehearing until September 27, 2011, which was more than three months after Bullcoming was decided, Matthies made no effort between June 23, 2011, and September 27, 2011, to inform the Court of Appeals of the United States Supreme Court’s decision in Bullcoming. No supplemental brief nor any supplemental pleading was filed by Matthies to call to the Court of Appeals’ attention this intervening decision by the Supreme Court. It is incumbent upon a party on appeal to provide to the appellate court citation to authority in support of the party’s argument. See, e.g., Knight v. Terrell, 961 So.2d 30, 32 (Miss.2007); Rigby v. State, 826 So.2d 694, 707-08 (Miss.2002).

¶ 18. For the first time, in his petition for writ of certiorari, Matthies cites Bull-coming as authority for his Confrontation-Clause argument. Bullcoming affirmed that certificates relating to the analysis of the BAC level in a defendant’s blood may be testimonial in nature. Id. at 2711. Unlike the instant case, however, the test in Bullcoming involved a forensic laboratory report of the defendant’s blood. Id. Where the analyst who had administered that test was not called at trial, but instead replaced by a different scientist who had neither observed nor reviewed the test, the defendant’s Confrontation-Clause rights were violated. Id. at 2718. The instant case is distinguished from Bull-coming in that it relates to the analyst who prepared certificates of the calibration for the intoxilyzer device, not the analyst who conducted the intoxilyzer test itself. Neither Melendez-Diaz, nor Bullcoming, nor any other United States Supreme Court ease expressly addresses the issue of whether intoxilyzer calibration records are testimonial in nature.

¶ 19. However, the Court of Appeals examined the application to this question in a number of other jurisdictions in the wake of Melendez-Diaz. The Court of Appeals found that the wide majority of appellate courts examining this question found such records to be nontestimonial. Matthies, 85 So.3d 872, 875 (¶ 11) (citing United States v. Forstell, 656 F.Supp.2d 578, 580-82 (E.D.Va.2009); State v. Lindner, 227 Ariz. 69, 252 P.3d 1033, 1035-1036 (Ariz.App. Div. 1, 2010); Jacobson v. State, 306 Ga.App. 815, 703 S.E.2d 376, 379 (Ga. App.2010); People v. Jacobs, 405 Ill. App.3d 210, 345 Ill.Dec. 335, 939 N.E.2d 64, 71-72 (Ill.App. 4 Dist., 2010); Ramirez v. State, 928 N.E.2d 214, 219-20 (Ind.App. 2010); State v. Johnson, 43 Kan.App.2d 815, 233 P.3d 290, 299 (Kan.App.2010); Settlemire v. State, 323 S.W.3d 520, 521-22 (Tex.App.2010); State v. Bergin, 231 Or. App. 36, 217 P.3d 1087, 1089 (Or.App. 2009); and Hamilton v. State, 2010 WL 4260608, *3 (Alaska CtApp. Oct.27, 2010) (unreported decision)). But see United States v. Gorder, 726 F.Supp.2d 1307, 1314 (D.Utah 2010) (finding “Intoxilyzer 8000 Operational Checklist” testimonial). In particular, the Court of Appeals cited the persuasive authority of Ramirez, 928 N.E.2d at 219, for the proposition that, as calibration records are completed in advance of specific drunk-driving incidents, they are not testimonial in nature. Matthies, 85 So.3d 872, 875 (¶ 12). The Court of Appeals determined that “[cjourts having occasion to consider intoxilyzer inspection, maintenance, or calibration records post -Melendez-Diaz have almost uniformly agreed that such records are nontestimonial in nature.” Matthies, 85 So.3d 872, 875 (¶ 11). We agree with the Court of Appeals. Accordingly, today, we specifically state that records pertaining to intoxilyzer inspection, maintenance, or calibration are indeed nontestimonial in nature, and thus, their admission into evidence is not viola-tive of the Confrontation Clause of the Sixth Amendment. We are firmly convinced that our decision today is not in conflict with Crawford, Melendez-Diaz, or Bullcoming.

¶ 20. Officer Craft, who administered all relevant tests on Matthies, testified at trial. Robert Bickley, the individual not testifying at trial, only calibrated the intox-ilyzer. Melendez-Diaz explicitly held that “it is not the case, that anyone whose testimony may be relevant in establishing the ... accuracy of the testing device, must appear in person as part of the prosecution’s case.” Melendez-Diaz, 129 S.Ct. at 2532, n. 1.

¶ 21. The opposite holding — that the testimony of an individual as far removed from the prosecution as the calibrator of the intoxilyzer, is required at trial — would dramatically expand the holdings of Crawford, Melendez-Diaz, and Bullcoming. This interpretation of these cases has been rejected by almost every appellate court that has examined this question.

CONCLUSION

¶ 22. While we agree with the discussion and disposition of the Court of Appeals in today’s case, we chose to take this opportunity to address this particular issue in the wake of the United States Supreme Court’s decisions, not only in the recently-decided Bullcoming, but also in Crawford and Melendez-Diaz. We have found that intoxilyzer calibration certificates are non-testimonial in nature. Therefore, Mat-thies’s Confrontation-Clause rights were not violated. The judgments of the Court of Appeals and the Madison County Circuit Court are affirmed.

¶ 23. CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT (48) HOURS IN THE MADISON COUNTY JAIL, SUSPENDED, TWO (2) YEARS UNSUPERVISED PROBATION UNLESS SOONER INVOKED WITH SPECIFIC CONDITIONS, PAY COURT COSTS, FEES, AND ASSESSMENTS, AND PAY A FINE OF $700, AFFIRMED.

WALLER, C.J., RANDOLPH, LAMAR AND PIERCE, JJ„ CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KITCHENS AND KING, JJ.

CHANDLER, Justice,

dissenting:

¶ 24. Because I would find that intoxi-lyzer calibration records are the functional equivalent of live, in-court testimony, I would hold that they are testimonial in nature, and that their admission at Mat-thies’s trial violated the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution. I would reverse and remand for a new trial.

¶ 25. In Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause bars admission of out-of-court, “testimonial” hearsay statements against a criminal defendant, unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. Id. at 68, 124 S.Ct. at 1374. The “core class of ‘testimonial’ statements” under the Confrontation Clause includes “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 52, 124 S.Ct. at 1364. In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the Court found that three sworn “certificates of analysis” reporting that a seized substance was found to be cocaine were within the “core class of ‘testimonial’ statements” covered by the Confrontation Clause. Id. at 2532. The Court found that the affidavits provided testimony against the defendant, that the affidavits did not qualify as business records because the primary reason for their creation was for use in court, and that confrontation is a means of assuring accuracy in forensic analysis. Id. at 2533, 2538, 2536. The Court held that “[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error.” Id. at 2542.

¶ 26. Applying Melendez-Diaz, I would find that the calibration records of the intoxilyzer machine were testimonial in nature. As in Melendez-Diaz, the calibration records provided testimony against Matthies. Mississippi Code Section 63-11-19 provides that “[t]he State Crime Laboratory shall make periodic, but not less frequently then quarterly, tests of the ... machines ... used in making chemical analysis of a person’s breath as shall be necessary to ensure the accuracy thereof, and shall issue its certificate to verify the accuracy of the same.” Miss.Code Ann. § 63-11-19 (Supp.2011). The calibration records for the machine used in testing the defendant’s blood-alcohol level are of central importance to the prosecution of every DUI case involving such a test. This Court has held that intoxilyzer results are inadmissible without evidence establishing proper calibration because “there is no support for the accuracy of [intoxilyzer] results absent evidence of proper certification.” Johnston v. State, 567 So.2d 237, 239 (Miss.1990). In numerous cases, the question of whether a testing device was properly calibrated has been a hotly litigated, outcome-determinative issue. See Johnston, 567 So.2d at 239; McIlwain v. State, 700 So.2d 586, 591 (Miss.1997); Young v. City of Brookhaven, 693 So.2d 1355, 1361-62 (Miss.1997); Dobbins v. City of Starkville, 938 So.2d 296, 297 (Miss.Ct. App.2006).

¶ 27. Moreover, the certificates of calibration were created under circumstances that would “lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 52,124 S.Ct. at 1354. Section 63-11-19 requires the calibration of an intoxilyzer machine to occur at least quarterly, with a certificate to issue “to verify the accuracy of the same.” Miss. Code Ann. § 63-11-19 (Rev. 2004). Proof that an intoxilyzer was properly calibrated is a foundation for the admission of intoxi-lyzer test results. Johnston, 567 So.2d at 239. Thus, calibration records are prepared and kept in anticipation of litigation, under circumstances that would lead an objective witness to believe they would be used at a later trial. Crawford, 541 U.S. at 52,124 S.Ct. at 1354.

¶ 28. Another factor supporting the conclusion that calibration records are testimonial is that, as Melendez-Diaz recognizes, forensic analysis is subject to error that may be revealed in cross-examination. Melendez-Diaz, 129 S.Ct. at 2536. “Forensic evidence is not uniquely immune from the risk of manipulation.” Id. “Serious deficiencies have been found in the forensic evidence used in criminal trials.” Id. at 2537. The Court recognized that these deficiencies can be caused by fraudulent or incompetent analysts, or those under pressure from law enforcement. Id. The solution to these intrinsic problems is testing the evidence “in the crucible of confrontation,” because “confrontation is one means of assuring accurate forensic analysis.” Id. at 2536, 2537. I find that this analysis aptly applies to those who calibrate intoxilyzer machines, in addition to those who perform the actual testing. Cross-examination may reveal the lack of proper training or a deficiency in judgment of the individual who calibrated the machine. See Melendez-Diaz, 129 S.Ct. at 2537.

¶ 29. The Court in Melendez-Diaz further found that the affidavits in question were not business records that are exempt from Confrontation Clause scrutiny. Id. at 2538. Even if a document is kept in the regular course of business, “if the regularly conducted business activity is the production of evidence for use at trial,” they are subject to the Confrontation Clause. Id. By statute, intoxilyzer calibration records are prepared by personnel at the State Crime Laboratory. Miss.Code Ann. § 63-11-19 (Rev. 2004). These records are prepared and kept in anticipation of litigation. See Johnston, 567 So.2d at 239 (proof of calibration of an intoxilyzer machine is foundational to the admission of test results). As another court that reached the same conclusion has recognized, “[calibration] records lack the presumption of neutrality typical business records enjoy because they are created by law enforcement personnel for law enforcement personnel and therefore may not be prepared with the same objectivity as records created by a third party truly indifferent to the outcomes of criminal prosecutions.” People v. Carreira, 27 Misc.3d 293, 893 N.Y.S.2d 844 (N.Y.City Ct.2010). Therefore, calibration records are not “business records” that are exempt from Confrontation Clause scrutiny.

¶ 30. I address the majority’s reliance on a footnote in the Melendez-Diaz opinion. This footnote rejected the notion that “anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.” Melendez-Diaz, 129 S.Ct. at 2532 n. 1 (emphasis added). The footnote goes on to state that “[a]dditionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.” Id. (emphasis added). I note that the Court added this footnote in response to the dissenting opinion’s accusation that the majority’s analysis would require live testimony from the person who had calibrated the machine, as well as all other persons involved in the test. Contrary to the majority’s reasoning, the footnote did not create a blanket rule of admissibility for any hearsay evidence relevant to establishing the accuracy of a testing device. It merely stated that such evidence will not be deemed testimonial in every case. Id.

¶ 31. Additionally, Article 3, Section 26 of the Mississippi Constitution secures a right of the accused “to be confronted by the witnesses against him.” Miss. Const, art. 3, § 26. The decisions of the United States Supreme Court do not restrict rights afforded by the Mississippi Constitution. “It is a basic principle of our Federal Republic that a sovereign state may place greater restrictions on the exercise of its own power than does the Federal Constitution.” McCrory v. State, 342 So.2d 897, 900 (Miss.1977). I would find that, because intoxilyzer calibration records are prepared and kept in anticipation of litigation, under circumstances that would lead an objective witness to believe they would be available for use at a later trial, they are testimonial in nature and their admission at Matthies’s trial violated Article 3, Section 26.

¶ 32. It is a fact that intoxilyzer calibration records are central to most DUI prosecutions; without these records, the intoxi-lyzer test results, which are often the most probative evidence against the defendant, are inadmissible. Johnston, 567 So.2d at 239. In my opinion, intoxilyzer calibration records are an obvious substitute for live testimony, and they are testimonial in nature. Because I would reverse and remand for a new trial, I respectfully dissent.

DICKINSON, P.J., KITCHENS AND KING, JJ., JOIN THIS OPINION.

      . The dissent specifically found that a certificate of calibration would be testimonial under Crawford v. Washington, stating:
      Consider the independent contractor who has calibrated the testing machine. At least in a routine case, where the machine’s result appears unmistakable, that result’s accuracy depends entirely on the machine's calibration. The calibration, in turn, can be proved only by the contractor’s certification that he or she did the job properly. That certification appears to be a testimonial statement under the Court’s definition: It is a formal, out-of-court statement, offered for the truth of the matter asserted, and made for the purpose of later prosecution. It is not clear, under the Court's ruling, why the independent contractor is not also an analyst.

        Melendez-Diaz, 129 S.Ct. at 2545 (Kennedy, J., dissenting) (citation omitted).


source: Caselaw Access Project

author: PIERCE, Justice,

license: Public Domain

text:
    Ladennis GRAHAM v. STATE of Mississippi.
    No. 2007-CT-01576-SCT.
    Supreme Court of Mississippi.
    April 12, 2012.

      Ladennis Graham, appellant, pro se.
    Office of the Attorney General By Billy L. Gore, attorney for appellee.
   ON WRIT OF CERTIORARI.

PIERCE, Justice,

for the Court:

¶ 1. On March 28, 2006, Ladennis Graham pleaded guilty to simple possession of 11.59 grams of cocaine. The Jones County Circuit Court sentenced Graham, under Mississippi Code Section 41-29-139, to serve sixteen years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years to be suspended upon the successful completion of twelve months of house arrest, four years of supervised post-release supervision, and completion of the Circuit Court Community Service Program. While Graham was on house arrest, MDOC determined that Graham had violated the conditions of his suspended sentence when he was arrested at his brother’s house during the execution of a search warrant, turning up numerous guns and narcotics. Therefore, Graham was required to serve the remainder of his sixteen-year sentence as an inmate. As a result, Graham filed a motion for post-conviction collateral relief (“PCR”) in circuit court, which was dismissed for lack of subject-matter jurisdiction, based on Graham’s assertions regarding his removal from the house arrest program. On appeal, the Court of Appeals found that Graham’s sentence was illegally vague and indeterminate, remanding the case for revocation of Graham’s sentence if the circuit court or State chooses to initiate such a proceeding. Now this Court must review whether the Court of Appeals made the correct determination.

FACTS

¶ 2. We gather the following facts necessary for this analysis from the Court of Appeals’ opinion:

On December 13, 2005, Ladennis Graham was indicted for possession of 11.59 grams of cocaine with the intent to distribute pursuant to Mississippi Code Annotated section 41-29-142 (Rev.2009). On March 28, 2006, Graham pled guilty to simple possession of 11.59 grams of cocaine. The circuit court sentenced Graham pursuant to Mississippi Code Annotated section 41-29-139 (Rev.2005), to serve sixteen years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years to be suspended upon the successful completion of twelve months of house arrest, four years of supervised post-release supervision, and the successful completion of the Circuit Court Community Service Program. The MDOC’s classification committee found that Graham had violated the terms of house arrest on July 25, 2006. The MDOC reclassified Graham and placed him on inmate status. The MDOC required that Graham serve the balance of his entire sixteen-year sentence.
Graham timely filed a motion for post-conviction relief with the circuit court on July 27, 2007. The circuit court summarily denied relief on the basis that it did not have jurisdiction ■ to hear Graham’s claims. It is from this denial of post-conviction relief that Graham now appeals, alleging the following assignments of error: (1) the circuit court and defense counsel failed to advise him of his right to appeal his sentence; (2) the indictment under which Graham was charged failed to set forth the correct statute and judicial district; (3) the sentence imposed constituted an illegal and indefinite sentence; (4) he was denied effective assistance of counsel; and (5) his guilty plea was not voluntarily and intelligently entered.

From these facts, the Court of Appeals initially found that the circuit court had jurisdiction to hear Graham’s motion for post-conviction collateral relief, and then, it ruled upon the merits of that motion, even though the circuit court had not done so. In a modified opinion on rehearing, the Court of Appeals found similarly but differed on one issue — Graham’s sentence. Accordingly, the Court of Appeals reversed the judgment of the circuit court and remanded the case for further proceedings if the circuit court or the State chose to have Graham’s suspended sentence revoked.

ANALYSIS

¶ 3. The circuit court incorrectly concluded that Graham’s motion was not seeking post-conviction collateral relief. The circuit court dismissed Graham’s petition under Babbitt v. State, finding that Graham had failed to exhaust the administrative remedies provided to him through the offender grievance procedures upon removal from house arrest. A review of Graham’s motion reveals that he clearly was seeking post-conviction collateral relief under the Mississippi Uniform Post-Conviction Collateral Relief Act. Therefore, the Court of Appeals was correct in reversing the circuit court’s ruling that it did not have proper jurisdiction to hear Graham’s motion for post-conviction collateral relief. Yet, after making that determination, the Court of Appeals lacked jurisdiction to rule on the merits of Graham’s motion.

¶4. Mississippi Code Section 99-39-7 specifies in which court a motion seeking post-conviction collateral relief must be filed:

The motion under this article shall be filed as an original civil action in the trial court, except in cases in which the petitioner’s conviction and sentence have been appealed to the Supreme Court of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, convened for said purpose either in termtime or in vacation, and an order granted allowing the filing of such motion in the trial court. The procedure governing applications to the Supreme Court for leave to file a motion under the article shall be as provided in Section 99-39-27.

And Mississippi Code Section 99-35-101, as written when Graham pleaded guilty, directed that “[a]ny person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.” Noting the interplay of these two statutes, this Court, in Martin v. State, found that there can be no collateral attack of a conviction and sentence to this Court when a guilty plea has been entered by a criminal defendant. In that case, Martin did not collaterally attack his conviction and sentence to this Court, because his underlying conviction and sentence resulted from a guilty plea. And as this Court explained in Martin: Therefore, when a defendant collaterally attacks a guilty plea, the trial court that sentenced the defendant possesses “exclusive, original jurisdiction to hear and determine a petition for post-conviction relief.”

Martin has not caused a “conviction and sentence” to be appealed to this Court. His original, underlying conviction and sentence resulted from a guilty plea, and therefore, there could be no appeal to this Court. See Miss.Code Ann. § 99-35-105 [sic ] (1972). In cases where the prisoner has entered a plea of guilty, the trial court has exclusive, original jurisdiction to hear and determine a petition for post-conviction relief. McDonall v. State, 465 So.2d 1077 (Miss.1985). The only authority [an appellate court has] in these situations is to act in an appellate capacity if either the prisoner or the State causes the trial court’s ruling to be appealed under § 99-89-25. As previously stated, [... ] appellate jurisdiction under the Post-Conviction Relief Act has not been properly invoked.

¶ 5. Here, Graham pleaded guilty to simple possession of 11.59 grams of cocaine, and, like Martin, has never directly appealed on the merits of his conviction and sentence. Because Graham pleaded guilty, he could collaterally attack his conviction only through a motion for post-conviction collateral relief filed in the circuit court. Accordingly, the circuit court has exclusive, original jurisdiction to consider the merits of Graham’s motion seeking post-conviction collateral relief. However, that court has never done so.

¶ 6. Just as this Court “routinely” dismisses post-conviction-relief petitions because they were filed in the wrong court, “such action does not strip the trial court of jurisdiction.” Therefore, the exclusive, original jurisdiction to determine the merits of Graham’s post-conviction-relief petition remained with the circuit court. Consequently, the Court of Appeals should not have addressed the merits of Graham’s motion. Instead, the Court of Appeals, after having found that the circuit court improperly had denied jurisdiction, should have remanded this matter to the circuit court for further consideration on the merits of Graham’s motion.

CONCLUSION

¶ 7. The Court of Appeals was correct in reversing the circuit court’s ruling that it did not have proper jurisdiction to hear Graham’s motion for post-conviction collateral relief. However, it was improper for the Court of Appeals to rule on the merits of Graham’s motion without the circuit court doing so first, as the circuit-court had exclusive, original jurisdiction. The judgment of the Court of Appeals is vacated. The circuit court judgment is reversed, and this case is remanded to the circuit court for further proceedings consistent with this opinion.

¶ 8. THE JUDGMENT OF THE COURT OF APPEALS IS VACATED. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY IS REVERSED AND THE CASE IS REMANDED.

WALLER, C. J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . Graham v. State, 85 So.3d 860, 863 (Miss. Ct.App.2011).

      . Id. at 863-72.

      . The rehearing was on the court’s own motion. It withdrew the previous opinion.

      . Graham, 85 So.3d at 866-70.

      . Id. at 869-70.

      . Id. at 864-65.

      . Babbitt v. State, 755 So.2d 406 (Miss.2000).

      . See Graham, 85 So.3d at 864-65; see also Miss.Code Ann. §§ 99-39-1 to 99-39-119 (Supp.2011).

      . Miss.Code Ann. § 99-39-7 (Supp.2011) (emphasis added).

      . See Miss.Code Ann. § 99-35-101 (Rev. 2007). Currently, Mississippi Code Section 99-35-101 reads: "[a]ny person convicted of an offense in circuit court may appeal to the Supreme Court. However, where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.” Miss.Code Ann. § 99-35-101 (Supp.2011).

      . Martin v. State, 556 So.2d 357, 358-59 (Miss. 1990).

      . Id.

      . Martin, 556 So.2d at 358-59; see also Jackson v. State, 67 So.3d 725, 730-31 (Miss. 2011).

      . Martin v. State, 556 So.2d 357, 359 (Miss. 1990) (citing McDonall v. State, 465 So.2d 1077 (Miss.1985)); see generally Jackson, 67 So.3d at 730.

      . See Jackson, 67 So.3d at 730; see also Collins v. State, 975 So.2d 219, 229 n. 10 (Miss.2008); Martin, 556 So.2d at 358.

      . See Miss.Code Ann. § 99-39-7 (Supp. 2011).

      . Jackson, 67 So.3d at 731.


author: LAMAR, Justice,

text:
    Chander Paul KHURANA d/b/a VK Quick Mart and VK’s Wine & Liquor v. MISSISSIPPI DEPARTMENT OF REVENUE.
    No. 2010-CA-01598-SCT.
    Supreme Court of Mississippi.
    April 12, 2012.

      James G. McGee, Jr., Harris H. Barnes, III, Flowood, attorneys for appellants.
    Heather S. Deaton, Jackson, Gary W. Stringer, attorneys for appellee.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. In 2006, Chander Paul Khurana was audited by the Mississippi State Department of Revenue (MSDR) and assessed taxes. Khurana appealed the assessments to the Board of Review and eventually the full State Tax Commission, both of which affirmed the assessments. On October 4, 2007, Khurana filed his petition appealing the assessments to the Pike County Chancery Court; however, he did not pay the taxes or post a bond at the time he filed his petition, as required by statute. MSDR filed a motion for summary judgment and dismissal pursuant to Mississippi Rules of Civil Procedure 56 and 12(b)(1), (2) and (6), arguing that Khurana had failed to perfect his appeal, therefore depriving the chancery court of jurisdiction to hear his appeal. The chancellor denied the motion and ultimately affirmed the assessments. Khurana now appeals to this Court, claiming the full Commission and chancery court acted arbitrarily and capriciously. MSDR cross-appeals, claiming the chancellor erred in denying its motion for summary judgment and dismissal. Although various issues are presented to us on appeal, we find that the question of whether Khurana perfected his appeal is dispositive and limit our discussion to that issue.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 20, 2005, MSDR mailed Khurana a letter notifying him that his stores, VK Quick Mart and VK Wine and Liquor, had been selected for an audit by MSDR, to be performed January 4, 2006. After the audit, MSDR issued assessments against Khurana’s two stores, which he appealed to the Board of Review. After a hearing, the Board affirmed the assessments.

¶ 3. Khurana next appealed the assessments to the full Commission. On June 20, 2007, the full Commission conducted a hearing, at which Khurana disputed the audit findings of MSDR. On September 4, 2007, the Commission entered two orders assessing delinquent sales taxes against Khurana’s two businesses. The first order totaled $79,797 in sales tax against Khura-na’s business, VK Quickmart; the second order assessed $5,062 in sales tax against Khurana’s second business, VK’s Wine & Liquor.

¶ 4. Khurana filed his petition appealing the Commission’s orders with the Chancery Court of Pike County on October 4, 2007. At the time he filed his notice of appeal, Khurana did not post a bond or pay the taxes under protest as required by Mississippi Code Section 27-77-7. However, he paid the taxes on October 11, 2007, although he was $212 short of the total due.

¶ 5. On November 5, 2007, MSDR filed a motion for summary judgment and dismissal, arguing that the chancery court lacked jurisdiction due to Khurana’s failure to pay the aforementioned taxes within the thirty-day appeal period required by Mississippi Code Sections 27-77-5(7) (2005) and 27-77-7(1X3) (2005). The chancellor denied MSDR’s motion for summary judgment and dismissal, holding that, because Khurana “cured the deficiency in the failure to either file the bond or prepay the taxes,” it would be “an inequitable forfeiture to deny him the opportunity to pursue a court review of the assessment.”

¶ 6. At trial, the chancery court found that Khurana had failed to overcome the prima facie correctness of MSDR’s audit, granted MSDR’s Rule 41(b) motion to dismiss with prejudice, and affirmed the assessments. Aggrieved, both parties appealed various issues to this Court. Because we find the issue of whether the chancery court erred in denying MSDR’s motion for summary judgment and dismissal dispositive, we limit our discussion to that point.

DISCUSSION

¶ 7. In considering a trial court’s grant or denial of summary judgment and motion to dismiss, we apply a de novo standard of review.

¶ 8. In its motion for summary judgment and dismissal, MSDR argued that Khurana did not pay his taxes within the statutory time limit, therefore failing to perfect his appeal and depriving the chancery court of jurisdiction to hear the cause. Taxpayer appeals of an order of the Commission are governed by Mississippi Code Section 27-77-7, which provides that “(1) [t]he findings and order of the commission entered under Section 27-77-5 shall be final unless the taxpayer shall, ■within thirty (30) days from the date of the order, file a petition in the chancery court appealing the order and pay the tax or post the bond as required in this chapter.” While Khurana filed his petition with the Pike County Chancery Court within thirty days of the Commission’s orders, he did not pay the taxes or post a bond until after the thirty days had run.

¶ 9. “A basic tenet of statutory construction is that ‘shall’ is mandatory and ‘may’ is discretionary.” Mississippi Code Section 27-77-7(1) states that “the taxpayer shall within thirty (30) days from the date of the order, file a petition in the chancery court appealing the order and pay the tax or post the bond as required in this chapter.” Reading further, Mississippi Code Section 27-77-7(3) states,

A petition filed under subsection (1) of this section that appeals an order of the commission affirming a tax assessment, shall be accompanied by a surety bond approved by the clerk of the court in a sum double the amount in controversy, conditioned to pay the judgment of the court. The clerk shall not approve a bond unless the bond is issued by a surety company qualified to write surety bonds in this state. As an alternative to the posting of bond, a taxpayer appealing an order of the commission affirming a tax assessment may, prior to the filing of the petition, pay to the agency, under protest, the amount ordered by the commission to be paid and seek a refund of such taxes, plus interest thereon.

The statute is mandatory, and the appealing party is required not only to file a petition in the chancery court, but also to pay the bond or tax within the thirty-day period.

¶ 10. This Court previously has addressed the failure to pay an appeal bond under Mississippi Code Section 27-77-7 (2005) in the case of Akins v. Mississippi Department of Revenue, In that case, this Court affirmed the chancellor’s order to dismiss for failure to properly perfect Akins’s appeal. Akins was a contractor who had been assessed delinquent contractor’s taxes by MSDR. Akins appealed the audit results to the Commission’s Board of Review and then to the full Commission. After the full Commission affirmed the Board of Review’s assessment, Akins filed an appeal with chancery court, but failed to pay the taxes owed or a security bond. Once in chancery court, MSDR filed a motion to dismiss, alleging the chancery court lacked subject matter jurisdiction due to Akins’s failure to pay taxes or post bond. The chancellor subsequently granted the motion and dismissed the case. Akins appealed to this Court. This Court found that the chancery court did not have subject matter jurisdiction because Akins had failed to pay the bond or the tax.

¶ 11. We take this opportunity to clarify Akins on the issue of jurisdiction. This Court in Akins reviewed Mississippi Code Section 27-77-7(4), which provides, “[t]he chancery court in which a petition under subsection (1) is properly filed shall have jurisdiction to hear and determine said cause or issues.... ” (Emphasis added.) Although this Court used the term “subject matter jurisdiction” to explain Akins’s failure to perfect his appeal, failure to perfect an appeal under Mississippi Code Section 27-77-7 does not divest the chancery court of subject matter jurisdiction. Subject matter jurisdiction refers only to the court’s power to exercise authority over the nature of the case and type of relief sought. Black’s Law Dictionary 689 (abr. 7th ed.2000). Clearly, chancery courts do have subject matter jurisdiction over appeals from tax assessments ordered by the Commission. However, failure to perfect such an appeal would deprive the chancery court of authority to review and revise the particular cause or issues presented in that appeal, since the chancery court’s authority to review the decisions of the Commission is governed by compliance with the statute. We have held that a circuit court “has no authority to judicially create a right of appeal from an administrative agency in the absence of clear statutory authority therefore.” Likewise, a chancery court has no authority to create a right of appeal from an administrative agency in the absence of clear statutory authority. In other words, the chancery court is without appellate jurisdiction over an appeal filed under Mississippi Code Section 27-77-7 that is not in full compliance with the statutory requirements.

¶ 12. Khurana, like the appellant in Akins, filed a petition to appeal the assessments ordered by the Commission, but failed to pay the tax or post a bond within the thirty-day period. Therefore, he did not fulfill the mandatory requirements necessary to properly perfect his appeal under Mississippi Code Section 27-77-7.

CONCLUSION

¶ 13. Mississippi Cqde Section 27-77-7 clearly mandates that a taxpayer must file a petition in chancery court and either pay the tax or post a bond within the thirty-day time limit in order to properly perfect an appeal from an order of the Commission. Khurana failed to comply with the statutory requirements, as he did not pay his tax or post a bond until after the time limit had expired. Therefore, the chancery court did not have appellate jurisdiction over Khurana’s appeal, and should have granted MSDR’s motion for summary judgment and dismissal. We therefore reverse the judgment of the chancery court and render judgment for the Mississippi Department of Revenue.

¶ 14. Because the chancery court should not have reached the merits of the case, the chancery court’s order affirming the assessments is vacated. The order of the Commission remains in effect.

¶ 15. ON DIRECT APPEAL: DISMISSED. ON CROSS-APPEAL: REVERSED AND RENDERED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . At the time of the audit, the Mississippi Department of Revenue was known as the Mississippi State Tax Commission.

      . Mississippi Code Section 27-77-7 provides that "(1) [t]he findings and order of the commission entered under Section 27-77-5 shall be final unless the taxpayer shall, within thirty (30) days from the date of the order, file a petition in the chancery court appealing the order and pay the tax or post the bond as required in this chapter." Miss.Code Ann. § 27-77-7 (2005) (emphasis added).. Section 27-77-7 was revised in 2010. As the previous version was in effect at the time Khurana filed his petition in the chancery court, we apply the previous version to the facts of this case.

      . We note that the proper motion to file alleging that a party has failed to perfect his or her appeal is a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, not a Rule 56 motion for summary judgment on the merits of the action.

      . Based on the court’s disposition in this case, Khurana’s appeal is dismissed as moot.

      . WW, Inc. v. Rainbow Casino-Vicksburg P’ship, L.P., 68 So.3d 1290, 1292 (Miss.2011); Jones v. City of Ridgeland, 48 So.3d 530, 539 (Miss.2010) (citations omitted).

      . Miss.Code Ann. § 27-77-7 (2005) (emphasis added).

      . Franklin v. Franklin ex rel. Phillips, 858 So.2d 110, 115 (Miss.2003) (citing Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1027 (Miss.1990)).

      . Miss.Code Ann. § 27-77-7(1) (2005) (emphasis added).

      . Miss.Code Ann. § 27-77-7(3) (2005) (emphasis added).

      . Akins v. Miss. Dep’t. of Revenue, 70 So.3d 204 (Miss.2011).

      . Mat 210.

      . Id. at 206.

      . Id.

      . Id. at 207.

      . Id.

      . Id.

      . Id. at 207-208.

      . Id. at 209.

      . Miss. Transp. Comm’n v. Eng'g Assoc., 39 So.3d 1, 2 (Miss.2010).

        .See generally Miss. Transp. Comm’n, 39 So.3d 1 (no appellate jurisdiction over agency decision unless clearly provided by statute); Bickham v. Dep’t of Mental Health, 592 So.2d 96 (Miss. 1991) (same).


author: KING, Justice,

text:
    In Re: The Interest of M.I. and T.I., Both Minors.
    No. 2011-IA-00607-SCT.
    Supreme Court of Mississippi.
    April 12, 2012.
    Frances Smith Stephenson, attorney for appellant.
    Katherine Jane Caldwell, attorney for appellee.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. This custody dispute is before us on interlocutory appeal. The Lauderdale County Youth Court denied Theresa and Ralph Anderson’s Motion to Transfer Jurisdiction to the Chancery Court of Nesho-ba County in this custody matter involving neglected and abused minors. Aggrieved, the Andersons appeal, arguing that the youth court erred in retaining jurisdiction over the matter because chancery courts have jurisdiction over custody matters, and because the youth court previously terminated its jurisdiction over the minors involved. We find no error and affirm the order of the youth court denying the Motion to Transfer Jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 26, 2006, the Department of Human Services (“DHS”) initiated proceedings in the Lauderdale County Youth Court to remove two minor children, M.I. and T.I., from the custody of their parents. DHS alleged that the minors’ father sold and used drugs, held a gun to the heads of their mother and M.I., and sexually abused M.I., and that the children’s mother used crystal methamphetamine and was not protecting the children. The youth court removed M.I. and T.I. from their parents’ custody and placed them in the care of their paternal aunt and uncle, Theresa and Ralph Anderson. On November 28, 2006, the youth court adjudicated M.I. and T.I. neglected and abused. It continued temporary physical custody of M.I. and T.I. with the Andersons, and legal custody with the Lauderdale County Department of Human Services. From November 28, 2006 to January 30, 2008, the youth court conducted periodic review hearings, and at every review hearing prior to that of January 80, 2008, it continued physical custody of the minors with the Andersons and legal custody with the Lauderdale County Department of Human Services.

¶ 3. On January 30, 2008, the youth court determined that long-term placement of M.I. and T.I. would be in their best interest. It granted “full legal and physical custody” to the Andersons, and stated that “the said placement be a durable placement, by and through this order without necessity of future review hearing in this cause unless petitioned to do so.” It further noted that DHS was “allowed” to close its file on M.I. and T.I.

¶ 4. After the youth court’s January 30, 2008, order, nearly two and a half years passed without any activity in the case. Then, on June 6, 2010, the minors’ mother wrote a letter to the youth court requesting visitation with M.I. and T.I. The youth court scheduled a hearing on the matter and ordered DHS to open a Prevention Case. The youth court conducted a review hearing and granted the mother visitation. At a second review hearing, the youth court expanded the mother’s visitation privileges. The Andersons filed a Petition to Award Custody, Support and Other Relief in the Chancery Court of Neshoba County on January 21, 2011. On January 27, 2011, the Andersons filed a Motion to Transfer Jurisdiction in the youth court, requesting the youth court transfer jurisdiction of the matter to the chancery court for a determination of custody. The youth court held a hearing on April 5, 2011, and denied the Motion to Transfer Jurisdiction.

¶ 5. Aggrieved, the Andersons filed a Petition for Permission to Appeal the youth court’s denial of their Motion to Transfer Jurisdiction with this Court, which we granted.

ANALYSIS

¶ 6. Jurisdiction is a question of law and is reviewed de novo. K.M.K. v. S.L.M., 775 So.2d 115, 117 (Miss.2000).

¶ 7. The Andersons argue that the youth court erred in retaining jurisdiction over this matter, maintaining that chancery courts have continuing and exclusive jurisdiction over custody matters. They further contend that the youth court terminated its jurisdiction over this matter with its January 30, 2008, order by granting them “full legal and physical custody” rather than durable legal custody.

¶ 8. DHS asks this Court to affirm the youth court’s denial of the Motion to Transfer Jurisdiction. DHS asserts that the youth court granted durable legal custody to the Andersons and did not terminate its jurisdiction via its January 30, 2008, order. Thus, DHS concludes, the youth court’s retention of jurisdiction over this matter is proper.

¶9. The Constitution of the State of Mississippi grants the chancery court “full jurisdiction” over “minor’s business.” Miss. Const, art. 6, § 159(d). It also allows the Legislature to establish inferior courts, such as youth court. Miss. Const. art. 6, § 172; In re T.L.C., 566 So.2d 691, 696 (Miss.1990). The Youth Court Act grants the youth court “exclusive original jurisdiction in all proceedings concerning a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child.” Miss.Code Ann. § 43-21-151(1) (Rev.2009) (emphasis added); see also K.M.K., 775 So.2d at 118. The youth court retains such jurisdiction over the child until the child’s twentieth birthday, unless such jurisdiction is “sooner terminated by order of the youth court.” Miss.Code Ann. § 43-21-151(2) (Rev. 2009); see also Petition of Beggiani, 519 So.2d 1208, 1211 (Miss.1988) (recognizing that the youth court’s jurisdiction over a child continues until the age of twenty “for the offense and purpose of the ‘neglected or abused’ subject matter”). The youth court also possesses the authority to modify a disposition order regarding custody or disposition of a child upon motion of a child or child’s parent, guardian, or custodian. Miss.Code Ann. § 43-21-613(2) (Rev.2009).

¶ 10. It is clear that the youth court in this case possessed original jurisdiction, as M.I. and T.I. were adjudicated neglected and abused, thus falling squarely within the purview of Mississippi Code Section 43-21-151(1). Further, based on the statutory authority of youth courts to modify disposition orders and to retain jurisdiction over an abused or neglected child until the child reaches age twenty, we conclude that the youth court in this case clearly retains jurisdiction over the matter so long as it did not otherwise terminate its jurisdiction.

¶ 11. Because the youth court possessed original jurisdiction over this matter, and the authority to retain such jurisdiction, we must examine whether the youth court terminated its jurisdiction over M.I. and T.I. with its January 30, 2008, order. The Andersons argue that the January 30, 2008, order did not grant durable legal custody, but rather gave them some sort of custody with a greater degree of permanency, thus terminating the youth court’s jurisdiction. DHS counters that the January 30, 2008, order did grant the Andersons durable legal custody, and, as such, the youth court retains its jurisdiction over this matter. In the order itself, the youth court specified that the placement was a “durable placement” and that no necessity existed for further review hearings, unless the court was so petitioned. The order also provided that DHS was allowed to close its file on the matter.

¶ 12. The Youth Court Act gives a youth court a variety of nonexclusive options in a disposition order in neglect and abuse cases. Miss.Code Ann. § 43-21-609 (Rev.2009). The options include arrangements such as foster care, temporary relative placement, durable legal custody, and parental custody, among others. Id.; see also Miss.Code Ann. § 43-21-613(3) (Rev. 2009) (providing a list of suggested dispositions for children adjudicated neglected or abused). The Youth Court Act defines “durable legal custody” as

the legal status created by a court order which gives the durable legal custodian the responsibilities of physical possession of the child and the duty to provide him with care, nurture, welfare, food, shelter, education and reasonable medical care. All these duties as enumerated are subject to the residual rights and responsibilities of the natural par-entis) ....

Miss.Code Ann. § 43-21-105(y) (Rev. 2009). The Youth Court Act provides that in cases in which durable legal custody has been granted, the youth court’s obligation to conduct periodic review hearings is lifted, unless the youth court specifically orders such hearings. Miss.Code Ann. §§ 43 — 21—609(b) and 43-21-613(3)(d) (Rev.2009). The Act also releases DHS from oversight or monitoring responsibilities in cases in which durable legal custody is granted. Id.

¶ 13. This Court previously addressed the nature of durable legal custody, noting that “a decision to grant durable legal custody is not permanent.” In re S.A.M., 826 So.2d 1266, 1279 (Miss.2002); see also Barnett v. Oathout, 883 So.2d 563, 569 (Miss.2004) (indicating that a grant of durable legal custody does not grant the custodian any greater rights than those possessed by a foster parent). Further, the Youth Court Act does not preclude the youth court’s retention of jurisdiction in matters in which durable legal custody is granted, nor does it preclude further DHS involvement. In re S.A.M., 826 So.2d at 1279. “[T]he intent of durable legal custody is merely to avoid the required annual dispositional reviews by the youth court and constant oversight and monitoring by DHS, not a complete preclusion of the court’s jurisdiction, DHS’s further involvement or court ordered review hearings as needed.” Id. (emphasis added); Barnett, 883 So.2d at 569.

¶ 14. While the youth court in this case did not use the most explicit language possible in its January 30, 2008, order to indicate that it was granting durable legal custody, it did state that the placement in the matter was “durable.” It immediately followed that statement with a notation that review hearings need not continue. It also allowed, but notably did not mandate, DHS to close its file. It further specifically authorized further review hearings if so petitioned, indicating that it intended to retain jurisdiction over the matter. Because this Court has ruled that the intent of durable legal custody is to dispose of the necessity for review hearings and constant DHS oversight, and because such a statement by the youth court in this case immediately followed its statement that the custody was a “durable placement,” it follows that the youth court ordered a durable legal custody arrangement, and thus did not terminate its jurisdiction. Additionally, statutory authority and caselaw reveal disposition options for abused and neglected children that include foster care, durable legal custody, temporary relative placement, termination of parental rights, and adoption. In this case, the Andersons suggest that the youth court ordered a sort of disposition more “permanent” than durable legal custody, but not as “permanent” as an adoption or termination of parental rights. This Court is unaware of any type of custody arrangement or disposition that grants custodians rights greater than durable legal custody, but does not go to the extent of terminating parental rights and/or recommending the child be adopted. While such a disposition may be an option available to a youth court, it is unlikely that the youth court would order an anomalous disposition that appears to be outside the scope of dispositions contemplated by the Youth Court Act.

¶ 15. We conclude that the youth court in this case granted the Andersons durable legal custody. A grant of durable legal custody does not preclude the court from retaining jurisdiction over a matter. In re S.A.M., 826 So.2d at 1279. Thus, the youth court did not terminate its jurisdiction over M.I. and T.I. with its January 30, 2008, order.

CONCLUSION

¶ 16. The youth court did not err in denying the Andersons’ Motion to Transfer Jurisdiction. The youth court may properly retain its jurisdiction over M.I. and T.I. as minors adjudicated neglected and abused until they reach the age of twenty. The youth court in no way terminated its jurisdiction over M.I. and T.I. by its grant of durable legal custody in its January 30, 2008 order. Accordingly, we affirm the youth court’s order denying the Motion to Transfer Jurisdiction, and remand this case to the County Court of Lauderdale County, Youth Court Division, for further proceedings consistent with this opinion.

¶ 17. AFFIRMED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR.

      . In addition, the youth court further expanded the mother's visitation with M.I. and T.I.

      . The definition of “legal custody” is very similar to that of "durable legal custody,” and also subjugates the legal custody to the residual rights and responsibilities of the parent. Miss.Code Ann. § 43-21-105(r) (Rev.2009).

      . See, e.g., In re S.A.M., 826 So.2d at 1268, 1277 (this Court used the specific language “durable legal custody,” cited the statute allowing durable legal custody, and noted that the youth court specified that durable legal custody was not permanent and was subject to modification).

      . The Youth Court Act notes that youth courts are not limited to the list of dispositions. Miss.Code Ann. § 43-21-613(3)(a)(ii) (Rev. 2009) (in determining the future status of the child, the judge may consider listed dispositions, but is not limited to those dispositions); Miss.Code Ann. § 43-21-609 (Rev.2009) (“In neglect and abuse cases, the disposition order may include any of the [listed] alternatives[.]”) (emphasis added).


author: ROBERTS, J.,

text:
    Ladennis GRAHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-01576-COA.
    Court of Appeals of Mississippi.
    Jan. 25, 2011.
    Rehearing Denied Sept. 20, 2011.

      Ladennis Graham, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

ROBERTS, J.,

for the Court:

¶ 1. On our own motion, we granted rehearing in this case. The original opinion is withdrawn, and this opinion is substituted therefor.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 13, 2005, Ladennis Graham was indicted for possession of 11.59 grams of cocaine with the intent to distribute pursuant to Mississippi Code Annotated section 41-29-142 (Rev. 2009). On March 28, 2006, Graham pled guilty to simple possession of 11.59 grams of cocaine. The circuit court sentenced Graham pursuant to Mississippi Code Annotated section 41-29-139 (Rev. 2005), to serve sixteen years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years to be suspended upon the successful completion of twelve months of house arrest, four years of supervised post-release supervision, and the successful completion of the Circuit Court Community Service Program. The MDOC’s classification committee found that Graham had violated the terms of house arrest on July 25, 2006. The MDOC reclassified Graham and placed him on inmate status. The MDOC required that Graham serve the balance of his entire sixteen-year sentence.

¶ 3. Graham timely filed a motion for post-conviction relief with the circuit court on July 27, 2007. The circuit court summarily denied relief on the basis that it did not have jurisdiction to hear Graham’s claims. It is from this denial of post-conviction relief that Graham now appeals, alleging the following assignments of error: (1) the circuit court and defense counsel failed to advise him of his right to appeal his sentence; (2) the indictment under which Graham was charged failed to set forth the correct statute and judicial district; (3) the sentence imposed constituted an illegal and indefinite sentence; (4) he was denied effective assistance of counsel; and (5) his guilty plea was not voluntarily and intelligently entered. Finding that the circuit court had jurisdiction to hear Graham’s motion and that the circuit court’s underlying sentence was impermis-sibly indeterminate and indefinite, we reverse the judgment of the circuit court and remand this matter for further proceedings consistent with this opinion.

STANDARD OF REVIEW

¶ 4. This Court will not disturb the findings of the trial court denying a motion for post-conviction relief unless they are found to be clearly erroneous. Broum v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999). Questions of law are reviewed de novo. Id.

ANALYSIS

¶ 5. We must first address the issue of jurisdiction as this was the deciding factor in the circuit court’s denial of Graham’s motion for post-conviction relief. For the reasons stated below, we find that the circuit court erred in determining that it lacked jurisdiction to review Graham’s motion for post-conviction relief.

¶ 6. In denying Graham’s motion, the circuit judge relied heavily on precedent from Babbitt v. State, 755 So.2d 406 (Miss. 2000). Demethris Babbitt was accused of violating the terms of his intensive supervision program (ISP), which is also termed “house arrest,” and the circuit court ordered him to complete the original sentence imposed. Id. at 407-08 (¶¶ 6, 7). The MDOC Classification Committee later found that Babbitt was not guilty of the alleged violation; however, Babbitt was not returned to the ISP. Id. at 408 (¶ 7). Babbitt then filed a motion for post-conviction relief with the circuit court, which dismissed the motion. Id. at 407 (¶ 3). The Mississippi Supreme Court ruled that, while the circuit court was correct in dismissing Babbitt’s motion for post-conviction relief, the circuit court lacked jurisdiction to reinstate his original sentence as that power is given to the Classification Committee by Mississippi Code Annotated section 47-5-1003(3) (Supp.1999). Id. at 409 (¶ 14). The supreme court held that, instead of moving for post-conviction relief, Babbitt should have followed the “offender grievance procedure” established by the MDOC. Id. at (¶ 15). In sum, Babbitt’s claim came under the jurisdiction of the MDOC as he was attacking aspects of his ISP, not the legality of his original sentence.

¶ 7. The instant case can be distinguished from Babbitt, however, because Graham is not attacking his removal from the ISP. Graham attacks his guilty plea and the original sentence imposed by the circuit court. Therefore, Graham’s motion for post-conviction relief would be subject to review by the circuit court. See Miss. Code Ann. § 99-39-5 (Rev. 2007). Accordingly, we find that the circuit court erred in its conclusion that it did not have jurisdiction to consider Graham’s motion, and we will proceed to address Graham’s individual assignments of error.

7. Whether Graham was advised of his right to appeal.

¶ 8. Graham claims that neither defense counsel nor the circuit judge informed him of his right to appeal his sentence directly to the Mississippi Supreme Court. We first note that the circuit court clearly stated to Graham that, by entering a plea of guilty, he waived any right to appeal. At the time that Graham pled guilty, section 99-35-101 of the Mississippi Code Annotated (Rev. 2000), denied appeal from the circuit court to the supreme court “in any ease where the defendant enters a plea of guilty.” However, this section was not interpreted to deny the defendant the right to appeal the sentence given as a result of that plea. See Trotter v. State, 554 So.2d 313, 315 (Miss.1989) (“an appeal from a sentence imposed pursuant to a guilty plea is not equivalent to an appeal from the guilty plea itself’). In a recent case, Elliott v. State, 993 So.2d 397, 399 (¶ 10) (Miss.Ct.App.2008), the defendant raised the same issue as the one put forth by Graham, and this Court found that: “While it is true that a defendant may appeal the sentence resulting from a plea of guilty independently of the plea itself, there is no corresponding requirement that the circuit court notify the defendant of that right during the plea process.” Accordingly, we found that the circuit court’s failure to inform a defendant of the ability to appeal the sentence separately did not deny the defendant due process. Id. at 399^00 (¶ 10). We find Graham’s argument regarding the circuit court’s failure to advise him of the right to appeal his sentence is without merit. We will address Graham’s contention regarding his counsel’s similar failure under his claim of ineffective assistance of counsel.

II. Whether the indictment was defective.

¶ 9. Graham alleges that his original indictment contained a defect because it only referenced the enhancement statute, section 41-29-142, not section 41-29-139 (Rev. 2009), under which he ultimately pled guilty. He also claims that the indictment did not list the correct judicial district where he was charged.

¶ 10. First, we find no error as to the judicial district listed on the indictment. The indictment stated that Graham was indicted in the Second Judicial District of Jones County, Mississippi. The sentencing order also stated that he was in the Second Judicial District of Jones County, Mississippi. Therefore, there is no discrepancy between the indictment and the sentencing order.

¶ 11. Second, the statute under which Graham was indicted, section 41-29-142, was a penalty enhancement to the statute under which Graham was ultimately sentenced, section 41-29-139.

An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense.

Gilmer v. State, 955 So.2d 829, 836-37 (¶ 24) (Miss.2007). Section 41-29-142(1) states in part:

Except as provided in subsection (f) of Section 41-29-139 or in subsection (2) of this section, any person who violates or conspires to violate Section 41-29-139(a)(1) ... by selling, bartering, transferring, manufacturing, distributing, dispensing or possessing with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance, in or on, or within one thousand five hundred (1,500) feet of, a building or outbuilding which is all or part of a public or private elementary, vocational or secondary school, or any church, public park, ballpark, public gymnasium, youth center or movie theater or within one thousand (1,000) feet of, the real property comprising such public or private elementary, vocational or secondary school, or any church, public park, ballpark, public gymnasium, youth center or movie theater shall, upon conviction thereof, be punished by the term of imprisonment or a fine, or both, of that authorized by Section 41-29-139(b) and, in the discretion of the court, may be punished by a term of imprisonment or a fine, or both, of up to twice that authorized by Section 41-29-189(b).

(Emphasis added). It is apparent from our review of the record that the reason for the different statute was a result of Graham’s plea agreement with the State in order to receive the more lenient sentence available under section 41-29-139. Consequently, we find no error in the disparity between the indictment and sentencing order.

¶ 12. Regardless of these findings, Graham waived any claim of defect with his entry of a guilty plea. The Mississippi Supreme Court “has held that a guilty plea waives any claim to a defective indictment.” Harris v. State, 757 So.2d 195, 197 (¶ 9) (Miss.2000) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)). “The entry of a guilty plea constitutes an admittance of ‘all elements of a guilty charge’ and ‘operates as a waiver of all non-jurisdictional defects contained in an indictment.’ ” Adams v. State, 950 So.2d 259, 261 (¶ 6) (Miss.Ct.App.2007) (quoting Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)). “The only two exceptions to this rule are if the indictment fails to state an essential element of the crime charged or if there exists no subject matter jurisdiction.” Elliott, 993 So.2d at 398 (¶4) (citation omitted). As neither of these exceptions apply to the instant case, we find this issue is without merit.

III. Whether the sentence imposed upon Graham constituted an unconstitutional, illegal, and indeterminate sentence.

¶ 13. In this issue, Graham claims that the circuit court’s sentence was illegal. More specifically, Graham claims the circuit court’s sentence was illegally vague and indeterminate. After careful consideration, we agree.

¶ 14. The circuit court’s sentencing order reads as follows:

In Cause No. 2005-233-KR2, whereby Defendant is charged with Possession of Cocaine, 11.59 grams, the Defendant is to serve a sixteen (16) year sentence with the Mississippi Department of Corrections, with fifteen (15) years to be suspended conditioned upon the successful completion of twelve (12) months of house arrest and four (4) years on supervised post-release supervision and successful completion of the Circuit Court Community Service Program.

We are mindful that “[a]n argument that the sentence violates [the] law, either because it is clearly erroneous or because it is unredeemably ambiguous or incomplete, would be proper under the post-eonviction[-]relief procedures.” Burns v. State, 933 So.2d 329, 331 (¶8) (Miss.Ct.App. 2006). There are two reasonable but mutually exclusive ways to interpret the circuit court’s sentence: (A) at the time the circuit court sentenced Graham on March 28, 2006, it sentenced him to sixteen years with the possibility of later having fifteen years suspended if the MDOC found that Graham had completed house arrest; or (B) at the time the circuit court sentenced Graham on March 28, 2006, it suspended fifteen years of Graham’s sixteen-year sentence and made one of the conditions of Graham’s suspension that Graham successfully complete house arrest. Graham claims the first interpretation is correct; and therefore, his sentence is illegal. The confusion hinges on the circuit court’s use of the language, “to be suspended conditioned upon the successful completion of ... house arrest.”

¶ 15. Because the circuit court used the phrase “to be suspended,” the most logical interpretation of the circuit court’s sentence is that it did not suspend Graham’s sentence at the time it executed its sentencing order on March 28, 2006. However, the circuit court’s sentence, so interpreted, cannot operate within the parameters of the law.

¶ 16. First, the circuit court did not retain sentencing authority over Graham for one year pursuant to Mississippi Code Annotated section 47-7-47(2)(a) (Rev. 2004), which states that a sentencing court may:

upon its own motion, acting upon the advice and consent of the commissioner not earlier than thirty (30) days nor later than one (1) year after the defendant has been delivered into the custody of the [MDOC], to which he has been sentenced, suspend the further execution of the sentence and place the defendant on earned probation....

Without retention of sentencing jurisdiction pursuant to section 47-7-47, the circuit court’s authority to modify Graham’s sentence terminated at the expiration of the term of court. Miss. Comm’n on Judicial Performance v. Russell, 691 So.2d 929, 944 (Miss.1997). See also Denton v. Maples, 394 So.2d 895, 898 (Miss.1981) (holding “the only time a trial judge can suspend a sentence is immediately after the defendant is convicted and at the time the trial judge announces and imposes sentence.” (Emphasis added)). Accordingly, the circuit court lacked the authority to defer the question of suspension of part of Graham’s sentence to a later date past the term of court.

¶ 17. Second, such an interpretation would allow the circuit court to imper-missibly attempt to delegate its authority to suspend part of Graham’s sentence. Only circuit courts are authorized to sentence individuals who have been convicted of a felony. Miss.Code Ann. § 9-7-91 (Rev. 2002). The Mississippi Constitution sets forth that the powers of the three separate branches of government of the State of Mississippi are divided into three distinctly separate departments: legislative, executive, and judicial. MS Const. Art. 1, § 1.

¶ 18. The MDOC is a statutorily created body that is “under the policy direction of the governor.” Miss.Code Ann. § 47-5-8(1) (Rev. 2004). Accordingly, the MDOC is part of the executive branch of the government. It follows that the MDOC may not usurp authority that clearly lies with the judicial branch of the government. Consequently, the circuit court may not delegate its sentencing authority, including the authority to suspend a sentence, to the MDOC. However, the record reflects that Graham is now serving his entire sixteen-year sentence in the custody of the MDOC. In other words, based on the language of the circuit court’s sentencing order, the circuit court authorized the MDOC to deny Graham the fifteen-year suspended portion of his sentence when the MDOC found that Graham violated the terms of house arrest.

¶ 19. Third, by operation of the circuit court’s sentence, Graham was denied his constitutional rights incident to revocation of a suspended sentence. There can be no doubt that Graham has constitutionally protected due-process rights to a hearing before the circuit court prior to the revocation of his suspended sentence. Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Mississippi Code Annotated section 47-7-37 (Supp.2009) codifies the minimum due-process requirements applicable to probation-revocation procedures mandated by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 487-88, 92 S.Ct. 2593, 38 L.Ed.2d 484 (1972) and in Gagnon, 411 U.S. at 781-82, 93 S.Ct. 1756. Riely v. State, 562 So.2d 1206, 1209-12 (Miss.1990). The procedures for revocation of post-release supervision and recommitment of the offender to the correctional facility must be “conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.” Miss.Code Ann. § 47-7-34(2) (Rev. 2004). After the final revocation hearing, the court “may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.” Miss.Code Ann. § 47-7-37. However, only a court has the authority to revoke probation or post-release supervision under section 47-7-37. Grace v. State, 919 So.2d 987, 989 (¶ 8) (Miss.Ct.App.2005). Likewise, only a court may revoke a suspended sentence. Miss.Code Ann. § 47-7-37. It follows that the MDOC has no such authority. Graham did not go before the circuit court for a revocation hearing. Instead, the MDOC effectively revoked Graham’s suspended sentence without affording him his due process rights to a revocation hearing and required that he serve the fifteen-year suspended portion of his sentence.

¶ 20. Based on the circuit court’s failure to retain sentencing jurisdiction pursuant to section 47-7-47, its implied attempt to impermissibly delegate its authority to suspend part of Graham’s sixteen-year sentence and the fact that Graham did not have a revocation hearing, the circuit court’s sentence is impermissibly indeterminate. We have held that where “a [defendant is given an illegal sentence that is more favorable than what the legal sentence would have been, then he/she is not later entitled to relief through a post-conviction action.” Jefferson v. State, 958 So.2d 1276, 1279 (¶ 9) (Miss.Ct.App.2007). However, so interpreted, Graham’s sentence is not impermissible because it is illegally lenient. Graham claims that he violated the terms of house arrest on July 25, 2006, when the Laurel Police Department discovered narcotics and guns in his brother’s house. (Although the record is silent on the issue, it may be that Graham was staying in his brother’s house while he was on house arrest). Graham also claims that the MDOC could only re-classify him to custody status for the remaining eight months of his twelve-month house-arrest sentence — not for fifteen years and eight months. Rather, such an interpretation of his sentence renders it impermissibly vague, indeterminate, and indefinite because it conditionally suspended part of Graham’s sentence after the circuit court had lost its sentencing jurisdiction; imper-missibly delegated the decision of whether part of Graham’s sentence would be suspended to an agency of the executive branch of the government; and denied Graham his due-process right to appear before the circuit court to determine whether he had violated the conditions of his suspended sentence.

¶21. To illustrate why Graham’s sentence is problematic, an example is helpful. Assume the house-arrest program had been terminated due to budget cuts or for some other reason. If that occurred and Graham had been reclassified by the MDOC to inmate status through no fault of his own, would Graham then have to serve the remaining fifteen years of his sixteen year sentence in custody? It appears that he would. After all, under those circumstances, he would not have successfully completed house arrest. If the circuit court is allowed to circumvent the requirements of a constitutionally-mandated revocation hearing in which a convicted individual is afforded an opportunity to be heard, such an unjust outcome is possible.

¶ 22. Based on the matters discussed above, we find that such an interpretation of the circuit court’s sentence to be illegally vague and indeterminate. The other reasonable interpretation of the circuit court’s sentencing order is that on March 28, 2006, when the circuit court sentenced Graham, the circuit court suspended fifteen years of Graham’s sixteen-year sentence and made a condition of the suspended sentence that Graham successfully complete house arrest. We choose this interpretation of the circuit court’s sentencing order. We have scoured the meager record in this case. Graham’s initial charge was reduced from possession of cocaine with intent to simple possession of 11.59 grams of cocaine. Apparently, the charge was reduced to make Graham legally eligible to receive house arrest. See Miss.Code Ann. § 47-5-1003(1) (Rev. 2004). A conviction for possession of cocaine with intent pursuant to Mississippi Code Annotated section 41-29-139(a)(l) (Rev. 2009) would have made Graham ineligible to receive house arrest. Graham pled guilty pursuant to a plea bargain. The only specific reference to the plea agreement appears in the record when Assistant District Attorney Ronald Parrish stated the following in the presence of the circuit court, Graham, and Graham’s defense attorney:

Upon acceptance of [Graham’s guilty] plea, it would be the recommendation of the State that he be sentenced to serve a term of sixteen years with the Mississippi Department of Corrections with fifteen of those suspended upon his successful completion of twelve months [of] [h]ouse [a]rrest and four years [of] [p]ost[-release] [supervision_

(Emphasis added).

¶ 23. In Jenkins v. State, 910 So.2d 28, 24 (¶ 1) (Miss.Ct.App.2005) an offender was sentenced to five years in the custody of the MDOC with one year on house arrest with the possibility that the remaining four years would be suspended. Id. When Otha Jenkins violated the house-arrest rules, he was placed in the general prison population and told that he would have to serve the remainder of his five-year sentence. Id. at 25 (¶ 6). Jenkins failed to provide an adequate record for review, and this Court stated that “[b]e-cause Jenkins failed to include his motion for post-conviction relief in the record before us, we must affirm the judgment of the circuit court.” Id. at (¶ 5). It is unclear in the Jenkins opinion whether the circuit court retained sentencing jurisdiction pursuant to section 47-7-47 because we concluded that “[b]eeause Jenkins did not successfully complete the one year of [house arrest], four years of his sentence were never suspended and he was never placed on probation. Rather, for violating the [house-arrest rules], Jenkins had to serve his entire five[-]year sentence.” Id. at (¶ 10). To the extent that the Jenkins opinion conflicts with this opinion, Jenkins is overruled.

¶24. As previously stated, the circuit court has not afforded Graham a revocation hearing to determine whether he had violated a condition of the fifteen-year suspended portion of his sentence. Accordingly, we remand this matter to the circuit court so the circuit court or the State, if it so chooses, may initiate proceedings for the revocation of Graham’s fifteen-year suspended sentence.

TV. Whether defense counsel rendered ineffective assistance of counsel.

¶ 25. Graham claims that his trial counsel failed to render effective assistance of counsel. Specifically, he alleges that his counsel did not make him aware of the elements of the crime for which he pled guilty, and his counsel failed to advise him of his right to appeal. Graham also contends that his counsel neglected to investigate facts regarding the arrest prior to advising him to enter a plea of guilty.

¶26. “This Court employs the standard of review set forth in Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) in evaluating an ineffective-assistance-of-counsel claim.” Calvert v. State, 726 So.2d 228, 231 (¶ 9) (Miss.Ct.App.1998). Under Strickland, Graham “must prove that the performance of his attorney was deficient, and the deficiency was so substantial as to deprive [him] of a fair trial.” Id. “[W]hen a convicted defendant challenges his guilty plea on [the] ground[s] of ineffective assistance of counsel, he must show unprofessional errors of substantial gravity.” Buck v. State, 838 So.2d 256, 260 (¶ 12) (Miss. 2003). The defendant must also show that, but for counsel’s errors, the defendant would not have entered a plea of guilty. Id.

¶ 27. Graham was fully advised by the court as to the consequences of his guilty plea, which we will discuss in further detail below. Also, as we have already found that there was no error in regard to the judicial district, we find that Graham’s allegation of ineffective assistance of counsel as to that particular issue is without merit. As to the claim that counsel failed to investigate the charge, this Court has found that “[f]or failure to investigate to arise to the level of ineffective assistance of counsel, the defendant must state with particularity what the investigation would have revealed and how it would have altered the outcome.” Middlebrook v. State, 964 So.2d 688, 640 (¶ 10) (Miss.Ct.App.2007) (citing Triplett v. State, 840 So.2d 727, 731 (¶ 11) (Miss.Ct.App. 2002)). Therefore, we have to ask “whether the evidence and testimony, if properly investigated and presented, would have changed the outcome had the parties gone forward.” Hannah v. State, 943 So.2d 20, 25 (¶ 9) (Miss.2006).

¶ 28. Graham has presented this Court with no evidence to this effect. Although he contends that his counsel should have mentioned to him or the circuit court that the elements of possession of cocaine had not been met by the admissions made by Graham, we find that Graham knowingly and intelligently admitted to the charge against him, which included the possession of cocaine.

¶ 29. As to his right to appeal his sentence, Graham’s affidavit does not even state that defense counsel failed to advise him of this right. Nor did he show how this alleged error affected his guilty plea. Mississippi Code Annotated section 99-39-9 (Rev. 2007) requires a movant for post-conviction relief to include, along with his filing, “an affidavit setting forth those facts and proof of facts within the scope of his personal knowledge as well as those beyond his personal knowledge!,]” not just “mere conclusions.” Sutton v. State, 873 So.2d 120, 123 (¶ 17) (Miss.Ct.App.2004). Even if Graham’s counsel failed to advise him of his right to appeal his sentence, Graham has not alleged that he would have appealed his sentence. Any such claim would have been viewed with skepticism, as it was not in Graham’s interest to appeal the sentence until four months later when the MDOC re-classified him off of house-arrest status. By that time, his time for a direct appeal of his sentence had expired. See Maston v. State, 750 So.2d 1234, 1237 (Miss.1999) (Appeals to the Mississippi Supreme Court must be made “by filing a notice of appeal with the trial court ‘within 30 days after the date of entry of the judgment or order appealed from.’ ”) (citing M.R.C.P. 4(a)). Thus, we find that Graham has not properly supported his claim of ineffective assistance of counsel. This issue is without merit.

V. Whether Graham’s guilty plea was voluntarily and intelligently entered.

¶ 30. Graham alleges that his guilty plea was entered unknowingly and involuntarily. “A plea of guilty is binding only if it is entered voluntarily and intelligently^]” which requires that “the defendant [be] informed of the charges against him and the consequences of his plea.” Jones v. State, 922 So.2d 31, 34 (¶ 10) (Miss.Ct.App.2006) (citations omitted). “A defendant [also] must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self incrimination.” Epps v. State, 926 So.2d 242, 245 (¶ 11) (Miss.Ct.App.2005) (citation omitted).

¶ 31. Based on our review of the record, it is apparent that the circuit judge carefully questioned Graham about his ability to understand the charges against him, the repercussions of his guilty plea, and his willingness to enter into the plea arrangement. The circuit court found Graham’s decision was freely, voluntarily, and intelligently made and accepted his guilty plea. We detect nothing in the record to cause us to conclude that the circuit court erred in its conclusion. Therefore, we find that this issue is without merit.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

LEE AND MYERS, P.JJ., GRIFFIS AND ISHEE, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. KING, C.J., AND CARLTON, J., NOT PARTICIPATING.

      . Section 99-35-101 of the Mississippi Code Annotated has been amended, effective July 1, 2008, to provide that "where [a] defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.” Miss.Code Ann. § 99-35-101 (Supp.2010) (emphasis added).

      . The sentencing order on Graham’s guilty plea stated that it was a violation of Mississippi Code Annotated section 41-29-139, not 41-29-142 as stated in the indictment. Section 41-29-142 is a statute that calls for enhanced penalties for crimes committed under 41-29-139, which are within a certain distance of a specified venues (i.e., schools, churches, and parks).

      . Neither party argues in their briefs that the circuit court lacked authority to consider revocation of a suspended sentence or refusal to suspend part of a sentence based solely on misconduct that occurred while an offender was within the exclusive jurisdiction of the MDOC. See Babbitt, 755 So.2d at 409 (¶ 14) (holding that an offender in the house-arrest program is an inmate within the exclusive custody and control of the MDOC and that a circuit court may not revoke probation or post-release supervision based solely on a violation of the conditions of house arrest). Furthermore, Mississippi Code Annotated section 47-5-1003(4) (Supp.2010) states: “The courts may not require an offender to complete the intensive supervision program as a condition of probation or post-release supervision.” However, the statute does not specifically prohibit successful completion of the ISP from being a condition of suspension of a sentence only. Probation, post-release supervision, and suspension of a sentence are all related but distinctively different sentencing concepts. Johnson v. State, 925 So.2d 86, 91 (¶ 9) (Miss.2006). A serious issue may indeed exist if a circuit judge, without retention of jurisdiction, revokes a felony offender’s suspended sentence based on misconduct committed before the offender began his probation, post-release supervision, or suspended portion of his sentence. See Smith v. State, 742 So.2d 1146, 1148 (¶ 11) (Miss.1999) (holding that probation and suspension of sentence may not be revoked based solely on a defendant's commission of a crime before he was even placed on probation). As stated previously, while an inmate is placed on house arrest, he or she is in the exclusive custody and control of the MDOC. Miss.Code Ann. § 47-5-1003(3). By way of example, may a felony offender receive a split sentence (i.e., part of his sentence to serve and the remainder suspended) and later have his suspended sentence revoked based solely on his conduct while serving the initial portion of his sentence in custody? Accordingly, this opinion should not be taken as a comment as to whether completion of house arrest may be a condition to suspension of a sentence. We leave that issue for another day.

      . The house-arrest statute had, at one time, automatically repealed on June 30, 2004. Miss.Code Ann. § 47-5-1015 (Rev. 2004). The Mississippi Legislature attempted to cure this oversight by "backdating” the repealer and making it retroactive. 2005 Miss. Laws, ch. 485, § 11.

      . Interestingly, pursuant to the MDOC website, Graham apparently has now been released from physical custody by the MDOC. It is unclear whether Graham is now on parole, earned release, or has been re-classified by the MDOC to house-arrest status. http://www. mdoc.state.ms.us/InmateTest.aspPip_ lastname=Graham & ip_firstname= (last visited December 8, 2010).