author: CARLSON, Presiding Justice,

text:
    3545 MITCHELL ROAD, LLC d/b/a Tupelo Trace Apartments and Pinecrest/Tupelo, L.P. d/b/a Tupelo Seniors Apartments v. BOARD OF SUPERVISORS OF LEE COUNTY, MS and Mark Weathers, Lee County Tax Assessor.
    No. 2009-CT-00292-SCT.
    Supreme Court of Mississippi.
    March 24, 2011.
    Rehearing Denied June 16, 2011.

      James L. Martin, Madison, attorney for appellants.
    Gary L. Carnathan, Tupelo, attorney for appellees.
   ON WRIT OF CERTIORARI

CARLSON, Presiding Justice,

for the Court:

¶ 1. 3545 Mitchell Road LLC d/b/a Tupe-lo Trace Apartments (Tupelo Trace) and Pinecrest/Tupelo, L.P. d/b/a Tupelo Seniors Apartments (Pinecrest) (collectively “Tupelo”) appealed the Lee County Circuit Court judgment which affirmed the Lee County Board of Supervisors’ reassessment of Tupelo’s real property and the resulting increase in ad valorem taxes. We assigned this case to the Court of Appeals. Upon affirmance of the trial-court judgment by the Court of Appeals, Tupelo filed a petition for writ of certiora-ri, which we granted. We now reverse the judgments of the Court of Appeals and the Lee County Circuit Court and remand this case to the Circuit Court of Lee County for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. These are the facts as presented in the Court of Appeals’ opinion. See 3545 Mitchell Rd., LLC v. Bd. of Supervisors of Lee County, 62 So.3d 387, 388 (¶¶2-7) (Miss.Ct.App.2010). Tupelo Trace owns and operates Tupelo Trace Apartments, and Pinecrest owns and operates Tupelo Seniors Apartments. Both Tupelo Trace and Pinecrest are residential apartment complexes consisting of 200 and 40 units, respectively, and are designed to be “affordable rental housing” properties, as that term is defined by Mississippi Code Section 27 — 35—50(4)(d)(i) (Rev.2010).

¶3. Section 27-35-50(4)(d) sets out the method to be used to determine the “true value” of “affordable rental housing” for purposes of levying ad valorem taxes. It provides that, for tax purposes, the value of “affordable rental housing” shall be determined by the

actual net operating income attributable to the property, capitalized at a market value capitalization rate prescribed by the State Tax Commission that reflects the prevailing cost of capital for commercial real estate in the geographical market in which the affordable rental housing is located adjusted for the enhanced risk that any recorded land use regulations places on the net operating income from the property.

Miss.Code Ann. § 27-35-50(4)(d) (Rev. 2010). In order to receive this benefit, the law requires that the property owner submit to the county tax assessor, by April 1 of each year, an accurate statement of the net operating income attributable to that property for the prior year.

¶ 4. Tupelo admits that in 2007 it failed to submit to the Lee County tax assessor the statements of the actual net operating income attributable to the properties for the immediately preceding year, as required to qualify for the special valuation method for assessing affordable rental housing property, as required by Section 27-35-50(4)(d). The assessor, failing to notice that Tupelo had not submitted the required statements of actual net operating income attributable to the properties, still assessed the properties using the special valuation method, and submitted the 2007 Land Roll to the Board for approval at its meeting held on July 3, 2007. The assessor recommended to the Board the true value of all real and personal property situated in Lee County, Mississippi, for 2007. The 2007 Land Roll included recommended true values for Tupelo Trace and Pinecrest in the sums of $2,862,210 and $317,420, respectively. The Board accepted and adopted the 2007 Land Roll at its meeting held on August 13, 2007. Tupelo Trace and Pinecrest subsequently were assessed $43,529.98 and $4,843.67 in taxes, respectively.

¶5. On or about September 25, 2007, Tupelo submitted a written request to the assessor asking for confirmation of the 2007 true values assessed to the apartment complexes. The assessor confirmed and represented to Tupelo Trace and Pinecrest that their tax assessments would be based on true-value assessments of $2,862,210 and $317,420, respectively.

¶ 6. Later, the assessor discovered that Tupelo had failed to submit statements of the actual net operating income attributable to the properties for the immediate preceding year to the assessor’s office on or before April 1, 2007, as required by Section 27 — 35—50(4)(d). The assessor then reassessed the subject properties using the ordinary method of valuation, rather than the special income-capitalization approach, which resulted in higher true values for both properties than the original assessments. On or about November 8, 2007, the assessor changed the 2007 true-value assessment for Tupelo Trace and Pinecrest to $8,896,620 and $951,073, respectively. As a result, the Tupelo Trace and Pine-crest properties were assessed $135,304.25 and $14,512.90, respectively, in taxes for 2007. Tupelo paid these amounts on or about January 17, 2008.

¶7. Due to the initial lack of notice to Tupelo regarding the increase in their assessments, on July 28, 2008, the Board, on its own motion, rescinded the increase for assessments for Tupelo’s properties, and it asked the Board’s clerk to notify Tupelo of the increases. The clerk notified Tupelo of the increases by letter, which advised Tupelo that if it objected to such increase, an objection must be filed no later than 10:00 a.m. on August 18, 2008. Tupelo submitted a written objection to the Board on August 6, 2008, objecting to the increase in the true value of its properties. However, Tupelo still failed to submit the statement of actual net operating income for the prior year as required by Section 27 — 35—50(4)(d). On August 22, 2008, after reviewing Sections 27-35-145, 27-35-147 and 27 — 35—50(4)(d) of the Mississippi Code, the Board issued an order denying Tupe-lo’s objections. Tupelo subsequently appealed to the Lee County Circuit Court on August 28, 2008.

¶8. By agreement of the parties, the case was tried based on a written stipulation of facts, with exhibits, on January 16, 2009. On February 4, 2009, the circuit court entered an order denying Tupelo’s appeal. Aggrieved, Tupelo appealed to this Court, and we assigned this case to the Court of Appeals, which affirmed. See 354.5 Mitchell Rd., LLC, 62 So.3d at 388 (¶¶ 2-7).

PROCEEDINGS IN THE COURT OF APPEALS

¶ 9. Before the Court of Appeals, Tupelo asserted that the trial court had erred by finding that the Board had properly reassessed and changed the amounts Tupelo owed in ad valorem taxes for the Tupelo Trace and Pinecrest properties. The Court of Appeals affirmed the trial court, holding that the Board was statutorily authorized to correct wrongly classified property and to reassess properties and increase the amounts owed in ad valorem taxes.

¶ 10. This Court finds that the trial court improperly permitted the Board to change the tax roll after it was final. We therefore reverse the decisions of the trial court and the Court of Appeals and render judgment in favor of Tupelo.

DISCUSSION

¶ 11. Concerning judicial review of actions taken by a board of supervisors, “decisions related to questions of law or statutory interpretation will be reviewed de novo.” Ryals v. Bd. of Supervisors of Pike County, 48 So.3d 444, 448 (Miss.2010) (citing Nelson v. City of Horn Lake ex rel. Bd. of Aldermen, 968 So.2d 938, 942 (Miss. 2007)).

¶ 12. To effect a change in the tax roll subsequent to its finalization, the Board of Supervisors of Lee County had to find an applicable exception. Miss.Code Ann. § 27-35-147 (Rev.2010). The Court of Appeals affirmed the Board’s reassessment of Tupelo’s tax liability based on two exceptions under Mississippi Code Sections 27-35-143(11) and 27-35-147(4) (Rev. 2010). 3545 Mitchell Road, LLC, 62 So.3d at 391 (¶ 15).

(1) Mississippi Code Section 27-35-143(11)

¶ 13. This section permits changes in assessments by the Board where lands have been assessed and incorrectly classified:

When lands have been assessed and incorrectly classified; or when buildings and improvements have been assessed which were not on the land, at the preceding tax lien date; or where the buildings and improvements, at the preceding tax lien date, were exempt from assessment and taxation.

Miss.Code Ann. § 27-35-143(11) (Rev. 2010) (emphasis added). Under Section 27-35-50(4)(d), the tax assessor calculated Tupelo’s property taxes for the 2007 tax rolls by the “specialized approach” for “affordable rental housing.” This never should have occurred. An ordinary valuation approach for the two properties should have been applied to calculate Tu-pelo’s taxes, because Tupelo had failed to provide a statement of actual net operating income for the previous year as required by Section 27-35-50(4)(d).

¶ 14. Before the Court of Appeals, the Board in its brief essentially argued that the Tupelo properties were incorrectly classified because, although the rental housing remained Class II property, Tupe-lo had not met the requirements to be taxed as “affordable rental housing” under Section 27-35-50. Accordingly, the Board contended that Tupelo’s properties had been incorrectly classified as “affordable rental housing,” allowing the Board to reassess Tupelo’s properties under Section 27-35-143(11).

¶ 15. The Court of Appeals agreed, reasoning that the Board had the authority to change the tax liability, after the State Tax Commission’s adoption of the 2007 tax rolls, because permitting Tupelo’s properties to be taxed as “affordable rental housing” was an incorrect classification, due to Tupelo’s failure to follow the statutory guidelines and qualify for the specialized taxation formula for affordable rental housing under Section 27-35-50(4). 35145 Mitchell Road, LLC, 62 So.3d at 390-91 (¶ 13).

¶ 16. In his dissenting opinion, Judge Roberts wrote that “[t]here was no evidence that the apartments had been incorrectly classified. They were, in fact, classified correctly by the Board. The undisputed evidence is that the Assessor merely reassessed the Appellants’ ad valo-rem tax liabilities pursuant to the ‘ordinary method of valuation’ rather than the ‘special income-capitalization approach.’ ” 3545 Mitchell Rd., LLC, 62 So.3d at 392-93 (¶ 22) (Roberts, J., dissenting).

¶ 17. The Mississippi Constitution and this Court’s precedent clearly state that classification is based on the use of one’s property. See Miss. Const, art., 4 § 112 (setting forth five distinct classifications of property based on use); see also Bd. of Supervisors of Harrison County v. Duplantier, 583 So.2d 1275, 1278-79 (Miss.1991) (excluding from Class I condominium units not used as principal residence); Rebelwood, Ltd. v. Hinds County, 544 So.2d 1356, 1363 (Miss.1989) (finding that, under Mississippi Code Section 27-35-50 (Supp.1988), a federally subsidized low-income housing project was Class II real property based on its current use).

¶ 18. There is no evidence that Tupelo’s rental housing ever changed its use and, ultimately, its classification under Article 4, Section 112 of the Mississippi Constitution. Rather, after the Board had identified the taxation error, Tupelo’s Class II real property, categorized as “affordable rental housing,” simply was assessed based on an ordinary method of valuation, as opposed to a specialized approach for affordable rental housing, because Tupelo had failed to qualify for this specialized tax formula. The property’s classification remained, at all times, Class II real property.

¶ 19. ' Despite the five classifications of property in Article 4, Section 112 of the Mississippi Constitution, the Board argues that “affordable rental housing” in Section 27-50-4(d) constitutes a subclassification in its own right and, therefore, meets the requirements of the exception in Section 27-35-143(11) as an incorrect classification, permitting reassessment.

¶ 20. Even assuming arguendo that the categorization of “affordable rental housing” constituted a classification for purposes of Section 27-35-143(11), as Judge Roberts articulated in his dissent, there is no evidence that Tupelo’s properties were incorrectly classified by the assessor. For instance, the record, in this case does not provide any evidence of why Tupelo’s properties did not meet the definition of affordable rental housing under Section 27-35-50(4)(d)(i); however, the record does provide that Tupelo failed to provide the necessary documents to receive the specialized tax formula.

¶ 21. Section 27-35-50(4)(d) states that “[t]he owner of affordable rental housing shall provide to the county tax assessor on or before April 1 of each year, an accurate statement of the actual net operating income attributable to the property for the immediately preceding year....” (Emphasis added.) Moreover, the plain language of the definition of “affordable rental housing” does not state that the mandated yearly filing of the net operating income is a prerequisite to a property’s characterization as “affordable rental housing.” Miss. Code Ann. § 27 — 35—50(4)(d)(i). Both parties stipulated that Tupelo Trace and Pine-crest were “affordable rental housing” properties under Section 27 — 35—50(4)(d)(i).

¶ 22. Accordingly, we are constrained to find that the Court of Appeals erred by affirming the trial judge’s conclusion that there was an incorrect classification. We find only that an incorrect valuation occurred when Tupelo failed to provide the requisite documents to receive the specialized formula for its Class II, affordable rental housing. While this interpretation does allow Tupelo to benefit, despite its failure to provide the necessary documentation, we nonetheless agree with Judge Roberts’s interpretation that “an incorrect valuation calculation is not the equivalent of incorrect classification of property.” 3545 Mitchell Rd., LLC, 62 So.3d at 393 (¶22) (Roberts, J., dissenting).

(2) Mississippi Code Section 27-35-147(4)

¶23. The Court of Appeals also found support for the Board’s actions under Section 27-35-147(4) (Rev.2006), which permits a board of supervisors to increase an assessment after an assessment roll has been adopted “ ‘[w]hen lands or improvements thereon have been listed as exempt from taxation, but were subject to assessment and taxation on the preceding tax lien date.’ ” 354.5 Mitchell Rd., LLC, 62 So.3d at 391 (¶ 13) (quoting Miss.Code Ann. § 27-35-147(4) (Rev.2010)) (emphasis added).

¶ 24. The issue before the Court of Appeals thus became whether the specialized tax formula under Section 27-35-50(4)(d) constituted a tax exemption such that the Board under Section 27-35-147(4) could assess taxes against Tupelo. The Court of Appeals found that Section 27-35-50(4)(d) “is an exemption because it provides a lower tax rate to the owners of affordable rental housing, versus a higher tax rate for owners of the same type of property used in a different manner.” 3545 Mitchell Rd., LLC, 62 So.3d at 391 (¶ 14).

¶ 25. In the Court of Appeals’ dissent, Judge Roberts reasoned that an exemption requires more than the application of an alternate formula for taxation:

The term “exemption” is not defined by any Mississippi law. However, it is not an unfamiliar term. “In taxation, an exemption is an amount allowed as a deduction from adjusted gross income in arriving at taxable income.” Black’s Law Dictionary 572 (6th ed.1990). Here, the Assessor did not first deduct a particular portion of [Tupelo’s] adjusted gross income before calculating their 2007 ad valorem tax liabilities. Instead, he initially calculated their value pursuant to the “special income-capitalization approach” — apparently based on 2006 financial data- Using a different formula to calculate taxable value is not the legal equivalent of an “exemption.”
Furthermore, the Mississippi Legislature has listed all general ad valorem tax exemptions in Mississippi Code Annotated Section 27-31-1 through 117 (Rev.2006). The Legislature did not include the “special-income capitalization approach” ... within its listing of general exemptions.

3545 Mitchell Rd., LLC, 62 So.3d at 393-94 (¶¶ 25-26) (Roberts, J., dissenting). We agree with Judge Roberts’s reasoning.

¶ 26. Moreover, while permitting owners of affordable rental housing to use a specialized tax approach is generally the functional equivalent of a tax exemption, this Court disagrees that the Legislature has expressed an intention to create an exemption in Section 27 — 35—50(4)(d) (Rev. 2010).

¶ 27. In Clement v. Stone, 195 Miss. 774, 791, 15 So.2d 517,-522 (1943), this Court directly stated that “no exemption from taxation will be created by implication.” In Barnes v. Jones, 139 Miss. 675, 103 So. 773, 779 (1925) (citing Miss.Code § 4251 (1906); Hemingway’s Code § 6878), this Court stated that “all property of every nature whatsoever within the territorial limits of this state shall be subjected to taxation, except that which is specifically exempted by statute.” Nowhere has the Legislature stated that Section 27-35-50(4)(d) is an exemption. Moreover, the 2007 Land Roll clearly shows that Tupelo’s properties were not listed as exemptions but were subject to taxation and assessment on the preceding tax lien date.

¶ 28. Notwithstanding that this Court has held that exemptions will not be created by implication, the majority for the Court of Appeals based its holding in part on the similarities between the homestead-exemption statute and specialized taxation under Section 27-35-50(4)(d). 35⅛5 Mitchell Road, LLC, 62 Só.3d at 391 (¶ 14). The Court of Appeals stated, “We note that such an exemption is similar to the favorable treatment found in the homestead exemption in Mississippi Code Annotated Section 27-33-3 (Rev.2006) ... [I]t is a reduction in the amount of ad valorem taxes owed by the property owner.” Id. However, unlike Section 27-35-50(4)(d), the homestead-exemption statute clearly states that “homes legally assessed on the land roll ... shall be exempt from the ad valorem taxes herein enumerated.... ” Miss.Code Ann. § 27-33-3(1) (Rev.2010) (emphasis added).

¶ 29. The Legislature has the sole authority to create tax exemptions, not this Court. Miss. Const, art. 4, § 112. Any disagreements with the Legislature’s directives on tax exemptions “are best aimed toward the Legislature.” Buckel v. Chaney, 47 So.3d 148, 159-160 (Miss.2010) (citing Miss. State Univ. v. People for Ethical Treatment of Animals, 992 So.2d 595, 610 (Miss.2008)) (citations omitted).

CONCLUSION

¶ 30. Based on today’s discussion, we are constrained to find that the Court of Appeals erred by finding that (1) the lands at issue had been “incorrectly classified” under Section 27-35-143(11), and (2) Section 27-35-50(4)(d) constituted a tax exemption for purposes of Section 27-35-147(4). Accordingly, the judgment of the Court of Appeals affirming the judgment of the Lee County Circuit Court and the trial-court judgment are reversed, and this case is remanded to the Circuit Court of Lee County for an evidentiary hearing to determine the amount of reimbursement to which 3545 Mitchell Road LLC d/b/a Tupelo Trace Apartments and Pine-crest/Tupelo, L.P. d/b/a Tupelo Seniors Apartments are entitled as a result of overpayment of ad valorem taxes for the year 2007, plus interest.

¶ 31. REVERSED AND REMANDED.

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

      . However, these facts do not represent a verbatim recitation of the Court of Appeals’ opinion.

      . The Board, in its appellate brief, argues that Section 27-35-143(2) also permits the Board to reassess Tupelo's properties. However, the record does not reveal that, before the trial court, the Board ever mentioned or argued the merits of Mississippi Code Section 27-35-143(2). The Board argued Section 27-35-143(11) before the trial court. Accordingly, the trial judge did not mention Section 27-35-143(2) in its Order. The Court of Appeals did not address the merits of Section 27-35-143(2), and neither shall this Court. See Brown v. Miss. Dep't. of Employment Sec., 29 So.3d 766, 771 (Miss.2010) ("This Court repeatedly has held that an issue not raised before the lower court is deemed waived and is procedurally barred.”).

      .
      (d) ... The owner of affordable rental housing shall provide to the county tax assessor on or before April 1 of each year, an accurate statement of the actual net operating income attributable to the property for the immediately preceding year prepared in accordance with generally acceptable accounting principles. As used in this paragraph:
      (i) "Affordable rental housing” means residential housing consisting of one or more rental units, the construction and/or rental of which is subject to Section 42 of the Internal Revenue Code (26 USC 42), the Home Investment Partnership Program under the Cranston-Gonzalez National Affordable Housing Act (42 USC 12741 et seq.), the Federal Home Loan Banks Affordable Housing Program established pursuant to the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) of 1989 (Public Law 101-73), or any other federal, state or similar program intended to provide affordable housing to persons of low or moderate income and the occupancy and maximum rental rates of such housing are restricted based on the income of the persons occupying such housing.
      Miss.Code Ann. § 27-35-50 (Rev.2010).

      . Class I consists of “[s]ingle-family, owner-occupied, residential real property ...” Class II is “[a]ll other real property, except for real property included in Class I or IV_" Miss. Const, art. 4, § 112.


source: Caselaw Access Project

author: KING, C.J., ROBERTS, J.,

license: Public Domain

text:
    3545 MITCHELL ROAD, LLC d/b/a Tupelo Trace Apartments and Pinecrest/Tupelo, L.P. d/b/a Tupelo Seniors Apartments, Appellants v. BOARD OF SUPERVISORS OF LEE COUNTY, MS and Mark Weathers, Lee County Tax Assessor, Appellees.
    No. 2009-CA-00292-COA.
    Court of Appeals of Mississippi.
    June 29, 2010.
    Rehearing Denied Oct. 12, 2010.
    James L. Martin, Madison, attorney for appellants.
    Gary L. Carnathan, Tupelo, attorney for appellees.
   KING, C.J.,

for the Court:

¶ 1. Appellant 3545 Mitchell Road LLC d/b/a Tupelo Trace Apartments (Tupelo Trace) and Appellant Pinecrest/Tupelo, L.P. d/b/a Tupelo Seniors Apartments (Pi-necrest) (collectively, the Appellants) appeal the judgment of the Lee County Circuit Court, which affirmed the Lee County Board of Supervisors’ reassessment of the Appellants’ real property and the resulting increase in ad valorem taxes. On appeal, the Appellants challenge whether the Board properly reassessed and changed the amounts the Appellants owed in ad valorem taxes for the Tupelo Trace and Pinecrest properties, and they seek a refund of their overpayment of ad valorem taxes for 2007. Finding no error, this Court affirms.

FACTS

¶2. Tupelo Trace owns and operates Tupelo Trace Apartments, and Pinecrest owns and operates Tupelo Seniors Apartments. Both Tupelo Trace and Pinecrest are- residential apartment complexes consisting of 200 and 40 units, respectively and are designed to be “affordable rental housing” properties, as that term is defined by Mississippi Code Annotated section 27-35-50(4)(d)(i) (Rev.2006). Section 27-35-50(4)(d) sets out the method to be used to determine the “true value” of “affordable rental housing” for purposes of levying ad valorem taxes. It provides that for tax purposes the value of “affordable rental housing” shall be determined by the “actual net operating income attributable to the property, capitalized at a market value capitalization rate prescribed by the State Tax Commission that reflects the prevailing cost of capital for commercial real estate in the geographical market in which the affordable rental housing is located adjusted for the enhanced risk that any recorded land use regulations places on the net operating income from the property.” In order to receive this benefit, the law requires that the property owner submit to the county tax assessor, by April 1 of each year, an accurate statement of the net operating income attributable to that property for the prior year.

¶ 3. The Appellants admit that in 2007, they failed to submit to the Lee County Tax Assessor the statements of the actual net operating income attributable to the properties for the immediately preceding year, as required to qualify for the special valuation method for assessing affordable rental housing property, as required by section 27-35-50(4)(d). The Assessor, failing to notice that the Appellants had not submitted the required statements of actual net operating income attributable to the properties, still assessed the properties using the special valuation method, and submitted the 2007 Land Roll to the Board for approval at its meeting held on July 3, 2007. The Assessor recommended to the Board the true value of all real and personal property situated in Lee County, Mississippi, for 2007. The 2007 Land Roll included recommended true values for Tu-pelo Trace and Pinecrest in the sums of $2,862,210 and $317,420, respectively. The Board accepted and adopted the 2007 Land Roll at its meeting held on August 13, 2007. Tupelo Trace and Pinecrest were subsequently assessed $43,529.98 and $4,843.67 in taxes, respectively.

¶ 4. On or about September 25, 2007, the Appellants submitted a written request to the Assessor asking for confirmation of the 2007 true values assessed to the apartment complexes. The Assessor confirmed and represented to Tupelo Trace and Pinecrest that their tax assessments would be based on a true value assessment of $2,862,210 and $317,420, respectively.

¶ 5. Later, the Assessor discovered that the Appellants had failed to submit statements of the actual net operating income attributable to the properties for the immediately preceding year to the Assessors’s office on or before April 1, 2007, as required by section 27-35-50(4)(d). The Assessor then reassessed the subject properties using the ordinary method of valuation, rather than the special income-capitalization approach, which resulted in higher true-values for both properties than the original assessments. On or about November 8, 2007, the Assessor changed the 2007 true value assessment for Tupelo Trace and Pinecrest to $8,896,620 and $951,073, respectively. As a result, the Appellants were assessed $135,304.25 and $14,512.90, respectively, in taxes for 2007. The Appellants each paid their respective amount on or about January 17, 2008.

¶ 6. Due to the initial lack of notice to the Appellants regarding the increase in their assessments, on July 28, 2008, the Board, on its own motion, rescinded the increase for assessments for the Appellants’ properties, and it asked the Board’s clerk to notify the Appellants of the increases. The clerk notified the Appellants of the increases by letter, which advised the Appellants that if they objected to such increase, an objection must be filed no later than 10:00 a.m. on August 18, 2008. The Appellants submitted a written objection to the Board on August 6, 2008, objecting to the increase in the true value of their properties. However, the Appellants still failed to submit the statement of actual net operating income for the prior year as required by section 27 — 35—50(4)(d). On August 22, 2008, after reviewing sections 27-35-145 (Rev.2006), 27-35-147 (Rev. 2006), and 27-35-50(4)(d) of the Mississippi Code Annotated, the Board issued an order denying the Appellants’ objections. The Appellants subsequently appealed to the Lee County Circuit Court on August 28, 2008.

¶ 7. By agreement of the parties, the case was tried on a written stipulation of facts, with exhibits, on January 16, 2009. On February 4, 2009, the circuit court entered an order denying the Appellants’ appeal. Aggrieved, the Appellants now turn to this Court, seeking relief.

STANDARD OF REVIEW

¶ 8. The Mississippi Supreme Court has held that a review of whether appellants are entitled to an exemption presents a question of law, since the question “turns on both the construction of the statutory language and application of it to the facts of the instant case.” Hattiesburg Area Senior Servs., Inc. v. Lamar County, 633 So.2d 440, 444 (Miss.1994). Since both of the parties in the case before us agreed to a stipulation of facts, this case involves no dispute of fact. For questions of law, this Court conducts a de novo review of the lower court’s decision. Univ. of Miss. Med. Ctr. v. Hughes, 765 So.2d 528, 532 (¶ 13) (Miss.2000).

DISCUSSION

¶ 9. The Appellants argue that the circuit court erred in finding that the Board properly reassessed and increased the amount of ad valorem taxes owed on the subject properties, Tupelo Trace and Pinecrest. The Appellants also argue that the circuit court erred in finding that the Board properly changed the 2007 Land Roll assessments for the properties pursuant to section 27-35-147.

¶ 10. Section 27-35-50 of the Mississippi Code Annotated mandates that in order to assess most types of real property for purposes of ad valorem taxation, the Assessor must determine the true value of the property by using one or a combination of three approaches: income-capitalization approach to value, the cost approach to value, or the market-data approach to value. See Miss.Code Ann. § 27-35-50(2) (Rev.2006). In the present case, the Appellants’ properties fall under the “affordable rental housing,” which is defined as:

residential housing consisting of one or more rental units, the construction and/or rental of which is subject to Section 42 of the Internal Revenue Code (26 USC 42), the Home Investment Partnership Program under the Cranston-Gon-zalez National Affordable Housing Act (42 USC 12741 et seq.), the Federal Home Loan Banks Affordable Housing Program established pursuant to the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) of 1989 (Public Law 101-73), or any other federal, state or similar program intended to provide affordable housing to persons of low or moderate income and the occupancy and maximum rental rates of such housing are restricted based on the income of the persons occupying such housing.

Miss.Code Ann. § 27 — 35—50(4)(d)(i). Pursuant to section 27 — 35—50(4)(d), such property must be appraised using only a specified income-capitalization approach developed by the Mississippi State Tax Commission, which provides a lower rate of ad valorem taxation for the property owner. In order to be assessed under this formula and receive a lower tax rate for a given year, the owner of the affordable rental housing must, on or before April 1, provide the county tax assessor with a statement of the actual net operating income for the previous year. Miss. Code Ann. § 27-35-50(4)(d).

¶ 11. In the present case, the Assessor did not discover the Appellants’ failure to submit the required information to the Assessor’s office on or before April 1, 2007, in accordance with section 27-35-50(4)(d), until after the Board had approved the assessment rolls. At the February 8, 2008, Board meeting, the Assessor presented his recommendation to change the 2007 assessment of the Appellants’ properties from $2,862,210 and $317,420 to $8,896,620 and $951,073, respectively. This increased amount reflected the Assessor’s application of the ordinary valuation approach in establishing the true value of the properties, instead of the specialized approach available to property owners meeting the requirements of section 27-35-50(4)(d).

¶ 12. The Appellants agree that the Assessor and the Board have the authority to change an assessment after it has become final. However, the Appellants claim that this authority is not without limitations. Specifically, the Appellants claim that the Board’s power to change, cancel, or decrease an assessment after the assessment roll becomes final is limited to the fourteen enumerated circumstances found in Mississippi Code Annotated section 27-35-143 (Rev.2006). The Appellants argue that the present situation does not fall under any of the fourteen circumstances in section 27-35-143. Therefore, they claim that the increase in the assessments of their properties was unlawful and should be rescinded.

¶ 13. However, we note that section 27-35-143(11) authorizes changes in assessments by the Board where lands have been assessed and incorrectly classified. We also note that section 27-35-147(4) provides that a board of supervisors may increase an assessment after an assessment roll has been adopted “[w]hen lands or improvements thereon have been listed as exempt from taxation, but were subject to assessment and taxation on the preceding tax lien date.”

¶ 14. The appellants argue the special methodology of establishing a true value for affordable rental housing in section 27-35 — 50(4)(d) is not tantamount to an exemption; they contend that the powers to exempt and the powers to determine special modes of valuation are separate and complimentary. However, this Court agrees with and affirms the circuit court’s finding that section 27 — 35—50(4)(d) is an exemption because it provides a lower tax rate to the owners of affordable rental housing, versus a higher tax rate for owners of the same type property used in a different manner. We note that such an exemption is similar to the favorable treatment found in the homestead exemption in Mississippi Code Annotated section 27-33-3 (Rev.2006). The homestead exemption is not a complete exclusion from taxation; rather, it is a reduction in the amount of ad valorem taxes owed by the property owner. Miss. Code Ann. § 27-33-3.

¶ 15. We note that laws which grant tax exemptions are to be strictly construed against the exemption. Better Living Servs., Inc. v. Bolivar County, 587 So.2d 914, 917 (Miss.1991) (citing Bd. of Supervisors., Warren County v. Vicksburg Hosp., 173 Miss. 805, 816, 163 So. 382, 385 (1935)). Since section 27-35-50 is an exemption statute, we find that the Assessor and Board were correct in utilizing sections 27-35-147(4) and 27-35-143(11) to correct the wrongfully classified property and to reassess the properties and increase the amounts owed in taxes by the Appellants. This issue is without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE AND MYERS, P JJ., ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. ROBERTS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, J. IRVING AND BARNES, JJ., NOT PARTICIPATING.

ROBERTS, J.,

Dissenting:

¶ 17. The majority affirms the judgment of the Lee County Circuit Court on the basis that the Lee County Board of Supervisors was statutorily authorized to increase the tax liability of both Tupelo Trace Apartments and Pinecrest Apartments (collectively the Appellants). According to the majority, the Board was authorized to do so because the tax-liability-valuation method applicable to affordable rental housing as set forth by Mississippi Code Annotated section 27-35-50(4)(d) (Rev.2006) is the legal equivalent of a tax exemption. With utmost respect for the majority, I cannot agree with the majority’s conclusion. Therefore, I dissent.

¶ 18. The facts of this case are undisputed. During the Board’s meeting on July 3, 2007, the Lee County Tax Assessor submitted Lee County’s 2007 Land Roll. The 2007 Land Roll included recommended true values for the Appellants’ properties. In determining the true values of the Appellants’ properties, the Assessor apparently used the same figures that were used to determine the true value of the Appellants’ properties for the 2006 fiscal year. That is, the Assessor never requested updated net income operating expenses from the Appellants in an effort to determine the 2007 true value of the Appellants’ properties. Consequently, the Appellants were unaware that they were obligated to provide updated net income operating expenses. It appears that the Assessor was, likewise, unaware that it was necessary to obtain updated net income operating expenses.

¶ 19. During the Board’s August 13, 2007, meeting the Board met to equalize the tax roll. As a result, the Board accepted and adopted the Assessor’s 2007 Land Roll. On September 25, 2007, the Appellants submitted a written request to the Assessor, asking him to confirm the 2007 true values that applied to their properties. The Assessor responded and confirmed the true value of the Appellants’ 2007 tax assessments as approximately $2,860,000 and $320,000.

¶20. However, on November 8, 2007, after the Board had finally approved the tax rolls, the Assessor unilaterally determined that it was necessary to increase the 2007 true values of the Appellants’ properties. The Assessor never notified the Appellants of his intent to increase their 2007 true value assessments to approximately $8,900,000 and $950,000. On January 17, 2008, the Appellants paid their newly determined 2007 ad valorem taxes of $135,304.25 and $14,512.90. Under the Assessor’s prior true value assessment, the Appellants would have had 2007 ad valo-rem tax liabilities of $43,529.98 and $4,843.67. Under the revised true values, the Appellants’ tax burden increased a total of $101,443.50 — which is $91,774.27 and $9,669.23, respectively.

¶ 21. The only issue is whether the Board was authorized to reassess the Appellants’ ad valorem tax liability for the 2007 fiscal year after it and the Mississippi State Tax Commission had accepted and adopted the tax rolls for 2007. As the majority discusses, once a Board has accepted and adopted an Assessor’s recommendation, that Board may only reassess tax liability under certain limited circumstances. According to the majority, the Board was authorized to reassess the Appellants’ 2007 state ad valorem tax liability pursuant to Mississippi Code Annotated section 27-35-143(11) (Rev.2006) and/or Mississippi Code Annotated section 27-35-147(4) (Rev.2006).

¶ 22. Section 27-35-143(11) — titled “Change of assessment in certain cases”— provides as follows:

The board of supervisors of each county shall have power, upon application of the party interested, or by the assessor on behalf of such party, or otherwise as prescribed in Sections 27-35-145 through 27-35-149, to change, cancel or decrease an assessment in the manner herein provided at any time after the assessment roll containing such assessment has been finally approved by the State Tax Commission, and prior to the last Monday in August next, under the following circumstances and no other:
11. When lands have been assessed and incorrectly classified; or when buildings and improvements have been assessed which were not on the land[ ] at the preceding tax lien date; or where the buildings and improvements at the preceding tax lien date[ ] were exempt from assessment and taxation.

There was no evidence that the apartments had been incorrectly classified. They were, in fact, classified correctly by the Board. The undisputed evidence is that the Assessor merely reassessed the Appellants’ ad valorem tax liabilities pursuant to the “ordinary method of valuation” rather than the “special income-capitalization approach.” It is true that the Appellants failed to provide the necessary information on a timely basis. However, the Appellants were unaware of any such obligation, and neither the Assessor nor the Board was aware that the Appellants were required to provide that information. Furthermore, neither the Assessor nor the Board requested the necessary information before final approval of the tax rolls. The failure to provide necessary documentation is not included among any of the circumstances in which a board may modify a taxpayer’s ad valorem tax liability as set forth in section 27-35-143. In my opinion, an incorrect valuation calculation is not the equivalent of incorrect classification of property.

¶23. Additionally, the majority finds that the Board was authorized to reassess the Appellants’ 2007 ad valorem tax liability based on section 27-35-147(4), which provides as follows:

The board of supervisors, upon its own motion, or upon notice from the tax assessor, the state tax commission, or other officer authorized to assess, or have assessed property escaping taxation, shall have power, at any time in the current year that an assessment roll is in force, to increase an assessment subject to approval as hereinafter provided, or to assess property or persons omitted from such roll or rolls under the following circumstances:
(4) When lands or improvements thereon have been listed as exempt from taxation, but were subject to assessment and taxation on the preceding tax hen date.

¶24. The majority concludes that the “special income-capitalization approach” applicable to taxation of affordable rental housing “is an exemption because it provides for a lower tax rate to the owners of affordable rental housing, versus a higher tax rate for owners of the same type property used in a different manner.” Respectfully, I interpret the majority opinion as defining an exemption as any taxation-calculation methodology or any other mechanism that results in a lower tax liability than the equivalent of the absolute maximum taxation rate allowable by law. I do not agree.

¶25. The term “exemption” is not defined by any Mississippi law. However, it is not an unfamiliar term. “In taxation, an exemption is an amount allowed as a deduction from adjusted gross income in arriving at taxable income.” Black’s Law Dictionary 572 (6th ed.1990). Here, the Assessor did not first deduct a particular portion of the Appellants’ adjusted gross income before calculating their 2007 ad valorem tax liabilities. Instead, he initially calculated their value pursuant to the “special income-capitalization approach” — apparently based on 2006 financial data— which resulted in tax liabilities of $43,529.98 and $4,843.67 and subsequently calculated their value pursuant to the “ordinary method of valuation,” which resulted in tax liabilities of $135,304.25 and $14,512.90. Using a different formula to calculate taxable value is not the legal equivalent of an “exemption.”

¶ 26. Furthermore, the Mississippi Legislature has listed all general ad valo-rem tax exemptions in Mississippi Code Annotated section 27-31-1 through -117 (Rev.2006). The Legislature did not include the “special income-capitalization approach” for determining the tax liability of affordable rental housing within its listing of general exemptions. The Legislature also detailed all provisions regarding the homestead exemption to ad valorem taxation within Mississippi Code Annotated section 27-33-1 through — 79 (Rev.2006). Again, the Legislature omitted any mention of the “special income-capitalization approach” for determining the tax liability of affordable rental housing in the laws regarding the homestead exemption. I collegially disagree that any formulaic approach that results in a lower tax assessment amounts to an “exemption.”

¶ 27. According to the majority’s logic, in each instance where the Mississippi Code provides less than the absolute maximum level of taxation, that in and of itself is an exemption regardless whether it is included in the provisions specifically classified as general exemptions or the homestead exemption. In other words, if a board finds that a taxpayer or a taxpaying entity could have been assessed at a higher rate under any circumstances, that board is authorized to reassess that tax liability because that taxpayer or taxpaying entity has received the benefit of an exemption — even if the Legislature has not included the means that resulted in a lower tax rate among the laws that apply to exemptions. In effect, the majority finds that the Legislature has failed to correctly classify what it considers exemptions, because whether something qualifies as an exemption depends solely on whether a provision in any Mississippi law creates a lower tax liability.

¶28. The majority bolsters its conclusion by finding that using the “special income-capitalization approach” rather than the “ordinary method of valuation” is an exemption because it “is similar to the favorable treatment found in the homestead exemption ... [which] is not a complete exclusion from taxation, but rather a reduction in the amount of ad valorem taxes owed by the property owner.” With respect for the majority, I disagree.

¶29. The homestead exemption is a specified deduction from the assessed value of a qualifying dwelling. See Miss.Code Ann. § 27-38-3(1) (Rev.2006). That is not what occurred in this case. Furthermore, section 27-35-147(4) only applies if it is determined that “lands or improvements thereon have been listed as exempt from taxation, but were subject to assessment and taxation on the preceding tax lien date.” None of the Appellants’ properties were ever “listed as exempt from taxation.” Instead, the Assessor assessed all of the Appellants’ properties, but he used the “special income-capitalization approach” to establish value instead of the “ordinary method of valuation” to establish value.

¶ 30. In its brief, the Board notes that the American Heritage Dictionary, 474 (2d College Ed.) defines exemption as “the state of being free from an obligation or duty required of others.” Additionally, the Board cited Clement v. Stone, 195 Miss. 774, 791, 15 So.2d 517, 522 (1943) for the concept that a property tax exemption is a “grant of immunity from tax upon property which persons generally are obligated to pay.” However, that is an extreme oversimplification of the supreme court’s decision in Clement.

¶ 31. In Clement, the supreme court stated as follows:

exemption from taxation has two meanings, one broad and the other narrow. In the broad sense whenever a tax is laid on property which does not apply to all property within the jurisdiction of the taxing authorities, the property not taxed may be said to be exempted.... In its narrower sense an exemption from taxation is the grant of immunity to particular persons or corporations or to persons or corporations of a particular class from a tax upon property or an excise which persons or corporations generally within the same taxing district are obligated to pay.

Id. (citation omitted). Thus, the supreme court did not solely define “exemption” as the Board suggests. In fact, the supreme court refused to find that there had been an exemption in Clement. Id. In so doing, the supreme court stated that “no exemption from taxation will be created by implication.” Id. (citation omitted). Contrary to the supreme court’s decision in Clement, the majority finds, through implication, that the “special income-capitalization approach” that applies to affordable rental housing is actually an exemption — despite the fact that the Legislature does not consider it to be an exemption.

¶ 32. To summarize this case, in 2005, the Legislature amended Mississippi Code Annotated section 27-35-50(4)(d) and specified that tax assessors were to determine the true value of affordable rental housing by using the appraisal procedure set forth in the State Tax Commission’s land appraisal manuals. As the majority noted, the Legislature further specified that a tax assessor shall determine the true value of affordable rental housing by calculating as follows:

actual net operating income attributable to the property, capitalized at a market value capitalization rate prescribed by the State Tax Commission that reflects the prevailing cost of capital for commercial real estate in the geographical market in which the affordable rental housing is located[,] adjusted for the enhanced risk that any recorded land use regulations place on the net operating income from the property.

Miss.Code Ann. § 27-35-50(4)(d). The Appellants were required to provide the Assessor — on or before April 1, 2007 — with an accurate statement of their actual net operating income attributable to their respective properties for the previous year. Id. The Appellants provided the Assessor with the necessary information to determine their tax liability for 2006. It appears that the Appellants were unaware of their continuing obligation to provide the necessary information on an annual basis. The Assessor apparently was also unaware of the Appellants’ annual obligation, because he never notified the Appellants of their obligation or requested any additional information.

¶ 33. When the Board met to equalize the land roll during August 2007, the Board was fully authorized to correct any errors in those assessments. Miss.Code Ann. § 27-35-87 (Rev.2006). Had the Board been aware of the Assessor’s oversight, the Board would have been authorized to order the Appellants to produce “books ... and such other papers as [would] fully inform [it] as to the true value of the property to be assessed” at the August meeting in which the Board sat as an “equalization board.” Miss.Code Ann. § 27-35-97 (Rev.2006). Had the Board requested that information and if the Appellants had failed to comply with that demand, the Appellants would have been precluded from objecting to any resulting assessment. Id. However, it is undisputed that the Board did not correct the Assessor’s oversight. Afterward, the Board and the State Tax Commission finally approved Lee County’s 2007 assessment rolls. See Miss.Code Ann. § 27-31-105 (Rev.2006); § 27-35-113 (Rev.2006). Based on the record, the Appellants’ properties were properly valued pursuant to the “special income-capitalization approach” for affordable rental housing in 2006 and again in 2008. It was only during 2007 that the Board sought to collect an additional $100,000 in ad valorem taxes from the Appellants.

¶ 34. I cannot find that the circumstances that occurred in this case fall within any statutory provision in which modification of an assessment is authorized after final approval of the tax rolls by the Board and the State Tax Commission. Furthermore, I cannot agree with the majority’s logic that the Appellants’ properties were improperly classified or that any taxation rate other than the maximum taxation rate allowable by law amounts to an “exemption.” I would find that the circuit court erred when it held that the Board was authorized to reassess and substantially increase the Appellants’ 2007 ad valorem tax liabilities. Accordingly, I would reverse the judgment of the circuit court and render judgment for the Appellants in the amount of their overpayment of ad valo-rem taxes for 2007.

GRIFFIS, J., JOINS THIS OPINION.

      . For clarity, we have combined both of the Appellants’ issues on appeal, as well as the questions submitted within their brief, into one main issue.

      . Both parties stipulate that the Appellants' properties fall under the "affordable rental housing” category defined in section 27-35-50(4)(d)(i).

      . The Legislature amended 27-35-50 in 2005 to add (4)(d).


author: ISHEE, J.,

text:
    Holley JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-01943-COA.
    Court of Appeals of Mississippi.
    Nov. 2, 2010.
    Rehearing Denied March 8, 2011.
    Certiorari Denied June 2, 2011.
    Holley Jones, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On April 9, 1999, Holley Jones pleaded guilty to armed robbery. The Circuit Court of Washington County sentenced Jones to ten years in the custody of the Mississippi Department of Corrections (MDOC). Jones’s sentence was suspended, and he was placed on five years of probation under the provisions of the Regimented Inmate Discipline program (RID).

¶ 2. On April 5, 2001, an amended sentencing order was entered. The amended order was entered simultaneously with another order removing Jones from the RID program. The amended order further placed Jones on supervised probation for five years or until the trial court altered, terminated, or directed the execution of the sentence.

¶ 3. On February 16, 2006, Jones was charged with the felony of selling cocaine. Subsequently, on April 3, 2006, he was revoked from probation for failure to report, failure to pay court assessments, and committing the felony of selling cocaine. Thereafter, he filed a pro se motion for post-conviction relief (PCR) which was denied by the trial court. He now appeals and asserts: (1) the trial court erred in denying his PCR motion; and (2) his sentence was illegal. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. When reviewing a trial court’s denial of a petition filed pursuant to the Mississippi Uniform Post-Conviction Relief Act, Mississippi Code Annotated section 99-39-1 to -29 (Rev.2007), “[tjhis Court will not disturb the trial court’s decision to deny post-conviction relief unless the trial court’s decision proves to be clearly erroneous. The Court, however, reviews questions of law de novo.” Johnson v. State, 962 So.2d 87, 88-89 (¶ 8) (Miss.Ct.App. 2007) (internal citation omitted).

DISCUSSION

¶ 5. Jones argues that the trial court erred in dismissing his PCR motion because his probation was revoked after its expiration and that his present sentence imposed by the trial court is illegal.

¶ 6. “The right to be free from an illegal sentence is a fundamental right....” Alexander v. State, 879 So.2d 512, 514 (¶ 9) (Miss.Ct.App.2004). Jones’s basis for claiming that he is serving an illegal sentence is his contention that he had completed his five-year probation when it was alleged he failed to meet his probation requirements. The record reflects that Jones was placed on five-year probation on April 5, 2001; hence, his probation would have expired on April 5, 2006. The date of Jones’s charge for the sale of cocaine was February 16, 2006. Therefore, he was within his five-year probation at the time in question, and this issue is without merit.

¶ 7. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES AND MAXWELL, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY. CARLTON, J., NOT PARTICIPATING.


author: MYERS, P.J.,

text:
    Ada M. TUCKER and Clint Moffitt, Appellants v. STATE of Mississippi, Appellee.
    No. 2009-KA-01265-COA.
    Court of Appeals of Mississippi.
    Nov. 23, 2010.
    Rehearing Denied May 31, 2011.

      David G. Hill, Oxford, Ronald D. Michael, Seth Wesley Pounds, Booneville, attorneys for appellants.
    Office of Attorney General by Lisa Lynn Blount, Scott Stuart, Jackson, attorneys for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Ada M. Tucker, Clint Moffitt, and Lillie Norton were indicted by a Benton County grand jury for one count of conspiracy to commit voter fraud and one count of voter fraud. Norton pleaded guilty to voter fraud. Tucker and Moffitt were subsequently convicted by a jury sitting before the Benton County Circuit Court of conspiracy to commit voter fraud, and both were found not guilty of the crime of voter fraud. The circuit court sentenced Tucker to five years in the custody of the Mississippi Department of Corrections, with the first year to be serve in a MDOC facility and the second year under house arrest, with three years of post-release supervision. Moffitt was sentenced to five years in the custody of the MDOC, with the first two years to be served in a MDOC facility and the third year under house arrest, with two years of post-release supervision. Both were ordered to pay a $5,000 fine. On appeal, Tucker and Moffitt raise the following six issues:

I. Whether the trial court erred in allowing unfettered redirect and/or improper hearsay testimony.
II. Whether the trial court erred when it failed to grant the defendants’ motion for a mistrial based on prosecutorial misconduct.
III. Whether an improper comment by the trial court prejudiced the defendants’ right to receive a fair trial.
IV. Whether the trial court erred in refusing to grant defense jury instructions on conspiracy and accomplice testimony.
V. Whether the sufficiency and weight of the evidence are contrary to the verdict.
VI. Whether the cumulative effect of all errors deprived Tucker and Moffitt of a fair trial.

FACTS

¶ 2. In June 2007, the Mississippi Attorney General’s Office (AG) began conducting an undercover investigation into allegations of voter fraud pertaining to absentee ballots in the upcoming Democratic primary election in Benton County to be held on August 7, 2007. Catina Taylor, a registered voter and resident of Benton County, assisted in the AG’s investigation. On July 13, 2007, agents and Catina met at a predetermined location, where the agents outfitted Catina with a hidden camera and a body wire. Catina then drove to Norton’s place of residence. There, Catina told Norton she needed money for a bill that she owed, and she asked Norton if she could get some money for both her and husband’s votes.

¶ 3. Norton placed a phone call to Tucker. Tucker arrived at Norton’s place shortly thereafter. Tucker and Catina talked, and Tucker instructed Catina to go to the circuit clerk’s office and vote by absentee ballot. According to the videotape, Tucker said to Catina: “Tell [Martha] Mitchell that ... you need her help ... to show you people on the [ballot].” Catina then asked Tucker if she “could get her money today?” Tucker indicated yes.

¶ 4. Tucker then made a phone call to Moffitt, a candidate running for Sheriff of Benton County against incumbent Sheriff Arnie McMullen in the August 7 primary. Moffitt arrived at Norton’s residence a short while later. The videotape entered into evidence at trial reveals some of what transpired at that point: After exchanging greetings, Catina said to Moffitt, “I can get a lot of people for you.” Moffitt replied, “I know you can ... I ain’t questioning that.” Catina then said, “I can take my husband in the morning, but I want to do me today.” Moffitt responded, “O.k.” Tucker told Moffitt that Catina “needs the money for her light bill and stuff.” Moffitt told Catina, “just keep communicating with [Tucker] or [Norton].” He then said, “I’ll get you some gas money, because I don’t expect you to go out and help me for nothing.” Tucker again stated that Catina “needed the money for her vote and her husband’s vote so that she could pay her light bill and water bill and that she needed it today.” Moffitt replied, “I’m coming back up here.” Tucker then suggested that Moffitt “could drop it off with [Norton].” Catina said that she would go to the courthouse and vote, and then she would stop by Norton’s residence at 5:00 p.m. Norton interrupted and said she would be at work at the “Citgo” by that time. Moffitt told Catina to “see [Norton] at the Citgo.” Moffitt then stated to Cati-na: “When you’re dealing with these folks ... we ain’t buying no votes, all we’re doing is giving them gas money to go talk for us. That way they can’t hold nothing on you.” Tucker then stated: “We’ll be in the clear; you’ll be in the clear; they’ll be in the clear.” Moffitt again reiterated he was not buying votes. He said, “I strictly give folks gas money, ever how they want to use it, whether it’s on water bills, gas, satellite.... ”

¶ 5. Catina left Norton’s residence and drove to the courthouse. There, Catina spoke with Mitchell, the Circuit Clerk of Benton County. Catina told Mitchell that she wanted to vote by absentee ballot, and she told Mitchell that she needed help reading the ballot. Mitchell directed Cati-na over to one of Mitchell’s deputy clerks. After obtaining some information from Ca-tina, the deputy clerk sent Catina into a room where Catina sat by herself and filled out her absentee ballot. After filling out her ballot, Catina put the ballot into an envelope, which Catina sealed. Catina then left the room, and she handed the envelope to the deputy clerk. The deputy clerk noticed that Catina had failed to sign her name properly across the flap of the envelope. The deputy clerk instructed Ca-tina to go back into the room where she had voted, remove the marked ballot, place it an another envelope, and sign it correctly. At trial, Catina testified that she did not vote for Moffitt.

¶ 6. According to the videotape, Tucker was at the circuit clerk’s office during the time Catina was there. At one point on the videotape, Catina and Tucker walk past each other without speaking.

¶ 7. Later that afternoon, Catina drove to the Citgo where Norton was working. While there, Moffitt called Norton’s cell phone. Catina said she spoke to Moffitt, and he informed her that she did not vote the way “he wanted.” According to Cati-na, she told Moffitt that she still expected to be paid for having “voted.” Catina said that Moffitt then told her to hand the phone back to Norton. Catina said that Norton then paid her forty dollars. According to the videotape, Norton told Cati-na that the money was a “loan,” and she said to Catina, “you can pay me back ... when you can.”

¶ 8. Catina left the Citgo, got into her vehicle, and displayed the money she had received from Norton to the camera. Ca-tina later met with the investigators, where she turned over the money, along with the audio and video equipment.

¶ 9. At trial, Norton, who was called to testify by the State, told the jury that Moffitt had recruited her to help him in his campaign, and he asked her to get in touch with Tucker. Norton testified that she was responsible for driving people to the circuit clerk’s office so that they could vote by absentee ballot. Norton stated that she told the prospective voters to vote for Moffitt, and she instructed them to seek help from Mitchell with their ballots. Norton indicated that she was instructed by Moffitt to give the voters $20 in “gas money.” Norton told the jury that Tucker would reimburse her afterwards.

¶ 10. Norton then gave her version of what had transpired on July 13. According to Norton, Catina came to her house and asked her to call Tucker because she needed money for bills. Norton complied. When Tucker arrived, Tucker instructed Catina on how to vote by absentee ballot and to ask for Mitchell’s assistance when voting. Norton said Tucker then called Moffitt. When Moffitt arrived, he told Catina that he would give her “gas money.” Norton said that she received phone calls later that afternoon from both Tucker and Moffitt, informing her that Catina had not voted for Moffitt. According to Norton, Moffitt told her not to pay Catina because she did not vote for him. Norton said she told Moffitt that he should still pay Catina her “gas money,” because it was the right thing to do. And she told Moffitt that if he did not pay Catina, she would. Norton did not say what, if anything, Moffitt said to her after she told him that. Norton said that she then gave Cati-na $40. According to Norton, Sammie Or-man, Moffitt’s father-in-law, later brought her some money that she claimed was owed to her.

¶ 11. Tucker and Moffitt were found guilty of conspiracy to commit voter fraud. And this appeal followed.

DISCUSSION

I. Improper Redirect and Hearsay Statements

¶ 12. The defendants argue that despite their timely objection, Norton was allowed to testify about hearsay statements allegedly made by Orman, and she was allowed to talk about subject matter not brought out during cross-examination. Specifically, the defendants contend that during Norton’s redirect examination, she stated that the reason she had “conspired” with the defendants was because she was afraid of losing her job. According to the defendants, Norton said Orman had threatened her with her job if she did not help in the “conspiracy.” They claim that the trial court overruled their objection and erroneously allowed the State to proceed with its questions, which resulted in testimony that adversely affected the defendants’ rights to a fair trial.

¶ 13. Evidentiary rulings are within the trial court’s broad discretion and will not be held in error unless the record clearly shows that the trial court abused its discretion. Hall v. State, 785 So.2d 302, 304 (¶ 6) (Miss.Ct.App.2001). Even when found to be erroneous, we will not reverse the trial court’s ruling unless it resulted in unfair prejudice. Id. Accordingly, trial courts are given broad discretion in allowing or disallowing redirect examination of witnesses, and when defense attorneys inquire into a subject matter during cross-examination of the State’s witnesses, prosecutors unquestionably are entitled to elaborate on the subject matter during redirect. Manning v. State, 835 So.2d 94, 99-100 (¶ 15) (Miss.Ct.App.2002).

¶ 14. The record reveals that during Norton’s cross-examination, Norton was asked by defense counsel whether she considered Moffitt to be a friend of hers. Norton replied, “No.” Norton then stated that Moffitt’s “step-dad,” had her working for Moffitt. When defense counsel questioned Norton further, Norton stated that Moffitt’s “step-daddy had her off work” to help Moffitt get elected sheriff. The record also discloses the following colloquy that occurred later in Norton’s cross-examination between Norton and defense counsel:

Q. Now, you told the jury a few minutes ago that [Moffitt] told you that you had to help him?
A. His step-daddy is the one that told me.
Q. But you told the jury that [Moffitt] told you that, didn’t you?
A. Yeah.
Q. Okay. So which one is the truth— that statement or what you told the jury that [Moffitt] basically [had] threatened you to make you work?
A. He didn’t threaten me.
Q. But you did tell them that he made you do it, didn’t you?
A. His step-daddy told me I had to help him.

¶ 15. During the State’s redirect, the following exchange occurred:

Q. Now, [counsel] asked you about whether [Moffitt] [had] threatened you. Who did you work for?
A. I worked for his daddy-in-law.
Q. And was that the only job you had?
A. That was the only one I had right then until they dumped me.
Q. Did you testify your boss, his stepfather, told you to help him with [Mof-fitt’s] campaign?
A. Sure did.
Q. Were you afraid of losing your job if you didn’t do it?
A. I was. I was because he said I can put somebody else in your place, and that’s what he did.

¶ 16. Defense counsel objected at this point on the ground that Norton’s statement was based on hearsay. The State responded, claiming that defense counsel had opened the door on cross-examination. The trial court overruled defense counsel’s objection.

¶ 17. The defendants now claim on appeal that they were never made aware of such testimony, and they maintain that the trial court erred by not sustaining their objection. Based on our review of the record, defense counsel clearly elicited this subject matter on cross-examination, and the State had the right to develop it on redirect. This issue lacks merit.

II. Prosecutorial Misconduct

¶ 18. The defendants argue that they were denied their fundamental rights to a fair trial due to the introduction of unsubstantiated and prejudicial evidence by the State during a speaking objection. The defendants contend that when Norton could not explain during cross-examination why her phone records did not show Tucker’s phone number, the prosecutor objected to defense counsel’s line of questioning, stating: “I believe the defense lawyer is attempting to say that just because [Tucker] didn’t call from her cell phone[,] she didn’t call. I believe there is more than one phone in Benton County. He is arguing with the witness.”

¶ 19. The defendants maintain that they contemporaneously objected to the prosecutor’s speaking objection and asked for a mistrial. But the trial court overruled the objection and denied their request for a mistrial stating that it was not contemporaneously made since defense counsel waited until the end of the State’s speaking objection before defense counsel objected.

¶20. According to the record, defense counsel did not expressly object to the prosecutor’s statement; rather, counsel asked to be heard at the bench, where he immediately then moved for a mistrial on the basis of the prosecutor’s “continuous speaking objections.” The trial court denied the motion and admonished defense counsel for not making a contemporaneous objection.

¶ 21. By failing to make a specific objection, defense counsel prevented the trial court from making a proper ruling and/or taking corrective action. Instead, defense counsel compelled an express ruling on an ore tenus motion for mistrial, which was denied. We decline to hold the trial court in error for a ruling the court did not have an opportunity to make.

¶ 22. Nor do we find that the prosecutor’s statement necessitated a mistrial. Though improper, the statement did not create an unjust prejudice against the defendants so as to result in a decision influenced by prejudice. Jackson v. State, 924 So.2d 531, 542 (¶36) (Miss.Ct.App.2005). Reasonable minds can reach different conclusions from the fact that Tucker’s phone number was not listed on Norton’s phone records, yet still agree on the ultimate fact question of Tucker’s guilt from the evidence as a whole. We find no merit to this issue.

III. Trial Judge’s Comment

¶ 23. The defendants argue that the trial court made a biased statement during the cross-examination of Investigator Roger Cribb which called into question the neutrality, fairness, and impartiality a trial court must hold in the presence of the jury. The defendants contend that defense counsel was thoroughly cross-examining Cribb about Norton’s involvement, if any, in the conspiracy to commit voter fraud with Tucker and Moffitt. At one point, defense counsel was specifically questioning Cribb about what Norton had said on the undercover videotape — that she was only loaning money to Catina. According to the defendants, Cribb’s impression of the transaction on the tape was that Norton was paying Catina for her vote and then went so far as to give his legal theory as to what is or is not against the law with regard to voting. As a result of Cribb’s “unresponsive, long narrations of what he perceived things to be,” defense counsel requested that the trial court instruct the witness to answer the question. The trial judge replied: “If you press too hard, you get more information than you’re looking for sometimes.” This resulted in laughter from the jury.

¶ 24. A lengthy bench conference ensued outside the presence of the jury. The defendants moved for a mistrial on the basis that the jury could have perceived the judge’s comments as placing weight on the evidence. The judge responded that he thought it was a “benign” comment. He said he had meant it in the context that all counsel, the State included, had been asking too many compound questions, and getting responses in kind from the witnesses. The judge said the statement was meant to “expedite things along.” The judge declined to grant a mistrial, and he said he would give a curative instruction. The judge asked defense counsel if they had any suggestions. Defense counsel stood by their motions and left it up to the judge to decide what type of instruction to give to the jury. When the jury was brought back into the courtroom, the judge admonished the jury not to take what he said as commenting on the evidence. He then told the jury that it was not the court’s intention to demean the proceedings.

¶ 25. As the defendants point out on appeal that, “[t]he trial judge always must be circumspect and unbiased, at all times displaying neutrality and fairness in the trial, and consideration for the constitutional rights of the accused.” Simmons v. State, 746 So.2d 302, 307 (¶22) (Miss.1999). We absolutely agree. And we will not hesitate to reverse a case where “the trial judge displays partiality, becomes an advocate, or, in any significant way, conveys to the jury the impression that he has sided with the prosecution[.]” Walden v. State, 29 So.3d 17, 22 (¶ 16) (Miss.Ct.App.2008) (quoting Jones v. State, 669 So.2d 1383,1387 (Miss.1995)).

¶ 26. The following portion of Cribb’s cross-examination reflects what transpired prior to and immediately following the court’s statement:

Q. And [Norton], you claim, was part of the conspiracy?
A. Yes, sir.
Q. And as that conspirator, you were trying to tie them altogether, and my point being is she’s part of the conspiracy, yet she’s saying, I don’t know anything about the money. I’m just hauling folks. That’s what she said, wasn’t it? I don’t know anything about paying people?
A. She may have said that.
Q. Okay.
A. She certainly paid on July the 13th.
Q. That’s your impression.
A. No, sir. That’s on the tape, sir.
Q. Where she gave a loan?
A. Where she gave a loan. If she had gave [sic] a chicken wing for that vote, it would have been the same thing. You can’t give nothing.
Q. I understand that.
A. You can’t even offer anything. Phrase it however you want to, she got money for what [Tucker] told her she was going to get it for, her vote and her husband’s vote.
BY MR. MICHAEL: Your Honor, I’m just asking a question.
A. I’m trying to answer him. I’m trying to answer him.
BY THE COURT: If you press too hard, you get more information than you’re looking for sometimes.
(LAUGHTER BY JURY PANEL)
BY THE COURT: Just try to have a summary short question and expect a short answer.

¶ 27. We find the trial judge’s comment to be harmless. From the context of the statement, it is clear that the trial court was not exhibiting favoritism toward the State or bias toward the defendants. The record, indeed, reveals that prior to the judge’s comment, a number of lengthy questions had been propounded to this witness and those witnesses preceding him, often resulting in lengthy responses. Pri- or to the judge’s remark, the judge had cautioned both parties to shorten their questions and to speed things up for the sake of the jury.

¶ 28. After the remark, the trial judge sought input from both defense counsel on how to mitigate the harm they claim had resulted by his remark. Rather than contribute any suggestions, defense counsel stood by their request for a mistrial, which we find the trial court correctly denied. The trial court handled the matter in the manner the court deemed appropriate and provided a curative instruction. Based on well-settled principle, we presume the jury heeded the court’s directive. We find this issue is without merit.

IV. Defense Jury Instructions

A. Conspiracy

¶29. The defendants contend the trial court erred when it refused to grant defense jury instructions, D1-8A1 and D-8A1 (same instructions for each defendant), concerning the elements the State must prove in order to convict the defendants of conspiracy to commit voter fraud. Specifically, they contend they were prejudiced by the alternative instructions given, D1-8A2 and D-8A2, concerning the elements, due to the term “individuals” being inserted as opposed to “Catina Taylor.” The defendants assert they were charged in their respective indictments with conspiring to influence the absentee vote of Catina Taylor, not “individuals.”

¶ 80. Based on our review of both indictments, both defendants were charged with conspiring to influence the absentee vote of “individuals.” No mention was made of Catina Taylor. Further, the term “individuals” clearly was meant to indicate Catina and her husband. Accordingly, we find no error with the trial court’s refusal to give instructions D1-8A1 and D-8A1.

B. Accomplice Testimony

¶ 31. The defendants argue that the trial court erred by refusing to grant an accomplice-testimony instruction. The proposed instruction, D-4A-1, was in regard to the testimony of Norton, and it states:

In this case, [Norton] is an alleged accomplice. An “Accomplice is someone who knowingly, voluntarily, and with common intent with the principle offender unites in the alleged commission of a crime. The Court instructs the jury that the law looks with suspicion and distrust on the testimony of an accomplice, and requires the jury to weigh that testimony with great care and suspicion. You should weigh the testimony from an accomplice, and determine what weight, if any, you should give that testimony. You should weigh it with great care and opinion, and look upon it with distrust and suspicion.

¶ 32. When determining whether to grant a cautionary instruction based on the testimony of an accomplice, “the trial judge considers whether the witness was in fact an accomplice and whether the witness’s testimony was corroborated.” Williams v. State, 32 So.3d 486, 490 (¶ 12) (Miss.2010) (citing Brown v. State, 890 So.2d 901, 910 (Miss.2004)). “Although granting a cautionary instruction ... is within the trial court’s discretion, such instruction is required when the accomplice’s testimony is the sole basis for the conviction, and the defendant’s guilt is not clearly proven.” Id. The court has further held that where the State’s case is based upon the testimony of an accomplice, corroborated only by a confidential informant, the trial court must accede the defendant’s request and grant a cautionary instruction. See id. at 492 (¶ 21) (reiterating the court’s sentiment that “both accomplice and informant testimony are, ‘by their very nature, looked upon with suspicion and distrust’ ”).

¶ 33. At trial, the State conceded that Norton was an accomplice. But the State argued that her testimony was corroborated both by Catina and the videotape. The State also argued that the trial court could take into consideration whether or not the accomplice’s testimony was unreasonable, self-contradictory, or substantially impeached. For support of the latter contention, the State cited to this Court’s decision in Clemons v. State, 952 So.2d 314, 318 (¶ 12) (Miss.Ct.App.2007), wherein this Court, citing to Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995), held that “[a] cautionary instruction is warranted when the testimony of an accomplice is ‘unreasonable, self contradictory or substantially impeached.’ ”

¶ 34. Williams overruled Clemons and all previous supreme court decisions to the extent they “suggest that accomplice testimony must be ‘unreasonable, self contradictory, or substantially impeached’ before a cautionary jury instruction is required!.]” Williams, 32 So.3d at 491 (¶ 17). Williams explained that this is not the correct test for determining whether a cautionary instruction is warranted. Id. at 490-91 (¶¶ 15-16). And the court held that, in order “for a defendant to be entitled to a cautionary jury instruction, it is only necessary that the accomplice’s testimony be uncorroborated.” Id. at 491 (¶ 17).

¶ 35. Here, Norton’s testimony was corroborated by the testimony of Catina, who acted as a “confidential informant” for the State in this matter. We think it bears noting that Catina was not a typical confidential informant, in that Catina received no remuneration or special favors for her part in the investigation. Assuming such a factor makes no difference under Williams, we still find that there was no abuse of discretion in the trial court’s decision to deny proposed jury instruction D-4A-1. Both Norton’s testimony and Carina’s testimony were corroborated by the videotape. And the information contained on the videotape was the most damning evidence against the defendants. Accordingly, we find no merit to this issue.

Y. Weight and Sufficiency of the Evidence

¶ 36. The defendants argue that the trial court erred by denying their joint motion for a directed verdict, motion for a judgment notwithstanding the verdict, and motion for a new trial. They contend that the State did not present sufficient evidence in its case against them to support a conviction of conspiracy to commit voter fraud. The defendants submit that the only evidence presented by the State to establish a conspiracy between the defendants was the conflicting testimony of alleged co-conspirator, Norton. They contend that despite Norton’s testimony at trial that she was selling votes on behalf of Moffitt, she was heard stating on the videotape that she did not know anything about vote buying and that all she did was carry people to the polls. They also contend that the State failed to present evidence to prove beyond a reasonable doubt that either defendant had intended for Norton to further the conspiracy, which the defendants maintain was never proven to have ever been formed. The defendants further argue that the jury’s verdict is so contrary to the weight of the credible evidence that to allow it to stand would result in a miscarriage of justice. Therefore, the trial court’s denial of said motions should either be reversed and rendered with an acquittal or remanded for a new trial.

¶ 37. “Motions for a directed verdict and a judgment notwithstanding the verdict challenge the legal sufficiency of the evidence, and the standard of review for a directed verdict and a judgment notwithstanding the verdict are identical.” Nelson v. State, 10 So.3d 898, 905 (¶ 29) (Miss.2009). Because each challenge requires consideration of the evidence before the trial court when made, an appellate court reviews the ruling on the last occasion the challenge was made in the trial court. McClain v. State, 625 So.2d 774, 778 (Miss.1993). Here, this occurred when the trial court denied the defendants’ joint motion for a judgment notwithstanding the verdict. Reversal of the trial court’s ruling can occur only when, “after viewing all the evidence in the light most favorable to the verdict, one or more of the elements of the charged offense is such that ‘reasonable and fair-minded jurors could only find the accused not guilty.’ ” Croft v. State, 992 So.2d 1151, 1157 (¶ 24) (Miss.2008) (quoting Wetz v. State, 503 So.2d 803, 808 (Miss.1987)).

¶ 38. A motion for a new trial, based on the weight of the evidence, will be successful only when the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). The reviewing court first views all of the evidence in the light most favorable to the verdict. Id. If the evidence clearly preponderates against the verdict, the proper remedy is to vacate the verdict and order a new trial. Id.

¶ 39. In Griffin v. State, 480 So.2d 1124, 1126 (Miss.1985), our supreme court defined criminal conspiracy as follows:

Conspiracy is a combination of two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose unlawfully, the persons agreeing in order to form the conspiracy. The offense is complete without showing an overt act in furtherance of the conspiracy. Norman v. State, 381 So.2d 1024 (Miss.1980); Moore v. State, 290 So.2d 603 (Miss.1974); Pickett v. State, 139 Miss. 529, 104 So. 358 (1925).

¶ 40. The court went on to say:

There must be recognition on the part of the conspirators that they are entering into a common plan and knowingly intend to further its common purpose. McDonald v. State, 454 So.2d 488 (Miss. 1984). If there is an agreement, then knowledge of that agreement follows. The agreement need not be formal or express[ed], but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators. The principle is stated in 16 Am.Jur.2d Conspiracy § 42 (1979), as follows:
The trial court is allowed great discretion in the reception of circumstantial evidence, for conspiracy generally must be proved by a number of indefinite acts, conditions, and circumstances varying with the purpose to be accomplished. Where it is shown that the defendants by their acts pursued the same object, one performing one part and the other performing another part so as to complete it or the view to its attainment, the jury will be justified in concluding that they were engaged in a conspiracy to effect that object.

Id.

¶ 41. In discussing what evidence will be allowed in to establish a conspiracy case, the Griffin court stated: “Admissible evidence in a conspiracy case covers a wide range[;][c]ommission of an offense is admissible as showing the conspiracy, since what the defendants actually did is evidence of what they intended to do.” Id. (citing King v. State, 123 Miss. 532, 86 So. 339 (1920)).

¶ 42. Viewing the evidence in the light most favorable to the verdict, we find there was sufficient evidence to support the defendants’ convictions of conspiracy to commit voter fraud. Contrary to the defendants’ main contention on this issue, the State’s case did not rest solely on the testimony of Norton. There also was Cati-na’s testimony, as well as the videotape and what it revealed. A jury could reasonably infer from this evidence that the defendants knowingly and willingly entered into an agreement to commit voter fraud by procuring and seeking to influence the absentee votes of individuals by the payment of money.

¶ 43. Also, we find that the evidence does not preponderate so heavily against the verdict as to result in manifest injustice. Any discrepancies in the testimonies were for the jury to weigh and consider.

¶44. For these reasons, we find no merit with this issue.

VI. Cumulative Error

¶ 45. The defendants contend that the cumulative effect of all the errors committed during trial, even if not reversible in themselves, combine to make up reversible error. Citing to Ross v. State, 954 So.2d 968, 1018 (¶ 138) (Miss.2007), the defendants argue that the evidence in this case does not overwhelmingly support the jury’s finding of guilt in this case; therefore, this Court should be more inclined to view the cumulative errors in this case as prejudicial. Ross, a capital-murder case, held the following:

The cumulative error doctrine stems from the doctrine of harmless error, codified under Mississippi Rule of Civil Procedure 61. It holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial. Byrom v. State, 863 So.2d 836, 847 (Miss.2003). As an extension of the harmless error doctrine, prejudicial rulings or events that do not even rise to the level of harmless error will not be aggregated to find reversible error. As when considering whether individual errors are harmless or prejudicial, relevant factors to consider in evaluating a claim of cumulative error include whether the issue of innocence or guilt is close, the quantity and character of the error, and the gravity of the crime charged. See, e.g., Leonard v. State, 114 Nev. 1196, 1216, 969 P.2d 288, 301 (Nev. 1998) (citing Homick v. State, 112 Nev. 304, 316, 913 P.2d 1280, 1289 (1996)). That is, where there is not overwhelming evidence against a defendant, we are more inclined to view cumulative errors as prejudicial. In death penalty cases, all genuine doubts about the harmlessness of error must be resolved in favor of the accused because of the severity of the punishment. See Walker v. State, 913 So.2d 198, 216 (Miss.2005).

Id.

¶ 46. We do not find that the question of guilt to be close with either defendant in this case. As previously mentioned, more than sufficient evidence exists in the record to support the jury’s verdict that both defendants conspired to commit voter fraud. Finding no merit to any of the defendants’ arguments, we find no cumulative error. This issue is without merit.

¶ 47. THE JUDGMENT OF THE CIRCUIT COURT OF BENTON COUNTY OF CONVICTION OF ADA M. TUCKER OF CONSPIRACY TO COMMIT VOTER FRAUD AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE FIRST YEAR TO SERVE IN AN MDOC FACILITY AND THE SECOND YEAR UNDER HOUSE ARREST, WITH THREE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $5,000 FINE, IS AFFIRMED.

¶ 48. THE JUDGMENT OF THE CIRCUIT COURT OF BENTON COUNTY OF CONVICTION OF CLINT MOF-FITT OF CONSPIRACY TO COMMIT VOTER FRAUD AND SENTENCE OF FIVE YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE FIRST TWO YEARS TO SERVE IN AN MDOC FACILITY AND THE THIRD YEAR UNDER HOUSE ARREST, WITH TWO YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $5,000 FINE, IS AFFIRMED.

¶ 49. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, 33., CONCUR.

      . The record indicates that Norton was referring to Orman, Moffitt's father-in-law. Norton also indicated that Orman was her boss, but she did not state in what capacity.


text:
    Anthony NICK, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00339-COA.
    Court of Appeals of Mississippi.
    Nov. 23, 2010.
    Rehearing Denied Feb. 15, 2011.
    Certiorari Denied May 26, 2011.

      Anthony Nick, Appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. On December 13, 2001, Anthony Nick was indicted on two counts: forcible rape and sexual battery. Pursuant to a plea agreement, on September 13, 2005, Nick waived indictment and pleaded guilty to aggravated assault. The rape and sexual battery counts were remanded to the file. Following the agreed recommendation, the circuit court sentenced Nick to twenty years’ imprisonment, to be served consecutively with other sentences he was serving at the time of the plea hearing.

¶ 2. Nick filed the instant motion for post-conviction relief (PCR) on August 7, 2006. After Nick sought and received a writ of mandamus, the circuit court ruled on the PCR motion on April 20, 2009, dismissing it without an evidentiary hearing. Nick appeals, arguing that the circuit court erred in denying relief on several grounds.

STANDARD OF REVIEW

¶ 3. “On appeal, this Court will affirm the summary dismissal of a PCR petition if the petitioner has failed to demonstrate a claim proeedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009) (internal quotations omitted). This Court reviews the dismissal of a PCR motion for an abuse of discretion. Willis v. State, 904 So.2d 200, 201 (¶ 3) (Miss.Ct.App.2005). But we will reverse and remand for a hearing if the movant has “alleged facts which require further inquiry in the expanded setting of an evidentiary hearing.” Mitchener v. State, 964 So.2d 1188, 1192-93 (¶ 10) (Miss.Ct.App.2007) (quoting Jones v. State, 949 So.2d 872, 873 (¶3) (Miss.Ct.App.2007)).

DISCUSSION

1. Speedy Trial; Statute of Limitations; Illegal Sentence

¶ 4. Nick argues that he was denied his right to a speedy trial and that the information for aggravated assault, which he pled guilty to, was filed outside the statute of limitations. We find both arguments without merit, as a valid guilty plea waives all non-jurisdictional rights or defects which are incident to the trial. Madden v. State, 991 So.2d 1231, 1237 (TT 25) (Miss.Ct.App.2008). This includes both the right to a speedy trial, id., and the statute of limitations in a criminal case, Edmondson v. State, 17 So.3d 591, 596 (¶ 11) (Miss.Ct.App.2009). Moreover, it is undisputed that Nick committed the alleged acts on November 3, 2000, well after the Legislature abolished the former two-year statute of limitations for aggravated assault in 1998. See Miss.Code Ann. § 99-1-5 (Supp.2009).

¶ 5. Nick also argues, correctly, that an illegal sentence could not have been similarly waived by his guilty plea. But he simply asserts that his sentence was illegal, without any supporting arguments. Nick implies that his arguments regarding his right to a speedy trial and the statute of limitations demonstrated that the sentence was “illegal,” but as we have already stated, those rights were non-jurisdictional and were properly waived by the entry of a valid guilty plea. We find nothing in the record suggesting that Nick’s sentence was illegal. These issues are without merit.

2. Ineffective Assistance of Counsel

¶ 6. Nick argues that he received constitutionally ineffective assistance of counsel. “In order to prevail on the issue of whether his defense counsel’s performance was ineffective, [the petitioner] must prove that his counsel’s performance was deficient and that he was prejudiced by counsel’s mistakes.” Kinney v. State, 737 So.2d 1038, 1041 (¶8) (Miss.Ct.App.1999) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). A petitioner is required to “allege both prongs of the above test with specific detail.” Coleman v. State, 979 So.2d 731, 735 (¶ 15) (Miss.Ct.App.2008) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)). The burden of proof for both prongs rests with the defendant. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

¶ 7. Nick first argues that his attorneys should have more thoroughly investigated his case and presented mitigating evidence at his sentencing. However, he offers no supporting evidence and no further elaboration as to what mitigating evidence should have been offered. The Mississippi Supreme Court has held that, in cases involving post-conviction relief, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 8. Nick next argues that his trial counsel should have advised him that he would be sentenced as a habitual offender. We find no ineffective assistance of counsel in this respect because it is clear from the record that Nick was not, in fact, sentenced as a habitual offender.

¶ 9. Nick’s final argument under this issue is largely a rehashing of his prior arguments concerning the statute of limitations. As we stated above, Nick waived his right to a speedy trial. We note also that Nick pleaded guilty to aggravated assault, which carries a lesser sentence than rape, for which he was originally charged. Nick offers no evidence that he would have obtained a better result had his attorney further pursued the speedy trial argument. Moreover, we have previously held that the decision not to pursue a speedy trial violation is not ineffective assistance if a defendant waives his right to a speedy trial by pleading guilty. Madden, 991 So.2d at 1237 (¶¶ 25-26). This issue is without merit.

3. Evidentiary Hearing; Conclusion

¶ 10. Nick’s final argument is that the circuit court erred in dismissing his PCR motion without an evidentiary hearing. To be entitled to an evidentiary hearing, “a petitioner must demonstrate, by affidavit or otherwise, that there are unresolved issues of fact that, if concluded favorably to the petitioner, would warrant relief.” McCuiston v. State, 758 So.2d 1082, 1085 (¶ 9) (Miss.Ct.App.2000). A circuit court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the mov-ant is not entitled to any relief.” Miss. Code Ann. § 99-89-11(2) (Supp.2009).

¶ 11. Nick’s argument on this issue is again largely a rehashing of the arguments we have previously addressed and rejected. He adds, however, that if the circuit court had reviewed the transcript of the plea hearing, it would have noted what he alleges are several deficiencies. None of these claims were made in Nick’s original PCR motion and as such, they are proeedurally barred on appeal. “A trial judge cannot be put in error on a matter which was not presented to him for decision.” Ponder v. State, 385 So.2d 885, 886 (Miss.1976). Notwithstanding the procedural bar, we shall address these assertions.

¶ 12. Nick first argues that the circuit court failed to advise him during the plea colloquy of his right to a speedy trial. We note that, as in Hardin v. State, 966 So.2d 844, 847 (¶ 7) (Miss.Ct.App. 2007), this was not error because the circuit court advised Nick that he was waiving his right to a trial. Nick also executed a petition to plead guilty that explicitly stated he had a right to a speedy trial and that he would waive that right by pleading guilty. Nick next alleges that the circuit court failed to advise him of his right to call witnesses, if he were to go to trial, but this is plainly contradicted by the transcript.

13. Nick’s final argument is that the circuit court should have advised him of his right to directly appeal his sentence. When Nick pleaded guilty, section 99-35-101 of the Mississippi Code Annotated (Rev.2007) denied an appeal from the circuit court to the supreme court “in any case 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’). Nonetheless, the circuit court is not required to inform the defendant of his right to a direct appeal of his sentence after he enters a guilty plea. Cook v. State, 990 So.2d 788, 793 (¶ 11) (Miss.Ct.App.2008). We conclude that all of Nick’s arguments are procedurally barred and without merit.

¶ 14. We can find no abuse of discretion in the circuit court’s decision not to grant an evidentiary hearing.

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

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

      . It is unclear whether the circuit court had a transcript of the plea colloquy while considering Nick’s PCR motion. Nick urges that it did not, and he appears to suggest that the circuit court should have produced a copy of the transcript on its own motion. This argument would be without merit. See Smith v. State, 1 So.3d 937, 941 (¶ 13) (Miss.Ct.App. 2009).

      . 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.2009).