author: IRVING, J.,

text:
    Cornell CLARK, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00482-COA.
    Court of Appeals of Mississippi.
    Jan. 11, 2011.

      Cornell Clark, Appellant, pro se.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before LEE, P.J., IRVING, ISHEE and MAXWELL, JJ.
   IRVING, J.,

for the Court:

¶ 1. On January 5, 2004, Cornell Clark pleaded guilty to kidnapping and armed carjacking. Following his plea, the Coaho-ma County Circuit Court sentenced him to two thirty-year sentences, with ten years of each thirty-year sentence suspended, to be served concurrently in the custody of the Mississippi Department of Corrections. On April 10, 2006, Clark filed a motion for records and transcripts, and on July 21, 2008, he filed a petition for order to show cause. In his petition, Clark argued that his indictment was defective because it lacked the signature of the grand jury foreman, the signature of the circuit clerk, and a file stamp denoting the date that it was filed with the circuit court. The circuit court denied Clark’s motion and petition, noting that a valid guilty plea operates as a waiver of all technical and non-jurisdictional defects in an indictment. Feeling aggrieved, Clark appeals and asserts that: (1) his indictment was defective because it lacked the grand jury foreman’s signature, the circuit clerk’s signature, and the date on which the indictment was filed in circuit court; (2) his plea was involuntary because it was based on the promise of a lesser sentence made during interrogation; (3) his defense counsel was constitutionally ineffective; (4) his due-process rights were violated; (5) the circuit court violated Rules 10(b)(5) and (c) of the Mississippi Rules of Appellate Procedure when it denied his motion for records and transcripts; and (6) the sentence imposed was excessive and grossly disproportionate.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. As stated, on April 10, 2006, more than two years after pleading guilty, Clark filed a motion for records and transcripts. Receiving no response from the circuit court, Clark, on July 21, 2008, filed a second motion for records and transcripts, along with a petition for order to show cause. The circuit court treated the petition as a PCR motion. In the petition, Clark argued that his indictment was defective because it lacked the grand jury foreman’s signature, the circuit clerk’s signature, and the date on which the indictment was filed in circuit court. Clark made no other allegations in his petition.

¶ 4. On April 16, 2009, the circuit court denied the motion for records and transcripts, noting that Clark had filed his motion outside the three-year statutory period provided for under the Uniform Post-Conviction Collateral Relief Act (the Act) and that he had failed to show a specific need or purpose for the requested documents. Additionally, the circuit court denied Clark’s petition on September 3, 2009. In denying Clark’s petition, the circuit court found that Clark’s guilty plea operated as a waiver of the alleged defects in his indictment and that such deficiencies could not be raised for the first time in the petition, which, as stated, was treated as a PCR motion by the circuit court.

¶ 5. Additional facts, if necessary, -will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. When reviewing a circuit court’s denial of a motion for post-conviction relief, factual findings will not be disturbed unless they are clearly erroneous. Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008). However, questions of law are reviewed de novo. Id.

1. Time Bar

¶ 7. Following a guilty plea, a petitioner has three years to file a PCR motion. Miss.Code Ann. § 99-39-5(2) (Supp. 2009). In cases where a guilty plea is entered, the time begins to run upon the entry of the plea. Id. Exceptions to the time limitation exist in certain cases, such as where the petitioner seeks post-conviction relief based on the discovery of new evidence. Miss.Code Ann. § 99-39-5(l)(e) (Supp.2009).

¶ 8. In this case, the statute of limitations period began to run on January 5, 2004, the date Clark pleaded guilty. Clark did not file his petition until July 21, 2008-over four years after the entry of his guilty plea. However, Clark contends that the exception for newly discovered evidence applies. Clark alleges that during his interrogation, the police promised him a lesser sentence in exchange for his confession, but the circuit court was never made aware of such promise. Clark contends that because the circuit court was not aware of the police’s alleged promise, he received a harsher sentence. Our supreme court has stated that the petitioner bears the burden of proving that his claim is not procedurally barred. Lockett v. State, 614 So.2d 888, 893 (Miss.1992). In the case of the exception for newly discovered evidence, the petitioner must prove that he has evidence, not reasonably discoverable at trial, that would have caused a different result in the conviction or sentence. Miss.Code Ann. § 99-39-5(2)(a)(i). Clark has failed to provide any evidence, other than the assertions in his brief, that the police had promised him a lesser sentence or that knowledge of the alleged promise would have affected the circuit court’s sentencing decision. Furthermore, even if Clark had provided evidence of a promise of a lesser sentence, such evidence was available to Clark when he pleaded guilty. Without an applicable exception to the statute of limitations, Clark’s petition is time-barred. This assignment of error lacks merit.

2. Defective Indictment

¶ 9. Even if Clark’s petition was not time-barred, the issue raised in his petition regarding the defective indictment is without merit and was effectively waived by Clark when he pleaded guilty. Clark argues that his indictment was defective because it lacked the grand jury foreman’s signature, the circuit clerk’s signature, and the date on which the indictment was filed in circuit court. However, the record contains a fully executed indictment signed by the grand jury foreman and the circuit clerk and dated December 2, 2003. Based on our review of the record, the indictment appears to conform fully with the requirements of Rule 7.06 of the Uniform Rules of Circuit and County Court. Even if the indictment had been defective, Clark waived all technical and non-jurisdictional defects contained in the indictment by pleading guilty. Reeder v. State, 783 So.2d 711, 720 (¶ 36) (Miss.2001). This issue is without merit and procedurally barred.

3. Procedural Bar

¶ 10. Clark raises five other issues for the first time on appeal, including that his plea was involuntary; he received ineffective assistance of counsel; his due-process rights were violated; the circuit court violated the Mississippi Rules of Appellate Procedure; and he received an excessive sentence. However, only the defective-indictment issue was raised in his PCR motion. By failing to raise these issues before the circuit court, Clark is precluded from raising them on appeal. Foster v. State, 716 So.2d 538, 540 (¶ 9) (Miss.1998).

¶ 11. Even if Clark’s claim that his plea was involuntary was not procedurally barred, it is without merit. Clark alleges that during his interrogation, the police promised him a lesser sentence in exchange for his confession. However, the record contains no mention of the agreement, nor did Clark file an affidavit or any other evidence of the alleged agreement with the police. Furthermore, in his plea petition, Clark declared that no officer or agent of any branch of government had made any promises aimed at inducing him to plead guilty and that he freely and voluntarily entered his guilty plea. Based on Clark’s sworn answers within his plea petition, Clark made his plea voluntarily and knowingly. Furthermore, during his plea colloquy, Clark swore that he had reviewed and read the petition with the assistance of counsel and that he understood its provisions. Therefore, his claim that his guilty plea was involuntary is without merit.

¶ 12. Clark also alleges that his appointed counsel was ineffective because his counsel failed to inform the circuit court of the police’s promise of a lesser sentence and erroneously advised him to plead guilty.

¶ 13. To succeed in a challenge to the effectiveness of counsel, Clark must prove that: (1) his counsel was deficient, and (2) this deficiency prejudiced Clark. Doss v. State, 19 So.3d 690, 694-95 (¶ 7) (Miss.2009) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Both prongs must be pleaded with specific detail. Coleman v. State, 749 So.2d 1003, 1012 (¶26) (Miss.1999). In the context of PCR cases, specificity requires more than a party’s own affidavit or mere assertions made within his brief. Vielee v. State, 653 So.2d 920, 922 (Miss.1995). Clark failed to provide any affidavits in support of his ineffective-assistance-of-counsel claim. Instead, his claim is based solely on the assertions made in his brief. Therefore, Clark has failed to meet the standards of Strickland and Vielee. This issue is without merit.

¶ 14. Clark also alleges that his due-process rights were violated during the circuit court proceedings. However, Clark provides no evidence in support of his alie-gation. Based on this Court’s review of the record, Clark knowingly and voluntarily entered his guilty plea and was fully informed of the charges against him and the consequences of his plea. Therefore, we find no due-process violations.

¶ 15. Clark contends that the circuit court failed to comply with Rules 10(b)(5) and 10(c) by failing to provide a free copy of the record. Under Rule 10(b)(5), the appellant is entitled to use of the record for examination, and in the event that no report or transcript of the proceedings is available, Rule 10(c) permits the appellant to prepare a statement of the proceedings from the best available means, including recollection.

¶ 16. While the rules do entitle an appellant to examine the record, the discovery provisions of the Act require a showing of “good cause” in a prisoner’s request for discovery. Miss.Code Ann. § 99-39-15(1) (Supp.2009). Additionally, the Act gives the circuit judge discretion in granting or denying such requests. Id. Our supreme court has elaborated on the discovery standard, noting that a defendant must demonstrate sufficient need or purpose for requested documents before the law requires the State to provide free copies of such documents. Fleming v. State, 553 So.2d 505, 507 (Miss.1989).

¶ 17. Clark’s first motion for records and transcripts, filed on April 10, 2006, stated that he sought post-conviction relief on the grounds of due-process violations, involuntary guilty plea, ineffective assistance of counsel, and “all other violations which occurred during the resulting guilty plea.” After receiving no response from the circuit court, Clark filed a second motion on July 21, 2008, wherein he again stated that he sought post-conviction relief, only on the grounds of due-process violations and “any and all other violations which occurred during the resulting guilty plea.” In both motions, Clark utilized a template, with a list of general grounds for seeking post-conviction relief. Clark did not supply a sufficient need or purpose for the documents as required under Fleming; instead, he relied on the general, pre-popu-lated list of allegations contained in the motion template and simply filled in his name and his offense. Therefore, the circuit court did not err in denying his motions for records and transcripts, even though the first motion was not time barred.

¶ 18. Clark argues that the circuit court failed to comply with Rule 10(c); however, responsibility for compliance does not rest with the circuit court. Rule 10(c) allows the appellant to prepare a statement of the proceedings when no transcript is available. However, in Clark’s case, a transcript was not unavailable; • it was just unavailable to Clark since he failed to provide a sufficient need or purpose for the transcript. Therefore, his claim is without merit.

¶ 19. Finally, Clark argues that his sentence is excessive and grossly disproportionate. Clark pleaded guilty to one count of kidnapping, for which the maximum sentence is thirty years’ imprisonment or life imprisonment, and one count of armed carjacking, for which the maximum sentence is thirty years’ imprisonment and a $10,000 fine. Miss.Code Ann. §§ 97-3-53, 97-3-117(2)(a) (Rev.2006). The circuit court sentenced Clark to thirty years, with ten years suspended for each count, to be served concurrently, for a total of twenty years.

¶ 20. While a sentence may be subject to attack if it is “grossly disproportionate” to the crime committed, a sentence will not be subject to appellate review when it falls within the limits prescribed by statute. Johnson v. State, 950 So.2d 178, 183 (¶22) (Miss.2007). As such, sentences “that do not exceed the maximum term allowed by statute will not be considered grossly disproportionate and will not be disturbed on appeal.” Id. The sentence imposed did not exceed the statutory maximum; therefore, it may not be disturbed on appeal.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    Eddie TIMMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00955-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.

      Lisa M. Ross, Jackson, attorney for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

¶ 1. A jury in the Holmes County Circuit Court found Eddie Timms guilty of possession of a firearm by a convicted felon and possession of a stolen firearm. The circuit court then sentenced Timms to serve five years in the custody of the Mississippi Department of Corrections (MDOC) for the possession of a firearm by a convicted felon, with three years suspended and two years to serve, and to serve five years in the custody of the MDOC for the possession of a stolen firearm. The circuit court ordered that the sentences be served consecutively, for a total of seven years in the MDOC’s custody. Unhappy with his convictions, Timms appeals and asserts that: (1) the State violated his right to a fair trial when the prosecutor commented on Timms’s failure to call certain witnesses; (2) Timms’s trial counsel’s performance was so deficient that Timms was denied a fair trial; (3) the circuit court, on its own motion, should have prevented the introduction of evidence that Timms was previously charged with, but not convicted of, possession of a stolen firearm; and (4) cumulative errors deprived Timms of his right to a fair trial.

¶2. We find that Timms’s trial counsel was ineffective, and we reverse and remand for a new trial. We also find that the State improperly commented on Timms’s failure to call certain witnesses. Timms’s complaint that the circuit court should have sua sponte suppressed evidence and his cumulative-error complaint are moot due to our remand of his case.

FACTS

¶ 3. On February 18, 2008, Officer Leo Ellington, then with the Goodman, Mississippi Police Department, received a call stating that someone had a gun at a nearby apartment complex. Officer Ellington, Chief Noah Coffee, and other officers were sitting in their patrol cars at a BP gas station in Goodman at the time. The caller stated that the individual with the gun had left in a vehicle and gave a description of the vehicle. Shortly thereafter, the officers observed a vehicle fitting the caller’s description; they stopped the vehicle to investigate further.

¶ 4. When Officer Ellington looked into the vehicle, he noticed Timms sitting in the backseat; Officer Ellington recognized Timms from prior contact with him. De-Andre Moore was driving the vehicle, and Joel Landfair and Phyllis Moore were passengers in the vehicle. According to Officer Ellington, shortly after the vehicle stopped, Timms, Landfair, and DeAndre exited the vehicle. Officer Ellington testified that DeAndre and Landfair then returned to the vehicle after being asked to do so by law enforcement. According to Officer Ellington, DeAndre denied having any firearms in the vehicle; Officer Ellington then asked for permission to search the vehicle, which DeAndre granted. When asked to open the trunk of the vehicle, DeAndre complied. Officer Ellington testified that Timms was leaning against the trunk and had to be asked to move before it could be opened. Inside the trunk, officers found two shotguns. Officer Ellington testified that Timms stated, without being questioned, that the guns belonged to him. Officer Ellington stated that Timms claimed to need the guns because “something about somebody been stealing some dogs from him.... ”

¶ 5. Officer Ellington testified that he performed a background check on one of the shotguns that was recovered from the vehicle and that the gun actually belonged to the Goodman Police Department. During cross-examination, Officer Ellington confirmed that the original call that came to the police had concerned DeAndre’s possession of a firearm, not Timms’s. Officer Ellington stated that Timms was not arrested at the scene but that he was arrested later; Officer Ellington testified that no one else was ever arrested in connection with the firearms. Timms’s trial attorney also asked Officer Ellington several questions about whether Timms had a prior conviction for possession of a stolen firearm and whether that hypothetical possession should have had an impact on Timms’s behavior at the scene. Immediately upon redirect, the prosecutor introduced a notice of criminal disposition; Timms’s attorney did not object to the disposition’s introduction. The prosecutor then had Officer Ellington read to the jury from the criminal disposition, which indicated that Timms had been indicted for and convicted of possession of cocaine enhanced by possession of a firearm. The prosecutor then intimated that Timms might have been arrested instead of DeAn-dre because of his prior felony:

Q. You were asked why the other people weren’t charged. To your knowledge, personal knowledge, do you know whether or not the driver had a prior felony conviction?
A. No, sir.

¶ 6. After Officer Ellington testified, Chief Coffee took the stand. Chief Coffee’s testimony was mostly consistent with Officer Ellington’s. Chief Coffee recalled only Timms and DeAndre exiting the vehicle, rather than Timms, DeAndre, and Landfair. Chief Coffee stated that Timms not only claimed possession of the two shotguns, but also asked the officers to allow him to retain possession of the shotguns so that he could use them to take care of his dogs. Chief Coffee testified that he pointed out to Timms that he was not allowed to possess firearms and that Timms responded that he believed he was allowed to possess a shotgun. During cross-examination, Chief Coffee explained that he did not check the guns for fingerprints because Timms had claimed possession of them.

¶ 7. No other witnesses testified on behalf of the State. Timms took the stand as his sole witness. Timms testified that he did not know anything about the shotguns in the car and that he returned to the car immediately after exiting it, thereby contradicting the officers’ testimonies that he exited the car and remained standing outside it. Timms denied claiming possession of the guns. During direct testimony, the following exchange occurred between Timms and his attorney:

Q. Okay. As a sane person, knowing that you had been [sic] convicted of possession of a firearm in the past, would it have been logical for you to have said these are my guns in the trunk?
A. No, I did not say that.

During cross-examination, Timms testified that he was friends with the other occupants of the car. Timms denied having ever owned any dogs. Timms agreed with the prosecutor that he generally did not exit vehicles for traffic stops and that his decision to exit DeAndre’s vehicle on the night in question was unusual.

¶ 8. During closing argument, the prosecutor made the following remarks:

All he had to do was push a button. And he didn’t have to testify. That was his God-given right and you couldn’t hold it against him. But since he chose to testify, I can comment on his case and the evidence that was presented. Where are DeAndre Moore, Phyllis Moore, and Joel Landfair? He’s got access to the clerk’s office just like we do. He can subpoena anybody he wants to, and that door would have been busting [sic] wide open with folks coming to his aid if there was a person in existence that could have come to his aid. And the reason it didn’t happen is because there was nobody that could testify for him.

Although Timms’s trial attorney did not object to these statements by the prosecutor, he did respond to them during his own closing argument:

The D.A. said that we could have had all these witnesses here. Ladies and gentlemen, I know you can’t check the docket, the court file, but we did subpoena— attempt to subpoena witnesses. But, I mean, hey, if I was one of those other three people, I wouldn’t want to come up here because, boom, who gets charged next. If they had come up here to testify for Mr. Timms against the State, you know, any logical person would think, hey, I’m gonna be next.

¶9. After approximately two hours of deliberation, the jury returned a verdict of guilty on both counts. Five days after trial, Timms filed a motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict. The circuit court denied Timms’s motion. About two weeks after the trial, Timms’s family retained a new attorney for him.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Prosecutorial Misconduct

¶ 11. Timms first contends that the prosecutor improperly commented on Timms’s decision to not call Landfair, Phyllis, and DeAndre as witnesses. As stated, Timms’s trial attorney did not object to the prosecutor’s comments but, instead, attempted to explain why the witnesses had not been called.

¶ 12. Under Mississippi law, “the failure of either party to examine a witness equally accessible to both parties is not a proper subject for comment before a jury.” Holmes v. State, 537 So.2d 882, 885 (Miss.1988). In Holmes, Edward Holmes’s conviction was reversed and remanded due to the prosecutor’s comment on Holmes’s failure to call a witness. Id. However, “where there is substantial evidence supporting [a] defendant’s guilt, a prosecutor’s comment about a potential witness’s absence is not reversible error in and of itself.” Randall v. State, 806 So.2d 185, 211 (¶ 59) (Miss.2001) (quoting Burke v. State, 576 So.2d 1239, 1241 (Miss.1991)). Generally, “a jury is more likely prejudiced where the evidence is close.” Id. (quoting Burke, 576 So.2d at 1241).

¶ 13. Timms did not object to the prosecutor’s statements when they were made. Regardless, the prosecutor’s comments were improper. There is no indication that any of the named individuals were any more accessible to Timms than they were to the State; therefore, the prosecutor should not have commented on Timms’s failure to call those witnesses. In the absence of an objection by Timms, Timms can succeed on this claim only if the improper comments rise to the level of plain error. Parker v. State, 30 So.3d 1222, 1227 (¶ 14) (Miss.2010). We find that we need not determine whether they did, as we are remanding Timms’s case for a new trial. On remand, however, the prosecutor should refrain from commenting on Timms’s failure to call any witnesses who are equally available to the State.

2. Ineffective Assistance of Counsel

¶ 14. Timms complains that his trial counsel did not seek a stipulation as to Timms’s status as a convicted felon prior to trial, failed to object when the State introduced evidence regarding Timms’s criminal history, asked a witness to provide hearsay evidence prejudicial to Timms, and failed to investigate Timms’s criminal history. We agree that Timms’s counsel’s representation fell far below the standards required to render effective assistance of counsel.

¶ 15. An appellate court will review a claim for ineffective assistance of counsel on direct appeal only if “the presented issues are based on facts fully apparent from the record.” Parker v. State, 30 So.3d 1222, 1232 (¶ 86) (Miss.2010) (citing Archer v. State, 986 So.2d 951, 955 (¶ 16) (Miss.2008)). As a result, such claims are frequently heard during post-conviction proceedings. Id. However, the record in this case is sufficient to allow full consideration of Timms’s ineffective-assistance-of-counsel claims.

¶ 16. In order to prove a claim of ineffective assistance of counsel, an appellant must show “that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial.” Id. at 1233 (¶ 37) (citing Strickland v. Washington, 466 U.S. 668, 687-696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wilcher v. State, 479 So.2d 710, 713 (Miss.1985); Stringer v. State, 454 So.2d 468, 477 (Miss.1984)).

¶ 17. The practice of allowing a defendant to stipulate to his status as a previously convicted felon has been strongly endorsed by the United States Supreme Court. Old Chief v. United States, 519 U.S. 172, 191-92, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). The Old Chief court stated:

This recognition that the prosecution with its burden of persuasion needs evi-dentiary depth to tell a continuous story has, however, virtually no application when the point at issue is a defendant’s legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him.... The most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant’s admission and underscored in the court’s jury instructions. Finally, the most obvious reason that the general presumption that the prosecution may choose its evidence is so remote from application here is that proof of the defendant’s status goes to an element entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense. Proving status without telling exactly why that status was imposed leaves no gap in the story of a defendant’s subsequent criminality, and its demonstration by stipulation or admission neither displaces a chapter from a continuous sequence of conventional evidence nor comes across as an officious substitution, to confuse or offend or provoke reproach.
Given these peculiarities of the element of felony-convict status and of admissions and the like when used to prove it, there is no cognizable difference between the evidentiary significance of an admission and of the legitimately probative component of the official record the prosecution would prefer to place in evidence. For purposes of the [Federal Rule of Evidence] 403 weighing of the probative against the prejudicial, the functions of the competing evidence are distinguishable only by the risk inherent in the one and wholly absent from the other. In this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available. What we have said shows why this will be the general rule when proof of convict status is at issue, just as the prosecutor’s choice will generally survive a Rule 403 analysis when a defendant seeks to force the substitution of an admission for evidence creating a coherent narrative of his thoughts and actions in perpetrating the offense for which he is being tried.

Id. at 190-92, 117 S.Ct. 644. The Mississippi Supreme Court has addressed Old Chief and has come to the following conclusion:

Where evidence of a prior conviction is a necessary element of the crime for which the defendant is on trial (i.e., possession of firearm by a convicted felon), but evidence of the specific nature of the crime for which the defendant was previously convicted (i.e., armed robbery), is not an essential element of the crime for which the defendant is on trial, as it is in DUI cases, the trial court should accept a defendant’s offer to stipulate and grant a limiting instruction.

Williams v. State, 991 So.2d 593, 605-06 (¶ 40) (Miss.2008). In Williams, the defendant, who was on trial for possession of a firearm by a convicted felon, offered to stipulate to his status as a convicted felon. Id. at 606 (¶ 41). The circuit court refused to allow the stipulation, and our supreme court reversed. Id.

¶ 18. In the present case, Timms was charged with possession of a firearm by a convicted felon. Timms had previously been convicted of possession of cocaine, a felony. Therefore, Timms was entitled to a stipulation as to his status as a convicted felon. Because the crime of possessing a stolen firearm while a convicted felon does not require any specific evidence as to the nature of the prior felony, the circuit court would have been required to grant Timms a stipulation had he sought one. Of course, Timms’s trial counsel did not seek a stipulation.

¶ 19. Undoubtedly, trial counsel is not necessarily ineffective for failing to seek a stipulation. See Williams v. State, 819 So.2d 532, 538 (¶¶ 17-18) (Miss.Ct.App.2001). However, there are several circumstances that make it clear that Timms’s counsel was ineffective for failing to do so. At the outset, we note that it is clear that Timms’s trial counsel was mistaken as to Timms’s criminal history. Timms’s counsel asked Timms and other witnesses about a prior conviction for possession of a stolen firearm; however, Timms had never been convicted of possessing a stolen firearm. He was charged with possession of a stolen firearm, but never convicted of that crime. The State also introduced documents indicating that Timms had been charged with possession of a stolen firearm. However, since Timms was never convicted of possessing a stolen firearm, the jury should have never learned that he was charged with that crime. Timms was especially prejudiced by this inappropriate evidence because of the similarity of his new charges (possession of a firearm by a convicted felon and possession of a stolen firearm) to his prior charge for possession of a stolen firearm. The State’s documents showing Timms’s prior charge should never have been allowed into evidence by his trial counsel; this error was grossly compounded by Timms’s trial counsel’s decision to question repeatedly witnesses about the prior charge as though Timms had been convicted of it. Even Timms’s prior conviction was inaccurately presented at trial. The documents admitted by the State showed that Timms was charged with possession of cocaine enhanced by possession of a stolen firearm. However, it is clear from other documents, such as Timms’s guilty-plea petition, that Timms was actually convicted of possession of cocaine without the firearm enhancement. Timms’s trial counsel again did nothing to prevent this inaccuracy from being presented to the jury. .

¶ 20. It is clear that Timms’s trial counsel failed to render effective assistance of counsel. Timms’s trial counsel apparently knew nothing of Timms’s actual criminal history, allowed the State to introduce evidence of crimes that Timms had not been convicted of, failed to seek a stipulation as to Timms’s status as a previously convicted felon, and then compounded these errors by questioning Timms and other witnesses as though Timms had been convicted of possessing a stolen firearm when he had not. For these reasons, we reverse and remand for a new trial at which Timms should receive constitutionally effective counsel.

3. Stolen-Firearm Charge

¶ 21. Timms argues that the circuit court should have sua sponte prevented the introduction of any evidence regarding Timms’s prior charge for possession of a stolen firearm. This issue is moot due to our remand of this case.

A Cumulative Error

¶ 22. This issue is also moot due to our reversal and remand of Timms’s case.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . There is no indication in the record that DeAndre and Phyllis are related.


author: KING, C.J.,

text:
    Michael D. LEGGETT, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01713-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.

      Benjamin Allen Súber, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before KING, C.J., BARNES and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. A jury in the Lincoln County Circuit Court found Michael D. Leggett guilty of depraved-heart murder pursuant to Mississippi Code Annotated section 97-3-19 (Rev.2006). Leggett was sentenced as a habitual offender to life without eligibility for probation or parole. Subsequently, Leggett filed a motion for a judgment notwithstanding the verdict and/or a new trial. The circuit court denied the motion. Leggett has appealed and raises the following issue: whether the verdict of the jury was contrary to the sufficiency and weight of the evidence.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. In October 2006, Leggett and Jewel Duane Douglas both worked for Ard’s Tree Service. Douglas allowed Leggett to live in his home and provided him with transportation to work. On the morning of October 11, 2006, Leggett and Douglas traveled to Baton Rouge, Louisiana, for work and returned home later that afternoon. Leggett and Douglas drank daiquiris and beer throughout the day.

¶ 4. Once at home, they began repairing a truck. The two engaged in a heated argument over the proper repair procedure. As a result, Leggett drove off in a work vehicle. While Leggett was gone, Douglas called Jason Ard, owner of Ard’s Tree Service, to inform him that Leggett had taken the truck. Leggett returned approximately thirty minutes later, and soon afterwards, Ard arrived. Ard fired Leggett for taking the work truck without permission. Leggett was upset; he punched out a window in the storm door to Douglas’s home and injured his hand. Leggett then began walking to a family member’s house, the Odom residence.

¶ 5. Douglas went after Leggett and offered him a ride. Leggett refused the ride from Douglas, but within ten or fifteen minutes, he accepted a ride from Mississippi State Highway Patrol Trooper Larry Foster. During the ride, Leggett told Trooper Foster that he believed Douglas had stolen his wallet.

¶ 6. Once at the Odom residence, Leg-gett received assistance for his injured hand. Leggett then called Douglas, and the conversation escalated into an argument over the alleged stolen wallet. Mark Culbertson, a friend of the Odom family, arrived at the Odom residence. Leggett asked Culbertson to take him to Douglas’s house. Culbertson agreed, and Leggett armed himself with three kitchen knives, which he tucked into the waistband of his pants. It is undisputed that upon arrival at Douglas’s house, Culbertson remained in the car while Leggett went inside. Once inside, Douglas and Leggett continued to argue. Exactly what happened next was disputed at trial.

¶ 7. Culbertson testified that he saw Leggett pulling Douglas out of the house with one hand while waving a knife in the other. According to Culbertson, Douglas broke away and started running toward his truck, and Leggett yelled, “Get him!” Culbertson admitted that he responded by grabbing a tire iron from the floorboard of his car and throwing it toward Douglas. Culbertson testified that the tire iron hit Douglas in the back causing him to fall, and Leggett then retrieved the tire iron, straddled Douglas, and beat him repeatedly-

¶ 8. Leggett denied any involvement in the beating of Douglas. Leggett claimed that when Douglas exited his home and was walking toward his truck, Culbertson threw the tire iron. According to Leggett, the tire iron struck Douglas in the back of the head, and the single impact to Douglas’s head resulted in his death.

¶ 9. After the altercation, Culbertson and Leggett noticed another vehicle approaching Douglas’s home; they decided to flee and return to the Odom residence. Witnesses inside the Odom residence testified that upon their return, Culbertson and Leggett appeared distraught. The occupants of the other vehicle arrived at Douglas’s home and noticed Douglas’s condition, followed Culbertson and Leggett to the Odom residence, and notified the authorities. The police arrived at the Odom residence and took Culbertson and Leggett into custody.

¶ 10. Douglas was taken to the hospital for medical treatment. As a result of the injuries, Douglas died the next day. Culbertson pled guilty to manslaughter and testified against Leggett at trial; Leggett was convicted of murder.

ANALYSIS

¶ 11. Leggett has appealed the circuit court’s decision to deny the motion for a judgment notwithstanding the verdict and/or a new trial. Leggett requests that this Court reverse his conviction and grant him a new trial or simply render a manslaughter conviction. Leggett suggests that the murder conviction is contrary to the sufficiency and weight of the evidence.

1. Sufficiency of the Evidence

¶ 12. A motion for a judgment notwithstanding the verdict challenges the legal sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). This Court must consider whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. (citation omitted).

¶ 13. Leggett was convicted of depraved-heart murder, which is defined as:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although -without any premeditated design to effect the death of any particular individual!.]

Miss.Code Ann. § 97-3-19(l)(b) (Rev. 2006).

¶ 14. Leggett suggests the evidence is insufficient to support a murder conviction because the State failed to introduce evidence of premeditation or deliberate design. It is a well-established principle of law that the lack of premeditated design is not an essential element of the offense of depraved-heart murder. Montana v. State, 822 So.2d 954, 963 (¶ 39) (Miss.2002). “[T]he State is not required to prove lack of premeditated design in order to convict a defendant pursuant to § 97 — 3—19(l)(b).” Id. Therefore, this issue is without merit.

2. Weight of the Evidence

¶ 15. A motion for a new trial challenges the weight of the evidence. Bush, 895 So.2d at 844 (¶ 18) (citation omitted). An appellate court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Miller v. State, 980 So.2d 927, 929 (¶ 10) (Miss.2008) (citation omitted).

¶ 16. Leggett argues the jury verdict is against the overwhelming weight of the evidence, and this Court should reverse and grant a new trial or render a manslaughter conviction. Manslaughter is defined as:

The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.

Miss.Code Ann. § 97-3-35 (Rev.2006).

¶ 17. Leggett claims contradictory testimony presented at trial cast a reasonable doubt as to murder, and during the fatal altercation, he was acting in the heat of passion.

A. Contradictory Testimony

¶ 18. Leggett relies on Clemons v. State, 473 So.2d 943 (Miss.1985), in support of his request to reverse his murder conviction based on contradictory testimony. In Clemons, the Mississippi Supreme Court held that reversal was appropriate when “there is such contradictory testimony that it is virtually impossible to reconstruct what actually happened” and the conflicting evidence “cast at least a reasonable doubt, as to murder.” Id. at 944-45.

¶ 19. In Clemons, an argument between two men erupted into a fatal stabbing. Numerous witnesses provided conflicting accounts of the fatal event; the witnesses did not agree as to whom the aggressor was or how many times the defendant had stabbed the victim. Id. The situation before us is distinguishable from Clemons because there are only two accounts of the fatal event, and the evidence is not so contradictory that it is virtually impossible to reconstruct what happened.

¶ 20. Leggett’s and Culbertson’s versions of the events that occurred after arriving at Douglas’s house are contradictory. Leggett testified that Culbertson threw the tire iron striking Douglas in the back of the head, which resulted in Douglas’s death. Culbertson testified that he did, in fact, throw the tire iron at Douglas, but it only struck him in the back; and Leggett then retrieved the tire iron and proceeded to strike Douglas in the head.

¶ 21. The State provided evidence to support Culbertson’s account of the events. Dr. Stephen Hayne, an expert in pathology, testified that the autopsy revealed numerous injuries, including: lacerations, contusions, three fractures of the skull, and evidence of brain hemorrhaging resulting from the skull fractures. Dr. Hayne’s testimony supported Culbertson’s testimony that the victim was struck more than once. Therefore, unlike Clemons, the evidence is not so contradictory as to create a reasonable doubt as to the charge of murder.

¶ 22. Thus, the issue becomes a determination of witness credibility. The determination of witness credibility lies within the sole province of the jury. Moore v. State, 969 So.2d 153, 156 (¶ 11) (Miss.Ct.App.2007). A reviewing court should not disturb a jury’s finding on conflicting testimony where there is substantial evidence to support the verdict. See Taylor v. State, 744 So.2d 306, 312 (¶ 17) (Miss.1999). The jury heard the conflicting statements coupled with evidence offered on behalf of each side and resolved the statements in favor of the State. The jury reasonably relied on Culbertson’s version of the events-that Douglas endured a severe beating.

B. Heat of Passion

¶ 23. Leggett argues that he was acting in the heat of passion; therefore, the weight of the evidence supports a manslaughter conviction rather than murder. This Court has defined “heat of passion” as:

A state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from a grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Griffin v. State, 13 So.3d 833, 837 (¶ 10) (Miss.Ct.App.2009) (citation omitted).

¶ 24. Mississippi law has consistently held that a “heat-of-passion” defense requires evidence of adequate provocation. See Magee v. State, 752 So.2d 1100, 1104 (¶ 16) (Miss.Ct.App.1999). The supreme court has addressed the necessity of adequate provocation stating:

One of the primary elements of a heat-of-passion crime is “immediate and reasonable provocation, by words or acts of one at the time.” This Court has held that “it is essential that the excited and angry condition of the party committing the act which would entitle him to the milder consideration of the law, should be superinduced by some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation.” This Court further held that “there must not only be passion and anger to reduce a crime to manslaughter, but there must be such circumstances as would indicate that a normal mind would be roused to the extent that the reason is overthrown and that passion usurps the mind destroying judgment.”

Jones v. State, 39 So.3d 860, 866-67 (¶ 36) (Miss.2010) (internal citations omitted).

¶ 25. Leggett testified that once he arrived at Douglas’s house, their conversation did escalate into an argument. Leg-gett also explained Douglas’s attitude changed during the argument, and Douglas went from “being mad to being nice.” Leggett stated that the arguing had ceased, and Douglas walked outside in order to retrieve Leggett’s wallet from his truck and return it. Leggett testified that he had no part in beating Douglas with the tire iron or throwing it at Douglas. Contrary to Leggett’s assertion, there was no evidence offered which established, or even suggested, that Leggett had reacted and killed Douglas in the heat of passion.

¶ 26. Leggett further relies on Dedeaux v. State, 630 So.2d 30 (Miss.1993) to support his argument in favor of manslaughter. In Dedeaux, the supreme court reversed a murder conviction and remanded the case for re-sentencing for manslaughter. The defendant claimed that he had acted in self-defense, and the supreme court found adequate provocation in support of his self-defense claim. Because Leggett testified that he was not provoked and had no part in the murder of Douglas, his reliance on Dedeaux is unfounded. This issue is without merit.

CONCLUSION

¶ 27. Viewed in the light most favorable to the State, the elements of the crime were satisfied, and the evidence does not weigh heavily against the jury’s decision to find Leggett guilty of depraved-heart murder. The State provided evidence of Leg-gett’s participation in an eminently dangerous act, the lack of provocation leading to the altercation, and the injuries Douglas sustained in a continuous beating. The trial court did not abuse its discretion by denying the motion; therefore, the judgment is affirmed.

¶ 28. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.


author: BARNES, J., MAXWELL, J.,

text:
    James Edwin REEVES, Appellant v. CITY OF CRYSTAL SPRINGS, Mississippi, Appellee.
    No. 2009-CA-01362-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.

      Daniel Wesley Kitchens, attorney for appellant.
    Robert W. Lawrence, Crystal Springs, attorney for appellee.
    Before KING, C.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. The Circuit Court of Copiah County dismissed James Edwin Reeves’s appeal of his municipal court conviction for first-offense driving under the influence (DUI) for lack of jurisdiction, finding that the appeal was filed untimely. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On the morning of August 24, 2008, Reeves was involved in a one-vehicle accident when he ran his SUV into a telephone pole in Crystal Springs, Mississippi. However, when Officer Colin Cooper of the Crystal Springs Police Department arrived at the accident site, Reeves had disappeared. Searching the nearby area for the driver, another police officer saw Reeves standing approximately 300 feet away from the accident, hiding behind a pillar in front of a building. After confirming that he was the driver of the vehicle, the officer brought Reeves back to the accident scene. Officer Cooper noted that Reeves had red eyes, dilated pupils, and slurred speech. Reeves was taken to the police station and given an Intoxilyzer test. The test showed that Reeves was over the legal limit, and he was arrested and charged with first-offense DUI, a misdemeanor.

¶ 3. At a hearing on October 8, 2008, the Crystal Springs Municipal Court requested that Reeves’s counsel prepare and submit a brief prior to the court’s entry of judgment. Counsel complied with the order, and the municipal judge took the matter under advisement. According to a letter contained in the record, defense counsel submitted a “motion to dismiss” prior to November 26, 2008, and counsel informed Reeves that the municipal judge was going to rule on the motion without conducting a hearing. However, this referenced motion is not in the record.

¶ 4. On February 13, 2009, Reeves’s counsel received a notice from the municipal court for an unpaid fine resulting from Reeves’s DUI conviction. This notice was dated February 3, 2009, and stated that Reeves had ten days to pay his fine. On February 16, 2009, Reeves’s counsel sent a letter to the municipal court clerk, stating he was unaware that Reeves had been found guilty and that he would file a notice of appeal within the week. Reeves’s counsel also sent a letter to the municipal judge, requesting that an appeal bond be set. In the process of obtaining the bond, Reeves claims that the bail bondsman was told by the municipal court clerk that the date of conviction was February 11, 2009. This date is written on the face of the appeal bond.

¶ 5. On March 3, 2009, Reeves filed a notice of appeal from his DUI conviction and his appeal bond with the Copiah County Circuit Court. After a bench trial held on March 30, 2009, the circuit court dismissed Reeves’s appeal without prejudice, finding that it was not filed in a timely manner. See URCCC 12.02(A)(1). The circuit judge’s dismissal was based upon an “Abstract of Court Record” filed on March 30, 2009, which stated that the date of Reeves’s conviction was January 14, 2009. The abstract also stated that Reeves had entered a plea of nolo contendere. Reeves now appeals the circuit court’s dismissal for lack of jurisdiction. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. This Court conducts a de novo review on the issue of “[wjhether a circuit court has jurisdiction to hear a particular matter [as it] is a question of law[.]” Raspberry v. City of Aberdeen, 964 So.2d 1211, 1213 (¶ 7) (Miss.Ct.App.2007) (citing Edwards v. Booker, 796 So.2d 991, 994 (¶ 9) (Miss.2001)).

I. Whether Reeves’s appeal was timely filed.

¶ 7. Rule 12.02(A)(1) of the Uniform Rules of Circuit and County Court states, in pertinent part, that:

Any person adjudged guilty of a criminal offense by a justice or municipal court may appeal to county court or, if there is no county court having jurisdiction, then to circuit court by filing simultaneously a written notice of appeal, and both a cost bond and an appearance bond (or cash deposit) as provided herein within 30 days of such judgment with the clerk of the circuit court having jurisdiction. This written notice of appeal and posting of the cost bond and the appearance bond or cash deposit perfects the appeal.

(Emphasis added). Reeves claims that the circuit judge should not have dismissed his appeal since the judge could not determine the date of conviction by reviewing the record. At the bench trial, the circuit court stated that there was nothing “in [the] court file indicating when there was a conviction.” When the circuit judge asked Reeves’s counsel how he knew that the municipal court had ruled, counsel answered: “I called. She said he was convicted. I just filed a notice of appeal when I found that out.” However, although the City of Crystal Springs, Mississippi (the City) acknowledged that the judge did retain the case “for quite sometime,” it informed the circuit judge of the January 14, 2009 conviction date, and the circuit court allowed the City to provide an abstract of the record the day after the trial.

¶ 8. Under Rule 5.01 of the Uniform Rules of Circuit and County Court, all direct appeals from municipal court “shall be by trial de novo.” Thus, the circuit court may “require the filing of any supplemental pleadings to clarify the issues.” URCCC 5.07. We find no error in the circuit court’s decision to allow the City to submit the abstract of record to furnish Reeves’s date of conviction. Although Reeves notes that the appeal bond had a conviction date of February 11, 2009, this information is hearsay. Reeves admits that this date came from a phone conversation between the bail bondsman and the municipal clerk’s office, and he admits that the date given was not certain. As stated in his brief, “the Municipal Court Clerk intimated to the bail bondsman that the date of conviction was February 11, 2009.” (Emphasis added).

¶ 9. Reeves has not provided any evidence that the January 14, 2009 conviction date is incorrect; neither has Reeves addressed nor refuted the fact that the abstract of the record states he entered a plea nolo contendere. Although a letter to Reeves from his counsel states that a motion to dismiss was filed, this motion is absent from the record.

¶ 10. This Court has applied a strict standard when interpreting Rule 12.02. In Hill v. City of Wiggins, 984 So.2d 1086, 1089 (¶ 15) (Miss.Ct.App.2008), we affirmed a circuit court’s dismissal of an appeal since the defendant failed to post the requisite bond with his notice of appeal in a timely manner. See Riley v. Town of Lambert, 856 So.2d 721, 724 (¶ 11) (Miss. Ct.App.2003) (finding the circuit court’s dismissal of the appeal appropriate based on defendant’s “failure to comply with the requirement that both a cost and appearance bond be posted”). Accordingly, we find no error in the circuit court’s finding that Reeves’s notice of appeal was not filed timely.

II. Whether the notice of appeal included a motion for enlargement of time.

¶ 11. Reeves further contends that his notice of appeal to the circuit court should have been considered a motion for enlargement of time. He argues that “[a]llowing a[c]ircuit [c]ourt trial to proceed on the merits was tantamount to the [c]ourt granting the enlargement, and the prosecution acquiescing thereto by not objecting.”

¶ 12. First, we cannot agree that the issue of the timeliness of Reeves’s appeal was waived. As this Court has stated: “It is fundamental that the parties cannot, by agreement or by waiver, confer jurisdiction where none exists as.a matter of law.” Draper v. City of Flowood, 736 So.2d 512, 513 (¶ 5) (Miss.Ct.App.1999) (overruled on other grounds) (citing Donald v. Reeves Transp. Co. of Calhoun, Ga., 538 So.2d 1191, 1194 (Miss.1989)).

¶ 13. Reeves cites Rule 4(g) of the Mississippi Rules of Appellate Procedure, which “allows the trial court to grant an extension of time for filing a notice of appeal if the appellant files a motion for extension within thirty days after the time for filing the notice of appeal otherwise expires.” Rigdon v. Miss. Farm Bureau Fed’n, 22 So.3d 321, 325 (¶ 10) (Miss.Ct.App.2009) (citing M.R.A.P 4(g)). The motion may only be granted “upon a showing of excusable neglect.” M.R.A.P. 4(g). Reeves contends that he was misled by the municipal court because he did not receive his notice of conviction until it was too late to file a timely appeal. Thus, he claims there was evidence of “excusable neglect.”

¶ 14. We agree with the City’s argument that Rule 4(g) is not applicable to appeals from municipal court to circuit court. Rule 1 of the Mississippi Rules of Appellate Procedure states that the rules “govern procedure in appeals to the Supreme Court of Mississippi and the Court of Appeals of the State of Mississippi, and proceedings on petitions for writs or other relief which the Supreme Court or the Court of Appeals ... is empowered to grant.” As already stated, appeals from municipal court are governed by Rule 12.02 of the Uniform Rules of Circuit and County Court. There is no “excusable neglect” provision or condition for an extension applicable to that rule. While Rule 12.02(C) “provides for liberal amendments to allow a case to go to trial[,] ... this language only applies to an appeal that is timely perfected.” Hill, 984 So.2d at 1089 (¶ 14) (citing Riley, 856 So.2d at 725 (¶ 6)). While we acknowledge that this interpretation may result in a seemingly unfair dismissal of a case, this Court must interpret the rule as written. Modifications to the Uniform Rules of Circuit and County Court may only be made by the Mississippi Supreme Court.

¶ 15. Reeves also makes the argument that he has never received “actual notice” of the conviction. The record reflects that Reeves received a letter from the municipal clerk and that his attorney verified his conviction with the clerk’s office in February 2009. Further, as the abstract of the record showing Reeves’s conviction was made a part of the record, we find this claim without merit.

¶ 16. We find that even if Reeves’s notice of appeal was considered a motion for enlargement of time, the Uniform Rules of Circuit and County Court do not allow for such extension. This issue is without merit.

III. Whether the dismissal of the appeal resulted in manifest injustice.

¶ 17. Reeves claims that the circumstances surrounding the administration of the Intoxilyzer test should have resulted in an acquittal. He states that law enforcement failed to observe him for at least fifteen minutes prior to the test, as required by law. See Miss.Code Ann. 68-11-5 (Rev.2004). Further, he says that the test was tainted as Reeves had removed tobacco from his mouth immediately prior to the administration of the test.

¶ 18. The Intoxilyzer report states that the “Time of Observation Start” was 5:58 a.m. The “Start Test Time” was 6:28 a.m. Reeves submitted two breath tests: one at 6:40 a.m. and another at 6:42 a.m. There was extensive discussion regarding the times submitted by the police officers administering the test. At the circuit court bench trial, Officer Cooper was asked by counsel for the City, as follows:

Q. Now at what point did you begin your observation of Mr. Reeves before the [I]ntoxilyzer test?
A. It would be at 5:58 when I came into the police station.
Q. What did you do to observe Mr. Reeves?
A. I brought — as he was coming in there, he threw his dip out, I asked him to come back with me to the [Ijntoxilyzer room where John Martin could run him on the [I]ntoxilyzer. And he stayed in my sifght] the whole time and never took anything else into his mouth.
Q. Did he take anything else by mouth prior to taking the [I]ntoxilyzer test?
A. No.
Q. And you said you had him continuously in your observation; is that correct?
A. Yes.
Q. And was there a full 15 to 20 minutes or longer time after your observation period started before he blew into the [I]ntoxilyzer?
A. There was.
Q. Did he take anything by mouth during that period of time?
A. No.

Officer Cooper stated unequivocally at the appeal hearing that he observed Reeves for the statutorily-required amount of time prior to Reeves’s submitting to the Intoxi-lyzer test. Although it was noted that Reeves did have tobacco in his mouth, the record reflects that he removed it more than fifteen minutes before submitting to the test.

¶ 19. Officer John Paul Martin, who was also present and who administered the Intoxilyzer test, testified that he observed Reeves personally for at least twenty minutes before administration of the test. But he later admitted that he did not really observe Reeves until he started the test, which according to the report submitted into evidence was only twelve minutes prior to Reeves’s blowing into the machine. However, we do not find this admission by Officer Martin implies that Reeves’s DUI conviction resulted in a manifest injustice. Officer Martin was present merely to assist Officer Cooper by administering the test. Officer Cooper stated that he began his observation of Reeves at 5:58 a.m. and that Reeves did not blow into the machine until 6:40 a.m., which constitutes forty-two minutes of observation. Reeves has not presented any evidence that Officer Cooper failed to observe him during this period or that he took anything by mouth during this period.

¶ 20. To further his argument, Reeves also notes the testimonies of Officers Cooper and Martin that the Intoxilyzer machine’s clock was fifteen minutes slow, and he claims that Officer Cooper’s testimony is unreliable due to what Reeves perceives as discrepancies in the officer’s testimony. Officer Cooper explained that, if anything, the problem with the machine’s clock meant that Reeves was observed longer than the requisite observation time of fifteen minutes. Additionally, Officer Cooper testified as follows regarding his observation of Reeves:

Q. You testified on direct that it was 5:58 at that point.
A. That’s what the dispatcher had told me.
Q. And, in fact, that’s what you testified to at the preliminary-the trial?
A. That’s correct.
Q. The municipal court trial?
A. That’s correct.
Q. 5:58. Okay. Now, so your testimony is when you first got there, that’s when you talked to Officer Martin and went out and talked to Mr. Reeves?
A. That’s correct.
Q. And /all went into this other room where Officer Martin was?
A. That’s correct.
Q. And you testified that would have been about 6:00 at that point?
A. I believe it was 5:58, around 6:00 o’clock, that’s correct.
Q. And so when /all entered the room, did Officer Martin turn on the machine as you entered the room?
A. I can’t recall that. I don’t remember what — I was observing Mr. Reeves at that time. I washt paying attention to what John Paul was doing at that time.
Q. Now we know that we have discrepancies on the clock time, but from your own personal information, did Mr. Reeves take the intoxilyzer test and blow into the machine prior to you observing him for 20 minutes?
A. He did.
He did? &
Yes. <j
Q. You’re saying he blew before the twenty minutes?
A. Oh, no, not before 20 minutes. I’m sorry.
Q. Are you absolutely sure?
A. I am absolutely positive.
Q. And he was under your observation?
A. That’s correct.

Although there was some confusion regarding the time that Officer Cooper arrived at the accident scene, his testimony was consistent regarding the time that he started observation of Reeves while at the police station and during the Intoxilyzer test.

¶ 21. Thus, as there is no indication that the proper procedure was not followed in administering the Intoxilyzer test, we find this issue without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY IS AFFIRMED. ALL COSTS OF •THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS AND ROBERTS, JJ., CONCUR. MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J., ISHEE AND CARLTON, JJ.

MAXWELL, J.,

dissenting:

¶ 28. Because the municipal court failed to notify Reeves he had been found guilty of fírst-offense DUI, I find his diligent efforts, upon learning of the conviction, were sufficient to timely perfect his appeal to the circuit court. Therefore, I respectfully dissent from the majority and would instead reverse the circuit court’s dismissal of Reeves’s appeal and remand the case to the circuit court to consider the merits of his appeal.

¶ 24. The record indicates Reeves’s attorney’s first hint that his client had been found guilty came by way of a notice dated February 3, 2009. This was neither a notice of conviction nor an order adjudicating guilt but instead a directive that Reeves pay a fine within ten days for his DUI conviction. Reeves’s attorney claims upon receiving the notice of fine, on February 18, 2009, he contacted the municipal clerk to confirm Reeves had been convicted. According to Reeves’s counsel, the clerk was unable to provide a date of conviction.

¶ 25. There is nothing to dispute Reeves’s assertion that he received this lone notice on February 13, 2009, a Friday. On Monday, February 16, his attorney sent two letters — one to the municipal clerk notifying her Reeves would not be paying the fine because he was filing a notice of appeal, and the other to the municipal court requesting a bond. The bond was issued March 2, and the next day, March 3, Reeves filed his notice of appeal and bond with the circuit court, within thirty days of learning of his conviction.

¶ 26. Our appellate courts will not disturb the discretionary action of a trial court in dismissing an appeal when it appears the appellant has shown willful neglect. Kennard v. State, 240 Miss. 488, 493, 127 So.2d 848, 850 (1961). But here, the undisputed facts establish that this is not a case of neglect or inaction on the part of trial counsel. Rather, all indications point to a failure by the municipal court to apprise Reeves that he had been convicted. This oversight by the municipal court was in turn followed by reasonable, diligent actions by Reeves’s attorney, calculated to preserve his client’s right to appeal.

¶ 27. The Mississippi Supreme Court has held it is an abuse of discretion for a circuit court not to reinstate an appeal from justice court where the facts show the “appellant was not guilty of wilful neglect, bad faith, or that he trifled with the operation of the court; and it is manifest that the State was not prejudiced.” Id.; see also Sartain v. State, 406 So.2d 43, 44 (Miss.1981) (reinstating appeal to the circuit court because defendant “justifiably explained” her failure to appear).

¶ 28. Although Kennard predates the adoption of Uniform Rule of Circuit and County Court 12.02, requiring a notice of appeal and bond be filed within thirty days of judgment to perfect an appeal, this court has recognized the circuit court’s decision to dismiss for failure to comply with Rule 12.02 is discretionary. Riley v. Town of Lambert, 856 So.2d 721, 723-24 (¶ ¶ 10-11) (Miss.Ct.App.2003).

¶ 29. I find the circuit judge abused his discretion in dismissing Reeves’s appeal as untimely based solely on evidence of a municipal court’s abstract showing a date of January 14, 2009, as the date of conviction. In considering the notice issue, the circuit court was clearly troubled that the municipal court file contained no evidence that Reeves had been convicted, let alone what date his conviction was entered. Though the circuit judge eventually permitted the municipal prosecutor to supplement the record with the abstract, there is simply no indication that Reeves received notice of the conviction prior to February 3. And Reeves filed his notice of appeal and bond within thirty days of the February 3 notice. As in Kennard, there is no evidence Reeves’s March 3 notice of appeal was the product of willful neglect, bad faith, or trifling with the court. Further, the prosecution was not prejudiced, having participated in a full evidentiary hearing before the circuit court on the merits of Reeves’s appeal, after which, the circuit court adjourned and postponed its ruling before ultimately deciding it lacked jurisdiction to consider the appeal because it was untimely.

¶ 30. I find this case similar to City of Gulfport v. Saxton, 437 So.2d 1215 (Miss.1983). In Saxton, the issue was whether the circuit court had jurisdiction because Billy Saxton filed his motion to vacate the circuit court’s ruling after the court term in which it was issued had expired. Id. at 1216. “Without prior notice as to when the parties might expect a ruling, the Circuit Court on September 2, 1981, entered its order....” Id. But the parties did not receive actual notice of the order until October 15, 1981, after the previous court term expired October 2. Id. The circuit court decided the order “should be treated for all purposes as having been entered no earlier than October 16, 1981, and that all rights of the parties should be preserved the same as if the order had been entered on that date.” Id. On appeal, the supreme court rejected an argument that the circuit court lacked jurisdiction to consider the September 2 order, finding it “intolerable to subject Saxton to prejudice and the loss of the rights he has subsequently won because he took no action between September 2 and October 15.” Id. at 1217. Like Saxton, here Reeves “had every reasonable expectation that [he] would be notified by the court when a decision ... had been made.” Id. In reversing the circuit court’s finding that it lacked jurisdiction, our supreme court in Saxton reasoned, as I do here, that parties should not be required to “police the docket and fail to do so at their peril.” Id.

¶ 31. I acknowledge the comment to Rule 4 of the Mississippi Rules of Appellate Procedure — our counterpart to Uniform Rule 12.02 — notes the “[m]ere failure to learn of entry of the judgment is generally not a ground for showing excusable neglect. Counsel in a case taken under advisement has a duty to check the docket regularly.” M.R.A.P. 4(g) cmt. (Emphasis added). But even if Appellate Rule 4 governed, this general principle — that failure to learn of the judgment is not excusable neglect — should not apply under these circumstances. As the circuit judge noted, the municipal court record neither contained evidence of Reeves’s conviction, nor did it mention the date of conviction. So I have serious concerns about whether routine inquiries with the court would have led to the discovery of the conviction or the date on which the thirty days to appeal began to run.

¶ 32. The comment to Appellate Rule 4 recognizes Saxton and its contradictory position as an exception to the general rule. Id. Because I believe we are faced with a similar exception, Reeves should not be penalized for failing to act between January 14 and February 3. Under these circumstances, to take away his ability to appeal, “smack[s] of a violation of due process.” Saxton, 437 So.2d at 1217; see also McFarland v. State, 936 So.2d 960, 962 (¶ 5) (Miss.Ct.App.2006) (out-of-time appeal granted under Rule 4 “where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court”).

¶ 33. For these reasons, I would reverse the circuit court’s decision that it had no jurisdiction to entertain the appeal from municipal court and would remand the case to the circuit court to consider the merits of Reeves’s appeal.

LEE, P.J., ISHEE AND CARLTON, JJ„ JOIN THIS OPINION.

      . Although the municipal court may have violated Rule 12.02(A)(3) by not providing this portion of the record within ten days after Reeves's notice of appeal, this Court has held that "the purely ministerial act of transmission of the record is not jurisdictional.” Pulido v. City of Oxford, 991 So.2d 1223, 1225 (¶ 7) (Miss.Ct.App.2008).


author: ROBERTS, J„

text:
    M.L. PULLIAM, Lonnie Pulliam, Thomas Gene Pulliam, M. Earl Pulliam, Sammy K. Pulliam and Linda Pulliam Wilson, Appellants v. Alpha BOWEN, Genora Bowen Williams and Rita May Bowen Neal, Appellees.
    No. 2009-CA-01284-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.

      Rex F. Sanderson, Houston, attorney for appellants.
    John P. Fox, Houston, attorney for ap-pellees.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J„

for the Court:

¶ 1. M.L. Pulliam, Lonnie Pulliam, Thomas Gene Pulliam, M. Earl Pulliam, Sammy K. Pulliam, and Linda Pulliam Wilson (Collectively, the Pulliams) appeal the decision of the Chickasaw County Chancery Court finding that the Pulliams failed to sustain their claim that they adversely possessed certain property in Chickasaw County Mississippi. They further appeal the chancellor’s decision that Alpha Bowen, Genora Bowen Williams, and Rita May Bowen Neal (Collectively, the Bowens) had adversely possessed the disputed property spanning from County Road 406 to the Bowens’ southern boundary line. Finally, the Pulliams appeal the chancery court’s dismissal of their claim for trespass and ejectment. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Bowens and Pulliams own adjacent property in Chickasaw County. The Pulliams’ property lies to the west of the Bowens’ property. The property in dispute is located in the West Half of Section 2, Township 14 South, Range 4 East. The Bowens received their property from a deed passed down from Cora Belle Bowen, their mother, to them with the original source being a forfeited land tax patent from the State of Mississippi to their great-uncle. Their property, as described in the deed, is the “East [half] of the Northwest [quarter], and the East [half] of the Northeast [quarter] of the Southwest [quarter], both in Section 2, Township 14, Range 4 East, being approximately 109 acres.” According to their deed, the Bow-ens’ property did not extend all the way to County Road 406.

¶ 3. The Pulliams property is described in a deed from Toily Pulliam, their mother. The property is described as “beginning in the northwest corner of Section 2 ... and run thence east 25.60 chains, thence south 66.40 chains to the center of the ... Public Road, thence running westerly along the center of said public road 25.60 chains, more or less, to the west line of said Section 2, thence north along the section line 71.90 chains to the point of beginning....” The property described in the deed is approximately 174 acres.

¶ 4. In June 2006, Alpha and Genora filed a complaint to quiet and confirm title against M.L. and all others having any' interest in the property. In 2007, the Pulliams filed a complaint against the Bowens seeking ejectment for trespass and to quiet and confirm title to the disputed property. In June 2008, these two cases were consolidated naming the Pul-liams as plaintiffs and the Bowens as defendants.

¶ 5. At the hearing, the Pulliams asserted that they were the owners of certain property described in their deed, and even though their deed and the Bowens’ deed overlapped, they were entitled to the property by adverse possession. The Pulliams relied on the testimony of M.L. to establish their claim for adverse possession. M.L. testified that an old fence line on the eastern side of the Fitzpatrick property was the actual boundary line of his property and the Bowens’ property. The Pul-liams claim everything west of the old fence line. The fence referenced by M.L. was neither shown on the Bowens’ land survey that was introduced into evidence, nor seen by the chancellor upon an on-site viewing of the property. M.L. testified further that the Pulliams paid taxes on this property.

¶ 6. The Bowens did acknowledge that a fence existed to separate the properties; however, Alpha testified that the fence was located on the western side of the Fitzpatrick property. He did not dispute that the Pulliams own the land west of that fence line, only that they do not own any of the land east of the line. The fence line Alpha references is found on the survey that the Bowens submitted into evidence. Alpha also testifies that the Bowens paid taxes on the property.

¶ 7. After hearing testimony from M.L., Alpha, and the surveyor, the chancellor determined- that neither party had fully satisfied the elements of adverse possession to the disputed property. He found that neither party could demonstrate that he exercised control over the land nor that there was any actual or hostile possession of the land to satisfy that element of adverse possession. The chancellor found that there was a mutual mistake in the deed descriptions and not in the actual location of the boundary lines. He found that a deed description that arises from a mutual mistake of the parties may be corrected. McCoy v. McCoy, 611 So.2d 957, 961 (Miss.1992). As such, he determined that the Pulliams’ and Bowens’ deed descriptions overlap causing a mutual mistake and allowing for reformation of the deed.

¶ 8. When making his award of property, the chancellor relied on the Pulliams’ deed that was older and more specific in using metes and bounds to describe the property. He determined that it was the intent of the parties’ predecessors to convey property contiguous with each other and that application of the Pulliams’ deed would satisfy that intent. Once he established the Pulliams’ property according to their deed description, he began at the northeast corner of the Pulliams’ property and established the Bowens’ property. He also awarded the Bowens, through adverse possession, the property north of County Road 406 up to the Bowens’ current southern boundary line. He awarded the Bow-ens approximately one hundred acres of property, which was what the predecessors had originally attempted to convey in the deed. According to the chancellor’s award, the Bowens and Pulliams now have parallel pieces of property which are no longer shaped as a panhandle like the survey of the Bowens’ property had originally indicated.

¶ 9. The Pulliams now appeal raising three issues:

I. They proved their adverse possession of certain parts of the land awarded to the Bowens;
II. The award of judgment of adverse possession in favor of the Bowens was error;
III. They proved that the Bowens had committed trespass by cutting timber on their property.

DISCUSSION

¶ 10. When reviewing decisions of a chancellor, the standard of review is limited. Nichols v. Funderburk, 883 So.2d 554, 556 (¶ 7) (Miss.2004). The chancellor’s determinations will only be reversed when they were manifestly wrong, clearly erroneous, or when the chancellor applies an incorrect legal standard. Id. Generally, a finding that proof of adverse possession was insufficient is fact-finding and requires the application of the substantial evidence/manifest error rule. Walker v. Murphree, 722 So.2d 1277, 1280 (¶ 15) (Miss.1998).

I. Adverse Possession

¶ 11. The Pulliams argue that the chancery court erred in awarding the Bow-ens certain property by adverse possession while denying them an award of property by adverse possession.

¶ 12. Mississippi Code Annotated section 15-1-13(1) (Rev. 2003) defines adverse possession as follows:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full complete title....

¶ 13. There are six required elements in determining whether property has been adversely possessed. The party claiming adverse possession must establish each element by clear-and-eonvincing evidence. The claimant must show that his possession was (1) under a claim of right or ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful. Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992).

¶ 14. The Pulliams argue that the chancellor erred in failing to award them certain property through adverse possession. The Pulliams and the Bowens had deeds with overlapping descriptions. As a result, the Pulliams argued that they were entitled to the property that was described under the overlapping deed descriptions because they had adversely possessed the property. The Bowens asserted the same. The chancellor found that neither party was entitled to the property through adverse possession because neither could show that they exercised control to the exclusion of others. The chancellor also found that neither the Bowens nor the Pulliams proved any actual or hostile possession. The Mississippi Supreme Court has repeatedly stated that to show actual or hostile possession, the adverse possessor “must unfurl his flag on the land, and keep it ñying, so that the (actual) owner may see.” Blankinship v. Payton, 605 So.2d 817, 820 (Miss.1992). In this case, neither party constructed fences, raised cattle or crops, or even attempted to improve or develop the property.

¶ 15. The chancellor determined that, in regard to the disputed property, neither party had an adverse-possession claim that would trump the other’s adverse-possession claim.

¶ 16. The chancellor found that since there was a mutual mistake in the deed descriptions, he could reform the deed according to the description found in the Pulliams’ deed. “The law permits reformation of instruments to reflect the true intention of the parties when (a) the erroneous part of the contract is shown to have occurred by a mutual mistake.... ” Brown v. Chapman, 809 So.2d 772, 774 (¶ 9) (Miss.Ct.App.2002). The chancellor relied on the Pulliams’ deed because the description used metes and bounds, which is more specific than the Bowens’ deed.

¶ 17. We find that the chancellor did not err in awarding neither party the property by adverse possession or in his reformation of the deeds; thus, issue is without merit.

¶ 18. Although the chancellor did not award the disputed property to either party, he did award the Bowens certain other property by adverse possession. The awarded property extends from north of the county road to the southern boundary line of the property described in their deed. The chancellor found that the Bow-ens met all the required elements of adverse possession as to this piece of property. They built their home on the property and actually occupied it for over ten years. The Bowens had even conveyed two other parcels located on that property. These actions were sufficient to give notice to the world that they were claiming the land as their own.

¶ 19. We find that as to this property the chancellor did not err in his award of this property by adverse possession to the Bowens; accordingly, this issue is without merit.

II. Trespass

¶ 20. The Pulliams also argue that they proved that the Bowens had committed trespass by cutting timber on the Pul-liams’ property. Mississippi Code Annotated section 95-5-10 (Rev. 2004) provides: “[T]he owner shall only be required to show that such timber belonged to such owner, and that such timber was cut down, deadened, destroyed or taken away by the defendant, his agents or employees, without the consent of such owner.” The chancellor dismissed the trespass and ejectment claim because the Pulliams failed to prove that the Bowens had cut timber off their property. Based on the evidence found in the record, it was undisputed that the Bowens had cut timber, but the Pul-liams failed to prove the location of where the timber was cut and that the timber had belonged to them as required by statute.

¶ 21. Finding this issue without merit, we affirm the chancellor’s dismissal of the Pulliams’ claim for trespass and ejectment.

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

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

      . One chain equals sixty-six (66) feet.

      . The Fitzpatrick property is located on County Road 406 in the southwest corner of the Bowens' property.