author: CARLSON, Presiding Justice,

text:
    James MALLARD v. Tonya Mallard BURKART.
    No. 2010-CA-02069-SCT.
    Supreme Court of Mississippi.
    Aug. 30, 2012.

      Robert James Curtis, Clarksdale, attorney for appellant.
    Cheryl D. Hayden, Petal, attorney for appellee.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. James Mallard and Tonya Mallard (now Tonya Mallard Burkart) were divorced on April 25, 2001. Incorporated into the Final Judgment of Divorce was the Child Custody and Support and Property Settlement Agreement executed by the parties. A significant portion of the financial settlement that Burkart received in the property settlement agreement consisted of forty percent of Mallard’s “disposable military retirement pay” for ten years. Following the divorce, Mallard elected to adopt a sixty-percent disability rating as part of his retirement pay. Mallard did not provide any of these disability benefits to Burkart. When Mallard filed a Petition for Modification of Judgment of Divorce in chancery court pursuant to child-support and custody matters not at issue on this appeal, Burkart filed a counter-petition for contempt, asserting that Mallard had structured his retirement in such a way as to defeat her forty-percent interest in the total retirement pay. The chancellor determined that Burkart was entitled to forty percent of the disability benefits, but he declined to find Mallard in contempt. From this judgment, Mallard appeals to us.

¶ 2. Today, we find that, since federal law preempts state law, state courts are precluded from allocating military disability benefits to a nonmilitary spouse; therefore, we reverse and remand the case for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS IN THE CHANCERY COURT

¶ 3. On January 5, 2001, Tonya Mallard and James Mallard filed a joint complaint for divorce in the Lamar County Chancery Court on the grounds of irreconcilable differences. On April 25, 2001, a final judgment of divorce was entered, ratifying and incorporating the parties’ Custody and Support and Property Settlement Agreement. The property settlement agreement incorporated into the judgment of divorce provided, inter alia, as follows:

Pursuant to the Uniform Services Former Spouses Protection Act (“USFS-PA”), 10 U.S.C. § 1408, the Court makes the finding followings of fact:
(A) That the Husband is currently an active duty service member in the United States Air Force.
(B) That Husband’s rights under the Soldiers and Sailors Civil Relief Act have been observed in these proceedings.
(C) That Wife and Husband were married for at least ten (10) years during which Husband performed at least ten (10) years creditable service, making Wife eligible for involuntary military deductions under The USFSPA at such time [a]s Husband becomes entitled to retirement pay.
(D) Wife is awarded 40% of Husband’s disposable military retired pay for ten (10) years unconditional. Wife shall continue to receive 40% of Husband’s disposable military retired pay after ten (10) years if she does not remarry or has not lived with someone for a cumulative of sixty (60) days. Payments shall continue until Wife remarries or lives with someone for a cumulative of sixty (60) days upon which time payments shall cease. It is Wife’s responsibility to notify the Defense Finance and Accounting Service and Husband of any change of eligibility for payment.
(E) The Husband voluntarily consents to the exercise of jurisdiction to the State of Mississippi, County of Forrest for division [of] military retired pay.

(Emphasis added.)

¶ 4. Mallard and Burkart married on May 24, 1980, and Mallard was on active service with the United States Air Force for the entire period of the marriage. Following the divorce, Mallard retired from the military in October 2002, without any disability benefits. At some point prior to his retirement, Mallard sustained a back injury and a herniated disk. The record does not reveal whether this injury occurred before or after the divorce. Mallard received a partial disability rating of sixty percent in June 2008, which was backdated to his retirement date of October, 2002.

¶ 5. The percentage of a disability rating is deducted from retirement pay on a dollar for dollar basis. 38 U.S.C. § 5305 (2004). Mallard testified that, after going on disability, he sent Burkart monthly payments amounting to forty percent of only the portion of his retirement which did not consist of disability benefits. The record reflects that, before going on disability, Mallard sent Burkart monthly payments of $571, but that, once the disability rating took effect, the monthly payments dropped to between $80 and $120 per month.

¶ 6. On October 4, 2006, Mallard filed a Petition for Modification of Judgment of Divorce, pursuant to child support and custody matters not at issue on this appeal. An amended petition was filed on January 18, 2007. On April 3, 2007, Burkart filed an Answer and Counter-Petition, asserting, among other things, that Mallard had structured his retirement from the Air Force in such a way as to defeat her forty-percent interest in the retirement pay. Trial was held on both Mallard’s amended petition and Burkart’s counter-petition on November 12, 2009, and the chancellor’s Findings of Facts, Conclusions of Law, and Final Judgment were entered on November 19, 2009.

¶7. The chancellor ruled in favor of Burkart. Pertinent to the instant appeal, the chancellor held that Mallard unilaterally had breached the settlement by going on disability and denying any portion of the disability benefits to Burkart. Mallard claimed that, under U.S.Code Section 1408 and the U.S. Supreme Court case of Man-sell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), federal law preempts state law, thus precluding the state trial court from being able to award those monies. The chancellor found that “there does not seem to be any Mississippi [caselaw] that considers the question at hand, [but] the Court finds most persuasive, a 2001 opinion rendered by the Supreme Court of Tennessee that appears to be directly on point.” Applying the Tennessee rule, the chancellor rejected Mallard’s argument, determining that Bur-kart’s interest in Mallard’s total retirement pay, including his disability benefits, had vested at the time of the entry of the final judgment of divorce, which adopted and incorporated by reference the attached property-settlement agreement.

¶ 8. The chancellor held that Mallard was liable to Burkart for $21,213.57, reflecting the difference between what Bur-kart would have received had Mallard not gone on disability and what she actually had received, plus six percent interest. The chancellor declined to hold Mallard in contempt, since he was using military rules and regulations available to all retirees. Aggrieved, Mallard has appealed to this Court.

DISCUSSION

¶ 9. Mallard couches the sole issue before us as follows:

Whether the chancellor erred in requiring [Mallard] to compensate [Burkart] for the reduction in her payments for her share of [Mallard’s] military retirement benefits previously awarded to her as marital property and subsequently reduced due to [Mallard’s] post-divorce waiver of military retirement benefits in exchange for a corresponding amount of veterans disability benefits!.]

On the other hand, Burkart couches the sole issue before us as follows:

W[he]ther [the][c]hancellor erred in the determination of facts by clear and convincing evidence and the application of the [l]aw in holding that [Mallard] was required to compensate [Burkart] in an amount representative of her share of [Mallard’s] military retirement previously awarded to her as marital property in a Final Judgment and Property Settlement Agreement where said retirement benefits were unilaterally reduced due to [Mallard’s] post-divorce and post-retirement actions of waiver of his military retirement benefits in exchange for a corresponding amount of tax free veterans disability benefits.

Considering the issue as presented to us by the parties, we reword the issue by stating that today we must determine whether federal law preempts state law, thus precluding state courts from treating as property divisible upon divorce, military retirement pay waived by the military spouse in order to receive military [veterans’] disability benefits.

¶ 10. “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Duncan v. Duncan, 774 So.2d 418, 419 (Miss.2000) (citing Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (Miss.1999)). “Under the standard of review utilized to review a chancery court’s findings of fact, particularly in the areas of divorce, alimony and child support, this Court will not overturn the court on appeal unless its findings were manifestly wrong.” Duncan, 774 So.2d at 419 (citations omitted). “As to matters of law, however, a different standard applies. In that case, our review is de novo, and if we determine that the chancellor applied an incorrect legal standard, we must reverse.” Carter v. Carter, 735 So.2d 1109, 1114 (Miss.Ct.App.1999) (citing Morreale v. Morreale, 646 So.2d 1264,1267 (Miss.1994)).

¶ 11. We agree with the chancellor and both parties that the present question is one of first impression in Mississippi. Thus, we look to other jurisdictions for guidance.

¶ 12. We start with the United States Supreme Court’s decision in McCarty v. McCarty, 45B U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). McCarty is a case from a community-property state. The Court reasoned that the federal statutes then in effect prevented state courts from treating military retirement pay as community property, finding that it was clear Congress intended that military retirement benefits could be paid only to the veteran and no one else. McCarty, 458 U.S. at 228,101 S.Ct. at 2739. In reaching this conclusion, the McCarty Court relied heavily on Congress’ refusal to pass legislation that would have allowed former, nonmilitary spouses to garnish military retirement pay to satisfy property settlements. McCarty, 453 U.S. at 228-232,101 S.Ct. at 2739-2741. Likewise, in McCarty, the Court stated that if Congress felt that the decision in McCarty was onerous for former spouses of members of the military, Congress could change the law.

¶ 13. In response to McCarty, Congress did just that when it enacted the Former Spouses’ Protection Act, now known as the Uniform Services Former Spouses Protection Act (USFSPA). In Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), the United States Supreme Court had an occasion to address the USFSPA. The Supreme Court succinctly stated the issue as follows:

In this appeal, we decide whether state courts, consistent with the [USFSPA], may treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans’ disability benefits. We hold that they may not.

Mansell, 490 U.S. at 583,109 S.Ct. at 2025. Under USFSPA, “disposable retired or retainer pay” is defined as “the total monthly retired or retainer pay to which a military member is entitled,” less certain specified deductions; and among the amounts which must be deducted from the total pay are any amounts which may be waived in order to receive disability benefits. Mansell, 490 U.S. at 584-85, 109 S.Ct. at 2026.

¶ 14. We briefly state the facts in Man-sell. At the time of the divorce, the military spouse received military retirement pay as well as disability benefits as a result of a waiver of a portion of the retirement pay. The property-settlement agreement provided, inter alia, that the military spouse would pay the nonmilitary spouse fifty percent of his (military spouse’s) retirement pay, including that portion of retirement pay waived so that the military spouse could receive disability benefits. A few years after the divorce, the military spouse asked the state trial court to modify the divorce decree by removing the provision requiring him to share his total retirement pay with the nonmilitary spouse. The trial court denied the military spouse’s request. Mansell, 490 U.S. at 585-86, 109 S.Ct. at 2027. Appeals followed, eventually resulting in the Supreme Court of California denying any relief to the military spouse. Mansell, 490 U.S. at 587, 109 S.Ct. at 2027-28.

¶ 15. But the United States Supreme Court, in the end, reasoned that, while state courts appropriately could divide disposable retired pay in divorce proceedings, this authority did not extend to dividing “total retired pay.” Mansell, 490 U.S. at 589,109 S.Ct. at 2029. The Mansell Court concluded:

We realize that reading the statute literally may inflict economic harm on many former spouses. But we decline to misread the statute in order to reach a sympathetic result when such a reading requires us to do violence to the plain language of the statute and to ignore much of the legislative history. Congress chose the language that requires us to decide as we do, and Congress is free to change it.
For the reasons stated above, we hold that the Former Spouses’ Protection Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits.

Mansell, 490 U.S. at 594-95, 109 S.Ct. at 2032.

¶ 16. Turning now to decisions of state courts in our sister states, the history of the authority of state trial courts to treat military retirement pay and disability benefits as property subject to division upon divorce has been well laid out by the Vermont Supreme Court. Since the question of preemption that the Vermont court considered in the opinion below is the sole issue on appeal in the present case, we include that court’s summary here:

The Supremacy Clause of the United States Constitution proclaims federal law to be “the supreme Law of the Land.” Art. VI, cl. 2. Consequently, federal law can preempt state law whenever Congress explicitly states that it is preempting state law or implicitly preempts state law by occupying an entire field of regulation or passing laws that conflict with state law. Mich. Canners & Freezers Ass’n v. Agrie. MJctg. & Bargaining Bd., 467 U.S. 461, 469, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984). In 1981, the United States Supreme Court held that federal law prevented state courts from treating any military retirement benefits as community property. McCarty v. McCarty, 453 U.S. 210, 223, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), superseded by statute, 10 U.S.C. 1408. According to the McCarty Court, Congress intended all military retirement benefits to go directly to military ser-vieemembers and not to their former spouses. Id. at 228, 101 S.Ct. 2728. The following year, Congress directly responded to McCarty by passing the Uniformed Services Former Spouses’ Protection Act 62 (USFSPA), which authorized state courts to treat disposable retirement benefits as community property, 10 U.S.C. § 1408(c)(1), but which also specifically exempted disability benefits from the definition of disposable retirement benefits, id. § 1408(a)(4)(B). The Supreme Court interpreted these provisions of the USFSPA in Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). The Mansell Court noted that although federal law rarely displaces state law in domestic relations matters, this was “one of those rare instances” where state law was preempted. Id. at 587, 109 S.Ct. 2023. The Mansell Court then held that the McCarty decision “completely pre-empt-ed the application of state community property law to military retirement pay,” and the states therefore needed “an affirmative grant of authority ... to treat military retirement pay as community property.” Id. at 588, 109 S.Ct. 2023. The Court concluded that the USFSPA provided this grant of authority to states with respect to disposable retirement benefits, but not with respect to disability benefits — the Court explicitly held that the state courts are without power “to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits.” Id. at 595, 109 S.Ct. [2032].

Youngbluth v. Yowngbluth, 188 Vt. 53, 61-62, 6 A.3d 677, 682-83 (2010).

¶ 17. We acknowledge that in today’s case, Burkart asserts that Mansell is inapplicable, since the Mansell Court addressed the issue of the inability of state courts to treat as marital property the portion of military retirement pay that has been waived, at the time of divorce, in order to receive veterans’ disability payments.

¶ 18. Several other states have addressed whether state, trial courts have any authority to distribute disability benefits, where the military spouse goes on disability after the divorce property settlement is finalized. There is a split of authority on this question, and no clear majority view. The chancellor in the instant case followed the holding of the Tennessee Supreme Court in Johnson, 37 S.W.3d at 897, and Hillyer v. Hillyer, 59 S.W.3d 118 (Tenn.Ct.App.2001). The Tennessee Supreme Court held in Johnson that “‘retirement benefits’ has a usual, natural, and ordinary meaning .... the term comprehensively references all amounts to which the retiree would ordinarily be entitled as a result of retirement from the military.”

¶ 19. Furthermore, in Tennessee, “[a]ny act of the military spouse that unilaterally decreases the non-military spouse’s vested interest is an impermissible modification of a division of marital property and a violation of the final decree of divorce.” Johnson, 37 S.W.3d at 894. This holding, applied to military disability benefits, entails that “interest in [all retirement benefits, including disability] vest[s] as of the date of entry of the court’s decree and [can] not be unilaterally altered.” Id. at 897. In Hillyer, where the trial court had awarded the nonmilitary spouse forty percent of the “gross military retirement benefits,” the Tennessee Court of Appeals held that “at the entry of the divorce decree [the nonmilitary spouse] obtained a vested right to forty per cent (40%) of Mr. Hillyer’s ‘gross military retirement benefits’ and is entitled to enforce that decree.” Hillyer, 59 S.W.3d at 123.

¶ 20. In today’s case, Mallard’s theory before the chancellor relied heavily on a contrary case, Halstead v. Halstead, 164 N.CApp. 543, 550, 596 S.E.2d 353, 357-58 (N.C.Ct.App.2004). In that case, the North Carolina Court of Appeals held that a trial court “could not substitute its own definition of military retired pay in lieu of the definition of disposable retirement pay as defined by the Congress[,]” because it was precluded from doing so by the United States Code and by federal precedent. The Vermont Supreme Court found similarly that “at least when the original property division order states an exact percentage and contains no indemnity provision— a former spouse cannot use an enforcement proceeding to receive an increased percentage to offset the military service-member’s subsequent application and receipt of disability benefits.” Youngbluth, 188 Vt. at 68, 6 A.3d 677. We are in accord with the analyses of the Halstead and Youngbluth courts, which we find correctly interpreted the law on this matter.

¶ 21. Whatever the equities may be, state law is preempted by federal law, and thus, state courts are precluded from ordering distribution of military disability benefits contrary to federal law. The Uniformed Services Former Spouses’ Protection Act (USFSPA) authorizes state courts to treat disposable retirement benefits as community property. 10 U.S.C. § 1408(c)(1) (2009). “Disposable retired pay” is defined as “the total monthly retired pay to which a member is entitled,” less the authorized deductions. 10 U.S.C. § 1408(a)(4) (2009). Among the amounts “deducted from the retired pay” are disability benefits. Id. In Mansell, the United States Supreme Court held that “under the [USFSPA]’s plain and precise language, state courts have been granted the authority to treat disposable retired pay as community property; they have not been granted the authority to treat total retired pay as community property.” Mansell, 490 U.S. at 589, 109 S.Ct. 2023. More specifically, “the Former Spouses’ Protection Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits.” Id. at 594-95, 109 S.Ct. 2023.

¶ 22. We find the holding of Mansell to be both specific and clear. Some state courts may have established “creative solutions” around the literal meaning of the Mansell holding. See Smith, 56 Cal. Rptr.3d at 345. However, in our judgment, we are constrained to find that Mansell applies even though the “harsh reality of this holding is that former spouses ... can, without their consent, be denied a fair share of their ex-spouse’s military retirement pay simply because [the military spouse] elects to increase his after-tax income by converting a portion of that pay into disability benefits.” Mansell, 490 U.S. at 595, 109 S.Ct. 2023 (O’Connor, J., dissenting). Accord, Davis v. Davis, 111 S.W.2d 230, 232 (Ky.1989) (holding that the USFSPA “evidences a clear intent on the part of Congress to preempt and prevent division of VA benefits as marital property.”)

CONCLUSION

¶ 28. Federal law preempts state law, thus precluding state courts from distributing military disability benefits to the nonmilitary spouse. We therefore find that the chancellor erred when holding that Mallard was liable to Burkart for $21,213.57, reflecting the difference between what Burkart would have received had Mallard not gone on disability and what she actually received, plus six percent interest. Accordingly, we reverse the Lamar County Chancery Court’s judgment as to this distribution, and remand this case for further proceedings consistent with this opinion.

¶ 24. REVERSED AND REMANDED.

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

      . In the record we find Tonya Mallard Bur-kart’s name spelled as “Burkart” and "Burk-hart." But we note that, in signing her name to post-divorce pleadings, she signed as "Bur-kart.” Thus, we will use her spelling throughout this opinion.

      . Even $120 is considerably less than forty percent of $571, but we find nothing in the record or in the parties’ briefs to explain this discrepancy.

      . Citing Johnson v. Johnson, 37 S.W.3d 892, 897 (Tenn.2001), for the proposition that "when a [marital dissolution agreement] divides military retirement benefits, the nonmilitary spouse has a vested interest in his or her portion of those benefits as of the date of the court’s decree.” Further discussion of this case appears infra.

      . In our discussion, supra, we used this language from the Supreme Court to rephrase the issue in today's case.

      . There is a reason this procedure of waiver of a portion of retirement pay in order to receive disability benefits is so popular among military retirees. Under the USFSPA, in order to prevent double-dipping, a military retiree may receive disability benefits, but only to the extent that the retiree waives a corresponding amount of his or her military retirement pay. Since disability benefits are exempt from federal, state and local taxation, military retirees who waive their retirement pay in favor of disability benefits increase their after-tax income. Mansell, 490 U.S. at 583-84, 109 S.Ct. at 2026.

        . Tennessee is not the only state to have adopted such a broad reading of the term "retirement benefits” or "retirement pay.” See, e.g., In re Marriage of Krempin, 70 Cal. App.4th 1008, 83 Cal.Rptr.2d 134 (Cal.App. 1 Dist.1999); In re Marriage of Gaddis, 191 Ariz. 467, 957 P.2d 1010 (Ariz.App.Div.1997); Dexter v. Dexter, 105 Md.App. 678, 661 A.2d 171 (Md.App. 1995); In re Marriage of Strassner, 895 S.W.2d 614 (Mo.App. E.D.1995); Owen v. Owen, 14 Va.App. 623, 419 S.E.2d 267 (Va.App. 1992). One California court has noted of these and like opinions that “[t]he Mansell holding led many state courts to look for creative solutions to prevent a former spouse from losing his or her interest in the military retirement as the result of unilateral action on the part of the military spouse.” In re Marriage of Smith, 148 Cal.App.4th 1115, 56 Cal.Rptr.3d 341, 345 (Cal.App. 6 Dist. 2007).

      . Several other cases are in accord with this holding. See, e.g., Hagen v. Hagen, 282 S.W.3d 899, 905 (Tex.2009); Thomas v. Piorkwski, 286 S.W.3d 662, 669 (Tex.App.Corpus Christi 2009); Morgan v. Morgan, 249 S.W.3d 226, 231-32 (Mo.App. W.D.2008); Troxell v. Troxell, 28 P.3d 1169, 1171-72 (Olda.Civ.App. Div. 1 2001); Ex Parte Billeck, 777 So.2d 105, 109 (Ala.2000); Ashley v. Ashley, 337 Ark. 362, 990 S.W.2d 507, 508-09 (Ark.1999); Robinson v. Robinson, 647 So.2d 160, 161 (Fla.App. 1 Dist.1994) (per curiam); Clauson v. Clauson, 831 P.2d 1257, 1264 (Alaska 1992); Wright v. Wright, 594 So.2d 1139, 1142 (La.App. 3 Cir.1992); Moon v. Moon, 795 S.W.2d 511, 514 & n. 2 (Mo.App. E.D. 1990); Jones v. Jones, 7 Haw.App. 496, 780 P.2d 581, 584 (Haw.App. 1989).

      . We note that the equities now may be more balanced than they were at the time of Man-sell and Hillyer, since Congress in 2003 passed legislation, which became effective on January 1, 2004, allowing concurrent receipt of both retired pay and disability benefits. 10 U.S.C. § 1414(2012). This is known as "concurrent retirement and disability pay” ("CRDP”). This legislation provides, in some cases, for a ten-year phased elimination of the disability offset. Since CRDP payments are taxable and divisible with a former spouse, much of the perceived inequity of the impossibility of dividing disability benefits may be offset. Mallard has been receiving CRDP payments, which apparently has provided at least some relief to Burkart; i.e., Burkart's monthly payments have risen from $80 to, at the time of trial, $603, a higher payment than Burkart was receiving before Mallard went on disability.
      Although this is comforting, we hold that, even where CRDP is not a factor, and the nonmilitary spouse receives no compensation for the funds "lost” to the military spouse's disability benefits, federal law still preempts state law, thus precluding state courts from according any relief in the face of the clearly expressed will of Congress and the holding of the U.S. Supreme Court in Mansell, 490 U.S. at 595, 109 S.Ct. 2023.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Justin BANKSTON d/b/a Bankston Fence and Bankston Fence, Inc., Appellants v. MISSISSIPPI DEPARTMENT OF REVENUE, Appellee.
    No. 2011-CA-00742-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2012.
    Harris H. Barnes III, Flowood, Brandon Collins Dixon, attorneys for appellants
    Gary Wood Stringer, James L. Powell, Jackson, attorneys for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On June 25, 2008, the Mississippi Department of Revenue (MDOR) assessed $250,471 against Justin Bankston and Bankston Fence, Inc. for tax penalties and interests for an audit period of January 1, 2005, through December 31, 2007. Bank-ston appealed the assessment to the MDOR Board of Review (Board). The Board held a hearing and subsequently entered an order affirming the assessment but reducing the amount to $197,125. The Board’s order was entered on August 26, 2009. Bankston filed an appeal of the Board’s order to the MDOR’s Full Commission on September 28, 2009. The Full Commission dismissed Bankston’s appeal as untimely since it was filed beyond the thirty-day period provided in Mississippi Code Annotated section 27-77-5(4) (Rev. 2005). Bankston was granted a hearing before the Full Commission on the sole issue of the timeliness of his appeal. On June 1, 2010, the Full Commission entered an order denying Bankston’s appeal as untimely. Bankston then filed suit in the Hinds County Chancery Court seeking relief from the Full Commission’s June 1, 2010 order. The chancery court dismissed Bankston’s case-, stating that it lacked subject-matter-jurisdiction and that Bankston was not entitled to injunctive relief because he had an adequate remedy at law. It is from this dismissal that Bankston now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. Bankston was the sole proprietor of Bankston Fence until 2008, when he incorporated his business and became the sole shareholder of Bankston Fence, Inc. In 2008, the MDOR audited Bankston Fence for the period of January 1, 2005, through December 31, 2007. On June 6, 2008, the MDOR assessed $250,471 in tax penalties and interest against Bankston for that period. Bankston did not receive notice of this assessment until October 20, 2008, when it was hand delivered to him. He requested a hearing before the Board on November 6, 2008, but the following day, the Board denied Bankston’s request, finding that it was untimely because it had been over thirty days since the assessment was entered. Then, on November 11, 2008, the Board changed its decision and granted Bankston a hearing. Bankston’s hearing before the Board was held on April 7, 2009. The Board entered an order on August 26, 2009, affirming the assessment but reducing the amount of the assessment to $197,125.

¶ 3. On September 28, 2009, Bankston filed an appeal of the Board’s order to the Full Commission. The Full Commission dismissed his appeal because it was untimely filed since Bankston failed to appeal to the Full Commission within thirty days from the date the Board entered its order on August 26, 2009. Bankston requested a hearing on the issue of the timeliness of his appeal before the Full Commission, and a hearing was held on December 2, 2009. Before the Full Commission issued its order, the MDOR sent Bankston a new assessment on February 4, 2010, which again stated the assessment was for $197,125. Bankston requested a hearing before the Board on the new assessment, but he was informed that this February 4, 2010 assessment was issued in error, and his request for a hearing on it was denied. On June 1, 2010, the Full Commission entered its order, regarding the December 2, 2009 hearing, finding that the appeal Bankston filed on September 28, 2009, was untimely and properly dismissed. Bank-ston again requested a hearing on the February 4, 2010 assessment, but his request was denied again.

¶ 4. On July 2, 2010, Bankston filed suit in the chancery court seeking relief from the Full Commission’s June 1, 2010 order dismissing his appeal as untimely filed. He also sought to have the chancery court order the Board to conduct a hearing on the February 4, 2010 assessment. Additionally, Bankston requested the chancery court issue a writ of mandamus directing the MDOR to consider of the merits of his appeal of the Board’s order. The chancery court dismissed Bankston’s action on April 26, 2011, finding that it lacked subject-matter-jurisdiction to hear the action and that Bankston was not entitled to in-junctive relief since there was an adequate remedy at law available to him.

¶ 5. Bankston now appeals the chancery court’s dismissal of his action. He raises the following issues on appeal:

I. Whether the chancery court erred in holding that it lacked subject[-] matter[-]jurisdiction under [Mississippi Code Annotated section 11-13-11] to enjoin the [MDOR] from collecting contractor’s tax assessed against [Bankston] for the periods of January 1, 2005[,] through December 31, 2007, because he was wrongfully deprived of his right to an administrative hearing before the [MDOR] as provided by [Mississippi Code Annotated section 27-77-5(4) ].
II. If the [appellate court] determines that the [chancery court] erred in deciding the first issue, the [appellate court] must also consider whether the [chancery court] also erred in determining that dismissal was required because [Bankston] ... failed to post adequate security as required by [Mississippi Code Annotated section] 11-13-13.

STANDARD OF REVIEW

¶ 6. Because a review of the jurisdiction of a trial court to hear an action is a question of law, an appellate court applies a de novo standard of review. Burch v. Land Partners L.P., 784 So.2d 925, 927 (¶ 7) (Miss.2001) (citing Saliba v. Saliba, 753 So.2d 1095, 1098 (¶ 11) (Miss.2000)).

ANALYSIS

I. Subject-Matter Jurisdiction

¶ 7. The primary issue Bankston raises on appeal is whether the chancery court properly dismissed his petition because it lacked subject-matter-jurisdiction. Bankston argues that Mississippi Code Annotated section 11-13-11 provided the chancery court subject-matter-jurisdiction over the petition. Section 11-13-11 states: “The chancery court shall have jurisdiction of suits by one or more taxpayers in any county, city, town, or village, to restrain the collection of any taxes levied or attempted to be collected without authority of law.” In determining whether injunc-tive relief is proper, particularly under section 11-13-11, trial courts apply the following three-part guideline: (1) whether the aggrieved taxpayer alleges an inadequate remedy at law in his complaint; (2) whether there is not an adequate remedy at law available to the aggrieved taxpayer; and (3) whether the taxpayer’s allegations of fact, if proven to be true, warrant a conclusion that the taxes are being collected or levied without authority of law. Marx v. Truck Renting & Leasing Ass’n, 520 So.2d 1333, 1339 (Miss.1987) (internal citations omitted).

¶ 8. In its order, the chancery court held that section 11-13-11 did not confer subject-matter jurisdiction in this case because Bankston had an adequate remedy at law through Mississippi Code Annotated section 27-77-7 even though Bankston alleged there was no adequate remedy at law for his claim that he was wrongfully deprived of his right to an administrative appeal. Section 27-77-7(1), as it read in 2008 when Bankston’s suit was filed, provided the following: “The findings and order of the [Full C]ommission entered under [sjection 27-77-5 shall be final unless the taxpayer shall, within thirty (30) days from the date of the order, file a petition in the chancery court appealing the order and pay the tax or post the bond as required in this chapter.” The chancery court stated that an appeal through section 27-77-7(1) would be an administrative appeal from the Full Commission’s order, and the chancery court would have to consider the whole record, including the timeliness of Bankston’s appeal and the Board’s decision to dismiss an appeal as untimely. To provide further support that Bankston had an adequate remedy at law, the Legislature has mandated:

Failure to timely file a written appeal with the [Commission secretary within the thirty-day period shall make the order of the [Board] final and not subject to further review by the [C]ommission or a court, other than as to the issue of whether a written appeal from the order of the [Board] was timely filed with the [C]ommission secretary.

Miss.Code Ann. § 27-77-5(4). Based on this language in the statute, section 27-77-5(4) provides Bankston the relief he is seeking in that a court could review whether his appeal was timely filed. Ultimately, an appeal under section 27-77-5(4) would be a review of whether Bankston was denied his right to an administrative appeal. As such, Bankston had an adequate remedy at law and was not entitled to injunctive relief under section 11-13-11.

¶ 9. We agree with the chancery court’s finding that Bankston had an adequate remedy at law through pursuing an appeal under section 27-77-7. However, even assuming arguendo that Bankston did not have an adequate remedy at law, his request for injunctive relief still fails because he failed to prove that the taxes were being collected without the authority of law. The chancery court found section 11-13-11 was inapplicable because “Bank-ston [did] not seek to restrain the collection of taxes levied or attempted to be collected without authority of law. Instead, Bankston [sought] to appeal an assessment of tax to which he objects.” Bankston submits that the MDOR’s failure to apply the Mississippi Administrative Procedures Law (MAPL) wrongfully deprived him of his hearing before the Full Commission on the merits; therefore, the taxes assessed to him are being collected without the authority of law and should be restricted. Mississippi Code Annotated section 27-77-5(4) provides that Bankston had thirty days “from the date of the order of the [Board] being contested, [to] file an appeal to the [C]ommission.” Contrary to Bankston’s argument that the statute does not provide the proper procedure to calculate the time period and that the MAPL, codified in Mississippi Code Annotated section 25-43-1.101, is applicable, it is apparent to this Court that the thirty-day period begins “from the date of the order,” as the statute clearly and unambiguously states. A statute that is plain and unambiguous requires no other statutory interpretation. Herndon v. Miss. Forestry Comm’n, 67 So.3d 788, 792 (¶ 10) (Miss.Ct. App.2010) (quoting Miss. Methodist Hosp. and Rehabilitation Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 607 (¶ 18) (Miss.2009)). Because the statute clearly addresses when to begin the thirty-day period, the application of the MAPL is unnecessary, and the MDOR had the proper authority to collect and levy the taxes.

¶ 10. This issue is without merit.

II. Failure to Post a Security or Bond

¶ 11. Because the first issue addressed is dispositive, we decline to address the issue of whether the chancery court erred in finding that Bankston’s failure to post a security or bond as required by statute was a proper ground for dismissal.

¶ 12. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT.

      . In 2009, the Mississippi State Tax Commission (MSTC) was reorganized and is now the Mississippi Department of Revenue (MDOR). Miss.Code Ann. § 27-3-1 (Rev.2010). The parties refer to the MDOR as the MSTC, which was its name at the time of the original suit, but for the purposes of this opinion, we refer only to the MDOR to avoid confusion.

      . Mississippi Code Annotated section 27-77-5 was amended in 2009, and the amendments took effect on July 1, 2010. Because this action predated the amendment, our analysis in this case relies on the statute as it existed before the amendment. Among other changes, a current reading of the statute extends period for filing an appeal from thirty days to sixty days.


author: IRVING, P.J.,

text:
    Jeffrey John FERGUSON a/k/a Jeffery John Ferguson, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01825-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2012.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   IRVING, P.J.,

for the Court:

- ¶ 1. On September 10, 2010, a jury convicted Jeffrey John Ferguson of aggravated assault. The Leake County Circuit Court sentenced Ferguson to twenty years in the custody of the Mississippi Department of Corrections. Ferguson filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. Feeling aggrieved, Ferguson appeals and argues that the circuit court erred in admitting certain evidence at trial.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Ferguson was having an affair with Carla Hudson, who had been married to, but had separated from, Bee Hudson. Bee moved out of the couple’s home in 2008, and shortly thereafter, Ferguson moved in with Carla.

¶ 4. Bee and Carla had agreed to meet at Carla’s house on November 19, 2009, to discuss the possibility of a reconciliation. Carla had also arranged to meet with Ferguson, who. had recently moved out, at her house that day. Ferguson arrived first, so when Bee arrived, Carla suggested that they talk outside. As Carla and Bee were standing in the front yard talking, Deputies Trey Ross and Justin Sims, with the Leake County Sheriffs Department, arrived at the home. When Bee inquired about their presence, the deputies explained that someone had called 911 from Carla’s house and requested that the police come to the house. Unaware that Ferguson was inside the house, Bee told the deputies that no one from the house had called 911. The deputies called dispatch and learned that Ferguson had called from inside Carla’s house. Carla accompanied Deputy Sims into the house and upstairs, where they found Ferguson hiding in a closet. Ferguson explained that he feared a confrontation with Bee and requested a police escort off the property. After-wards, Ferguson went to a wooded area across the street from Carla’s house and hid. Ferguson later shot Bee while Bee was in front of Carla’s house.

¶ 5. Deputy Doug Holloway works for the Rankin County Sheriffs Department and is Ferguson’s brother-in-law. He testified that prior to the day of the shooting, he had been searching for Ferguson, at his wife’s request, because Ferguson had threatened to commit suicide. On the day of the shooting, Deputy Holloway called Ferguson’s cellular phone, and when Ferguson answered, he immediately told Deputy Holloway that he had shot Bee.

¶ 6. Deputy Holloway contacted the Rankin County dispatch and requested that they contact the Leake County authorities regarding the shooting. Ferguson then called Deputy Holloway and gave him directions to his hiding place across the street from Carla’s house. When Deputy Holloway found Ferguson, he was holding a .308 rifle under his chin. Deputy Holloway convinced Ferguson to put the gun down and surrender. Leake County Sheriff Greg Waggoner allowed Deputy Holloway to arrest Ferguson and take him to the Leake County Correctional Facility. En route to the facility, Deputy Holloway told Ferguson that he should cooperate with the Leake County officers. After Deputy Holloway arrested Ferguson, Sheriff Waggoner inspected the area where Ferguson had been hiding and recovered the rifle that Ferguson had held to his chin, a spent .308 shell casing, and additional ammunition.

¶ 7. Officer Michael Harper, with the Leake County Sheriffs Department, interrogated Ferguson at the correctional facility. Before questioning Ferguson, Officer Harper read Ferguson his Miranda rights, and Ferguson waived his rights. In his police statement, Ferguson confessed to shooting Bee. Officer Harper testified that there were no promises of leniency, threats, or violence used in obtaining Ferguson’s confession.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Admission of Ammunition

¶ 9. Ferguson argues that the circuit court erred in admitting the ammunition that Sheriff Waggoner recovered because it is irrelevant. He contends that the ammunition is irrelevant because there is no evidence that he shot Bee with a .308 rifle.

¶ 10. An appellate court will not reverse a circuit court’s admission of evidence absent a finding that there has been an abuse of discretion. Lattimore v. State, 958 So.2d 192, 198 (¶ 10) (Miss.2007). The Mississippi Supreme Court has reiterated that “[t]ools, weapons, and other physical evidence used or usable in the commission of a crime are admissible into evidence provided that they are relevant and not too remote.” Burrows v. State, 961 So.2d 701, 706 (¶ 16) (Miss.2007) (quoting Bryant v. State, 850 So.2d 1130, 1134 (¶ 12) (Miss.Ct. App.2002)). Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401.

¶ 11. We find no error in the circuit court’s admission of the ammunition. Sheriff Waggoner recovered the ammunition shortly after Ferguson’s arrest from the same area where Ferguson had been hiding with the rifle. Furthermore, Ferguson’s rifle was the only weapon recovered from the area. This issue is without merit.

2. Ferguson’s Confessions

¶ 12. Ferguson asserts that his confessions to Deputy Holloway and Officer Harper were involuntary and should not have been admitted into evidence. First, Ferguson contends that the circuit court erred in not conducting a suppression hearing to determine whether his confession to Deputy Holloway was voluntary. Second, Ferguson argues that his confession to Officer Harper was involuntary because he gave the confession only after Deputy Holloway offered him leniency in exchange for his cooperation with police.

¶ 13. A circuit court’s determination that a confession is voluntary will not be reversed on appeal unless the decision “is manifestly in error ... or is contrary to the overwhelming weight of the evidence.” Neal v. State, 57 So.3d 1271, 1277 (¶ 14) (Miss.2011) (quoting Chamberlin v. State, 989 So.2d 320, 331-32 (¶ 34) (Miss.2008)). Before a confession can be admitted at trial, it must have been “intelligently, knowingly, and voluntarily given, and not the product of police threats, promises[,] or inducements.” Id. at 1280 (¶ 23) (citing Manix v. State, 895 So.2d 167, 180 (¶ 39) (Miss.2005)). If a defendant claims that the police obtained his confession through coercion, the circuit court must hold a hearing, outside the jury’s presence, to determine whether the confession was voluntary. Wilson v. State, 936 So.2d 357, 362 (¶ 9) (Miss.2006).

a. Ferguson’s First Confession

¶ 14. Ferguson made his first confession to Deputy Holloway. Ferguson asserts that this confession should not have been admitted into evidence without a hearing to determine whether the confession was voluntary. Ferguson’s contention is without merit. At trial, Deputy Holloway testified, “[A]s soon as I called [Ferguson], he answered and said, ‘I just shot Bee.’” Given Deputy Holloway’s testimony, it is clear that Ferguson’s first confession was spontaneous and not the product of coercion, threats, or promises, and Ferguson has not offered any evidence to demonstrate otherwise. As such, this issue is without merit.

b. Ferguson’s Second Confession

¶ 15. Ferguson contends that the circuit court erred in admitting his confession to Officer Harper because he confessed only after Deputy Holloway told him that it would be in his best interest to cooperate. The circuit court held a suppression hearing regarding the voluntariness of Ferguson’s confession to Officer Harper. At the suppression hearing, Deputy Holloway admitted that he told Ferguson that “it would probably be in his best interest to cooperate.” After hearing this testimony, the circuit court reasoned that Ferguson confessed to Officer Harper with the hope that “he could receive a benefit from doing so” and found that Ferguson’s confession to Officer Harper was involuntary. Accordingly, the circuit court suppressed the confession and, contrary to Ferguson’s claim, never admitted the confession into evidence. This issue is without merit.

1(16. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: ROBERTS, J., ISHEE, J.,

text:
    Carlos WILSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2011-CP-00315-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2012.

      Carlos Wilson, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, Jeffrey A. Klingfuss, attorneys for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. In July 2004, Carlos Wilson was indicted for possession of a firearm by a convicted felon. Wilson, represented by counsel, appeared before the Madison County Circuit Court, where he pled guilty to the charge in his indictment of possession of a firearm by a convicted felon and to a bill of information charging him with carrying a concealed weapon (CCW). Wilson was sentenced, as an habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007), to serve three years in the custody of the Mississippi Department of Corrections (MDOC) for possession of a firearm by a convicted felon and five years in the custody of the MDOC for CCW. Wilson filed a motion for post-conviction relief (PCR) on November 24, 2010, alleging a double-jeopardy violation and ineffective assistance of counsel. Wilson, apparently satisfied with the validity of his conviction on being a felon in possession of a firearm, attacks only his conviction for CCW. On December 20, 2010, the circuit court summarily denied Wilson’s PCR motion.

FACTS AND PROCEDURAL HISTORY

¶2. On March 24, 2004, police officers initiated a traffic stop in Madison County, Mississippi, because the driver, Wilson’s girlfriend, was following too closely behind another vehicle. During the traffic stop, police officers discovered a .38-caliber revolver under the driver’s seat of the vehicle. Wilson, seated in the passenger seat, claimed possession and ownership of the revolver. A search of Wilson resulted in the discovery of .38-caliber bullets in his pocket. Due to a previous felony conviction for armed robbery, a Madison County grand jury indicted Wilson on July 20, 2004, as a convicted felon in possession of a firearm in violation of Mississippi Code Annotated section 97-37-5 (Supp.2011).

¶ 3. After several years of delay, the case came before Judge Samac Richardson in the circuit court on June 25, 2008, for a scheduled trial. Approximately a week prior, the State had filed a motion to amend Wilson’s indictment to reflect his habitual status as a violent habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.2007) and faxed the motion to defense counsel. At a hearing before trial was to commence on June 25, 2008, Wilson’s attorney, Lisa Ross, adamantly argued her motion for a continuance because, based on the State’s amendment, she was unprepared for trial that day when the possible outcome would be a sentence of life without parole. Judge Richardson denied the motion, finding that the case had been set for trial at least once before, and a trial on the merits would proceed that day with a sentencing hearing, if necessary, conducted at a later date. An on-the-record discussion, if not a debate, ensued with Ross arguing that even if Wilson was convicted and proven to be a habitual offender under section 99-19-83, the circuit judge, in his discretion, could still sentence Wilson to some sentence less than life imprisonment. Judge Richardson reiterated that section 99-19-83, if proven, mandated that the offender “shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended[,] nor shall such person be eligible for parole or probation.” Ross indicated that a plea offer of eight years as a habitual offender had been made by the State the prior Monday; thus, had she known life imprisonment was possible, she would have encouraged Wilson to take the offered plea. After a break in the proceedings and after conferring with Wilson, Ross indicated that Wilson would like to plead guilty to a new plea agreement.

¶ 4. The State and Wilson agreed that Wilson’s habitual-offender status would be reduced to reflect section 99-19-81 status, resulting in the imposition of the statutory maximum sentences for the two crimes. In addition, the State prepared a bill of information charging Wilson with CCW, which violates Mississippi Code Annotated section 97-37-1 (Supp.2011). Wilson agreed, with the consent of his counsel, to waive indictment on the CCW charge and entered a plea of guilty to the bill of information; he also pled guilty to the charge found in his indictment of convicted felon in possession of a firearm. The maximum possible sentences for his charges were five years for CCW and three years for felon in possession of a firearm. The sentences were to run consecutively, resulting in an eight-year sentence as a habitual offender under section 99-19-81, a similar disposition as the earlier plea offer.

¶ 5. Prior to accepting Wilson’s guilty pleas, Judge Richardson thoroughly questioned Wilson as to the voluntariness of his guilty pleas, his understanding of the constitutional rights he was waiving, the minimum and maximum sentences available, the adequacy of his attorney, and also the factual basis for each charge. Wilson indicated that he understood that once the guilty pleas were entered and accepted, he waived “all [his] defenses [he] might have” and that he could not directly appeal from his guilty plea. Judge Richardson accepted Wilson’s guilty pleas and sentenced him, as a habitual offender under section 99-19-81, to three years for the charge of being a convicted felon in possession of a firearm and five years for the charge of CCW, all in the custody of the MDOC. Wilson was ordered to serve these sentences consecutively for a total term of eight years.

¶ 6. Wilson filed his PCR motion in November 2010, alleging violations of his right to be free from double jeopardy and that he received ineffective assistance of counsel. The circuit court summarily denied Wilson’s PCR motion on December 20, 2010. Feeling aggrieved by the circuit court’s denial of his PCR motion, Wilson now appeals and again argues that his double-jeopardy rights were violated and that he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 7. A circuit court’s denial of a PCR motion will not be reversed “absent a finding that the [circuit] court’s decision was clearly erroneous.” Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, questions of law receive a de novo review. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

I. Double Jeopardy

¶ 8. In his first assignment of error, Wilson asserts that he could not be convicted of violating both section 97-37-l(CCW) and section 97-37-5 (felon in possession of a firearm) since he claims the same act of possessing a firearm found under the seat of his vehicle was the basis for both convictions.

¶ 9. Both the United States Constitution and Mississippi Constitution contain provisions protecting an individual from twice being placed in jeopardy for the same offense. See U.S. Const. amend. V; Miss. Const. art. 3, § 22. Double-jeopardy protections were designed to prevent an individual from receiving “a second prosecution for the same offense after acquittal, ... a second prosecution for the same offense after conviction, and ... multiple punishments for the same offense.” Thomas v. State, 930 So.2d 1264, 1265-66 (¶ 5) (Miss.Ct.App.2005) (citing Greenwood v. State, 744 So.2d 767, 770 (¶ 14) (Miss.1999)). To determine whether there has been a double-jeopardy violation, the “same-elements” test found in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), “requires us to review each offense and determine whether each contains an element not present in the other[.]” Vickers v. State, 994 So.2d 200, 215 (¶ 53) (Miss.Ct.App. 2008) (quoting Graves v. State, 969 So.2d 845, 847 (¶ 8) (Miss.2007)). However, “Mississippi has long recognized that a criminal defendant may be convicted of more than one offense that arises out of a single event where each offense requires proof of a different element.” Ward v. State, 944 So.2d 908, 910 (¶ 8) (Miss.Ct. App.2006) (citing Davis v. State, 750 So.2d 552, 568 (¶ 44) (Miss.Ct.App.1999)).

¶ 10. Wilson was indicted for and pled guilty to being a felon in possession of a firearm in violation of section 97-37-5, which provides: “It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm.... ” By bill of information, Wilson was also charged with and pled guilty to a violation of section 97-37-1. Section 97-37-1 prohibits any person to carry “concealed in whole or in part, ... [a] pistol, revolver, or any rifle with a barrel of less than sixteen (16) inches in length, or any shotgun with a barrel of less than eighteen (18) inches in length, machine gun or any fully automatic firearm or deadly weapon....” It is clear by a reading of both statutes that there is no double-jeopardy violation. The offense of possession of a firearm by a convicted felon requires proof that the defendant has been previously convicted of a felony; whereas, the offense of CCW does not require the defendant to have a prior felony conviction. Further, the offense of CCW contains the requirement that the weapon be “concealed in whole or in part,” and the offense of being a felon in possession of a firearm has no such requirement.

¶ 11. Therefore, each offense contains an element not present in the other, and Wilson’s double jeopardy argument fails. This issue is without merit.

II. Ineffective Assistance of Counsel

¶ 12. Wilson next asserts that he received ineffective assistance of counsel because his attorney did not object to the violation of his double-jeopardy protections. Mississippi applies the two-prong test found in the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong requires the appellant to show that counsel’s performance was deficient. Id. The second prong requires the appellant to show that counsel’s deficient performance prejudiced him so greatly “as to deprive the [appellant] of a fair trial.” Id. In the current case, there was no double-jeopardy violation; therefore, Ross, Wilson’s attorney, could not be ineffective for failing to object to something that was not an issue.

¶ 13. Additionally, at his guilty-plea hearing, Wilson answered affirmatively when asked if he had read his guilty-plea petition, had it explained to him by Ross and that he signed or initialed each page of the document. Wilson agreed that everything in his guilty-plea petition was true and correct, and he also confirmed at least twice that he was satisfied with the services and advice of Ross as his counsel. Judge Richardson outlined the elements of each crime Wilson was charged with violating. For the charge of CCW, Judge Richardson explained that the State had to “prove [Wilson was] in Madison County ... the day that [he] had a firearm, that [he was] a convicted felon and had [the firearm] concealed, [and that he] had it in [his] pocket or in a holster or somewhere you couldn’t tell [he] had a weapon.” As for the charge of convicted felon in possession of a firearm, Judge Richardson stated that the State “would have to prove that in Madison County, Mississippi, on or about the same date, March 24, 2004, that [Wilson] did willfully, unlawfully, feloniously have in [his] possession a firearm, whether or not it was concealed, at a time when [he] had been convicted of a prior felony offense, armed robbery.” Wilson again answered affirmatively that he understood these elements. Judge Richardson further elaborated by stating: “And it’s my opinion that, and I think your attorney and the district attorney’s opinion, that even though it’s the same firearm you can commit both of these offenses with that same firearm. It depends on where you were and where the gun was.” He then asked Wilson if he had any questions about the above statement; Wilson responded, “No, sir.” Consequently, the record is clear that Wilson desired to plead guilty to two separate incidences relating to the unlawful possession of the same firearm on March 24, 2004; one incident occurring when Wilson concealed the firearm in his pocket and a second incident later the same day when the firearm was discovered by police officers under the car seat during a traffic stop. Wilson was motivated by his desire to accept the State’s plea offer for an eight-year sentence as a habitual offender under to section 99-19-81 instead of the probability, if not certainty, of a mandatory life sentence under section 99-19-88 as a violent habitual offender if he elected to have a jury trial. The following exchange took place between Judge Richardson and Wilson:

The Court: I want to make sure the record’s clear that the factual basis is established in each one [of the charges]. Are you a convicted felon?
Wilson: Yes, sir.
The Court: Were you convicted of armed robbery in Hinds County ... ?
Wilson: Yes, sir.
The Court: So do you admit that you are a habitual offender?
Wilson: Yes, sir, I am.
The Court: Okay. Now, did you have a firearm?
Wilson: Yes, sir.
The Court: Okay. Did you know you [were not] supposed to have the firearm?
Wilson: Yes, sir.
The Court: Was it in Madison County, Mississippi, on the that date I’ve already stated?
Wilson: Yes, sir.
The Court: [W]as it a traffic stop?
Wilson: Yes, sir.
The Court: And this firearm was found under the driver’s seat, correct?
Wilson: Yes, sir.
The Court: Okay. How did it get into the car?
Wilson: When I left — when I left the house, I — had it — I had it on my person.
The Court: Okay. Did you have it in your pocket?
Wilson: Yes, sir.
The Court: So when you left out of your house, you had this .38 caliber [revolver]—
Wilson: Yes, sir.
The Court: And you walked to your car; is that right?
Wilson: Yes, sir.
The Court: And you got in the car and then you put it under the seat?
Wilson: Yes, sir.

The record may be less than thorough when providing specific facts, such as whether Wilson was leaving his home or someone else’s home and whether Wilson walked on public property to get to his vehicle.

¶ 14. It is important to note that at no time during Wilson’s original case and subsequent appeal does he claim an insufficient factual basis for his crimes. Wilson was arrested for a gun concealed in a vehicle which, according to Mississippi Code Annotated section 97-87-1(2), is not a violation to carry a firearm “within the confines of his own home or his place of business, or any real property associated with his home or business or within any motor vehicle.” However, the Judge Richardson went to great lengths to describe the factual situation in which Wilson carried a concealed weapon not “within the confínes” of his own home or vehicle. The basis of Wilson’s CCW charge was not that a firearm was discovered in the vehicle, but that he carried that firearm concealed in his pocket from his home to his car. Thus, he was not protected under section 97-37-1(2).

¶ 15. Wilson’s principal claim in his PCR motion arises solely from his belief that the conviction for CCW stems from the discovery of the firearm under his car seat. The transcript belies that claim. To the contrary, the CCW conviction arises from an incident earlier during the day on March 24, 2004, in Madison County, when Wilson concealed a revolver in his pocket, walked out the door of his house, and then got into his car. To reverse this conviction on the grounds of an insufficient factual basis would require this Court, sua sponte, to invoke the plain-error doctrine. The invocation of the plain-error doctrine requires a conclusion that allowing Wilson’s conviction to stand results in a manifest miscarriage of justice. See Brown v. State, 995 So.2d 698, 703 (¶ 21) (Miss.2008) (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)). Under the facts in this case, certainly no injustice exists. Furthermore, Wilson swore under oath before the Judge Richardson that he waived any defenses he may have to the charge of CCW. We do not see that it would be a grave miscarriage of justice to allow his conviction to stand.

¶ 16. The dissent states that it understands and appreciates the practicalities of a plea bargain. Yet, it apparently shows some great distaste for the plea arrangement negotiated by Ross, defense counsel in this case. After Judge Richardson refused Ross’s request for a continuance, Ross asked that the written plea offer be marked for identification as an exhibit. She then asked for a minute to confer with Wilson. There was a brief “off the record discussion” among Ross, the State, and Judge Richardson. Following this discussion the circuit court reconvened in chambers with all parties to conduct the guilty-plea examination. A bill of information was prepared in the interim, sworn to by the State, and filed with the clerk as cause number 2008-0280. The bill of information charged Wilson with “carrying] and concealing] ... a .38 caliber revolver, in Madison County” on March 24, 2004. It is apparent Ross suggested to the State that Wilson committed another offense earlier on March 24, 2004, when he concealed the .38-caliber revolver in his pocket and left the house and that if the State would make such a charge in a bill of information, Wilson would waive indictment to that charge and plead guilty as a non-violent habitual offender. This agreement would effectuate the previous plea offer of eight years in the custody of the MDOC made by the State and avoid a mandatory sentence of life without parole. The State agreed to execute a bill of information, and Wilson pled guilty to both the charge in the indictment and the charge in the bill of information.

¶ 17. Further, the dissent seems to imply that affirming the CCW conviction violates the Second Amendment guarantee to keep and bear arms. Such a claim of unconstitutionality was never raised by Wilson nor decided by the circuit court. The dissent further claims that affirming Wilson’s CCW conviction makes a criminal out of every Mississippi hunter who carries his rifle in a case from his home to his vehicle. Not so. Mississippi Code Annotated Section 97-37-1(3) (Supp.2011) states:

It shall not be a violation of this section for any person to carry a firearm or deadly weapon concealed in whole or in part if the possessor of the weapon is then engaged in a legitimate weapon-related sports activity or is going to or returning from such activity. For purposes of this subsection, “legitimate weapon-related sports activity” means hunting, fishing, target shooting or any other legal sports activity which normally involves the use of a firearm or other weapon.

(Emphasis added). The language in this statute was in place at the time Wilson committed his crime. Based on the language in the statute, it is clear that hunting is an exception to the CCW statute.

¶ 18. Wilson’s claim of ineffective assistance of counsel arises solely from his allegation that his attorney allowed him to be punished twice for the same crime, i.e., a double-jeopardy violation, which we addressed previously and found meritless. He never alleges an insufficient factual basis for his CCW conviction, yet the dissent reaches the issue on plain error and proposes to reverse and render based upon ineffective assistance of counsel and an insufficient factual basis. At best, a valid claim on those grounds would only entitle Wilson to have his guilty plea set aside, the charge of CCW reinstated, and for him to stand trial on that charge as a violent habitual offender. Simply stated, Wilson’s CCW charge did not arise from the police officers’ discovery of the .38-caliber revolver under the seat of the vehicle. It arose from an event earlier in the day when Wilson, a convicted felon, chose to conceal and carry that same revolver in his pants pocket, exit the front door of a house, and then walk to his vehicle with the concealed revolver.

¶ 19. Detecting no error by the circuit court, we affirm.

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

GRIFFIS, P.J., AND FAIR, J., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., AND MAXWELL, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND RUSSELL, J.; BARNES, J., JOINS IN PART.

ISHEE, J.,

concurring in part and dissenting in part:

¶ 21. While I concur with the majority’s opinion with regard to Wilson’s double-jeopardy claim, I must dissent as to the majority’s analysis of Wilson’s ineffective-assistance-of-counsel claim. The majority places great weight on the voluntariness of Wilson’s guilty plea and the plea bargain in general. The opinion emphasizes that without Wilson’s plea bargain, he would have faced a sentence of life imprisonment. Specifically, the majority references that Wilson “was motivated by his desire to accept the State’s plea offer for an eight-year sentence ... instead of the probability, if not certainty, of a mandatory life sentence....” Maj. Op. ¶ 13.

¶ 22. However, the majority’s focus on Wilson’s sentencing possibilities before and after the plea bargain is wholly misplaced. Wilson has never challenged the voluntariness of his guilty plea or the existence of a plea bargain. Additionally, he has never denied that without the plea bargain, he would have faced a greater sentence. The question is not whether Wilson voluntarily and intelligently entered a plea of guilty to carrying a concealed weapon in a motor vehicle or whether the plea bargain benefited Wilson. Rather, the question before this Court is whether Wilson’s guilty plea to a crime that does not exist constitutes ineffective assistance of counsel and reversible error. I firmly believe that it does.

¶ 23. While Mississippi law prevents the carrying of a concealed weapon, the law also states:

It shall not be a violation of this section for any person over the age of eighteen (18) years to carry a firearm or deadly weapon concealed in whole or in part within the confines of his own home or his place of business, or any real property associated with his home or business or within any motor vehicle.

Miss.Code Ann. § 97-37-1(2) (Supp.2011).

¶ 24. In Knight v. State, 983 So.2d 348 (Miss.Ct.App.2008), we addressed a case factually similar to the one at hand. Armstrong Knight, a convicted felon, was charged with several offenses, including carrying a concealed weapon in violation of section 97-37-1, after police officers discovered a .9-millimeter pistol located under a blanket in Knight’s vehicle. Knight, 983 So.2d at 351 (¶ 11). Knight subsequently pleaded guilty to the charge of carrying a concealed weapon. Id. at 352 (¶ 13). However, we noted the deficiency of a factual basis for Knight’s conviction of carrying a concealed weapon since section 97-37-1(2) negates the crime when the weapon is located inside a motor vehicle. See Knight, 983 So.2d at 352 (¶ 13).

¶ 25. We went on to apply the Strickland requirements for proving ineffective assistance of counsel. Id. (citing Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We held that since Knight did not commit a crime under Mississippi law by concealing a weapon in his vehicle, he had demonstrated that his counsel’s performance was deficient by advising him to plead guilty to carrying a concealed weapon. Id. We further determined that Knight’s counsel’s deficiency prejudiced his defense. Id. As such, Knight met the requirements for proving ineffective assistance of counsel, and we reversed and rendered his conviction for carrying a concealed weapon. Id. at 355 (¶ 29).

¶ 26. The facts of Knight with regard to the charge of carrying a concealed weapon are very similar to the case at hand. Wilson was arrested for carrying a concealed weapon based on authorities discovering the weapon inside his vehicle. Wilson then pleaded guilty by bill of information, at which time he testified that he had walked from his house to his vehicle with the weapon in his pocket. The majority uses this testimony to create a factual basis for charging Wilson with carrying a concealed weapon. In support thereof, the majority quotes the circuit court judge, who referenced the two charges of felon in possession of a firearm and carrying a concealed weapon and stated: “[Ejven though it’s the same firearm[,] you can commit both of these offenses with that same firearm. It depends on where you were and where the gun was.”

¶ 27. The majority reads the circuit court’s statement to infer that Wilson was being charged with carrying a concealed weapon for both the motor vehicle stop and his testimony that he carried the weapon in his pocket from his house to his car. This is an incorrect interpretation. The circuit court was undoubtedly referencing the validity of charging Wilson with two separate crimes — the crime of a felon carrying a weapon and the crime of carrying a concealed weapon — based on the use of the same weapon. As such, it is clear that Wilson’s charge for carrying a concealed weapon was based on the authorities’ discovery of the weapon inside Wilson’s vehicle.

¶ 28. Nowhere does the circuit court state that Wilson was charged for carrying a concealed weapon because of his testimony that he walked from his house to his vehicle with the weapon in his pocket. Likewise, there is absolutely no factual basis for charging Wilson with carrying a concealed weapon under those circumstances. The majority fails to provide anything other than conjecture that it was illegal for Wilson to walk from his house to his vehicle with the weapon in his pocket. The majority’s argument is founded on the following testimony:

Wilson: When I left — when I left the house, I — had it — I had it on my person.
The Court: Okay. Did you have it in your pocket?
Wilson: Yes, sir.
The Court: So when you left out of your house, you had this .38 caliber [revolver]—
Wilson: Yes, sir.
The Court: And you walked to your car; is that right?
Wilson: Yes, sir.
The Court: And you got in the car and then you put it under the seat?
Wilson: Yes, sir.

¶ 29. Again, while the law prohibits the concealed carrying of a weapon such as a .38 caliber revolver, the statute also allows Mississippians to carry a weapon concealed within the confines of their homes, places of business, any real property associated with their homes or businesses, or any motor vehicle. Miss. Code Ann. § 97-37-1(2). Wilson never testified that when he put the weapon in his pocket to walk to his vehicle that he left his real property in order to reach the vehicle. He merely stated that he left the house and walked to his vehicle with the weapon in his pocket.

¶ 30. As such, to create its argument that Wilson was guilty of carrying a concealed weapon, the majority assumes facts which simply are not in the record. The majority hypothesizes that Wilson’s vehicle was parked somewhere other than on real property associated with his home when, in fact, Wilson never specified where his vehicle was parked or where he had to walk to reach his vehicle. It is my opinion that this Court should not uphold convictions based on mere speculation.

¶ 31. To have charged Wilson properly, the factual basis of Wilson’s plea must have established that Wilson carried the weapon in question concealed in whole or in part outside of his private property. The record before us fails to provide such a factual basis. The facts in the record only reflect that Wilson was charged for carrying a concealed weapon after authorities discovered the weapon in his motor vehicle. I understand and appreciate the practicalities of plea bargains. However, there is a stark contrast between pleading an accused to a lesser offense and pleading an accused to a crime that does not exist.

¶ 32. While the federal government grants Americans minimum freedoms, states have the unquestionable right to expand on those freedoms. The Second Amendment of the United States Constitution grants Americans the right to bear arms. The Mississippi Legislature enacted the motor-vehicle exception to expand Second Amendment rights for Mississippi citizens. The full weight and force of the majority’s opinion effectively deprives Mississippi citizens of their legislatively enhanced Second Amendment rights. By affirming the approval of a guilty plea to carrying a concealed weapon in a motor vehicle, the majority is eviscerating the motor-vehicle exception and legislating from the bench. As such, it would appear the majority seeks to circumvent legislative intent to expand the Second Amendment rights of Mississippi citizens to bear arms.

¶ 33. Though inadvertent, the majority’s opinion curtails and infringes on Second Amendment rights as seldom seen in the history of Mississippi jurisprudence, with particular regard to Mississippi sportsmen and gun owners. The majority cites Mississippi Code Annotated section 97-37-1(3) (Supp.2011) as support for its counter-argument that its opinion will not affect the rights of sportsmen in Mississippi. However, the majority misapplies section 97-37-1(3) with regard to its protection of hunters in the context of this opinion. The statute protects a person carrying a concealed weapon “if the possessor of the weapon is then engaged in a legitimate weapon-related sports activity or is returning from such activity.” Id. (emphasis added). Nonetheless, this provision does not apply if the sportsman is engaged in activity not constituting the actual weapon-related sport.

¶ 34. For instance, under the majority’s opinion, a hunter carrying a weapon in a case and walking from his house to his vehicle in the driveway, or from his apartment to his vehicle in the parking lot, would be guilty of carrying a concealed weapon if he was not then en route, engaged in, or returning from an applicable weapon-related sport. If the hunter carried the weapon in a case to his vehicle to take to a gun shop for sale or repair, or wrapped the weapon in paper and carried it to his vehicle to be given as a present to a family member, the hunter would be guilty of carrying a concealed weapon under the majority’s opinion. Section 97-37-1(3) would grant the hunter no protection in the aftermath of the majority’s decimation of the motor-vehicle exception. Such an interpretation would be contrary to the purpose of the motor-vehicle exception. I cannot support such an interpretation. Accordingly, I find that because Wilson was improperly allowed to plead guilty to conduct not constituting a crime, his conviction of carrying a concealed weapon should be reversed and rendered.

LEE, C.J., AND RUSSELL, J., JOIN THIS OPINION. BARNES, J., JOINS THIS OPINION IN PART.