author: CARLTON, J.,

text:
    Helen L. ROGILLIO, Appellant v. David M. ROGILLIO, Appellee.
    No. 2008-CA-01838-COA.
    Court of Appeals of Mississippi.
    Feb. 23, 2010.
    Rehearing Denied June 29, 2010.
    Mark W. Prewitt, Vicksburg, attorney for appellant.
    R. Louis Field, Vicksburg, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Helen Rogillio appeals the judgment of the Warren County Chancery Court granting an irreconcilable-differences divorce to her and her husband, David Ro-gillio, and awarding Helen $15,000 in lump-sum alimony. Helen appeals, arguing that the chancellor erred by awarding lump-sum alimony instead of permanent periodic alimony. Finding no error in the chancery court’s judgment, we affirm the chancellor’s award of lump-sum alimony.

FACTS

¶ 2. Helen and David were married in September 1997. One child was born to the marriage, a son, who was approximately six years old at the time of the divorce. Helen and David separated in March 2007, when David and the couple’s son left the family home and moved in with David’s parents. Although the chancellor granted the divorce on the grounds of irreconcilable differences, ■ David contends that he left the marital home because Helen exhibited bizarre behavior and used illegal drugs.

¶ 3. Helen and David agreed that David would have primary custody of their minor • child and that David and the child would reside in the marital home. Helen agreed to move into a mobile home that she owned prior to the marriage. The mobile home was in need of numerous repairs. Helen was to receive exclusive use, possession and ownership of the property, and the sole responsibility for the mortgage on the property. Further, the chancellor awarded David $436 per month in child support in the form of a social security check the child received as a result of Helen’s disability. David received the sole use, possession and ownership of the marital home, and any equity in the home. David was further assigned responsibility for the first and second mortgages on the marital home.

¶ 4. David was also given responsibility for various other marital debts. David received ownership of a Thrift Savings Plan, his PERS retirement account, and the checking and savings accounts. The chancellor ordered David to pay Helen $2,038.61 in marital assets, $4,807 for the debt on her credit cards, and lump-sum alimony in the amount of $15,000.

¶ 5. On appeal, Helen contends that the chancellor erred in not awarding her permanent periodic alimony. Both David and Helen are in their forties. Helen is a registered nurse. However, she had to stop working in 1998 because she suffers from neurofibromatosis, which she says causes her constant pain. During the course of her marriage to David, Helen required more than ten surgeries to remove tumors from various parts of her body as a result of her illness. Helen receives $770 per month in Social Security disability benefits, and this check is Helen’s only source of income.

¶ 6. David, on the other hand, is in good health and has secure employment as an engineer for the Army Corps of Engineers in Vicksburg. David earns approximately $83,372 per year. Because Helen felt that it was in her son’s best interest to remain with his father, she agreed to move out of the marital home and into a mobile home she owned prior to the marriage that she rented out during the course of the marriage. The mobile home is in need of approximately $7,725 in repairs. Helen pays $420 per month for the mobile home and insurance. Further, Helen pays $150 per month in rent for the lot on which the mobile home sits. However, at the time she filed this appeal, she had fallen sixteen months behind in making this rental payment.

STANDARD OF REVIEW

¶ 7. “A chancellor’s findings of fact mil not be disturbed unless manifestly wrong or clearly erroneous.” Sanderson v. Sanderson, 824 So.2d 623, 625 (¶ 8) (Miss.2002) (citation omitted). “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his [or her] discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. at 625-26 (¶ 8) (citation omitted).

DISCUSSION

I. Helen’s Award of Lump-Sum Alimony

¶ 8. Helen argues that after the property division, a gross disparity between her needs and her resources requires that she receive permanent periodic alimony from David. David, however, argues that Helen only “claims” to be disabled; she drinks excessively; and she could work if she chose to do so. To support his contention that Helen perhaps exaggerated her disability, David notes that Helen sought and received possession and ownership of an off-road ATV 4-wheeler and scuba-diving equipment in the divorce proceedings. Helen admitted at the divorce hearing that she frequently rode the ATV on rough terrain and that she was physically able to scuba dive. However, on re-direct examination, Helen stated that she was unable to scuba dive due to her disability.

¶ 9. The Mississippi Supreme Court has expressed that alimony should be considered only “[i]f the situation is such that an equitable division of marital property, considered with each party’s nonmarital assets, leaves a deficit for one party.” Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994). Since the decision to award alimony, and the amount thereof, is a matter of discretion for the chancellor, we will review the chancellor’s award of lump-sum alimony for abuse of discretion and will only disturb the ruling if it is found to be against the overwhelming weight of the evidence or manifestly in error. Pearson v. Pearson, 761 So.2d 157, 165 (¶ 25) (Miss.2000).

¶ 10. In the present case, the record reflects that the chancellor utilized the guidelines set forth in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994) to equitably divide David and Helen’s marital property. In Ferguson, the Mississippi Supreme Court instructed chancery courts to equitably divide marital assets by following a nonexclusive list of eight guidelines and “to support their decisions with findings of fact and conclusions of law for purposes of appellate review.” Id. The supreme court further outlined the steps for applying the equitable-distribution factors as listed in Ferguson, stating:

First, the character of the parties’ assets, i.e., marital or nonmarital, must be determined pursuant to Hemsley. The marital property is then equitably divided, employing the Ferguson factors as guidelines, in light of each parties’ non-marital property. Ferguson, 639 So.2d at 928. If there are sufficient marital assets which, when equitably divided and considered with each spouse’s nonmari-tal assets, will adequately provide for both parties, no more need be done. If the situation is such that an equitable division of marital property, considered with each party’s nonmarital assets, leaves a deficit for one party, then alimony based on the value of nonmarital assets should be considered. This process does not require divestiture of inherited or gift-acquired nonmarital property.

Johnson, 650 So.2d at 1287.

¶ 11. Upon review of the record before us, we find that the chancellor properly classified the parties’ assets as marital or nonmarital, pursuant to Hemsley v. Hemsley, 639 So.2d 909 (Miss.1994). The chancellor then applied the Ferguson factors to the parties’ assets, listing in the judgment her findings of fact and conclusions of law. Ultimately, the chancellor held that the marital home should be awarded to David, and the parties’ marital assets divided equally. The chancellor then divided the parties’ debt, leaving David with $177,934.10 of the debt and Helen with $67,699.10 of the debt. The chancellor determined:

If we subtract Helen’s marital assets from her marital debts, her remaining debts total $33,410.39. If we subtract Helen’s mortgage from this debt, her remaining debts total $10,493.39. Helen has equity in the mobile home valued at $18,083.00 and remaining marital assets totaling $2,038.61. Thus, her net value, excluding the mortgage of the mobile home, is $9,628.22.

¶ 12. The chancellor, recognizing that the marital assets, after equitable division, would leave Helen with “certainly an equitable deficit,” determined that alimony should be considered. The chancellor determined Helen’s monthly income to be $777. When determining whether to award alimony, chancellors are guided by the twelve factors set forth by the supreme court in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). These factors include:

(1) the income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; or (12) any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Ward v. Ward, 825 So.2d 713, 718 (Miss.Ct.App.2002) (citing Armstrong, 618 So.2d at 1280).

¶ 13. After applying the Armstrong factors to the facts before her, the chancellor found that lump-sum alimony should be considered to resolve Helen’s deficit and allow her a fresh start. When awarding lump-sum alimony, the supreme court has established certain factors to be considered by the chancellor:

1) substantial contribution to the accumulation of total wealth of the paying spouse either by quitting a job to become a housewife, or by assisting in the paying spouse’s business; 2) length of the marriage; 3) separate income of the recipient spouse as compared to that of the paying spouse; and 4) financial security of the recipient spouse absent the lump[-]sum payment.

Haney v. Haney, 788 So.2d 862, 865 (¶ 10) (Miss.Ct.App.2001) (citation omitted). We also note that “the single most important factor is the disparity of the separate estates.” Id. In the case before us, we find that the chancellor did not abuse her discretion in considering the Cheatham factors when determining whether an award of lump sum alimony was appropriate. The chancellor provided an analysis of her application of the Cheatham factors in her judgment, finding that:

1. Substantial contribution to accumulation of total wealth of the pay- or either by quitting a job to become a housewife, or by assisting in the spouse’s business: Although Helen did not substantially contribute to David’s accumulation of wealth, she did work for a couple of years during the marriage, and contributed the money received from the rent of the mobile home, as well as her public assistance benefits, to the marriage.
2. A long marriage: An eleven[-]year marriage is long enough to qualify for an award of lump[-]sum alimony. Creekmore.
3. Where the recipient spouse has no separate income or the separate estate is meager in comparison: Helen’s public assistance and estate is meager in comparison to David’s.
4. Without the lump[-]sum award the receiving spouse would lack any financial security: Most of the repairs needed to the mobile home must be made before Helen can move into it. Without a lump[-]sum award, Helen is unable to pay for the necessary repairs to the mobile home while at the same time paying the mortgage. In other words, without financial assistance, Helen cannot obtain financial security.
It appears to the court that, from the information provided, David is able to pay an award of lump[-]sum alimony and still be able to live a normal life under a reasonable standard of living. The court believes that an appropriate amount of lump[-]sum alimony is an amount that would allow Helen a fresh start. A fresh start would be one in which Helen would not have any debts other than the mobile home mortgage. Thus, the court awards Helen lump[-]sum alimony in the amount of $15,000.00.

In sum, the chancellor’s findings reflect that the alimony awarded eliminated Helen’s “equitable deficit.”

¶ 14. Helen argues that the chancellor’s Armstrong analysis actually showed that the majority of the factors favored an award of permanent periodic alimony, and the chancellor erred in deciding upon an award of lump-sum alimony. Helen cites Monroe v. Monroe, 612 So.2d 353, 357 (Miss.1992), where the supreme court upheld an award of permanent periodic alimony due to Mrs. Monroe’s disability and inability to seek employment, even where the husband was responsible for raising the two children. However, we note that the facts in Monroe differ significantly from those before us. This Court found that Mrs. Monroe supported the couple for the first eleven years of their seventeen-year marriage, enabling Mr. Monroe to pursue an undergraduate degree and a medical degree. Id. at 358. At one point, when Mr. Monroe was in medical school, Mrs. Monroe worked three jobs to support the family. Id. She also withdrew the balance of her pension fund to pay the family’s expenses. Id. The supreme court thus determined that Mrs. Monroe should be entitled to the benefits of her eleven years of work as the bread-winner of the family. Id. In contrast, the record in the present case shows that Helen only worked a couple of years during the marriage, and she did not substantially contribute to David’s accumulation of wealth. We also note that Helen receives a monthly disability payment.

¶ 15. After reviewing the record before us, we note that the chancellor appropriately utilized the Ferguson factors, as mandated by the supreme court, to determine the equitable division of David and Helen’s marital property. The chancellor also determined Helen’s need for alimony by applying the Armstrong factors, subsequently finding that an award of lump-sum alimony was proper to resolve Helen’s needs by eliminating her debt, thereby providing financial security to Helen.

¶ 16. We find that the chancellor conducted a thorough factual analysis of Helen’s need for alimony after equitable division of marital property by using the factors set forth by the Mississippi Supreme Court. The chancellor’s analysis and findings are supported by the record in this case. As stated, we will not disturb a chancellor’s findings regarding the amount of alimony absent an abuse of discretion. Thus, after careful review, we find that the record does not reflect that the chancellor abused her discretion in awarding Helen lump-sum alimony. This issue is without merit.

II. Award of Attorney’s Fees on Appeal

¶ 17. In her appellee brief, Helen requests attorney’s fees for the services rendered in connection with this appeal. However, we find that the issue of attorney’s fees is proeedurally barred on appeal because Helen failed to cite any relevant authority to support her argument. Ruff v. Estate of Ruff, 989 So.2d 366, 372 (¶ 24) (Miss.2008).

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

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

      . Helen receives approximately $9,324 a year ($777 a month) in disability payments as her only source of income.

      . Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988).

      . Creekmore v. Creekmore, 651 So.2d 513, 517 (Miss.1995).


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Timothy Nash LODEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00642-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.

      Timothy Nash Loden, Appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   MYERS, J.,

for the Court:

¶ 1. Timothy Nash Loden filed a motion for post-conviction relief (PCR) in the Prentiss County Circuit Court, which the trial court denied as a successive writ and as time-barred. Finding no error, we affirm.

FACTS

¶ 2. In December 1997, Loden was indicted by a Prentiss County grand jury for capital murder in the killing of Joey Pan-nell. Loden was also indicted as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). On July 1, 1999, Loden pleaded guilty in the Prentiss County Circuit Court as a habitual offender to the charge of capital murder. Loden was sentenced to life in the custody of the Mississippi Department of Corrections without eligibility of probation or parole.

¶3. On May 10, 2001, Loden filed his first PCR motion, in which he claimed that his guilty plea was involuntary and that he had received ineffective assistance of counsel. The trial court denied the relief sought, and this Court affirmed the trial court’s decision on April 30, 2002. Loden v. State, 818 So.2d 367 (Miss.Ct.App.2002).

¶ 4. On January 8, 2010, Loden filed another PCR motion, which is the subject of the instant appeal, in which he claimed that the trial court had failed to conduct a bifurcated hearing with regard to his habitual-offender status, calling into question the validity of his sentence. The trial court denied the PCR motion, and this appeal followed.

STANDARD OF REVIEW

¶ 5. “When reviewing the trial court’s decision to deny a PCR motion, we will not disturb the lower court’s factual findings unless they are found to be clearly erroneous.” Amos v. State, 44 So.3d 1058, 1059 (¶ 8) (Miss.Ct.App.2010) (citing Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008)). We review questions of law de novo. Id.

DISCUSSION

¶ 6. An order denying a motion for post-conviction relief is considered a final judgment and a bar to a second or successive motion. Miss.Code Ann. § 99-39-23(6) (Supp.2010). A prisoner, however, may file a successive writ if the argument presented within that writ falls under one of the exceptions provided in section 99-39-23, has not been previously argued, and has not resulted in a circuit court’s decision rendered on the merits. Stone v. State, 872 So.2d 87, 89 (¶ 13) (Miss.Ct.App.2004).

¶ 7. Loden bears the burden of proving that he satisfied at least one of the exceptions to the successive-writ bar. Carbin v. State, 942 So.2d 231, 233 (¶9) (Miss.Ct. App.2006). Loden also has to demonstrate that, even if he satisfied an exception, the trial court had not previously entered a decision on the merits of those claims. See Stone, 872 So.2d at 89 (¶ 13).

¶ 8. Loden fails to meet his burden. The Mississippi Supreme Court held in Keyes v. State, 549 So.2d 949, 951 (Miss.1989), that a petitioner’s status as a habitual offender can be established at the entry of a guilty plea, making it unnecessary to have a separate bifurcated hearing. The Keyes court stated:

Under these circumstances, we find beyond peradventure that Keyes’[s] status as [a] habitual offender was established at the time his sentences were imposed. That this was done at the same hearing where his guilty plea was accepted rather than at a separate hearing is of no moment. The cases upon which Keyes relies ... all involve the situation where an offender has been found guilty before a jury and thereafter a separate non-jury hearing is held on the question of habitual[-]offender status. Those cases hardly stand for the proposition that a separate habitual[-]offender hearing must be held upon a guilty plea. Indeed, this would be the ultimate in exalting form over substance.

Id. (internal citations omitted).

¶ 9. According to the record, Loden filed with the trial court a Waiver of Jury for Trial and Sentencing, which states, in relevant part, “I hereby expressly waive my right to a jury for sentencing in this cause and hereby agree that the [trial court] may sentence me in this matter without a jury and without a sentencing hearing.” In addition to Loden’s written waiver, Lo-den’s plea petition, which he signed under oath, reflects that he knew he was being charged as a habitual offender and that he had admitted his prior criminal history, as the following portions contained in the petition illustrate:

My lawyers advise me and I understand that the elements of the charges to which I am pleading guilty are as follows:
Murder which is perpetrated by killing a human being while the defendant is engaged in the felony crime of robbery in violation of the Mississippi Code of 1972, Section 93-2-19(2)(e); all while [a] habitual offender having previously been convicted of five separate felony crimes[,] aggravated assault and four counts of uttering a forgery[,] under the provisions of Mississippi Code of 1972, Section 99-19-81.
I understand that no one can assure me of parole or early release from prison. Since I will be sentenced as [a] habitual criminal, and under the capital[-]murder statute I am charge with, to life without parole, I will not be eligible for parole or other early release....

Further, Loden’s plea colloquy reveals that the trial court queried Loden on each of the separate felony crimes, all of which were listed in his indictment.

¶ 10. Based on our review of the record, Loden’s habitual-offender status was clearly established when he entered his guilty plea. And Loden expressly waived his right to a bifurcated hearing. Successive-writ bar notwithstanding, we find no merit to Loden’s claim that the trial court failed to determine his habitual-offender status. Nor do we find any merit to the suggestion that Loden’s sentence might be invalid.

¶ 11. Loden’s PCR motion is also time-barred. Loden had three years from the entry of the judgment of conviction to file a motion for post-conviction relief. Miss.Code Ann. § 99-39-5(2) (Supp.2010). The entry of judgment in this matter occurred on July 1, 1999, and his PCR motion was filed on January 8, 2010. Accordingly, his PCR motion was filed untimely.

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

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


author: ROBERTS, J., CARLTON, J.,

text:
    Keith SPEARMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01684-COA.
    Court of Appeals of Mississippi.
    March 15, 2011.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

ROBERTS, J.,

for the Court:

¶ 1. The motion for rehearing is granted, and the previous opinion of this Court is withdrawn with this opinion substituted in lieu thereof. We reverse and remand.

¶ 2. Keith Spearman appeals his conviction of attempted burglary of a building and sentence of five years in the custody of the Mississippi Department of Corrections (MDOC), with two years to serve and three years suspended. He argues that: (1) he was denied his constitutional right to testify, and (2) his indictment was fatally defective because it failed to charge an essential element of the crime charged.

FACTS

¶3. On June 5, 2007, Officer Charles White of the Cleveland Police Department was on patrol in Cleveland, Mississippi, when he heard a sound he described as the tin roof coming off of a building. Then, he heard an alarm sound from the back of the Pickled Okra restaurant. He walked to the back of the building and saw Spearman attempting to cut the lock off of a walk-in cooler with bolt cutters. Spearman threw the bolt cutters over a fence and then crossed the fence and began walking away. Officer White arrested Spearman.

¶ 4. Spearman was charged with the attempted burglary of a building. He proceeded to trial, and the jury found him guilty of the crime charged. Spearman was sentenced to five years in the custody of the MDOC, with two years to serve and three years suspended. His motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial was denied by the circuit court.

ANALYSIS

1. Whether Spearman was denied his constitutional right to testify.

¶ 5. Spearman argues that he was denied his constitutional right to testify because the record clearly indicates that Spearman wished to testify, yet the defense rested its case without any testimony from Spearman. The State responds that this claim arises from an error in the transcript as indicated by a review of the record as a whole.

¶ 6. On order of this Court, pursuant to the Court’s authority under Rule 10(e) of the Mississippi Rules of Appellate Procedure, the case was remanded to the trial court for an evidentiary hearing to determine whether the record accurately re-fleeted Spearman’s decision to testify. No witness testified that the record was incorrect. To the contrary, each witness testified that the record was correct. Because of the ambiguous record, this Court is compelled to reverse and remand for a new trial.

¶ 7. At trial, after the State rested its case, the following exchange occurred between the circuit judge; Spearman’s attorney, Boyd P. Atkinson; and Spearman:

MR. ATKINSON: If I may have just a few minutes to talk with my client and determine whether or not he’s going to take the witness stand, your Hon- or?
THE COURT: Sure.
(Court recessed: 10:47 a.m.)
(Court convened: 10:50 a.m.)
THE COURT: Let’s get back on the record. Mr. Spearman, come here a minute.
MR. ATKINSON: Your Honor, I have been advised by my client that he does not wish to take the witness stand, and so I need for the Court to have a—
THE COURT: Mr. Spearman, do you understand you have a right to get on this witness stand and testify?
THE DEFENDANT: Yes, sir.
THE COURT: I’m sorry?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And your lawyer may have explained this to you, but I want to, make sure that you understand independently that that right is yours and yours alone?
THE DEFENDANT: Yes, sir.
THE COURT: Your lawyer can advise you, but you will be the one to make your ultimate decision. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: And your lawyer has indicated y’all have discussed this matter. Have you made a decision?
THE DEFENDANT: I’ll take the stand. I don’t mind.
THE COURT: Well, it’s up to you. Do you want to take the stand or do you not want to take the stand?
THE DEFENDANT: Yes, sir, I’ll take it.
THE COURT: Which one?
THE DEFENDANT: I’ll take the stand.
MR. ATKINSON: Okay. Well, I need a few more minutes with him.
(Court recessed: 10:51 a.m.)
(Court convened: 10:57 a.m.)
MR. ATKINSON: Mr. Spearman now goes back to his original position advising me he does not wish to take the witness stand. Now, your Honor, Mr. Spearman has kept asking me repeatedly what did I want him to do. And I tried to impress on him that is not a decision that I make. If I told him to take the witness stand and he didn’t want to take it, he doesn’t have to take it. And if he wanted to take the witness stand and I told him not to take it, he could still take it. It is not my decision to make.
THE COURT: Mr. Spearman, this a question I have to ask everybody that is on trial and doesn’t take the stand. And their decision, you know, before they do is the same question I ask— you know, I’ve asked hundreds of people before. And really the point of it, I think, is to make sure you have the right and are the one that ultimately made the decision. Now, you should listen to your attorney[,] but he’s not the final say-so. You are.
THE DEFENDANT: Yes, but you know, Mr. — every time I talk to him about how we going to get this situation resolved, you know, we get on the same page of like zero talk, [sic]
THE COURT: Well, that may be true and I’m sure it’s the same situation a lot of lawyers and clients have had. But the point of this discussion at present is whether or not you are going to testify. What are you going to do?
THE DEFENDANT: I’m going to testify.
THE COURT: And you understand that’s your decision?
THE DEFENDANT: Yes, sir.
THE COURT: Well, let’s take our seats, and bring the jury out. Oh, wait a minute. Wait a minute. Let’s don’t bring the jury out. You go ahead and take a seat.
(Defendant seated at defense table.)
THE COURT: Let’s see, do /all have any instructions? Let’s do the instructions. It’s now 11:00. I think we ought to wait till — do you think we ought to wait till — let the jury go; bring them back at 1:00 and do the closing then?
THE PROSECUTOR: If we don’t, your honor, we’re going to mess around and either have a hung[ry] jury and we’ll have to feed them.
THE COURT: And we — right, that’s extra.
MR. ATKINSON: And that’s a logistical move.
THE COURT: Is that ok with you?
THE PROSECUTOR: Huh?
THE COURT: We’ll let the jury go; tell them to be back at 1:00 and do closing argument then?
THE PROSECUTOR: That’s fine.
MR. ATKINSON: We’re just trying to avoid having to feed them, or have hungry jurors.
THE COURT: We have the leisure to do it. We’ve got an hour. That’s what we are going to do.
Let’s see, first, let’s bring the jury back out. I’m going to ask you to put your case in chief on, for the record. Then, I’m going to ask you if you have any — no, you won’t have any rebuttal, because he didn’t put a case in chief on.
THE PROSECUTOR: Right.
MR. ATKINSON: Then, you are going to dismiss them until 1:00?
THE COURT: Yes, sir.
(Jury seated: 10:59 a.m.)
THE COURT: Alright. Let’s get back on the record. Mr. Atkinson, if you would call your first witness.
MR. ATKINSON: The defense rests at this time, your honor.
THE COURT: Defense rests.

¶ 8. Nothing else was said about Spear-man’s wish to take the stand. The jury was dismissed for lunch, while the court reviewed the jury instructions. When the jury returned from lunch, the jury instructions were given, and the jury began its deliberations. Ten minutes later, the jury returned a guilty verdict.

¶ 9. In Culberson v. State, 412 So.2d 1184, 1186-87 (Miss.1982), the supreme court instructed the trial courts of this state to make a record of a defendant’s waiver of his right to testify. The supreme court stated that:

We suggest to the trial judges of the state that, in any case where a defendant does not testify, before the case is submitted to the jury, the defendant should be called before the court out of the presence of the jury, and advised of his right to testify. If the defendant states he does not wish to testify, he may not be forced to take the stand; however, if he states that he wants to testify he should be permitted to do so. A record should be made of this so that no question about defendant’s waiver of his right to testify should ever arise in the future.

Id.

¶ 10. For the first time on appeal, Spearman argues that the record shows he unequivocally stated his desire to exercise his right to testify. After Spearman’s attorney announced that Spearman did not wish to testify, the circuit judge followed the instructions set out in Culberson and questioned Spearman about this decision. First, Spearman responded: “I’ll take the stand. I don’t mind.” He then conferred with his attorney again. Spearman was questioned by the circuit judge a second time. The record indicates that Spearman stated: “I’m going to testify.” The dissent states that Fannings v. State, 997 So.2d 953 (Miss.Ct.App.2008) is “relevant to the case at hand.” The record in Fannings indicated that the trial judge in that case performed his obligations pursuant to Culberson and James Arthur Fanning Jr. then stated: “[Ijt’s my understanding, Your Honor, that the case is based on the facts and evidence and the law, so I do not wish to testify.” Fannings, 997 So.2d at 964 (¶ 35). The trial court in Fannings honored that request, and Fanning did not testify. Id. The events in the case presently before us are the exact opposite of the events in Fannings. The last words from Spearman’s lips were, “I’m going to testify,” yet he did not.

¶ 11. It is clear from the record that the circuit judge was trying to get a definitive answer as to whether Spearman wished to testify. When Spearman’s attorney initially announced that Spearman would not testify and Spearman stated that he would testify, the circuit judge allowed Spearman to confer with his attorney to reconcile the different answers. Spearman’s attorney again stated that Spearman would not testify.

¶ 12. The circuit judge did not question Spearman further in order to ascertain whether Spearman was certain he wanted to testify against his attorney’s advice. Instead, the trial proceeded as if Spear-man had stated that he would not testify. The circuit judge immediately began to talk about the jury instructions. The circuit judge stated the following:

Let’s see, first, let’s bring the jury back out. I’m going to ask you to put your case in chief on, for the record. Then, I’m going to ask you if you have any— no you won’t have any rebuttal, because he didn’t put a case in chief on.

(Emphasis added). The attorney for the State agreed that she would have no rebuttal because the defendant did not plan on presenting a case-in-chief. The jury returned to the courtroom, and the defense rested — with no protest from either the circuit judge, Spearman’s attorney, or Spearman himself who had been quite vocal throughout the proceedings.

¶ 13. While the actions of the circuit judge and Spearman’s attorney are inconsistent with an assertion of Spear-man’s right to testify, we are unable to conclude from the record and from the hearing that Spearman’s constitutional right to testify was adequately protected. To do so, this Court would have to indulge in presumption or speculation. As the United States Supreme Court' noted a court should “indulge every reasonable presumption against waiver of a fundamental constitutional right.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

¶ 14. A defendant’s right to testify in his or her own defense is a fundamental constitutional right. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The Mississippi Supreme Court has concluded likewise. Dizon v. State, 749 So.2d 996, 999 (¶ 12) (Miss.1999). To presume that Spearman waived his right to testify by his failure to speak up when his attorney announced, “Defense rests,” without calling him as a witness is indulging in a presumption of waiver; the very thing condemned by the United States Supreme Court in Johnson. The presumption must be against waiver.

¶ 15. Therefore, we reverse and remand this case for a new trial.

2. Whether Spearman’s indictment was fatally defective because it failed to list an essential element of the crime charged.

¶ 16. Spearman claims that his indictment was fatally defective because it failed to list an essential element of attempt; specifically, he failed to consummate the commission of the crime attempted. Whether or not an indictment is defective is a question of law reviewed de novo. Gilmer v. State, 955 So.2d 829, 836 (¶ 24) (Miss.2007) (citation omitted).

¶ 17. Spearman was indicted under Mississippi’s general attempt statute, which states:

Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows: If the offense attempted to be committed be capital, such offense shall be punished by imprisonment in the penitentiary not exceeding ten years; if the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted.

Miss.Code Ann. § 97-1-7 (Rev.2006). The three elements of the crime of attempt are: “(1) an attempt to commit a particular crime, (2) a direct ineffectual act done toward its commission and (3) the failure to consummate its commission.” McGowan v. State, 541 So.2d 1027, 1030 (Miss.1989) (interpreting Miss.Code Ann. § 97-1-7).

¶ 18. Spearman correctly states that his indictment failed to include language regarding the third element of attempt— Spearman’s failure to consummate the crime of burglary of a building. The indictment reads, in pertinent part, as follows:

KEITH SPEARMAN,
late of the County and Judicial district aforesaid, on or about June 5, 2007, in the County, Judicial District and State aforesaid, and within the jurisdiction of .this Court, did unlawfully, wilfully, felo-niously and burglariously attempt to break and enter a certain building, commonly known as, called and being [Pjick-led [Ojkra, located at 301 South Sharpe Avenue in Cleveland, Mississippi, there situated of the property of Cleveland Restaurant Group, Inc., in which building there were then and there goods, merchandise, equipment or valuable things kept for use or sale, with the intent to steal therein, or to commit any felony an[d]/or the crime of larceny therein, by cutting the lock of the Pickled Okra walk-in cooler,....

Spearman claims that this failure to include the third element of attempt renders his indictment fatally defective.

¶ 19. However, this Court has held that the failui’e to charge the third element of attempt does not make an indictment defective. Hawkins v. State, 11 So.3d 123, 126-27 (¶ 10) (Miss.Ct.App.2008). Daryl Hawkins’s indictment did not charge the third element of attempt, and Hawkins made the exact assignment of error that Spearman now asserts. Id. This Court held that: “It is the law of this [s]tate that ‘the intent to commit a crime plus any slight act toward its consummation is sufficient in law to constitute the commission of an attempted crime.’ ” Id. (quoting Ford v. State, 218 So.2d 731, 732 (Miss.1969)). Thus, we found no error in Hawkins’s indictment and affirmed his conviction and sentence. Id.

¶ 20. In Neal v. State, 936 So.2d 463, 467 (¶ 13) (Miss.Ct.App.2006), we discussed the notice that a defendant must receive in an indictment for attempt, stating:

An attempt has this required proof: “(1) an attempt to commit a particular crime, (2) a direct ineffectual act done toward its commission and (3) the failure to consummate its commission.” McGowan v. State, 541 So.2d 1027, 1030 (Miss. 1989) (interpreting Miss.Code Ann. § 97-1-7 (1972), which provides that an attempt occurs when a person “shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein.... ”)[.] Though those three elements must be proved, the [sjupreme [c]ourt earlier had held that two elements need to be charged: “(1) the intent to commit the offense, and (2) an overt act toward its commission.” Maxie v. State, 330 So.2d 277, 277 (Miss.1976) [ (citing Ford, 218 So.2d at 732) ]. The two opinions, Maxie and McGowan, can he viewed as consistent in that using the word “attempt” puts a defendant on notice that the State will prove that the crime was not completed. However, there would be notice neither of the specific crime nor of the overt act of the attempt unless the charging document describes those elements.

(Emphasis added).

¶ 21. Here, the specific crime of burglary of a building is listed in the indictment. The overt act — cutting the lock off of the Pickled Okra walk-in cooler — is also listed in the indictment. The use of the word “attempt” gave Spearman sufficient notice that the State would prove that the crime was not successfully committed. Accordingly, we find this issue has no merit.

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

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

CARLTON, J.,

dissenting:

¶ 23. I respectfully dissent from the majority.

¶ 24. I find the case of Fannings v. Mississippi, 997 So.2d 953 (Miss.Ct.App.2008), relevant to the case at hand. In Fannings, James Arthur Fannings Jr. alleged that the trial court had failed to provide proper advice to him regarding his right to testify and that he had received ineffective assistance of counsel. Id. at 955 (¶ 1). Fannings, in arguing that the trial court erred in failing to advise him of his right to testify or not to testify, cited Culberson v. State, 412 So.2d 1184, 1186-87 (Miss.1982), for the proposition that the defendant shall not be compelled to give evidence against himself; but if he wants to testify, he should be permitted to do so. Id. at 963 (¶ 34). Fannings also pointed to language in Culberson where the Mississippi Supreme Court stated: “A record should be made of this so that no question about [the] defendant’s waiver of his right to testify should ever arise in the future.” Id. (citing Culberson, 412 So.2d at 1186-87). In Fannings, this Court held that because Fannings failed to raise the issue of the right to testify before the trial court or in his post-trial motions, he was procedurally barred from raising the issue on appeal. Id. at (¶ 35). Notwithstanding the procedural bar, the Fannings Court found the issue without merit, as Fannings was clearly advised of his right to testify, and further, “Culberson does not require trial judges to advise a defendant of his right to testify or not; it is merely a suggestion.... ” Id. at 964 (¶ 35) (citing Culberson, 412 So.2d at 1186); see also Shelton v. State, 445 So.2d 844, 847 (Miss.1984) (holding the trial court was not required to give Culberson warnings to the defendant); Scott v. State, 965 So.2d 758, 763 (¶ 25) (Miss.Ct.App.2007).

¶25. In the present case, Spearman, like Fannings, failed to raise the issue of advisement of the right to testify before the trial court either during trial or in his post-trial motions. Furthermore, the record in the present case reflects that the trial judge indeed advised Spearman of his right to testify. Spearman sat silently at trial while his counsel stated to the court that the defense rested. Spearman continued his silence during closing arguments and the giving of jury instructions by the trial court. The post-trial testimony of Spearman’s counsel also reflects that counsel stated that he failed to articulate Spearman’s choice for the record. Spear-man’s counsel testified that Spearman knew of his right and did not exercise it. At the post-trial hearings, Spearman’s counsel explained that Spearman would have voiced his desire to testify if such desire had existed when the defense rested its case and during closing arguments. In accordance with Fannings, I contend that this issue is without merit. The record herein clearly shows that the trial court provided Spearman with his Culberson warnings and that Spearman failed to state his decision or his waiver in words for the record. Spearman sat idly by as his counsel stood and announced that the defense had rested its case and provided closing argument. Therefore, I respectfully dissent and would affirm the trial court’s finding that Spearman was not denied his right to testify.

¶ 26. Furthermore, I find that Fan-nings, 997 So.2d at 964-65 (¶¶ 36-39), speaks to any claim of ineffective assistance of counsel that Spearman may assert. In Fannings, Fannings based his claim of ineffective assistance of counsel on the contention that his counsel should have insisted on Culberson warnings. Id. at 964-65 (¶ 36). The Fannings Court found that Fanning’s claim of ineffective assistance of counsel was without merit, as the Court had already discussed the lack of merit in his issue regarding his right to testify. Id. at 965 (¶ 39).

¶ 27. Spearman, like Fannings, failed to show how, if error, his claim of ineffective assistance of counsel prevented the jury from considering any evidence that would have impacted the outcome of his case. As previously stated, in my view, the trial court fulfilled its duty to advise Spearman of his right to choose to testify or not to testify, and I would find no error herein. However, even if an error occurred in the trial court’s failure to capture Spearman’s election on the record after being informed of the right to testify or not to testify, Spearman has failed to show that reversible error occurred. Spearman has provided no affidavit, proffer of evidence, or evidence post-trial, or otherwise, to show how the outcome could have been impacted by any such claimed error. Spearman’s claim of a Culberson error would, therefore, not survive the Strickland analysis since he failed to make a threshold showing of how any deficiency affected the outcome of his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶28. Because I assert that Spearman knew of his right to testify or not to testify and that he indeed received sufficient Cul-berson warnings by the trial court, I contend that any claim by Spearman of ineffective assistance of counsel lacks merit. Based upon the foregoing reasons, I respectfully dissent from the majority.

MYERS, J., JOINS THIS OPINION. MAXWELL, J., JOINS THIS OPINION IN PART.

      . The dissent discusses "any claim of ineffective assistance of counsel that Spearman may assert." With utmost respect for the dissent, Spearman did not raise an issue alleging ineffective assistance of counsel. Furthermore, this opinion does not address such an issue.

      . I also find that Walker v. Mississippi, 823 So.2d 557, 560 (¶ 1) (Miss.Ct.App.2002), speaks to the issues of the present case. In Walker, Willie Walker likewise alleged error in the trial court’s failure to advise him of his right to testify or not to testify and also claimed that he had received ineffective assistance of counsel. Id. at 560 (¶ 1). This Court first addressed Walker’s assignment of error where he claimed that he was not allowed to testify or advised of his right to testify. Id. at 561 (¶ 6). The Court acknowledged that the record failed to reflect any evidence showing that Walker wanted to testify or that he was not allowed to do so by the court or by his counsel. Id. Furthermore, the Court stated that Walker provided no facts on appeal, other than his own assertions, to support this contention. Id. In addition, the Walker Court found that Walker rested without presenting any evidence and that the record failed to show that Walker had indicated a desire to testify. Id.


text:
    Mary Elizabeth Brown ROBINSON, Appellant v. Paul Arthur BROWN, Appellee.
    No. 2009-CA-01599-COA.
    Court of Appeals of Mississippi.
    March 22, 2011.

      William R. Wright, Jackson, Amanda Jane Proctor, attorneys for appellant.
    Edwin Hughes Priest, Tupelo, attorney for appellee.
   MODIFIED OPINION ON REHEARING

CARLTON, J.,

for the Court:

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

FACTS

¶ 2. Mary Elizabeth Brown Robinson (Liz) and Paul Arthur Brown (Paul) divorced in 2002 on the ground of irreconcilable differences. The parties agreed that Liz would maintain primary physical custody of the couple’s two daughters, Ruth and Mary, who at the time of the divorce were approximately twelve and eight years old, respectively. By their agreement, the parties shared legal custody of the children.

¶ 3. On June 5, 2009, Liz married Lance Robinson, with whom she had maintained a long-distance relationship prior to their marriage. Robinson lived in Ocean Springs, Mississippi. Although Robinson could have relocated to the Lee County area without jeopardizing his employment, he and Liz decided she would relocate to Ocean Springs so Robinson could remain close to his five-year-old son.

¶ 4. On June 19, 2009, Paul filed a motion for modification of custody, alleging that Liz’s move to Ocean Springs and other factors constituted a material change in circumstances which warranted a change in physical custody of the children from their mother to him. Liz answered and counter-sued, claiming that Paul came into court with “unclean hands,” as he was in contempt of court for his failure to pay child support and attorney’s fees from an earlier child-support dispute.

¶ 5. The Lee County Chancery Court held a trial on the matter on August 4 and August 5, 2009. The chancery court awarded Liz a judgment against Paul for $22,290.30 for past-due child support, attorney’s fees, and accrued interest and a $100 fine for contempt of court. The chancery court ordered that Paul could “purge” the contempt by paying Liz the amount in-full by the end of the day on August 5, 2009. Paul paid the arrearage, thereby avoiding jail time for contempt. Because Paul paid the arrearage in-full, the chancellor dismissed Liz’s defense that Paul stood before the court with “unclean hands.”

¶ 6. Prior to the trial, Liz, through her attorney, requested a continuance because Paul had failed to provide responses to Liz’s discovery requests until the morning of the trial. The chancellor denied the request and proceeded with trial. After hearing testimony from the parties, both children, and two neighbors, the chancellor provided a bench ruling finding that a substantial and material change in circumstances adverse to the children’s welfare and best interests had occurred in Liz’s home. The chancery court then proceeded to conduct a best-interests analysis pursuant to Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The chancellor found that the Albright analysis favored Paul and awarded custody of the children to him, subject to Liz’s visitation.

¶ 7. On appeal, Liz alleges the following assignments of error: (1) the chancellor erred in denying her a continuance in order to respond to Paul’s late discovery responses; (2) the chancellor erred in finding that a material change in circumstances had occurred in Liz’s home; (3) the chancellor erred in his application of the Albright factors and in shifting custody of the children from Liz to Paul; and (4) the chancellor erred in ordering Liz to pay child support in the amount of twenty percent of her adjusted gross income.

STANDARD OF REVIEW

¶ 8. On appeal, this Court will not disturb a chancellor’s factual findings regarding a custody modification unless the chancellor’s findings are “manifestly wrong, clearly erroneous, or the proper legal standard was not applied.” Duke v. Elmore, 956 So.2d 244, 247 (¶ 6) (Miss.Ct.App.2006).

DISCUSSION

I. Whether the chancellor erred in failing to grant a continuance.

¶ 9. Liz argues on appeal that the chancellor erred in denying her requested continuance. Liz asserts that she required the continuance to obtain Paul’s late discovery responses. At the beginning of the trial, Liz moved for this continuance on the ground that Paul had not served his discovery responses until the morning of trial. Paul, however, argued that the parties’ attorneys had previously discussed the discovery responses the day before trial and that his responses contained nothing unexpected and contained no unfair surprise. In denying the continuance, the chancellor also provided that the case would be held open for rebuttal purposes if such a need existed. However, Liz failed to attempt to reopen the case or the discovery issue.

¶ 10. Under Mississippi law, the “decision to grant or deny a continuance is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion that resulted in a manifest injustice.” Pool v. Pool, 989 So.2d 920, 924 (¶ 12) (Miss.Ct.App.2008). This Court will not reverse the denial of a continuance absent a finding of prejudice. Id. at 925 (¶ 13) (citing Cherry v. Hawkins, 243 Miss. 392, 397, 137 So.2d 815, 816 (1962)).

¶ 11. Liz cites Schepens v. Schepens, 592 So.2d 108, 109-10 (Miss.1991), wherein the Mississippi Supreme Court found that the failure to grant a continuance resulted in unfair surprise, such as the failure to disclose witnesses in the discovery responses, which “could have affected the evidence presented and, necessarily, the chancellor’s decision.” The record in the present case, however, reflects that no manifest injustice occurred as a result of the denied continuance, nor does the record reflect any prejudice to Liz as a result of the denial. We, therefore, defer to the discretion of the chancellor in denying the requested continuance and find no error in the record resulting from such denial.

II. Whether the chancellor erred in finding that a material change in circumstances adverse to the children had occurred in Liz’s home.

¶ 12. Liz argues on appeal that the chancellor erred in finding that a material change in circumstances, adverse to the children, had occurred in her home, necessitating a change in the physical custody of the children from Liz to Paul. The law in Mississippi on custody modification is well settled. In order to modify a child-custody order, the party seeking the change in custody bears the initial burden of proving that there has been a material change in circumstances. Anderson v. Anderson, 961 So.2d 55, 58 (¶ 6) (Miss.Ct.App.2007). In determining whether a material change in circumstances has occurred, the chancellor must examine the totality of the circumstances. Id. If the chancellor finds that a material change has occurred, the chancellor must then make a separate assessment to determine if the change is “adverse to the child’s welfare.” Id. (citing Thompson v. Thompson, 799 So.2d 919, 922 (¶ 8) (Miss.Ct.App.2001)). In the event of an adverse material change in circumstances, “the chancellor may determine whether the best interest of the child requires a change in custody.” Id. When analyzing the best interest of the child for the purposes of custody modification, the chancellor must make “on-the-record findings for each of the Albright factors.” Anderson, 961 So.2d at 58 (¶ 6) (citing Sturgis v. Sturgis, 792 So.2d 1020, 1025 (¶ 21) (Miss.Ct.App.2001)).

¶ 13. In the present case, Paul alleged that Liz’s move to Ocean Springs, in addition to other factors, constituted a material change in circumstances which warranted a modification of child custody. Although Mississippi law generally has recognized that a parent’s relocation alone does not constitute a material change in circumstances, we note that the impact of a relocation of the custodial parent upon the child constitutes a factor that the chancellor permissibly considers on the motion for modification. Lambert v. Lambert, 872 So.2d 679, 685 (¶ 24) (Miss.Ct.App.2003); see Porter v. Porter, 23 So.3d 438, 447 (¶24) (Miss.2009) (affirmed the chancellor’s finding that an anticipated change of circumstances in an anticipated move of the mother may support modification of child custody); Lackey v. Fuller, 755 So.2d 1083, 1088-89 (¶¶ 25-29) (Miss.2000) (found that shuttling the children between New York and Mississippi every two weeks failed to constitute the best interests of the children).

¶ 14. In addition, we note that: “The distance of the move is not disposi-tive as to whether a material change in circumstances has occurred; it is the effect the move has on the child and the custody arrangement that is dispositive.” Pearson v. Pearson, 11 So.3d 178, 182 (¶ 10) (Miss.Ct.App.2009). This Court has found that in certain cases, even a short move can result in a material change in circumstances where the move by one party caused the custody arrangement to become impractical or impossible to maintain. Id. at (¶ 9).

¶ 15. In applying precedent, the chancellor viewed the totality of the circumstances in determining the best interests of both children, and the chancellor acknowledged that the children’s best interests constituted the polestar consideration in this determination. Albright, 437 So.2d at 1005. The chancellor properly reasoned that neither remarriage nor the simple move of the custodial parent would justify a change in custody. The chancellor emphasized that he considered many factors, not just the relocation of the custodial parent or mere unhappiness of the children, when determining whether to modify custody in the present case.

¶ 16. The custody dispute pertained to the parties’ two daughters: Mary, who was fifteen years old at the time of the hearing, and Ruth, who was almost nineteen years old and about to be in college. The girls indicated that since the time of the divorce, they had lived primarily with their father. Mary also indicated that even prior to her mother’s relocation to Ocean Springs, she had failed to possess a good relationship with her mother, and she indicated that her mother served as a source of stress in Mary’s life. Ruth testified that she and Mary were best friends, and Ruth explained that Mary had no wish to live with her mother or new step-father in a new location hours away from her sister, natural father, and home community of Saltillo, Mississippi. As a result, Ruth was concerned about Mary’s emotional stability. The chancellor found that the girls possessed a stronger emotional bond with their father, and the chancellor found the geographic separation of the siblings to constitute a factor causing substantial and material change of circumstances. After considering the totality of the circumstances, the chancellor found that clear- and-convincing evidence existed showing that a substantial and material change in circumstances had occurred as reflected in the following: creating stress and depression for the younger daughter, Mary, as a result of a forced move; causing the uprooting of the girls from their home, community, and all they knew and loved; and separating the close siblings from each other.

¶ 17. After analyzing and applying the Albright factors to the facts of the present case, the chancellor found that the factors favored Paul. Albright, 437 So.2d at 1005. The record constitutes substantial evidence to support the chancellor’s decision. We find no abuse of discretion in his consideration and determination of the Al-bright factors. This issue is without merit.

III. Whether the chancellor erred in ordering Liz to pay child support.

¶ 18. Liz argues on appeal that the chancellor erred in ordering her to pay child support in the amount of twenty percent of her adjusted gross income. Liz contends that the chancellor erred in failing to provide written findings as to the reasonableness of applying the statutory child-support guidelines and in failing to consider whether a lower amount of child support was more appropriate. We note that the findings of the chancellor concerning findings of fact, particularly in the areas of divorce and child support, will generally not be overturned by this Court on appeal unless they are manifestly wrong. Vaughn v. Vaughn, 798 So.2d 431, 433 (¶ 9) (Miss.2001). This Court always reviews a chancellor’s findings of fact, but we will not disturb the factual findings of a chancellor unless such findings are manifestly wrong or clearly erroneous. Bowers Window & Door Co., Inc. v. Dearman, 549 So.2d 1309, 1312-13 (Miss.1989). For questions of law, we apply a de novo standard of review. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

¶ 19. As to sufficiency of the chancellor’s findings regarding the reasonableness of the child-support award, Mississippi Code Annotated section 43-19-101(4) (Rev. 2009) provides that:

In cases in which the adjusted gross income as defined in this section is more than Fifty Thousand Dollars ($50,000.00) or less than Five Thousand Dollars ($5,000.00), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.

Liz argues on appeal that the chancellor erred in failing to provide written findings of reasonableness as required by the statutory guidelines and in failing to consider whether a lower amount of child support was more appropriate. The record reflects that Liz neither raised an objection during trial nor sought a post-trial amendment regarding the adequacy of the chancellor’s findings of the reasonableness of the child-support guidelines and the amount of child-support award in this case. See Vaughn, 798 So.2d at 433-34 (¶ 9) (The supreme court held that the findings of the chancellor concerning findings of fact, particularly in the area of divorce and child support, will generally not be overturned on appeal unless they are manifestly wrong.); West v. West, 23 So.3d 558, 561-62 (¶ 14) (Miss.Ct.App.2009) (This Court found that assignments of error as to the chancellor’s failure to provide specific findings of fact may not be raised for the first time on appeal.).

¶ 20. In Vaughn, 798 So.2d at 434 (¶ 10), the supreme court stated that awards of child support in Mississippi are subject to the guidelines set forth in section 43-19-101. The court further explained that the guidelines constitute a rebuttable presumption as to the amount of support and that the guidelines applied unless the chancellor made a written finding on the record that the application of the guidelines would be unjust or inappropriate. Id. Where the adjusted gross income calculates to an amount greater than $50,000, the supreme court explained that the statute directs the chancellor to make a written finding in the record as to whether or not application of the guidelines is reasonable. Id. Upon review of the written findings of the chancellor in Vaughn, the supreme court found that appellate review would have benefitted from a more detailed information regarding the reasonableness of the child-support award in that case, but the chancellor’s findings, which set forth his calculations and basis for his award, sufficiently complied with the statute. Id. at (¶ IB).

¶ 21. However, before addressing whether the chancellor in the instant case provided sufficiently detailed findings, we acknowledge that Mississippi Rule of Civil Procedure 52(b) provides that:

When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or motion for a new trial.

The comment to Rule 52(b) provides that the purpose of the rule “is to enable the appellate court to obtain a correct understanding of the factual issues determined by the trial court as a basis for the conclusions of law and judgment entered thereon.” However, “[a] party who failed to prove his strongest case is not entitled to a second opportunity by moving to amend a finding of fact and conclusion of law.” Id. The comment further explains that “the motion must raise questions of substance by seeking reconsideration of material findings or conclusions.” Id. (citing 9 Wright & Miller, Federal Practice and Procedure, Civil Section 2582 (1971)); see Anderson v. Anderson, 8 So.3d 264, 268-69 (¶¶ 11-15) (Miss.Ct.App.2009).

¶ 22. The record shows that the chancellor explained that he based the child-support award on evidence in the record, including Liz’s adjusted gross income as reflected on a copy of a recent check stub, which provided a statement of her earnings. Additionally, during Liz’s testimony, the chancellor acknowledged that her 8.05 financial statement was unsigned, failed to include a total monthly income, and also failed to include a signed certificate of compliance. Liz’s 8.05 financial statement asserted an adjusted gross income of $60,000. However, the record reflects that the chancellor determined that this amount reflected only her salary, and this amount failed to account for her annual bonus monies. In his bench ruling, the chancellor also notified the parties to inform him as to any errors regarding the mandatory deductions.

¶ 2B. On September 17, 2009, based upon the parties’ request, the chancellor entered an order dismissing the post-trial hearings scheduled to occur on October 2, 2009, and on December 9, 2009. In the dismissal order, the chancellor explained that the court entered such dismissal after being advised that Liz wanted to forego the hearings and pursue an appeal. We turn to precedent and find that in West, 23 So.3d at 561 (¶ 13), this Court similarly addressed a challenge of a chancellor’s findings as to the reasonableness of the child-support guidelines. We stated that the failure to raise the issue to the chancellor resulted in a procedural bar to challenging the chancellor’s failure to make specific findings of fact on the reasonableness of the statutory guidelines. Id. at 561-62 (¶ 14). In this case, we likewise find the challenge of the chancellor’s findings in the instant case procedurally barred. See also Williams v. Williams, 810 So.2d 613, 615 (¶ 9) (Miss.Ct.App.2001) (father’s failure to object at trial to increase in child-support award resulted in a failure to preserve the issue for appellate review).

¶ 24. With respect to the sufficiency of the evidence, the Mississippi Supreme Court has established that: “An award of child support is a matter within the discretion of the chancellor, and we will not reverse that determination unless the chancellor was manifestly wrong in his findings of fact or manifestly abused his discretion.” Porter, 23 So.3d at 449 (¶ 30) (quoting Dufour v. Dufour, 631 So.2d 192, 194 (Miss.1994)). Moreover, the chancellor’s decision may be affirmed if the record supports the award. See Clark v. Clark, 754 So.2d 450, 459 (Miss.1999). In applying precedent to this case, we find that the evidence in the record reflects that the testimony and financial information relied on by the chancellor provides sufficient support for the award of child support. The chancellor explained in his bench ruling that he utilized Liz’s recent check stub, which estimated Liz’s monthly income as $5,245.56, in calculating the child-support award. The record reflects the reasonableness of the chancellor’s reliance upon testimony in the record, financial disclosures, and the recent check stub in his calculations. The record reflects that the chancellor utilized the guidelines of section 43-19-101 when calculating the child-support award. As previously provided, during Liz’s testimony, the chancellor found omissions in her 8.05 financial statement as to her amount of income. Based upon the foregoing, we find no abuse of discretion in the chancellor’s award of child support. This issue lacks merit.

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

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

      . The record on appeal fails to include the actual discovery requests and responses, but according to Paul’s counsel, "there was nothing unexpected in the discovery responses.” Liz’s counsel did raise that Liz’s consumption of alcoholic beverages was more of an issue than previously thought by Liz's counsel. The reasons for not granting a continuance, particularly the immediate start date of the school year, were discussed in the record.

      . In his bench ruling, the chancellor referred to the recent check stub as “exhibit 4.”


author: LEE, C.J.,

text:
    Emory Hobbs HUTCHISON, Jr., Appellant v. Rutchel Clarin HUTCHISON, Appellee.
    No. 2009-CA-01672-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.

      Hal H.H. McClanahan III, Columbus, attorney for appellant.
    Mark G. Williamson, Starkville, attorney for appellee.
    Before LEE, C.J., BARNES and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. On September 15, 2008, Emory Hobbs Hutchison Jr. filed a complaint for divorce in the Lowndes County Chancery Court. Emory sought a divorce from his wife, Rutchel Clarín Hutchison, on the grounds of habitual cruel and inhuman treatment, adultery, and in the alternative, irreconcilable differences. Rutchel filed an answer and cross-complaint alleging habitual cruel and inhuman treatment, adultery, and in the alternative, irreconcilable differences. On November 5, 2008, the chancellor entered an order awarding temporary custody of the couple’s two minor children to Emory.

¶ 2. Emory and Rutchel ultimately withdrew their fault grounds for divorce. After a two-day hearing, the chancellor granted an irreconcilable-differences divorce. The chancellor awarded the parties joint legal custody of the minor children, with Rutchel to have physical custody and Emory to have reasonable visitation. The chancellor also divided the marital property and determined child support, but denied Emory any alimony.

¶ 3. Emory now appeals, asserting that the chancellor erred in awarding custody of the minor children to Rutchel.

FACTS

¶ 4. Emory and Rutchel were married in 1999. They had two sons, one born in 2000 and the other born in 2003. While on active duty in the United States Armed Forces, Emory suffered a back injury for which he initially underwent surgery in 2001. Emory has been effectively disabled since then and receives compensation from both the Social Security Administration (SSA), effective June 11, 2001, and the Department of Veteran Affairs (VA), effective August 22, 2001. The two minor children receive a total of $514 in social-security benefits due to Emory’s disability.

¶ 5. Rutchel worked for the Army and Air Force Exchange Service (AAFES). Emory has been unemployed since 2001. Due to Emory’s service in the military and Rutchel’s employment with AAFES, the parties moved several times before buying a house in Columbus, Mississippi, in April 2006. Following their move to Mississippi, Rutchel’s mother moved from the Philippines to live with them and help raise the two minor children. According to Rutchel, the couple decided Rutchel should work in Iraq for a year at a significantly higher pay rate in order to pay off approximately $60,000 in credit-card debt. Rutchel worked in Iraq from October 2007 through late 2008. Rutchel sent home approximately $58,000, some of which Emory used to pay the couple’s credit-card debt. However, Rutchel testified that when she came home from Iraq, the couple’s credit-card debt had increased due to Emory’s spending habits. At the time of the trial, Rut-chel lived in Georgia and was still working for AAFES. Emory was living in the marital home in Columbus. Other facts pertinent to the issue on appeal will be discussed as necessary.

STANDARD OF REVIEW

¶ 6. The standard of review in child-custody cases is quite limited, and in order to reverse the chancellor’s findings, the chancellor must be manifestly wrong, clearly erroneous, or have applied an erroneous legal standard. Hensarling v. Hensarling, 824 So.2d 583, 586 (¶ 7) (Miss.2002).

DISCUSSION

¶ 7. In his only issue on appeal, Emory argues that the chancellor erred in awarding custody of the two minor children to Rutchel. It is well settled that in child-custody cases, the polestar consideration is the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The factors used to determine what is in the best interest of a child with regard to custody are: (1) the age, health, and sex of the child; (2) a determination of the parent who has had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parents and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6). the emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Id.

¶ 8. In determining whether the chancellor abused his discretion in applying the Albright factors, the appellate court “review[s] the evidence and testimony presented at trial under each factor to ensure [the chancellor’s] ruling was supported by record.” Hollon v. Hollon, 784 So.2d 943, 947 (¶ 13) (Miss.2001). The chancellor found three factors to be neutral, four factors favored Rutchel, three factors favored Emory, and one factor only slightly favored Emory. Emory does not challenge the chancellor’s findings in regard to every Albright factor. Rather, Emory specifically contends that the chancellor abused his discretion in determining the amount of care Rutchel’s mother provided the children and in overstating the severity of his disability.

¶ 9. Emory first argues that the chancellor ignored the testimony of his first cousin, Charlton Lester. Lester testified that he was around the family on a weekly basis from the summer of 2001 through February 2002. According to Lester, during this period Emory’s disability did not affect his ability to take care of his oldest child. However, Emory filled out a form used in his military disability claim in which he described his physical condition at the time. Emory described his pain as constant and that his contributions to child care were limited. Emory stated that: he could not stand or sit too long; he loses his balance easily; he could not bathe or dress himself; he could not contribute to housework; and he was on approximately ten different medications to manage his condition.

¶ 10. Lester did not see the family regularly again until he moved in Emory’s home in September 2008 to live with Emory and the two children. Lester testified that Rutchel’s mother, who was still living with Emory and the children, did not take care of the children. Lester also testified that Emory handled everything involving the children and everything involving housework and yard work. Lester did admit that his schedule was different from Rutchel’s mother, and he was not always awake when she was at the house.

¶ 11. In July 2007, Emory completed a continuing-disability-review report for the SSA in which he stated that his health was deteriorating and that he was forced to remain in bed most of the day. Emory admitted that while Rutchel was working, her mother did all the cooking and housework. Emory admitted that the conditions he described in the 2001 and 2007 forms were still the same conditions he was experiencing at the time of trial.

¶ 12. Rutchel testified that she asked her mother to come live with them because she was unable to care for a disabled husband, raise two children, work full time, and keep up the housework by herself. Emory’s own filings with the SSA and VA reveal that Rutchel was handling everything by herself. Rutchel testified that her mother assumed approximately eighty percent of the housework, including laundry, ironing, cooking, yard work, and helping with the children.

¶ 13. The chancellor was of the opinion that Rutchel’s mother played a larger role than was represented by Emory. The chancellor also questioned Emory’s credibility in regard to the discrepancies between his trial testimony and the description of his disability in the SSA and VA reports. The chancellor stated that “[either this Court or those agencies do not have a true picture of [Emory’s] physical condition.” We cannot find that the chancellor erred in questioning Emory’s credibility. It is clear from the record that Rutchel’s mother played a role in raising the children and helping around the house, especially when Rutchel was in Iraq.

¶ 14. Emory also argues that the chancellor erred in overstating the severity of his disability. Emory refers to a disability report by the VA dated May 21, 2009, which was submitted to the chancellor after trial. This report states that Emory’s condition remained unchanged and that his disability rating was the same. Emory contends this report refutes the chancellor’s concern that Emory’s condition would deteriorate as he aged. Although the chancellor was concerned about Emory’s future health, it is clear that Emory’s current health was a big factor in awarding custody of the children to Rut-chel. As previously stated, the chancellor was concerned about Emory’s credibility. The chancellor stated the following: “[Emory] cannot have it both ways, i.e., allege he can adequately care for his children, assuming the necessary physical duties, or being virtually helpless and dependent on his wife or mother-in-law.” Upon review of the record and exhibits, we cannot find that the chancellor erred in awarding custody of the children to Rutchel. This issue is without merit.

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

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


author: ROBERTS, J.,

text:
    William Ray MAYO, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00691-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.
    William Ray Mayo, appellant, pro se.

      Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
   ROBERTS, J.,

for the Court:

¶ 1. On July 16, 2007, William Mayo pled guilty to one count of gratification of lust. This appeal arises from the Rankin County Circuit Court’s summary dismissal of Mayo’s motion for post-conviction relief (PCR) filed on March 23, 2010. Finding no error, we affirm the circuit court’s dismissal of Mayo’s PCR motion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mayo was indicted on April 14, 2006, on one count of sexual battery and one count of gratification of lust. On July 16, 2007, Mayo appeared before the Rankin County Circuit Court and pled guilty to one count of gratification of lust in violation of Mississippi Code Annotated section 97-5-23(1) (Rev.2006) for rubbing the vaginal area of his four-year-old biological daughter. The maximum sentence for this offense is a five-thousand-dollar fine and fifteen years in the custody of the Mississippi Department of Corrections (MDOC). Miss.Code Ann. § 97-5-23(1).

¶ 3. Mayo was sentenced to serve the maximum fifteen years in the custody of the MDOC. Four years of his sentence were suspended, and upon his release from the MDOC’s custody, he was ordered to serve five years of supervised probation.

¶ 4. Mayo filed his PCR motion on March 23, 2010, alleging that his sentence was illegal because it exceeded the maximum sentence. The circuit court entered an order summarily dismissing his PCR motion finding that it appeared from the face of the motion that he was not entitled to relief.

¶ 5. Feeling aggrieved, Mayo appeals alleging that his “sentence is illegal due to the fact that it exceeds the authorized maximum allowed by state law statute.”

STANDARD OF REVIEW

¶ 6. The circuit court may summarily dismiss a PCR motion if “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relieff.]” Felton v. State, 18 So.3d 328, 329-330 (¶4) (Miss.Ct.App.2009). “This Court reviews the dismissal of a post-conviction relief motion for an abuse of discretion.” Id. at 329. Questions of law are review de novo. Id. at 330.

ANALYSIS

¶ 7. Mayo argues that his sentence is illegal because he was sentenced to serve fifteen years in the custody of the MDOC and five years of supervised probation after his release from the custody of the MDOC, making his total sentence twenty years. Mississippi Code Annotated section 97-5-23(1) provides the sentence applicable to persons found to have committed gratification of lust. It reads:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court.

Miss.Code Ann. § 97-5-23(1) (emphasis added). Mayo argues that this additional five years of supervised probation exceeds the maximum sentence of fifteen years permitted by statute.

¶ 8. In support of his argument that his sentence is illegal, Mayo also relies on the language found in Mississippi Code Annotated section 47-7-34(1) (Rev.2004). It reads, in pertinent part, as follows:

[A] court ... may impose a term of post-release supervision. However, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed.

Miss.Code. Ann. § 47-7-34(1) (emphasis added).

¶ 9. Were this statute applicable, Mayo would be correct in determining that his sentence exceeded the maximum sentence allowed under the statute; however, this statute is not applicable to Mayo’s sentence. Mayo was sentenced to five years of supervised probation, not post-release supervision. The imposition of probation requires the application of Mississippi Code Annotated section 47-7-33 (Rev. 2004), not section 47-7-34(1). The Mississippi Supreme Court has held that: “Probation under [section] 47-7-33 is a conditional term that is not a part of the prison sentence and is therefore not subject to the ‘totality’ of sentence concept found in section 47-7-34.” Carter v. State, 754 So.2d 1207, 1209 (¶ 5) (Miss.2000); see Jones v. State, 805 So.2d 610, 612 (¶ 7) (Miss.Ct.App.2002). Further, Mississippi Code Annotated section 47-7-37 (Rev. 2004) states, in part, that: “No part of the time that one is on probation shall be considered as any part of the time that he shall be sentenced to serve.” Thus, the five-year period of supervised probation imposed on Mayo is not to be taken into consideration when determining if his sentence exceeds the maximum sentence allowed by statute.

¶ 10. It is clear that since the five years of supervised probation is not included in the total sentence, Mayo’s fifteen-year sentence, with eleven years to serve, and four years suspended, does not exceed the maximum sentence allowed by statute. We find that Mayo’s sentence is legal and does not exceed the maximum sentence authorized under Mississippi Code Annotated section 97-5-23(1). This issue lacks merit.

IF 11. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . A one-thousand-dollar fine was also imposed, but the circuit judge suspended the fine. Mayo was ordered to pay $797.50 in court costs and fees.


text:
    Jeremy CATCHINGS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00457-COA.
    Court of Appeals of Mississippi.
    April 5, 2011.
    Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    BEFORE GRIFFIS, P.J., MYERS AND CARLTON, JJ.
   MYERS, J.,

for the Court:

¶ 1. On September 17, 2009, Jeremy Catchings, Alebsion Mayor Williams, and Jerry Powell were riding bicycles to Ha-zlehurst from Crystal Springs, Mississippi, and back. Catchings was eighteen years of age, and Powell was twenty or twenty-one. Williams’s age is not stated in the record. On their way home from Hazle-hurst that evening, Catchings, who was ahead of the others, stopped at a storage yard owned by Sun Belt Heavy Haulers. While Williams and Powell rested, Catchings entered the fenced-in property and commandeered a forklift, which he used to tear down a gate leading out of the property. Catchings then took a red, 2008-model Peterbilt “heavy hauler” semi truck and drove it around the lot. After familiarizing himself with the vehicle, Catchings drove it off Sun Belt’s property and, ultimately, to Crystal Springs, where he abandoned the truck in an alley.

¶ 2. At trial, Williams and Powell testified to substantially the same events, which we have recounted above. Roger Hunt, one of the owners of Sun Belt, testified that the truck had been taken without permission and that the truck, fence, and forklift had been damaged. Jerry Spell, an investigator for the Copiah County Sheriffs Department, testified that he had interviewed Catchings, who admitted that he had taken the truck.

¶ 3. Catchings testified in his own defense. He admitted that he had taken the truck without permission but denied using the forklift or tearing down the fence. Catchings stated that he had taken the truck to “work some things out.” He stated that he had always intended to return the truck, but after driving it for a while he became concerned that his actions would be misinterpreted as an attempt to steal the vehicle, so he left it in Crystal Springs. Catchings denied that he ever intended to keep the truck, sell it, or otherwise permanently take it from its rightful owners.

¶ 4. The jury found Catchings guilty of motor vehicle theft, and the trial court sentenced him to five years in the custody of the Mississippi Department of Corrections and to pay a fine and restitution for the property damage. The sentencing order provided that the term of imprisonment would be suspended if Catchings successfully completed the Regimented Inmate Discipline (RID) program.

¶ 5. Catchings now appeals his conviction and sentence. He is represented by the Mississippi Office of Indigent Appeals, and his attorney has filed a Lindsey brief asserting that there was no error in the trial court proceedings. ■ See Lindsey v. State, 939 So.2d 748 (Miss.2005).

DISCUSSION

¶ 6. In Lindsey, the Mississippi Supreme Court outlined a procedure that appellate counsel must follow when counsel determines that there are no appealable issues in the record. Id. at 748 (¶ 18). The court stated as follows:

(1)Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-(4),(7); see also [Smith v.] Robbins, 528 U.S. [259, 280-81, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)] (stating that “counsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey, 939 So.2d at 748 (¶ 18) (internal citations and footnotes omitted).

¶ 7. We find that Catchings’s attorney has complied with the requirements of Lindsey. The attorney filed a brief stating that he has “diligently searched the procedural and factual history of this criminal action and scoured the record” and found no arguable issues for appeal. The attorney specifically asserts that he has reviewed the record concerning: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible pros-ecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing. See Lindsey, 939 So.2d at 748 (¶ 18). Counsel also states that he has informed Catchings that he found no arguable issues and that he advised Catchings of his right to file a pro se brief. Catchings did not file a pro se brief.

¶ 8. After our own review of the record, we find no issues that would require supplemental briefing. We therefore affirm Catchings’s conviction and sentence.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY OF CONVICTION OF MOTOR VEHICLE THEFT AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCE TO BE SUSPENDED UPON COMPLETION OF THE REGIMENTED INMATE DISCIPLINE PROGRAM, AND TO PAY A $1,000 FINE AND $2,689 IN RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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

      . The statute Catchings was prosecuted under, Mississippi Code Annotated section 97-17-42 (Supp.2010), does not require that the vehicle be taken with an intent to permanently deprive the owner of possession or ownership. It states in pertinent part:
      Any person who shall, willfully and without authority, take possession of or take away a motor vehicle of any value belonging to another, with intent to either permanently or temporarily convert it or to permanently or temporarily deprive the owner of possession or ownership ... shall be guilty of a felony and shall be punished by commitment to the Department of Corrections for not more than ten (10) years.