author: ISHEE, J.,

text:
    SUPERIOR MANUFACTURING GROUP, INC., Royal Indemnity Company and Twin City Fire Insurance Company, Appellants v. Bill CRABTREE, Appellee.
    No. 2010-WC-00534-COA.
    Court of Appeals of Mississippi.
    May 17, 2011.
    C. Paige Herring, Jackson, Amy Lee Topik, attorneys for appellants.
    Jolly W. Matthews III, Hattiesburg, attorney for appellee.
   ISHEE, J.,

for the Court:

¶ 1. In this appeal, we are not called upon to decide whether the claimant, Bill Crabtree, is entitled to workers’ compensation benefits. Instead, we must determine if the judgment of the Mississippi Workers’ Compensation Commission (the Commission), as upheld by the Jones County Circuit Court, was erroneous in allowing Crabtree to reopen his claim after the administrative judge (AJ) had ruled that he was not eligible for workers’ compensation benefits. The employer and carriers argue that Crabtree failed to carry his burden of proof during the hearing and should not be allowed to reopen his claim to gather additional medical evidence which could have been obtained prior to the hearing. They also argue that the motion to reopen does not comply with the statutory and procedural rules of workers’ compensation law governing reopening a claim. The claimant cites the general rule that the reopening of a case for the purpose of showing vital facts should be liberally allowed. He argues that he should be allowed to reopen his claim to conduct additional discovery in order to “present additional medical evidence which the [AJ] found lacking in the matter.”

¶ 2. The Commission has not issued a final order. Accordingly, we lack jurisdiction to address the merits of this appeal and dismiss.

FACTS AND PROCEDURAL HISTORY

¶ B. A short statement of facts about Crabtree’s work history and claimed injuries is necessary before we move to the matter of law on which we rest our decision. Crabtree performed several jobs for Superior Manufacturing Group, Inc. (Superior) after he was hired at the Moselle, Mississippi plant in 1997 at age forty-seven. Prior to working at Superior, Crab-tree had worked in physical production-based work in other workplaces since his graduation from high school. His first job required that he take bundles of materials from one part of the plant to the sewing-machine operators in another part of the plant. Next he became a spreader for the same employer which required him to place loads of material on a table for cutters. He then went to work as a dump-truck driver and later obtained his commercial driver’s license and worked as a commercial truck driver. In his next job, he cut molding into preset lengths for a furniture manufacturer. After that, he ran a cutting saw for the production of air-conditioning parts.

¶4. Crabtree’s first job with Superior was as an assembler where he put together industrial floor mats. He worked in this capacity for three years, which required that he use different materials such as corrugated steel, rubber, and tile to make floor mats. Crabtree was then transferred to the lamination department where his job was to place rolls of tile upside down on a table, spray them with glue, and then put foam on them to make a mat. He would then use a saw to cut the mat and place the finished mat onto a skid. Crabtree later became a forklift driver for Superior, delivering material to operators around the plant. He testified that sometimes he would lift heavy items and place them on the forklift for delivery. He testified that he weighed about 128 pounds at the time and was about five feet six inches tall and had never worked such hard manual labor before the forklift job.

¶ 5. Crabtree’s first claim for workers’ compensation stems from an incident in August 2008 when he was a forklift driver for Superior. He testified that he looked up at something high; and his right arm went numb, something that had not occurred before. When he took his arm down, he said the arm “would wake back up.” He was sent to Dr. Alan Colvin who referred him to a neurologist, who performed a motor nerve conduction test on him. The test results showed degenerative disc disease in his neck. Dr. Michael Patterson diagnosed Crabtree with chronic neck and back pain on September 12, 2008, which Crabtree told the doctor had persisted for years. He was not a candidate for surgery, so his doctor recommended conservative treatment, including pain medication and injections. In November 2003, a lumbar MRI revealed a broad-based bulge at L4-5, a slight bulge at L5-Sl, and degenerative changes of the lower spine. Superior denied that the alleged injury was work related.

¶ 6. In March 2004, Crabtree alleged he sustained a second injury, this time to his back. Superior again denied that the second injury was work related. One of the doctors who examined Crabtree diagnosed lumbar strain, and the following month, the same doctor noted that Crabtree “had aggravated his back some the other day when he did a normal movement that he does at work ... [and] pretty much exacerbated something that was pre-existing for him.”

¶ 7. Evaluating the medical evidence, the AJ found that Crabtree had failed to carry his burden of showing a causal connection between the two alleged injuries and his job duties. Instead, the AJ stated the following regarding the incident when Crabtree looked up and felt neck and arm pain: “[T]he medical evidence proved only that Claimant had degenerative cervical disc disease. There was no medical evidence of a causal connection to any incident at work and Claimant’s cervical disc problems.” As to the March 2004 back injury, the AJ noted that Crabtree had received prior medical treatment for back pain in August 1994, when an x-ray showed he had “degenerative disc disease at L5-S1.” Dr. Patterson diagnosed him with “mechanical back pain due to degenerative disc disease.” The AJ noted that a lumbar MRI just four months prior to the claimed injury confirmed lower disc bulges and disc degeneration.

¶ 8. Regarding the second claim, the AJ found that Dr. Patterson did not testify whether Crabtree’s degenerative disc disease in his lower back was aggravated or exacerbated by his work incident. The only physician to mention a causal connection concerning either of the claimed injuries was Dr. Susi Folse, who provided pain-management treatment, and who wrote on April 2, 2004, that Crabtree “seems to have aggravated his back some the other day when he did a normal movement at work. He has pretty much exacerbated something that was pre-existing for him.” The AJ found insufficient evidence of a causal connection and stated that the evidence instead showed that the claimed work injury was just “a temporary aggravation of his pre-existing lumbar degenerative disc disease.” Thus, the AJ rejected the second claim.

¶ 9. The AJ’s seventeen-page decision was handed down on October 17, 2008, denying both claims. On November 3, 2008, Crabtree filed a petition to reopen. On June 16, 2009, this Court issued an opinion in Short v. Wilson Meat House, LLC, 37 So.3d 50 (Miss.Ct.App.2009). Short held that the right to reopen a workers’ compensation case for the introduction of testimony should be liberally allowed and that the testimony of doctors is vital to a claimant’s case. Id. at 62 (¶¶ 27-29). Specifically, we stated the claimant’s hearing should be reopened so a letter from his physician, not previously introduced, be allowed into evidence because the letter specifically addressed the issue that the Commission found the claimant had not addressed “that the injury was causally connected to the incident at work.” Id. at 65(¶ 35).

¶ 10. Nine days after the Short opinion was handed down, the AJ in the present case, citing Short, granted Crabtree’s motion to reopen, and she granted a discovery period of ninety additional days. Superior appealed the AJ’s order to the Commission, which affirmed the order. Superior then appealed the Commission’s decision to the circuit court, which also affirmed the Commission’s decision to reopen the case. This Court’s decision in Short was reversed by the Mississippi Supreme Court in June 2010 in Short v. Wilson Meat House, LLC, 36 So.3d 1247 (Miss.2010). The motion to reopen was reversed in part on the very point cited by the AJ as a reason to allow Crabtree to reopen. Thus, Superior now appeals the decision of the circuit court. However, the Commission has not issued a final judgment in this case from which to appeal.

ANALYSIS

¶ 11. We must first address the procedural issue of appealing non-final or interlocutory judgments. We note at the outset that we lack jurisdiction in this matter. This Court has held that “[ijnterlocutory orders by the Workers’ Compensation Commission are not appealable.” Cunningham Enters., Inc. v. Vowell, 937 So.2d 32, 34 (¶ 3) (Miss.Ct.App.2006). Further, an appeal may not be taken unless the Commission’s order is final. Flexible Flyer, Inc. v. Harris, 755 So.2d 50, 51 (¶ 7) (Miss.Ct.App.1999) (citations omitted).

¶ 12. The AJ ordered this case to be reopened to allow for additional medical evidence. The Commission and the circuit court affirmed that decision. Currently, the case is open pending presentation of the medical evidence. Because no final order has been issued and the case remains open, we must dismiss this case for lack of jurisdiction.

¶ 13. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Royal Indemnity Company and Twin City Fire Insurance Company were insurance carriers for Superior Manufacturing, Inc. during the time of the two claims alleged by Crab-tree. Earlier in the litigation, Crabtree’s two claims were consolidated. We will refer to the appellants in this opinion collectively as "Superior.”


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Joe HOWARD, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00923-COA.
    Court of Appeals of Mississippi.
    May 17, 2011.

      Joe Howard, Appellant, pro se.
    Billy L. Gore, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. In Cause #4402, Joe Howard was indicted under Mississippi Code Annotated section 97-3-95 (Rev.2006). for the sexual battery of a child, R.L., who was under fourteen years old. In Cause #4403, Howard was indicted for the sexual battery of a second child, J.M., a male over fourteen years old. Howard was also indicted for sexual battery in Cause # 4404 for another incident involving J.M.

¶ 2. On June 18, 1998, Howard pled guilty to the charges in the Circuit Court of Webster County. The circuit court accepted Howard’s guilty plea and sentenced him to twenty years on each count, which was ordered to be served concurrently.

¶ 3. Since his guilty plea, Howard has filed numerous motions for post-conviction relief (PCR), which have all been denied. Howard first filed his latest PCR motion— a motion for post-conviction DNA testing — with the Mississippi Supreme Court. In its April 16, 2010, order, the supreme court noted that the Circuit Court of Webster County had recently denied Howard’s seventh PCR motion, sanctioned Howard by taking away 180 days of his earned time, and barring Howard from filing any future PCR motions. The supreme court stated that there are exceptions to the successive-writ bar, such as the DNA-evidence exception, that may require the circuit court’s attention. Then, the supreme court dismissed Howard’s motion without prejudice so that he may properly file his motion with the circuit court.

¶ 4. Thereafter, on May 3, 2010, Howard filed his PCR motion with the Circuit Court of Webster County pursuant to Senate Bill 2891. In his motion, Howard argued that: (1) he was innocent of the crimes to which he had pled guilty; (2) there exists “specifically identified” biological evidence not previously tested; and (3) testing will demonstrate to a reasonable probability that he would not have been convicted.

¶ 5. On May 7, 2010, the circuit court summarily dismissed Howard’s motion for post-conviction relief. Aggrieved, Howard now appeals.

ANALYSIS

¶ 6. We will not disturb the circuit court’s dismissal of a PCR motion unless it is clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶2) (Miss.Ct.App.2004). Issues of law are reviewed de novo. Id.

I. Whether Howard is innocent of the crimes for which he pled guilty.

¶ 7. In his first assignment of error, Howard challenges the facts that form the basis of his guilty plea. Specifically, Howard maintains that he did not admit guilt of the sexual batteries to the victims’ relatives.

¶ 8. The Mississippi Uniform Post-Conviction Collateral Relief Act provides a three-year statute of limitations. Miss. Code Ann. § 99-39-5(2) (Supp.2010). Howard pled guilty to the three charges of sexual battery in 1998; he did not file this motion for post-conviction relief until 2010. Thus, it is time-barred.

¶ 9. There are four exceptions to the three-year statute of limitations: (1) an intervening United States Supreme Court or Mississippi Supreme Court decision; (2) newly discovered evidence, not reasonably discoverable at the time of trial; (3) the existence of biological evidence and a showing that testing would probably exonerate the defendant or lessen his sentence; and (4) a claim that the defendant’s probation, parole, or conditional release was unlawfully revoked. Id. In addition, Howard’s claim is successive-writ barred because Howard has previously filed other motions for post-conviction relief. See Miss.Code Ann. § 99-39-23(6) (Supp. 2010). Accordingly, we conclude that the circuit court did not err. This issue lacks merit.

II. Whether the circuit erred by summarily dismissing Howard’s PCR motion.

10. In his second assignment of error, Howard challenges the circuit court’s dismissal of his PCR motion requesting post-conviction DNA testing. As previously noted, Howard indicated that he had filed his motion pursuant to Senate Bill 2891, which died in committee. Instead, it was Senate Bill 2709 that was successfully passed to amend Mississippi Code Annotated section 99 — 39—5(2)(a)(ii), allowing petitioners to file a motion for post-conviction relief requesting DNA testing.

¶ 11. The statute provides, in pertinent part, that:

Excepted from this three-year statute of limitations are those cases in which the petitioner can demonstrate either:
That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.

Miss.Code Ann. § 99—39—5(2)(a)(ii) (Supp. 2010).

¶ 12. The circuit court summarily-dismissed Howard’s motion for post-conviction relief as premature pursuant to Senate Bill 2891. However, since this bill was not passed, its effective date is irrelevant. “[A]ppellate courts generally afford [pro se] litigants some degree of leeway on appeal.” Goodin v. Dep’t of Human Servs., 772 So.2d 1051, 1054 (117) (Miss. 2000). With this in mind, we find that the circuit court should have given Howard the benefit of the doubt and reviewed his PCR motion pursuant to section 99-39-5(2)(a)(ii), which was effective March 16, 2009. Howard filed his motion for post-conviction relief on May 3, 2010. Because Howard’s motion would not have been premature under this statute, we find that the circuit court erred by summarily dismissing Howard’s motion for post-conviction relief on this ground.

¶ 13. Although we disagree with the circuit court’s reasoning for dismissal, we have determined that the right result was reached and affirm on alternate grounds. McClurg v. State, 870 So.2d 681, 682 (¶ 6) (Miss.Ct.App.2004).

A. One Judgment Per Filing

¶ 14. In his PCR motion, Howard attacks three, separate guilty pleas. Mississippi Code Annotated section 99-39-9(2) (Supp.2010) provides that:

A motion shall be limited to the assertion of a claim for relief against one (1) judgment only. If a petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.

Thus, by statute, Howard may only attack one judgment per filing. Shaw v. State, 803 So.2d 1282, 1284-85 (¶ 9) (Miss.Ct.App. 2002). Because Howard has improperly challenged three separate judgments in his PCR motion, the dismissal of his motion was proper on this alternative ground.

¶ 15. Despite this reason of dismissal, we have also determined that Howard’s PCR motion does not comply with section 99-39-5(2)(a)(ii).

B. DNA Evidence

¶ 16. As previously mentioned, section 99—39—5(2) (a) (ii) allows petitioners to request DNA testing of previously tested or untested biological evidence if testing “would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.”

¶ 17. In his PCR motion, Howard claimed that “[tjhere exists specifically identified biological evidence secured in relation to [the] investigation or prosecution [of the crimes] which has not been previously tested.” But on page four of his PCR motion, Howard stated that he had attached supporting documentation to show that there was no existing evidence. As an exhibit to his motion, Howard had attached the “State’s Response to Request for Discovery.” In its response, the State indicated that there were no crime laboratory reports or tests and no physical evidence available. Howard also stated on page nine of his PCR motion that “[t]here was no sexual assault kit test [done] on me or the victims.” Howard repeated these statements in his brief on appeal to this Court.

¶ 18. It plainly appears from the face of Howard’s PCR motion and the attached exhibits that there is no existing biological evidence available for testing in this case. Because Howard has not shown that there is existing biological evidence, we determine that he has failed to meet the requirements of section 99-39-5(2)(a)(ii). Accordingly, his PCR motion was properly dismissed.

CONCLUSION

¶ 19. Although we disagree with the circuit court’s reasoning for the dismissal, the right result was reached, and the judgment is affirmed on the following alternate grounds: (1) Howard improperly challenged more than one judgment in his motion, and (2) there is no existing biological evidence to test, which is required under section 99 — 39—5(2)(a)(ii). The judgment of dismissal is affirmed.

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

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . This Court declines to identify victims of sexual abuse. The minors’ names have been substituted with initials.

      . Senate Bill 2891 died in committee; thus, it was never enacted. 2010 Regular Session Mississippi Legislature, S.B. 2891.


text:
    Brandon WILSON, a minor, Individually and by and through his Father and next friend, Barney Wilson, Appellant v. HIGHPOINTE HOSPITALITY, INC. and Darryl LaPointe, Appellees.
    No. 2010-CA-00193-COA.
    Court of Appeals of Mississippi.
    May 17, 2011.

      Carroll Rhodes, Hazlehurst, attorney for appellant.
    Sandra D. Buchanan, Jackson, attorney for appellees.
   ISHEE, J.,

for the Court:

¶ 1. On June 24, 2004, thirteen-year-old Brandon Wilson (Brandon) was injured in a swimming pool at a Hampton Inn Hotel (the Hotel) located in New Orleans, Louisiana. The Hotel was managed by defendant, Highpointe Hospitality (Highpointe), the president of which was Darryl La-Pointe (LaPointe). Highpointe is a Florida corporation authorized to do business in Louisiana, and LaPointe is a Florida resident. In October 2007, Brandon’s father, Barney Wilson (Wilson), filed suit on Brandon’s behalf in the Circuit Court of Warren County, Mississippi, naming High-pointe and LaPointe, among others, as defendants. Thereafter, Highpointe and La-Pointe filed a motion to dismiss for lack of personal jurisdiction. The circuit court granted the motion, and in December 2009, a final judgment was entered dismissing the case. Aggrieved, Wilson now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2004, Brandon attended a church field trip to New Orleans, Louisiana, where he stayed at the Hotel. The Hotel was managed by Highpointe, a company that was incorporated in Florida and had its principal place of business in Florida. Highpointe was not licensed to do business in Mississippi. The president of High-pointe was LaPointe, who is a Florida resident. Neither defendant engaged in advertising or marketing for the Hotel. However, national, general advertising of the Hampton Inn Hotel franchise was conducted by the Hotel’s parent corporation, Hilton Hotel Corporation, mainly through the Internet.

¶ 3. On June 24, 2004, while staying at the Hotel on a church field trip, Brandon dove into the Hotel’s swimming pool and was injured. Brandon’s father, Wilson, sued on Brandon’s behalf in circuit court, alleging negligence and deceptive advertising. In addition to naming Highpointe and LaPointe in the suit, Wilson also named Crescent City Lodging, Inc., Hilton Hotel Corporation, and Charles Harris as defendants. Crescent City Lodging, Inc. is no longer in business due to extensive damage by Hurricane Katrina. Hilton Hotels Corporation settled with Wilson. Harris never made an appearance in the case, and the record does not reflect whether Wilson ever sought further relief from him.

¶ 4. On August 28, 2008, Highpointe and LaPointe filed a motion to dismiss for lack of personal jurisdiction. The motion was granted in November 2008, and a final judgment was entered in December 2009 dismissing all of Wilson’s claims. Wilson now appeals the circuit court’s ruling on the motion to dismiss. Finding no error, we affirm.

DISCUSSION

¶ 5. The standard of review is de novo for analyzing a trial court’s grant or denial of a motion to dismiss. Smith v. City of Saltillo, 44 So.Sd 438, 439 (¶ 5) (Miss.Ct.App.2010) (citing Spencer v. State, 880 So.2d 1044, 1045 (¶ 6) (Miss.2004)). The following two-prong test exists to determine if a Mississippi court may exercise jurisdiction over a non-resident defendant: (1) whether a defendant is amenable to suit in Mississippi by virtue of the state’s long-arm statute, Mississippi Code Annotated section 13-3-57 (Rev. 2002); and, if so, (2) whether a defendant is “amenable to suit ... consistent with due process.” McDaniel v. Ritter, 556 So.2d 303, 308 n. 4 (Miss.1989) (citation omitted).

¶ 6. Mississippi’s long-arm statute provides, in pertinent part, the following:

Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state.

Miss.Code Ann. § 13-3-57. As such, in order for a Mississippi court to establish personal jurisdiction over a defendant, the plaintiff must show that the defendant falls within the “contract,” “tort,” or the “doing business” prong of the long-arm statute. Id. To be considered as “doing business,” the defendant must meet the following requirements: “(1) the nonresident corporation must purposefully do some act or consummate a transaction in Mississippi; (2) the cause of action must either arise from or be connected with the act or transaction; and (3) the assumption of jurisdiction by Mississippi must not offend traditional notions of fair play and substantial justice.” Williams v. Bud Wilson’s Mobile Home Serv., 887 So.2d 830, 832 (¶ 9) (Miss.Ct.App.2004) (citing Gross v. Chevrolet Country, Inc., 655 So.2d 873, 877 (Miss.1995)).

¶ 7. In this case, Highpointe and La-Pointe did not enter into a contract with a Mississippi resident to be performed in any way, shape, or form in Mississippi. Nor did Highpointe and LaPointe commit a tort in Mississippi. Any injury or damages to Wilson would have occurred in Louisiana.

¶8. Regardless, Wilson claims personal jurisdiction attaches in that Highpointe and LaPointe were “doing business” in Mississippi due to the advertising which was conducted by Hilton Hotels Corporation on behalf of its franchise, Hampton Inn Hotels. However, Wilson’s argument fails the “ ‘doing business’ in Mississippi” test discussed above.

¶ 9. The record reflects that Highpointe and LaPointe did not purposefully do any act or consummate any transaction in Mississippi. While Wilson asserts that the advertising in question constitutes “doing business” in Mississippi, neither High-pointe nor LaPointe were involved in the advertising. The advertising was planned and executed solely by Hilton Hotels Corporation as part of a national, generalized advertising plan.

¶ 10. The record further reflects that neither Highpointe nor LaPointe do business in Mississippi; neither have any connection to Mississippi; and they have not received any benefits or protections from Mississippi. Additionally, the church sponsoring the field trip during which Brandon was injured, initiated the phone call to the Hotel in order to solicit information from the Hotel. Accordingly, it is clear that neither Highpointe nor LaPointe has purposefully availed itself to the State of Mississippi.

¶ 11. Finally, even assuming arguendo that Highpointe and LaPointe were to fall within Mississippi’s long-arm statute, an exercise of personal jurisdiction over either Highpointe or LaPointe would be inconsistent with due process. Since High-pointe and LaPointe clearly do not have sufficient minimum contacts with Mississippi, an attempt to exercise jurisdiction would fail to satisfy the due-process notions of “fair play and substantial justice.” Int'l Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

¶ 12. As stated by the United States Supreme Court, a trial court must be satisfied by the plaintiffs showing that the defendant did “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Additionally, the defendant’s “conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

¶ 13. Here, neither Highpointe nor La-Pointe had any contacts with Mississippi whatsoever, and neither had reason to anticipate being a party to litigation here. Accordingly, because we find that no personal jurisdiction exists over Highpointe and LaPointe, we affirm the ruling of the Warren County Circuit Court granting the motion to dismiss Wilson’s ease.

¶ 14. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.


author: LEE, C.J., CARLTON, J.,

text:
    Christopher Lamon MINOR, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00497-COA.
    Court of Appeals of Mississippi.
    May 24, 2011.

      W. Daniel Hinchcliff, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Christopher Minor was indicted in the Circuit Court of Copiah County on two counts of sexual battery and one count of touching and fondling for lustful purposes. One of the two counts of sexual battery was dismissed prior to trial. Minor was found guilty of the two remaining counts. During sentencing, the trial court found that Minor was guilty of one crime because the fondling conviction merged with the sexual-battery conviction. Minor was sentenced to two concurrent fifteen-year sentences in the custody of the Mississippi Department of Corrections.

¶ 2. Minor now appeals, arguing that the trial court erred in ordering him to serve two separate sentences after merging the two counts charged in the indictment. The State agrees that the sentencing order should be clarified or, in the alternative, that Minor be re-sentenced.

FACTS

¶ 3. Minor’s daughter, Jane, who was twelve years old at the time, accused Minor of touching her inappropriately. Specifically, Jane testified that Minor “took [her] underpants off and put his tongue between [her] front, [her] private area....” She testified that he told her not to tell anyone this happened. Jane stated that this happened more than once, although she went on to state that Minor did not take her pants off more than one time. She also testified that he showed her “nasty pictures” and let her drink beer.

DISCUSSION

¶ 4. Minor argues that allowing his two sentences to stand would be a violation of double jeopardy. He asserts that the two counts -with which he was charged stem from the same action; thus, he was subjected to double jeopardy because he received two separate sentences.

¶ 5. Minor was indicted under Mississippi Code Annotated sections 97-3-95 (Rev. 2006) and 97-5-23 (Rev.2006). Section 97-3-95(2), sexual battery, states: “A person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child’s ... parent.... ” Section 97-5-23(2), gratification of lust, states:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself and under the age of eighteen (18) years who is not such person’s spouse, with or without the child’s consent, when the person occupies a position of trust or authority over the child shall be guilty of a felony....

¶ 6. Count I of the indictment was dismissed. Count II charged Minor with “placing his tongue into the vagina of the [victim]” in violation of section 97-3-95. Count III stated that Minor “did wilfully, unlawfully and feloniously lick the vagina of the victim” in violation of section 97-5-23.

¶ 7. The trial judge made the following statement during Minor’s sentencing:

... [F]irst of all, for the record, I find that these two counts merge. I believe that the — because of the testimony that was introduced in the trial of this cause, I believe that both Count A, which was Count 2 of the indictment, and Count B, which was Count 3 in the indictment — I do believe that the two counts merge because of the testimony. So I’m going to — only going to sentence as to one— one thing. So therefore, the Court, for the — as to Count 2, the sexual battery— as to Count 2, the Court hereby sentences you to serve 15 years in the custody of the Mississippi Department of Corrections. I will also sentence you to serve 15 years in the custody of the Mississippi Department of Corrections as to Count B, or Count 3 of the indictment. However, I will allow these two sentences to run concurrently, one with the other, which will give you one 15-year sentence to serve.

The sentencing order also reflects that the trial court “merge[d] the two counts as one” and ordered that the two fifteen-year sentences “run concurrently one with the other.”

¶ 8. The Mississippi Supreme Court held in Friley v. State, 879 So.2d 1031, 1035 (¶ 18) (Miss.2004), that when penetration is achieved by touching a child who is under the age of consent, gratification of lust is a lesser-included offense of sexual battery. Because it was impossible in this case for Minor to have committed sexual battery without also having committed the crime of gratification of lust, the two crimes must be merged. Id.

¶ 9. One of the protections of double jeopardy is “against multiple punishments for the same criminal offense.” Gibson v. State, 818 So.2d 372, 375 (¶ 10) (Miss.Ct.App.2002) (citing Thomas v. State, 711 So.2d 867, 870 (¶14) (Miss.1998)). “We apply a de novo standard of review to claims of double jeopardy.” Woods v. State, 30 So.3d 362, 365 (¶8) (Miss.Ct.App.2009) (quoting Boyd v. State, 977 So.2d 329, 334 (¶ 14) (Miss.2008)). “[A] conviction can withstand [a] double-jeopardy analysis only if each offense contains an element not contained in the other.” Boyd, 977 So.2d at 334 (¶ 16) (citation omitted). “If they do not, the two offenses are, for double-jeopardy purposes, considered the same offense, barring prosecution and punishment for both.” Id. (citation omitted). Minor cannot be found guilty of both crimes without his right against double jeopardy being violated.

¶ 10. The dissent asserts that sufficient evidence exists to support separate acts of gratification of lust and sexual battery; thus, merger was unnecessary. We agree that if Minor committed the same act on more than one occasion, the separate charges could have stood on their own and would have been appropriate. However, the trial judge found insufficient evidence to support convictions based on two separate acts. After hearing the testimony, the trial judge determined that Counts II and III of the indictment stemmed from a single act. Count II stated that Minor “plac[ed] his tongue into the vagina of the [victim],” and Count III stated that Minor “lick[ed] the vagina of the victim.” Jane was asked repeatedly “how many times did he come in and take your pants off ... ?” Each time Jane responded that it was not more than one time. The trial judge stated that “because of the testimony that was introduced,” only one conviction was supported. We find that the trial judge’s decision was consistent with the evidence.

¶ 11. Minor should not have received two sentences, regardless of the fact that the sentences were ordered to run concurrently. The trial court recognized this by merging the two convictions. Nonetheless, the trial court ordered two separate sentences. We affirm the jury’s guilty verdict of sexual battery. However, we reverse and render as to the conviction of gratification of lust because it arose from the same event underlying the sexual-battery charge. Because the crimes merged, Minor is to serve a single fifteen-year sentence for sexual battery.

¶ 12. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT OF CONVICTION OF COUNT II, SEXUAL BATTERY, AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. THE JUDGMENT OF CONVICTION OF COUNT III, GRATIFICATION OF LUST, AND THE CONCURRENT SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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

CARLTON, J.,

Dissenting:

¶ 13. I respectfully dissent. The majority reverses and renders Christopher Minor’s conviction for gratification of lust. The majority opinion states that the gratification-of-lust conviction arose from the same event underlying the sexual-battery charge; thus, the two crimes must be merged. I disagree.

¶ 14. Minor was indicted for three separate counts for committing three sexual offenses upon his daughter when she was eight years old. The State dismissed one of the two counts of sexual battery prior to trial. Minor thereafter faced trial on one count of sexual battery and one count of committing gratification of lust upon his minor daughter when she was eight years old. Unfortunately, his daughter was twelve years old at the time of trial. Nonetheless, a review of the record reflects evidence and inferences reasonably drawn from the testimony that support the jury’s verdict convicting Minor of these separate offenses.

¶ 15. Count I of the indictment charged Minor with committing sexual battery upon his daughter by inserting his penis into her mouth on or about and between February 5, 2006, and the August 12, 2006. Count II of the indictment charged him with committing sexual battery against his daughter by placing his tongue into her vagina between the dates of February 5, 2006, and August 12, 2006. Then, in Count III, the State indicted Minor for unlawfully licking his minor daughter for the purpose of gratifying his lust between the February 5, 2006, and August 12, 2006.

¶ 16. Mississippi Code Annotated section 97-5-23 (Rev.2006) sets forth the offense of lustful touching of a minor, or fondling, and this offense requires a touching for gratification of lustful purposes but requires no penetration. Mississippi Code Annotated section 97-3-95 (Rev.2006) sets forth the offense of sexual battery and requires proof of penetration to prove this offense. When the lustful touching occurs on the same occasion and as a part of the act of penetrating the victim, then the convictions, in my view, could be merged, as done by the majority, as a lesser-included offense. However, the evidence in this case supports separately convicting and sentencing Minor for the separate offenses of fondling and sexual battery occurring on different occasions between the months of February 5, 2006, and August 12, 2006. Therefore, I submit that the majority inappropriately merges the convictions. See Tapper v. State, 47 So.3d 95, 103 (¶ 30) (Miss.2010) (no merging where the unlawful-touching counts concern separate events from the sexual-battery counts); Steward v. State, 18 So.3d 895, 897-98 (¶ 7) (Miss.Ct.App.2009) (“[T]he indictment charged that the fondling occurred over a period of time that included the specific date of the sexual battery, but that fact does not mandate that the fondling charge merged into the sexual battery charge. Sexual battery and fondling are separate crimes.”).

¶ 17. In finding that the evidence herein supports separate convictions for separate underlying acts, I acknowledge that the prosecutor failed to elicit much factual detail of the offenses during the trial and also failed to elicit clarification from Minor’s daughter, Jane, during her testimony. Jane testified as to the details of only one of the occasions of abuse, but she also testified that Minor abused her like this more than once, stating:

Q: Now, how often would your daddy do this to you?
A: I know he did it more than once.
Q: You know he did it more than once?
A: Yes.
Q: And he did it several times?
A: Yes, sir.
Q: And would he do the same thing every time?
A: No, sir.

Jane also began to describe another occasion that occurred in New Orleans, Louisiana. I recognize that no testimony was elicited to clarify the other acts or other times, but logical inferences that other instances of abuse occurred may be made from the evidence provided in Jane’s testimony. Broomfield v. State, 878 So.2d 207, 215 (¶ 31) (Miss.Ct.App.2004) (“Our system of justice allows the jury to make logical and reasonable inferences and presumptions.”).

¶ 18. In addition to Jane’s testimony, the record contains the testimony of her therapist, Chris Huff, who testified that Jane had told him about two occasions of sexual abuse. Again, Huff only testified as to the details of one occasion. Jane’s and Huffs testimonies also laid the foundation of physical signs of continued sexual abuse during the time period of Minor’s visitation.

¶ 19. As stated, Jane was eight years old at the time the offenses occurred, but she was twelve years old at the time of trial. Jane’s testimony in court reflected a child’s concept of time and was clouded with pain. Jane testified that when her father would pick her up for visitation during the indicted time frame, he would take her to his mother’s house. With respect to when the abuse began, Jane testified that her father started touching her inappropriately sometime after the time of her birthday in February 2006. Minor’s visitation ended in August 2006 when the child disclosed the abuse to her mother.

¶ 20. Jane testified that on more than one occasion, Minor climbed into the top bunk of the bunk bed with her and took her underpants off and then put his tongue in her “front, private area.” She testified that she did not remember exactly how many times her father did this to her, but she knew he did it more than once. Jane testified that Minor did not perform the same acts or “do the same thing” each time. She also referred to an occasion when he took her to Louisiana and made her “watch nasty pictures, stuff like that.”

¶ 21. Huff, Jane’s therapist, testified that upon disclosure of the abuse, Jane possessed difficulty talking about the events with him. Corroborating Jane’s testimony of abuse occurring on more than one occasion, Huff testified that Jane told him about two incidents where her father sexually abused her, and he stated that Jane told him that the first occasion took place on the top bunk at her grandmother’s house during a visitation with her father. Huff testified that Jane told him that Minor had kissed her on her mouth a lot, and Minor took Jane’s clothes off, rubbed her private area, and locked her in a closet. Huff stated that Jane also told him about her father putting his tongue in her privates.

¶ 22. Jane’s mother testified that when Jane disclosed or “spilled” to her about the sexual abuse, that Jane “spilled it all, no dates.” Her mother also stated that Jane shared knowledge sexually inappropriate for her age. With respect to the date that the abuse ended, Jane’s mother testified that her daughter disclosed the abuse to her in August 2006, and she immediately took Jane to the hospital and notified the sheriffs department. Jane’s mother explained that discussing the abuse by her father is painful for Jane, and the only time Jane talks about what happened is during her counseling sessions. She also explained that Jane revealed, however, that sexual abuse did occur when she went with her father to Louisiana for two weeks.

¶ 23. Providing circumstantial evidence of continued sexual abuse, Jane’s mother further testified that during the time period in question, her daughter’s behavior changed when she would return home from a visit with Minor. With respect to specific behavior changes, her mother observed that Jane appeared depressed when she returned home from visitation, her grades suffered; and upon her return, she immediately started wetting the bed at night. Based upon our review, the record reflects that the jury heard testimony and circumstantial evidence of sexual abuse occurring on more than one occasion.

¶ 24. Jerry Spell, an investigator with the Copiah County Sheriffs Department, arrested Minor in August 2006. Spell testified that when he questioned Minor about Jane’s allegations, Minor stated that he was “just trying to teach her something.”

¶ 25. Upon review, Minor faced trial on two counts charging separate offenses of sexual battery and gratification of lust upon his daughter by licking her private area between the time period of February 5, 2006, and August 12, 2006. A jury heard the evidence, deliberated, and convicted Minor for those separate offenses set forth in those two counts. In support of the jury’s verdict, Jane testified before the jury that her father had engaged in different sexual acts with her on more than one occasion, and she specified that on one occasion, her father placed his tongue in her front private area. This testimony in my view supports his conviction for sexual battery for penetrating her with his tongue. Jane also testified that Minor did not perform the same acts each time. Huff testified that Jane revealed that Minor had kissed Jane on her mouth a lot, took her clothes off, rubbed her private area, put his tongue in her front private area, and performed sexual abuse on her on two occasions. This testimony of rubbing her private area and kissing her mouth a lot supports a conviction for fondling occurring on more than one occasion. Therefore, in my view, this testimony is sufficient to support a conviction and sentencing as to both counts. See Bush v. State, 895 So.2d 836, 843-44 (¶¶ 16-17) (Miss.2005). If this evidence is not considered sufficient, the record contains further corroborating and circumstantial evidence.

¶ 26. Jane’s mother also testified as to Jane’s disclosure of the sexual abuse on August 12, 2006, as well as Jane’s changed behavior, bed wetting, and depressed mood in the months prior to the disclosure of the abuse upon returning from visitation with her father between February 5, 2006, and August 12, 2006. Huff acknowledged Jane’s difficulty in discussing the abuse performed upon her by her father.

¶27. Based on the foregoing, a jury could reasonably infer from this evidence that sexual abuse occurred throughout this period of visitation. After reviewing the record, I respectfully submit that the jury received sufficient evidence and reasonable inferences to support separate convictions and sentences for the offenses of sexual battery and for gratification of lust occurring between the dates of February 5, 2006, and August 12, 2006. Therefore, I must respectfully dissent from the majority’s decision to reverse and render as to Minor’s conviction of gratification of lust.

      . This Court declines to identify minor victims of sexual crimes. An alias has been substituted for the minor's name.

      . Also referred to as the offense of fondling.

      . Count one was later dismissed prior to trial.

      . Her therapist, Huff, testified that Jane had told him about two incidents wherein her father sexually abused her. The therapist testified that Jane told him her father kissed her on her mouth a lot and rubbed her private area.

      . I acknowledge that the record reflects that testimony was not elicited from Jane as to what other acts Minor performed on her. The record shows she testified that he licked in her front private on more than one occasion and that he did not perform the same acts each time.

      .Huff’s testimony reflects only that Jane told him of two incidents of abuse that occurred, but Huff provided no testimony as to what occurred on those two occasions of abuse.


text:
    Juan PEREZ, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00906-COA.
    Court of Appeals of Mississippi.
    May 24, 2011.
    Juan Perez, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. In the Harrison County Circuit Court on March 10, 2003, Juan Perez entered a guilty plea to possession of a controlled substance with intent. He was found to be a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007), and he was sentenced to fifteen years, day for day, in the custody of the Mississippi Department of Corrections (MDOC). Perez filed his motion for post-conviction relief (PCR) on November 3, 2009, alleging that the circuit court erred in sentencing him as a habitual offender and that he had ineffective assistance of counsel. The circuit judge denied Perez’s PCR motion on April 27, 2010. Perez now appeals.

¶ 2. Finding no error, we affirm the circuit court’s denial.

FACTS AND PROCEDURAL HISTORY

¶ 3. Perez, also known as Alfonso Ninov, was indicted as a habitual offender on the charge of possession of a controlled substance with intent. This charge stemmed from an incident on January 29, 2002, where Perez was found in possession of more than ten but less than thirty grams of cocaine in violation of Mississippi Code Annotated section 41-29-139(c)(l)(D) (Rev. 2009). The minimum sentence for this violation is imprisonment for six years; the maximum sentence is imprisonment for twenty-four years. Perez was also found to be a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 for his two prior felony convictions in Florida.

¶ 4. Perez and his attorney appeared before the circuit judge on March 10, 2003, to plead guilty to the charge. At the plea hearing, Perez and the circuit judge discussed Perez’s two prior felony convictions in Florida. Perez acknowledged that he was convicted in 1971 and sentenced to a total of eight years’ imprisonment. He also acknowledged that his second conviction in Florida occurred in 1992 and resulted in a fifteen-year sentence of imprisonment. The State recommended that Perez serve fifteen years, day for day, in the custody of the MDOC. After being satisfied that Perez was guilty and his guilty plea was entered voluntarily, the circuit judge followed the State’s recommendation and sentenced Perez to fifteen years in the custody of the MDOC.

¶ 5. In November 2009, six years after he was sentenced, Perez filed a PCR motion in the circuit court alleging that the circuit court erred in sentencing him as a habitual offender and that he received ineffective assistance of counsel. The circuit court found that Perez was time-barred from filing the PCR motion since it was filed more than three years after his sentence was imposed. The circuit court further found that, time bar notwithstanding, Perez was properly sentenced as a habitual offender and that he had received adequate assistance of counsel at his guilty plea hearing. The circuit court denied Perez’s PCR motion, and it is from this denial that Perez appeals.

¶ 6. On appeal, Perez asserts that he is excepted from the time bar due to intervening United States Supreme Court or Mississippi Supreme Court decisions that would have affected the outcome of the trial. He further asserts that he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 7. When the circuit court denies a PCR motion, this Court will not reverse that decision unless it was clearly erroneous. Jones v. State, 904 So.2d 1107, 1108 (¶ 3) (Miss.Ct.App.2004).

ANALYSIS

¶ 8. In the circuit court’s opinion denying the PCR motion, it found that Perez was time-barred from bringing his PCR motion. Mississippi Code Annotated section 99-39-5(2) (Supp.2010) requires a person who entered a guilty plea and is now seeking relief through the filing of a PCR motion must do so “within three (3) years after entry of the judgment of conviction.” It is clear from the record that Perez entered his guilty plea on March 10, 2003; he did not file his PCR motion until November 2009. He was unquestionably outside of the three-year period when he filed his PCR motion. However, within Mississippi Code Annotated section 99-39-5, the Legislature provided some exceptions to the three-year bar. In order for Perez to bring his PCR motion, he must demonstrate that his case falls within one of the exceptions.

¶ 9. Perez asserts that, pursuant to Mississippi Code Annotated section 99-39-5(2)(a)(i), he is excepted from the time bar because there has been an intervening decision by the United States Supreme Court or the Mississippi Supreme Court that “would have actually adversely affected the outcome of his conviction or sentence.” He relies on Short v. State, 929 So.2d 420 (Miss.Ct.App.2006), as an intervening decision to argue that the State failed to provide sufficient evidence to show that he was a habitual offender. Anthony Short was convicted of possession of a firearm by a convicted felon and sentenced, as a habitual offender, to three years in the custody of the MDOC. Short, 929 So.2d at 422 (¶ 1). On appeal, Short’s conviction was affirmed, but his case was reversed and remanded for re-sentencing because the State failed to provide sufficient evidence of Short’s prior convictions. Id. at 423 (¶ 2). This Court found:

[the] record show[ed] that no proof of any of these convictions was introduced as an exhibit or even mentioned during Short’s trial or at sentencing. The sole evidence that Short had previously been convicted of a felony was his stipulation to an element of the offense of possession of a firearm by a convicted felon in which he admitted to having been convicted of “a felony or felonies.”

Id. at 426 (¶ 18). In addition to Short not being a Mississippi Supreme Court or United States Supreme Court ease as required by the language of the statute, Perez’s own case differs from the facts of the Short case. In the case before us, the circuit judge thoroughly questioned Perez about his two prior felony convictions in Florida. Perez responded to the circuit judge’s questions about each prior conviction in the affirmative. The circuit judge and Perez even discussed whether the state jail or the federal jail in Florida had a nicer facility. Mississippi law has made clear that “[a]dmissions to prior criminal convictions are sufficient to permit a finding of habitual status.” Sanders v. State, 786 So.2d 1078, 1082 (¶ 14) (Miss.Ct.App.2001). We hold that Perez’s in-court admissions of his prior criminal convictions in Florida are sufficient prove his status as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81; thus, Short is not an intervening decision that would have affected the outcome of his sentence or conviction and is not a case that provides Perez with an exception from the three-year bar.

¶ 10. In his brief, Perez cites a plethora of cases as “intervening decisions” sufficient to except him from the time bar. For example, he cites Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) to argue that his sentence as a habitual offender was illegal since his sentence was enhanced without a jury determination. We will not address the merit of his argument since Apprendi was decided before Perez’s sentence; thus, it is not an “intervening decision” that would except Perez from the time bar. With the exception of the Short case, the only other case cited that could be deemed intervening is Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 1478, 176 L.Ed.2d 284 (2010), which involves an ineffective-assistance-of counsel claim. Jose Padilla’s counsel failed to discuss the possibility of deportation with him before he entered his guilty plea. Id. The Supreme Court held that counsel must inform the client of “whether his plea carries a risk of deportation[.]” Id. at 1476. At Perez’s guilty plea hearing, the circuit judge and Perez discussed deportation. The transcript provides:

MR. [PEREZ]: I don’t think so, sir. I’ve been deported.
THE COURT: Why aren’t you deported now?
MR. [PEREZ]: Because Castro [w]on’t take us in Cuba[,] and we have to stay in America[,] even in jail. I lost all my rights, social security, all that.

Although we recognize that Padilla is a Supreme Court case decided after Perez’s sentence was imposed, we find that the decision would not “have actually adversely affected the outcome of his conviction or sentence....” Miss.Code Ann. § 99-39-5(2)(a)(i).

¶ 11. We hold that Perez’s PCR claim was properly denied as time-barred by the three-year bar with no applicable exception pursuant to Mississippi Code Annotated section 99-39-5(2). Because we find that Perez was time-barred from bringing the PCR motion, we will not address the remaining issues in his brief.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., NOT PARTICIPATING.

      . Mississippi Code Annotated section 99-19-81 provides that a person convicted of a felony in Mississippi may be deemed a habitual offender when it is shown that he has:
      [B]een convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and [he] shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere[.]
      If that person is found to be a habitual offender, he "shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall [he] be eligible for parole or probation." Id.

      . The remaining cases Perez cites in his brief were all decided prior to his sentencing in 2003.


author: BOLIN, Justice.

text:
    Christopher M. PRIEST, as guardian ad litem for the unknown heirs of William Buxton and Judy Buxton v. ERNEST W. BALL & ASSOCIATES, INC., et al.
    1091334.
    Supreme Court of Alabama.
    Nov. 19, 2010.
    Christopher M. Priest of Blackburn, Ma-loney & Schuppert, LLC, Decatur, for appellant.
    J. Timothy Kyle of Russell, Straub & Kyle, Decatur, for appellees William Bux-ton and Judy Buxton.
   BOLIN, Justice.

This appeal is from a judgment in a declaratory-judgment action seeking an interpretation and declaration of the legal effect of certain language in a deed.

Facts and Procedural History

On November 6, 2008, William Buxton and Judy Buxton filed a complaint for a judgment declaring certain language in a deed conveying real property to them to be a conveyance of the property in fee simple with a right of survivorship. The Buxtons brought the action against the law firm Ernest W. Ball & Associates, Inc. (hereinafter “Ball”), that had prepared the deed. The deed was attached to the complaint and states as follows:

“KNOW ALL MEN BY THESE PRESENTS, that for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration to the undersigned Grantors, in hand paid by the Grantees herein, the receipt whereof is hereby acknowledged, THOMAS F. LOPPNOW AND WIFE, RONNA L. LOPPNOW, herein referred to as Grantors, do hereby grant, bargain, sell and convey unto WILLIAM BUXTON AND JUDY BUXTON, HUSBAND AND WIFE, herein referred to as Grantees, for and during their life and upon their death, then to their heirs in fee simple, together with every contingent remainder and right of reversion, the following described real estate hereinafter the ‘Premises’, situated in MORGAN County, Alabama, to-wit
“[Description of the property]
“THERE ARE EXCEPTED FROM THE WARRANTIES OF THIS DEED ALL EASEMENTS, RESTRICTIONS OF RECORD, AND CURRENT AD VALOREM TAXES.
“AND SAID GRANTORS DO, for themselves and their heirs and assigns, covenant with said Grantees, their heirs and assigns that they are lawfully seized in fee simple of said premises; that it is free from all encumbrances, except as otherwise noted above, that they have a good right to sell and convey the said premises; that they will warrant and defend the same unto the said Grantees, their heirs, executors and assigns forever, against the lawful claims of said Grantors and all persons claiming by and through said Grantors, but not against the claims of any others, except for current ad valorem taxes, restrictions, easements, ways and building setback lines applicable to the above described property, if any, as shown of record in said Probate Office.”

Ball answered and asserted several affirmative defenses. On January 7, 2009, the Buxtons filed a motion for a summary judgment. On March 24, 2009, the Bux-tons filed a motion to add Blake Horton and Devon Horton as defendants because their interests might be adversely affected by a judgment and to appoint a guardian ad litem to represent any unknown heirs of the Buxtons. On May 1, 2009, the trial court added the Hortons as defendants and appointed Christopher M. Priest as guardian ad litem. On May 18, 2009, Priest filed an answer. On September 28, 2009, Priest filed a response to the Bux-tons’ summary-judgment motion. On May 25, 2010, Ernest Ball, a principal in Ball, filed an affidavit stating:

“I am an attorney and the owner of the law firm, Ernest W. Ball & Associates, Inc. On May 27, 2003, my firm prepared a deed in which property was purchased by the [Buxtons]. The deed was recorded at Book 2003, Page 3781 in the Probate Office of Morgan County, Alabama on May 29, 2003.
“The deed stated that the property was conveyed to the [Buxtons] ‘for and during their life and upon their death, then to their heirs in fee simple, together with every contingent remainder and right of reversion.’ (hereinafter ‘the Subject Language’). The Subject Language is ambiguous and not very clear so in at least 75 deeds in Morgan County alone, the language has been construed to convey a fee simple interest as evidence of the deed being overwritten.”

On May 26, 2010, the trial court entered a summary judgment in favor of the Bux-tons, holding, in pertinent part, as follows:

“On May 27, 2003, Ernest W. Ball & Associates, Inc. prepared a deed in which property was purchased by the [Buxtons]. The deed was recorded in the Probate Office of Morgan County, Alabama on May 29, 2003. The deed stated that the property was conveyed to the [Buxtons] ‘for and during their life and upon their death, then to their heirs in fee simple, together with every contingent remainder and right of reversion.’ This action is to determine whether the language contained in the deed was ambiguous, and, as such, whether the ambiguity was to be resolved in favor of fee simple, or whether the language clearly created a lesser estate.
“Section 35-4-2 of the Code of Alabama (1975), as amended, states, ‘[e]very estate in lands is to be taken as fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.’ In Haclcer v. Carlisle, the Supreme Court of Alabama interpreted the statute to say ‘[u]nder this statute, the presumption is, and all doubts are resolved in the favor of a fee simple estate.’ 388 So.2d 947, 950 ([Ala.] 1980). See also Moss v. Williams, 822 So.2d 392, 396-397 ([Ala.] 2001). In Windham v. Henderson, the Supreme Court applied the statute by saying, ‘[t]he intention to create a lesser estate must clearly appear, for the courts will not construe a grantor’s words as conveying a lesser estate if clearly a different meaning can be given them.’ 658 So.2d 431, 433 [ (Ala.1995) ].
“In Hacker, the Supreme Court noted numerous cases where deeds used language such as ‘lifetime’ or ‘at his death,’ and the Court found the language insufficient to overcome the presumption. Hacker at 951. The Court further stated ‘[a]nd the language “but it is to go to his heirs” indicates merely words of limitation or inheritance.’ Id.
“Further, in Hacker, the Court examined an Oregon Supreme Court case which interpreted deed language pursuant to a statutory provision similar to Alabama Code Section 35-4-2 (1975), as amended. The Alabama Supreme Court stated as follows:
“ ‘The Oregon court also noted that the word “heirs” in the clause merely designated the person who would by statute succeed to the property in case of intestacy. Rejecting the argument that the language created a life estate with remainder, the [Oregon] court stated:
“ ‘ “Where there is a doubt as to whether the grantor intended to convey an estate in fee simple or a life estate, the doubt should be resolved in favor of the grantee and the greater estate would pass. This rule of construction is in keeping with the spirit of the statute....’”
“Hacker at 951-952.
“Pursuant to Section 35-4-3 of the Code of Alabama, in the present action, the language contained in the deed is ambiguous, and, as such, shall be construed as granting a fee simple estate.
“Having reviewed the pleadings, the [Buxtons’] Motion for Summary Judgment and supporting evidence, the Court finds that there are no genuine issues of material disputed fact and that the [Buxtons] are entitled as a matter of law to the requested relief. It is, therefore, ORDERED, ADJUDGED, and DECREED by the Court that the deed language used by Ernest W. Ball, ‘for and during their life and upon their death, then to their heirs in fee simple, together with every contingent remainder and right of reversion’ is ambiguous and unclear and does not clearly state that a less estate was intended. Therefore pursuant to Alabama Code Section 35-4-2 (1975), as amended, the [Bux-tons’] interest in said land is in fee simple.”

The trial court made the summary-judgment order final pursuant to Rule 54(b), Ala. R. Civ. P. Priest timely appealed.

Standard of Review

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.... ’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial' judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Alabama Elec. Coop. v. Bailey’s Constr. Co., 950 So.2d 280, 283 (Ala.2006).

Discussion

Section 35-4-2, Ala.Code 1975, provides: “Every estate in lands is to be taken in fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended.” The issue before this Court is whether the deed in question clearly establishes that an estate lesser than fee simple, i.e., a life estate, was created, or whether an ambiguity was present such that § 35-4-2 mandates that the Buxtons took a fee-simple estate in the property.

In Barnett v. Estate of Anderson, 966 So.2d 915, 918 (Ala.2007), this Court reaffirmed the following principle:

“Regarding the construction of deeds, it is well settled that a deed is construed most strongly against the grantor. See Moss v. Williams, 822 So.2d 392, 396-97 (Ala.2001) (‘This Court has long recognized that § 35-4-2 is simply “a statutory affirmance of the general rule that a deed is construed most strongly against the grantor.” ’). ‘[G]reater strictness is required in the construction of deeds than of wills.’ Porter v. Henderson, 203 Ala. 312, 315, 82 So. 668, 671 (1919).”

In construing deeds, this Court stated in Financial Investment Corp. v. Tukabatchee Area Council, Inc., 353 So.2d 1389, 1391 (Ala.1977):

“It is, of course, a fundamental rule of construction that the real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, resort to arbitrary rules of construction is not required. Wilkins v. Ferguson, 294 Ala. 25, 310 So.2d 879 (1975); Gulf Oil Corp. v. Deese, 275 Ala. 178, 153 So.2d 614 (1963).
“The courts, in construing conveyances, must ascertain and give effect to the intention and meaning of the parties, ‘to be collected from the entire instrument.’ Brashier v. Burkett, 350 So.2d 309 (Ala.1977); Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420 (1951).
“... It is, of course, true that where a deed is of doubtful meaning, or where the language of a deed is ambiguous, the intent of the parties to the deed as to what property is conveyed may be ascertained by reference to facts existing when the instrument was made, to which the parties may be presumed to have had reference. Lietz v. Pfuehler, 283 Ala. 282, 215 So.2d 723 (1968).
“However, if the language is plain and certain, acts and declarations of the parties cannot be resorted to, to aid construction. Id.; Hall v. Long, 199 Ala. 97, 74 So. 56 (1916).
“In ascertaining the intention of the parties, the plain and clear meaning of the deed’s terms must be given effect, and parties must be legally presumed to have intended what is plainly and clearly set out. Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973).”

With these rules of construction in mind, we now turn to the deed in the present ease and try and ascertain the intent of the grantors from the four corners of the instrument, reconciling all provisions if possible. The granting clause conveys the property to the Buxtons “for and during their life and upon their death, then to their heirs in fee simple, together with every contingent remainder and right of reversion.... ” The deed next contains a description of the property, and the only other clause is a warranty clause that provides as follows: “[T]hat they will warrant and defend the same unto the said Grantees, their heirs, executors and assigns forever, against the lawful claims of said Grantors....”

The trial court entered a summary judgment in favor of the Buxtons on the ground that the language in the granting clause was ambiguous and that, based on the presumption of § 35-4-2, it did not reserve a life estate in favor of the Bux-tons. Applying § 35-4-2, this Court has stated: “The intention to create a lesser estate must clearly appear, for the courts will not construe a grantor’s words as conveying a lesser estate if clearly a different meaning can be given them.” Windham v. Henderson, 658 So.2d 431, 433 (Ala.1995). The trial court’s reliance on § 35-4-2 to support the finding of a fee-simple estate is misplaced because the granting clause in the present case contains words that clearly and expressly convey a life estate. The trial court also relied on Hacker v. Carlisle, 388 So.2d 947 (Ala.1980), in which this Court held that the language in the deed, when viewed as a whole, coupled with the parties’ conduct after the conveyance, indicated that the estate conveyed was in fee simple.

In Hacker, Jasper Carlisle executed a deed in 1914 giving real property to his son, John. The deed contained a handwritten clause providing: “It is understood that [John Carlisle] is not to sell above described lands but it is to go to his heirs.” 388 So.2d at 949. After John Carlisle died, his heirs sought an interpretation and declaration of the interest conveyed by the deed. The trial court found that Jasper had conveyed a life estate to John with a remainder to John’s heirs. This Court reversed the trial court’s judgment. It noted that all the clauses except the handwritten clause were consistent with the conveyance of a fee-simple estate. Although the granting clause contained no words of inheritance, the Court looked to the habendum and warranty clauses to find a conveyance in fee simple, both of which contained the words “his heirs and assigns,” traditional words of inheritance connoting a fee-simple estate. This Court disagreed with the argument that the handwritten clause diminished the interest conveyed to a life estate with a remainder to the grantee’s heirs. This Court recognized that handwritten portions of a deed take precedence over printed language when there is a conflict between the two, but the handwritten clause failed to clearly designate a life estate.

“The handwritten clause does not limit the grantee’s estate to ‘for his life’ or ‘at his death.’ The language ‘is not to sell above described lands’ is certainly no indication of a life estate as such estates are as alienable as fee simple estates. And the language ‘but it is to go to his heirs’ indicates merely words of limitation or inheritance.”

388 So.2d at 951. The language in the handwritten clause did not clearly designate a life estate in derogation of § 85-4-2. Instead, the language was in the nature of a restraint on alienation and, viewed as a whole, appeared to be an attempt to create a fee-tail estate, and fee-tail estates are converted into fee-simple estates under § 35-4-3. This Court also noted that the parties’ conduct indicated their intention that the deed conveyed a fee-simple estate.

Hacker does not support the trial court’s conclusion that the granting clause was ambiguous. In Hacker, this Court discussed deeds in three prior cases, noting that in those deeds the language clearly and expressly defined a life estate with the “telltale language of ‘for his life’ or ‘at his death,’ ” 388 So.2d at 951, whereas the handwritten language in the deed at issue in Hacker did not clearly convey a life estate. Here, the granting clause clearly contains the “telltale language” of a life estate.

We recognize that the warranty clause of the deed contains language that refers to the Buxtons’ “heirs, executors, and assigns.” There should be no reason to refer to the Buxtons’ executors when their interest is a life estate, because there could not arise an occasion where a warranty of title could flow to the executor of the estate of a deceased holder of a life estate, because that estate would necessarily terminate upon the death of the life tenant and there would be no interest for a personal representative to thereafter administer. However, an ambiguity in a warranty clause would not conflict with an unambiguous granting clause because a warranty clause does not convey title. The purpose of the warranty clause is to indemnify the purchaser against loss or injury due to a defect in the title. It is well settled that

“the granting clause in a deed determines the interest conveyed, and that, unless there be repugnancy, obscurity or ambiguity in that clause, it prevails over introductory statements or recitals in conflict therewith, and over the haben-dum, too, if that clause is contradictory of or repugnant to it. Webb v. Webb’s Heirs, 29 Ala. 588, 606 [(1857)]; McMillan v. Craft, 135 Ala. 148, 33 South. 26 [ (1902) ]; Gould v. Womack, 2 Ala. 83 [ (1841) ]; Kershaw’s Ex’rs v. Boykin, 1 Brev. (S.C.) 301 [ (1803) ]; Huntingdon v. Havens, 5 Johns. Ch. (N.Y.) 23 [ (1820) ]; Green Bay, etc., Co. v. Hewitt, 55 Wis. 96, 12 N.W. 382, 42 Am. Rep. 701 [(1882)]; 13 Cyc. 619, 666; 9 Am. & Eng. Ency. 139, and cases cited on note 1 to text on page 140; 17 Am. & Eng. Ency. 8, and cases cited in note 6; Devlin on Deeds (2d Ed.) § 838a; Wilkins v. Norman, 139 N.C. 40, 51 S.E. 797, 111 Am. St. Rep. 767 [ (1905) ]; Berridge v. Glassey, 112 Pa. 442, 3 Atl. 583, 56 Am. Rep. 322 [ (1886) ]; Whetstone v. Hunt, 78 Ark. 230, 93 S.W. 979 [(1906)]; 8 Am. & Eng. Ann. Cas. 443; 3 Wash. Real Prop. (6th Ed.) § 2360. The reason underlying the rule that introductory statements and recitals must yield to the granting clause is that they are nonessential to the validity of the deed, while the granting clause is its very essence. It has been said that the ha-bendum must give way, because the granting clause is necessary to make the deed effective, while the habendum clause is not. [Ratliffe ] v. Marrs, 87 Ky. 26, 7 S.W. 395, 8 S.W. 876 [ (1888) ]. And by another court it has been said: ‘It is a rule in the construction of deeds that of two repugnant clauses therein the first shall prevail against the second; and, according to this rule, the meaning of the premises shall not be changed by the words of the habendum as to irreconcilable differences.’ Chamberlain v. Runkle, 28 Ind.App. 599, 63 N.E. 486 [ (1902) ]; Hunter v. Patterson, 142 Mo. 310, 44 S.W. 250 [(1898)]; Budd v. Brooke, 3 Gill (Md.) 198, 43 Am. Dec. 321, 338 [ (1845) ].”

Dickson v. Van Hoose, 157 Ala. 459, 466-67, 47 So. 718, 720-21 (1908); see also Moss v. Williams, 822 So.2d 392 (Ala.2001).

In Porter v. Henderson, 203 Ala. 312, 317-18, 82 So. 668, 673-74 (1919), the Court cited a federal case explaining why other clauses must yield to the granting clause:

“In Dickson v. Wildman, 183 Fed. 398, 403, 105 C.C.A. 618, 623 [ (1910) ], Judge Shelby said:
“ ‘If it were conceded that there was repugnancy between the granting clause on the one side and the preliminary recitals and the habendum on the other, and that the conflict was such that the true intent of the grant- or could not be ascertained, it is manifest that the court must decide which part of the deed shall prevail. The rule in such case is that the granting clause determines the interest conveyed, and when it is clear and unambiguous, as in the deed in question here, it prevails over introductory recitals in conflict with it, and prevails also over the habendum, if that is in conflict with it. The reason sometimes given for the rule is that a deed founded upon a valuable consideration is to be construed most strongly against the grantor, and, when the conflict is in the habendum, that the grantor in the latter part of the deed will not be permitted to deny or retract the grant previously made. The rule is very old, and it may be that it is founded on an effort to enforce the cardinal rule to ascertain and give effect to the intention. The granting clause is naturally looked to see what it was intended to convey, whereas recitals are often merely introductory, and are not a necessary part of the deed. The granting clause is the very essence of the contract. It is required to transfer title, but the habendum clause is not absolutely necessary to make a deed effective. Where a conflict exists, therefore, in the different parts of a deed, the true intent of the grantor as to what was intended to be conveyed is more likely to be found in the granting clause. The settled rule of construction in Alabama and in many other jurisdictions is that in case of repugnancy between the granting clause and other parts of the deed the former will prevail/ ”

Although Section § 35-4-2 provides that every conveyance of real estate conveys all the grantor’s estate unless the intent to convey a lesser estate expressly appears or is necessarily implied in the terms used in the granting clause, such an intention to convey a lesser estate appears in the granting clause here and, thus, § 35-4-2 has no field of operation. The only ambiguities are in the warranty clause, and, as discussed, the warranty clause must yield to an unambiguous granting clause.

Conclusion

As we stated, the real inquiry in construing the terms of a deed is the intent of the parties, especially that of the grantor, and if that intent can be ascertained from the instrument, there is no need to resort to arbitrary rules of construction. The intent of the grantor is ascertained from the words used in the four corners of the deed. The intention of the parties will be presumed to accord with the established meaning of the words of settled legal import. “Otherwise, there would be little stability of land titles.” Creswell v. Bank of Greenwood, 210 S.C. 47, 41 S.E.2d 393 (1947). Accordingly, the judgment of the trial court is reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, STUART, and MURDOCK, JJ, concur.

      . The record does not indicate who Blake Horton and Devon Horton are or the nature of their relationship with the Buxtons.

      . A reference to the Buxtons’ heirs would not create an ambiguity as to the life estate because the grantors would be warranting title to the heirs who would receive the property upon the end of the life estate. Similarly, the grantors would also be warranting title to any potential assignees of the grantees’ life estates and, hence, no ambiguity.