author: MYERS, J., LEE, C.J.,

text:
    Schenille MARTIN, On Behalf of the Wrongful Death HEIRS OF Floyd L. MARTIN, Deceased, Appellant v. B & B CONCRETE COMPANY, INC., Appellee.
    No. 2010-CA-00145-COA.
    Court of Appeals of Mississippi.
    April 12, 2011.
    Rehearing Denied June 28, 2011.
    Certiorari Denied Oct. 6, 2011.

      Joseph E. Roberts Jr., Jackson, Grady F. Tollison Jr., Robert Dallas Schultze, Oxford, attorneys for appellant.

      Wilton V. Byars III, Oxford, Joseph Luke Benedict, attorneys for appellee.
   MYERS, J.,

for the Court:

¶ 1. Floyd Martin (Floyd) was killed in a two-vehicle automobile accident in Lafayette County, Mississippi. His widow, Sehenille (Martin), brought a wrongful death suit against B & B Concrete Company, Inc., the owner of the other vehicle and the employer of its driver. The jury returned a verdict for the defendant, and Martin appeals.

FACTS

¶ 2. On June 10, 2005, Floyd was driving his 1966 Ford pickup truck north on CR 405 in Lafayette County, just east of Oxford. Immediately before the accident, Anthony Logan was driving east on Highway 6 in the right lane. Logan was operating a loaded concrete truck owned by B & B Concrete. At its intersection with CR 405, Highway 6 is a four-lane, divided highway with a posted speed limit of sixty-five miles per hour. A grass median separates the east-and west-bound lanes of travel. CR 405 is a county road with a posted speed limit of thirty-five miles per hour. Northbound traffic on CR 405 is required to stop at the intersection before crossing and to yield the right of way to vehicles traveling on Highway 6.

¶ 3. There were several eyewitnesses to the accident, and they gave conflicting testimony about how it occurred. B & B Concrete’s witnesses testified that Floyd ran the stop sign before being struck in the right eastbound lane of Highway 6. Witnesses favored by Martin testified that the concrete truck hit Floyd’s vehicle while it was stopped at the stop sign. Martin also advanced alternative theories that Floyd was stalled in the intersection or was proceeding slowly through it and had been negligently struck, either because the driver of the concrete truck failed to act to avoid the collision or had not been keeping a proper lookout.

¶ 4. The case was tried to a jury, which returned a verdict for B & B Concrete. Martin appeals from that judgment. She presents several issues for our review.

DISCUSSION

1. Jury Instructions

¶ 5. Martin contends that the trial court erred in giving or refusing several jury instructions. Our standard of review for jury instructions is as follows:

The instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case. However, the trial judge may also properly refuse the instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered in another instruction or to be without proper foundation in the evidence of the case.

Nunnally v. R.J. Reynolds Tobacco Co., 869 So.2d 373, 378 (¶7) (Miss.2004).

A. Instructions P-10 & P-12

¶ 6. In her brief, Martin challenges the trial court’s refusal of two instructions, P-10 and P-12. These instructions, although apparently proffered to the trial court, are not found in the record before this Court on appeal. Consequently, these issues are not properly before this court. With jury instructions, “[w]e cannot review the bare assertions in the parties’ briefs, but must look to the record.” Rogers v. State, 796 So.2d 1022, 1029 (¶ 24) (Miss.2001).

B. Peremptory Instructions P-2, P-6, & P-11

¶7. Martin also challenges the trial court’s refusal of instructions P-2, P-6, and P-11, which are peremptory instructions. In reviewing an appellant’s contention that the trial court should have granted a peremptory instruction, we apply the same standard of review as the denial of a motion for a directed verdict or a judgment notwithstanding the verdict:

This Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.

Ala. Great S. R.R. Co. v. Lee, 826 So.2d 1232, 1235-36 (¶ 12) (Miss.2002). Our review of a trial court’s refusal of peremptory instructions is de novo. Windmon v. Marshall, 926 So.2d 867, 872 (¶ 20) (Miss.2006).

¶ 8. P-11 would have instructed the jury that Logan, the driver of the concrete truck, had been negligent for failing to decrease his speed as he approached the intersection with CR 405. In his testimony, Logan stated that he had been driving between forty and fifty-five miles per hour before approaching the intersection but did not reduce that speed further as he neared the intersection. Martin argues that this was negligent per se, an admitted and uncontested violation of Mississippi Code Annotated section 63-3-505 (Rev. 2004), which requires that “[t]he driver or operator of any motor vehicle must decrease speed when approaching and crossing an intersection.”

¶ 9. As the relevant facts are essentially uncontested, this issue presents a question of law. In Richardson v. Adams, 223 So.2d 536, 538 (Miss.1969), the supreme court held that subsection 8176(b) of the Mississippi Code of 1942 (Supp.1968), the prior incarnation of section 63-3-505, only “qualified” the maximum permitted speed of travel under certain circumstances. Thus, the court held that a driver would not be negligent as a matter of law in failing to reduce her speed approaching an intersection, so long as she traveled below the posted speed limit. Id. The question of whether, under all the circumstances, the driver should have reduced her speed further as she approached the intersection was a question of fact for the jury. Id. The jury instructions given by the trial court in this case are consistent with the supreme court’s holding in Richardson.

¶ 10. Martin acknowledges Richardson, but she contends that it has been superseded by the recodification of the statute in the Mississippi Code of 1972. When the Richardson court examined section 8176 of the 1942 code, it contained three subsections relevant to our analysis. Subsection 8176(b), now codified as section 63-3-505 of the 1972 code, required among other things that a driver reduce his speed when approaching and crossing an intersection. Subsection 8176(a) established maximum speeds for various classes of vehicles on state highways. Subsection 8176(c) allowed lower speed limits to be posted where necessary. The Richardson court reasoned that subsection (b) must be read in context with the rest of section 8176: [W]hen section 8176 is viewed in its entirety, the true meaning of subsection (b) becomes apparent. The first part of the statute sets the maximum speed limits permissible on the state highways. Subsection (b) qualified the allowed máximums when any of the conditions enumerated therein arise. In order to be in violation of the statute one must fail to reduce his speed from the maximum provided when one of the conditions set out in subsection (b) is present.

Richardson, 223 So.2d at 538.

¶ 11. When section 8176 was recodified, subsection (b) became section 63-3-505 in the 1972 code. Subsections 8176(a) and 8176(c) were incorporated into sections 63-3-501 (Rev.2004) and 63-3-503 (Rev.2004), respectively. Martin contends that in the present code, section 63-3-505 now “stands alone” and should no longer be interpreted as qualifying the speed limits established elsewhere. She argues that section 63-3-505 now requires that a driver approaching and crossing an intersection reduce his speed regardless of his prior speed.

¶ 12. We find that this contention is without merit. The subsections of the 1942 code relied on by the Richardson court remain in the 1972 code. They may have been reorganized as separate sections, but they remain in a common title, chapter, and article of the code. Martin offers no compelling reason for this Court to reject the supreme court’s holding in Richardson and interpret section 63-3-505 in isolation. Moreover, the interpretation Martin advances — that speed must be reduced regardless of prior speed — would lead to irrational results and may be unworkable in practice. Under her reading, Logan would have been negligent as a matter of law for proceeding through the intersection while traveling between ten and twenty-five miles per hour below the posted speed limit, but if he had . slowed only slightly from the maximum posted speed, he would not have been negligent. Another consequence of her proposed interpretation would be that a driver approaching a series of intersections would be required to reduce his speed for each individually, but if he were to reduce his speed once and maintain that lower speed, he would be driving negligently as a matter of law, no matter how much he had reduced his speed. That is not a rational result.

¶ 13. Logan testified that he was driving at a speed between ten and twenty-five miles below the posted speed limit, in part because he was aware of the danger posed by traffic entering and crossing the highway. We cannot say that this was negligent as a matter of law or that the trial court erred in refusing a peremptory instruction.

¶ 14. Martin also challenges the trial court’s refusal of P-2 and P-6, which are also peremptory instructions. P-2 would have instructed the jury to “return a verdict for Martin,” while P-6 would have instructed the jury that Logan’s operation of the concrete truck was negligent as a matter of law and that the jury was only asked to determine whether his negligence was a proximate cause of the accident. Her arguments regarding these instructions are the same as those offered regarding P-11, and we likewise find them without merit.

C. Instructions D-16(a) & D-17

¶ 15. Finally, Martin challenges the trial court’s granting of instructions D-16(a) and D-17. D-16(a) instructed the jury that Floyd would have been negligent if he had stopped his vehicle within the intersection. Martin contends that the instruction was misleading because it did not also instruct the jury that Logan also had a duty to take reasonable precaution to avoid the collision, even if Floyd had negligently stopped in the intersection. Martin also contends that D-17, which instructed the jury on Floyd’s duties to stop at the intersection and yield the right of way, failed to advise the jury of Logan’s duty to avoid a collision even if Floyd had failed to yield before entering the intersection.

¶ 16. We find these arguments without merit, as Logan’s duty to avoid a collision notwithstanding Martin’s negligence was outlined in other instructions given by the trial court. P-7 stated that Logan had a duty “to exercise ordinary and reasonable care ... to ... to keep [his] vehicle under proper control under the circumstances.” P-8 stated that Logan had to “exercise ordinary and reasonable care ... to ... maintain a reasonable and proper lookout for other vehicles.” P-13 stated that Logan “had a duty to use reasonable precaution to attempt to avoid the vehicle operated by [Floyd],” even if Floyd had negligently entered the intersection. Considering all of the instructions given by the trial court, we find that the jury was properly instructed on Logan’s duty, and accordingly, we can find no error in the trial court’s giving of these two defense instructions.

2. Weight of the Evidence

¶ 17. Martin contends that the jury’s verdict in favor of B & B Concrete is against the overwhelming weight of the evidence. In reviewing the weight of the evidence supporting a jury’s verdict, this Court must accept as true the evidence which supports the verdict. Tentoni v. Slayden, 968 So.2d 431, 440-41 (If 27) (Miss.2007). We will only reverse “when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. “[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005).

¶ 18. This issue is largely a rehashing of Martin’s prior arguments for peremptory instructions, which we have already found without merit. Martin also adds the contentions that the evidence was overwhelming that Logan negligently failed to see Martin’s vehicle in time to avoid the collision, and even accepting Logan’s testimony as true, once he had seen Martin’s vehicle, Logan negligently failed to take steps to avoid the collision.

¶ 19. It is uncontroverted that Logan had a duty to keep a reasonable and proper lookout for other vehicles and to keep his vehicle under reasonable and proper control. See, e.g., Busick v. St. John, 856 So.2d 304, 317 (¶ 39) (Miss.2003). The supreme court has also held that “the motorist’s right to assume that the driver of a vehicle proceeding toward an intersection will obey the law of the road, which requires him to stop before entering the intersection, exists only until he knows or in the exercise of ordinary care should know otherwise.” Id. (quoting Jobron v. Whatley, 250 Miss. 792, 168 So.2d 279, 284 (1964)).

¶ 20. Martin makes two contentions regarding the weight of the evidence. First, she argues that the evidence was overwhelming that Logan negligently failed to keep a proper lookout when approaching the intersection. If he had, she argues, Logan would have seen that Floyd’s vehicle was not going to stop at the intersection in time for Logan to avoid the accident. Logan testified that his view of CR 405 was obscured by trees lining Highway 6. In arguing that the verdict is against the weight of the evidence, Martin points to competing evidence that suggested Logan’s view of CR 405 as it approached Highway 6 would have been unobstructed. We think this presented a question of credibility, which is for the jury alone. In reviewing the weight of the evidence supporting a verdict, this Court will not “pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.” Massey v. State, 992 So.2d 1161, 1163 (¶ 12) (Miss.2008). Additionally, Martin fails to demonstrate that the evidence was overwhelming that Logan could have avoided the collision by reasonable means, even if he had been able to see down CR 405 as he approached the intersection. The jury could have accepted Logan’s testimony that he had no time to react after Floyd ran the stop sign, as the evidence showed Floyd had only traveled about twenty-five feet beyond the stop sign when the collision occurred.

¶ 21. Martin also contends that Logan was negligent because, according to his own testimony, Logan did not sound his horn or apply his brakes even after he realized Floyd’s vehicle would not stop for the intersection. Again, Logan testified that he did not brake or sound his horn because of the short time he had to react. Logan stated that he instead attempted to change lanes to avoid the collision but could not do so quickly enough. Martin argues that this was tantamount to Logan admitting he failed to take reasonable steps to avoid the collision, but we conclude that this again presented a jury question as to whether Logan’s actions were reasonable under all the circumstances. As to the. specific contention that Logan was negligent for failing to apply his brakes prior to the collision, B & B Concrete’s accident reconstructionist testified that he had concluded the skid marks indieated that Logan had actually applied the brakes before colliding with Floyd’s vehicle. The expert testified that the concrete truck’s brakes had not fully activated because of “air lag” — a delay of about one-half second between depressing the pedal and the brakes being applied at full force. The jury could have concluded that Logan did attempt to brake prior to the collision but did not remember because of the suddenness of the collision or the excitement of the moment.

¶ 22. We think the questions of whether Logan kept a reasonable lookout and exercised reasonable care to avoid the collision — and whether any failure to do so was a proximate cause of the accident — were properly left to the jury. We cannot say that the verdict is against the overwhelming weight of the evidence. This issue lacks merit.

3. Supplementation of Expert Testimony

¶ 23. Martin contends in her final issue that the trial court erred in allowing B & B Concrete to supplement the designation of its accident reconstruction expert, Dr. Thomas Talbot. The supplementation was made approximately three and one-half weeks before the trial date. Martin relies on Uniform Rule of Circuit and County Court 4.04(A), which states in pertinent part: “Absent special circumstances the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.”

¶ 24. “The control of discovery is a matter committed to the sound discretion of the trial judge.” Holland v. Mayfield, 826 So.2d 664, 673 (¶37) (Miss.1999). Likewise, the standard of review for the admission or exclusion of testimony is abuse of discretion. Causey v. Sanders, 998 So.2d 393, 399 (¶ 14) (Miss.2008). The admission of expert testimony is left to the sound discretion of the trial judge. Id. Unless the trial judge’s decision is arbitrary and clearly erroneous, it will stand. Windmon v. Marshall, 926 So.2d 867, 876 (¶ 38) (Miss.2006).

¶ 25. For reversible error to be found in the admission or exclusion of evidence, the error must also result in prejudice and harm or adversely affect a substantial right of a party. Id.

¶ 26. B & B Concrete responds that the supplementation was required to address Martin’s own late designation of her expert and a change in Martin’s theory of the case. In her complaint, Martin alleged that her husband had been killed after his vehicle was struck while stopped at the stop sign on CR 405. Martin offered her own accident reconstructionist, Dr. Tim Corbitt. Her initial designation of Dr. Corbitt stated only that his opinion was that Martin’s vehicle was “either stopped [or] moving very slowly at the time of the collision.” After being ordered to do so by the trial court, Martin supplemented this designation. Corbitt’s supplemental designation stated that his opinion was that the collision had occurred while Floyd was stopped or moving slowly inside the intersection, rather than at the stop sign. This was apparently the first time Martin had advanced this “alternate theory” of how the accident had occurred. Martin’s supplemental designation was made about seventy-five days before the trial was scheduled to be held. B & B Concrete offered a supplemental designation of its own expert, Dr. Talbot, about twenty-five days before the trial date. Dr. Talbot opined that Floyd’s vehicle was traveling at a significant speed at the time of the impact. The trial court denied Martin’s motion to prevent Dr. Talbot from testifying about his supplemental opinion.

¶ 27. While it is true that B & B Concrete’s supplemental designation was filed outside the sixty-day deadline, Rule 4.04(A) allows designations to be made closer to trial under “special circumstances.” The supreme court has stated that it “has laid down no hard and fast rule as to what amounts to seasonable supplementation .... Seasonableness must be determined on a case by case basis looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit.” Hartel v. Pruett, 998 So.2d 979, 985 (¶14) (Miss.2008) (internal quotations omitted). Under these circumstances, we can find no abuse of discretion in the trial court’s allowing Dr. Talbot to testify.

¶ 28. Finally, Martin contends that the trial court erred in permitting Dr. Talbot to testify at trial to a more specific estimate of Floyd’s vehicle’s speed than B & B Concrete had disclosed in its designation. The designation stated that Dr. Talbot would testify that Floyd was traveling at “significant speed” or, alternatively, “at least [fifteen] miles per hour.” The trial court allowed Dr. Talbot to opine in his testimony at trial that Martin was traveling at approximately thirty miles per hour at the time of the collision. Martin fails to demonstrate that this was an abuse of discretion, as she offers no relevant authority to support her assertions. Consequently, the issue is barred on appeal. Ruff v. Estate of Ruff, 989 So.2d 366, 372 (¶24) (Miss.2008).

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

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

LEE, C.J.,

Concurring in Part and Dissenting in Part:

¶ 30. With respect for the majority, I must dissent for two reasons. First, I find we should allow Schenille Martin to amend the record with missing jury instructions P-10 and P-12 or explain why they are missing. Second, I would find that Dr. Thomas Talbot’s testimony as to the speed of Floyd Martin’s vehicle was not admissible. I agree with the majority’s analysis on the remaining issues.

Jury Instructions

¶ 31. According to Martin’s brief, jury instruction P-10 instructed the jury that the driver for B & B Concrete, Inc. should have yielded the right-of-way to Floyd after Floyd had yielded to traffic that constituted an immediate hazard on Highway 278. This instruction would have tracked the language of Mississippi Code Annotated section 63-3-805 (Rev.2004). The theory of Martin’s case was that Floyd was either stopped or barely moving at the time of the collision, and he was only two or three feet at the most into the intersection when his vehicle was hit. Martin argues that instructions P-8, P-13, and D-19 are similar to P-10, but they do not address the driver’s duty to maintain a proper look out.

¶ 32. As to jury instruction P-12, Martin argues that this instruction would have addressed whether the driver for B & B was negligent in failing to take reasonable precautions to avoid the collision. Specifically, if the driver for B & B realized that Floyd was not going to stop at the stop sign, he should have taken precautionary action to avoid the accident. The proposed instruction would have tracked the language of section 63-3-805. Martin argues that this instruction was not covered by any other instruction.

¶ 33. I find that Martin raises valid arguments regarding the exclusion of these instructions. The majority has declined to review these instructions because they were not included in the record. I find this is punitive. Both Martin and B & B have made ■ arguments in their briefs regarding these instructions. No objection was made to the absence of the instructions from the record. Justice would be better served if this Court would seek to supplement the record with jury instructions P-10 and P-12.

Expert Testimony

¶ 34. Martin argues that B & B’s expert, Dr. Talbot, should not have been allowed to testify at all regarding Martin’s speed. In the alternative, Martin argues that Dr. Talbot should not have been allowed to testify beyond the opinions presented in his supplemental designation.

¶ 35. Dr. Talbot was designated as B & B’s expert on February 13, 2009. Dr. Talbot’s report opined that Floyd’s vehicle was in the right lane of Highway 278 when the collision occurred. Martin’s expert, Tim Corbitt, was designated on February 17, 2009. Corbitt opined that Floyd’s vehicle was either stopped or “moving very slowly” when the collision occurred. On September 2, 2009, Dr. Talbot supplemented his report and stated that Floyd’s vehicle was traveling “at least 15 M.P.H.” This was twenty-seven days before trial. However, at trial, Dr.' Talbot testified that Floyd’s vehicle was traveling “twenty-five to thirty miles an hour.” Martin’s counsel objected to the testimony, and the objection was overruled.

¶ 36. Mississippi Rule of Civil Procedure 26(f)(1) requires litigants to supplement interrogatory responses in regard to “the substance of the testimony.” The rule also imposes a duty on the parties to amend a prior response when “the party knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.” M.R.C.P. 26(f)(2)(B). The failure to supplement or amend a response seasonably is a discovery violation that may warrant sanctions, including exclusion of evidence. Ekornes-Duncan v. Rankin Med. Ctr., 808 So.2d 955, 958 (¶ 10) (Miss.2002). Rulings on discovery violations will not be overturned absent an abuse of discretion. Id. (citing Gray v. State, 799 So.2d 53, 60 (¶ 26) (Miss.2001)).

¶ 37. I do not take issue with the timing of Dr. Talbot’s supplemental report. Whether a supplementation is “seasonable” is determined by the trial court on a case-by-case basis. Buchanan v. Ameristar Casino Vicksburg, Inc., 957 So.2d 969, 973 (¶ 9) (Miss.2007). Dr. Talbot’s trial testimony was technically within the parameters of his supplemental report, which opined that Floyd’s speed was “at least” fifteen miles per hour. However, I find that doubling the opined speed during trial amounted to a “trial by ambush,” which our discovery rules are designed to prevent. Harris v. Gen. Host Corp., 503 So.2d 795, 796 (Miss.1986). Martin’s counsel was unprepared to respond to expert testimony that Floyd was traveling at speeds up to thirty miles per hour.

¶ 38. I strongly believe in the jury system, but I also believe in the opportunity to receive a fair trial. I would find that the trial court abused its discretion when it declined to strike portions of Dr. Talbot’s testimony. Thus, I would reverse and remand for a new trial.

IRVING, P.J., JOINS THIS OPINION.

      . The collision occurred in the outside lane of Highway 6 nearest to CR 405. The stop sign on CR 405 was set back approximately twenty-five feet from the travel lanes of Highway 6.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Jerry Tyrone PARKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01882-COA.
    Court of Appeals of Mississippi.
    Aug. 30, 2011.
    Rehearing Dismissed Oct. 4, 2011.

      Jerry Tyrone Parker, pro se, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On November 25, 2008, Jerry Tyrone Parker was indicted on one count of the sale of methamphetamine within 1,500 feet of a church and one count of conspiracy to sell methamphetamine. Then, on September 28, 2009, in the Rankin County Circuit, Parker pled guilty to both counts. In the sentencing order entered by the circuit judge on the same day, Parker was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC) on Count I with one day to serve and nineteen years and 364 days suspended. He was then sentenced to serve twenty years in the custody of the MDOC on Count II. His sentence in Count II was ordered to run consecutively to Count I. Parker was also ordered to serve five years of post-release supervision (PRS) on Count I. Parker was also fined and required to pay court costs. One year later, on September 28, 2009, Parker filed a motion in the circuit court to withdraw his guilty pleas, alleging that he was coerced and threatened into entering his guilty pleas. The circuit judge entered an order on October 21, 2010, summarily dismissing Parker’s motion. Parker now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal stems from an incident that occurred on September 9, 2008, where Parker and Dante Reed were arrested for selling methamphetamine in Rankin County. A Rankin County grand jury indicted both Parker and Reed on one count of sale of methamphetamine within 1,500 feet of a church pursuant to Mississippi Code Annotated sections 41-29-139 (Rev.2009) and 41-29-142 (Rev.2009), and one count of conspiracy to sell methamphetamine pursuant to Mississippi Code Annotated section 97-1-1 (Supp.2010).

¶ 3. At the guilty-plea hearing held in the circuit court on September 28, 2009, Parker entered best-interest pleas to Counts I and II. After thoroughly questioning Parker about his understanding of the crimes he was charged with, the minimum and maximum sentences, and his constitutional rights, the circuit judge accepted the State’s recommended sentences and sentenced Parker in Count I to twenty years in the custody of the MDOC with one day to serve, the remainder suspended, five years of PRS, and to pay a $5,000 fine. On Count II, which was ordered to run consecutively to Count I, Parker was sentenced to twenty years in the custody of the MDOC. He was also ordered to pay court costs in the amount of $310.50.

¶ 4. One year later, Parker filed a motion to withdraw his guilty pleas. In his motion, he alleged that the circuit judge and district attorney had coerced and threatened him into pleading guilty while his attorney had failed to object to the behavior. Parker also submitted a brief and a memorandum of law to support his motion. The circuit judge entered an order summarily dismissing Parker’s motion. We treat his motion as a motion for post-conviction relief. Hollingsworth v. State, 66 So.3d 1254 (¶ 6) (Miss.Ct.App. July 19, 2011).

¶ 5. It is from this summary dismissal that Parker now appeals. On appeal, Parker raises four issues, which we have reorganized into three for clarity:

I. Whether the trial court erred in determining whether the Appellant’s right to effective assistance had been violated.
II. Whether the trial judge violated Mississippi Uniform Rule of Circuit
and County Court 8.04(B)(4), by participating in plea-bargaining discussion by use of coercion and threats; and

III. Whether the newly discovered evidence established the Appellant’s innocence.

STANDARD OF REVIEW

¶ 6. The standard of review that this Court employs when reviewing a circuit court’s summary dismissal of a PCR motion is well established. Mississippi Code Annotated section 99-39-11(2) (Supp. 2010) states: “[I]f 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 relief, the judge may make an order for its dismissal and cause the petitioner to be notified.” Pursuant to this section, the Mississippi Supreme Court has held that “a trial court may summarily dismiss a petition for PCR, without having held an evidentiary hearing, when it is clear that the petitioner is not entitled to relief under the [Uniform Post-Conviction Collateral Relief Act].” State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000). “This Court has established that dismissal of a PCR motion is proper where ‘it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id. (quoting Turner v. State, 590 So.2d 871, 874 (Miss.1991)).

ANALYSIS

I. Ineffective Assistance of Counsel

¶ 7. Parker first argues that he was not provided effective assistance of counsel, and as a result, his guilty pleas were involuntarily made. Under the two-prong test found in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order for a defendant to prevail on a claim of ineffective assistance of counsel, he must show that: (1) counsel’s performance was deficient, and (2) counsel’s deficiency did, in fact, prejudice the defendant. The first prong is often difficult to meet as there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.... ” Moreno v. State, 967 So.2d 701, 703 (¶4) (Miss.Ct.App.2007). As to the second prong of the test, when reviewing a guilty plea, “[a] defendant who pleads guilty to a crime is ‘prejudiced’ by his counsel’s erroneous advice if he would have insisted on going to trial if he had been correctly informed.” Id. (quoting Reeder v. State, 783 So.2d 711, 718 (¶ 28) (Miss.2001)). This Court has stated that claims of ineffective assistance of counsel must “ ‘allege with specificity and detail’ the facts which show the attorney’s deficient performance and the prejudice to the inmate caused by the deficient performance.” Ivy v. State, 31 So.3d 643, 646 (¶ 16) (Miss.Ct.App.2009) (quoting Kinney v. State, 737 So.2d 1038, 1041 (118) (Miss.Ct.App.1999)).

¶ 8. In the current case, Parker argues that he was denied effective assistance of counsel based on his attorney’s failure to investigate his case thoroughly and that he was misinformed when he entered his pleas since his attorney told him that he had to enter the pleas because of the circuit judge’s threats. Further, he argues that his attorney failed to object when the circuit judge threatened and coerced him into entering the pleas.

¶ 9. The guilty-plea petition Parker signed contained the following language regarding his attorney’s performance and assistance:

My lawyer has advised me as to the possibilities of my acquittal or conviction on the charge against me, and has thoroughly discussed all aspects of my case with me. My lawyer has counseled and advised me, and has made no threats of promises of any type or kind to induce me to enter this plea of guilty. The decision to seek entry of this plea was my own and mine alone, based on my own reasons and free from any outside influences.
I have fully informed my lawyer of all the facts and circumstances known to me about the charge against me. My lawyer has counseled, and advised me on the nature and elements of the charge, on any and all lesser-ineluded charges, and on all possible defense that I might have in this case ....
I believe that my lawyer has done all that anyone could do to counsel and assist me. I AM SATISFIED WITH THE ADVICE AND COUNSEL HE/ SHE HAS GIVEN ME....

(Emphasis added).

¶ 10. At Parker’s plea hearing on September 28, 2009, the circuit judge questioned Parker as to whether he had read, signed, and initialed each page of his guilty-plea petition. Parker indicated yes that he did. He also answered in the affirmative when asked if he understood the charges and the consequences of entering a guilty plea. The circuit judge specifically asked Parker if he was entering his guilty pleas freely and voluntarily. Parker responded, “[y]es, sir.” The circuit judge then gave Parker one last opportunity to withdraw his guilty pleas and proceed to trial; Parker declined.

¶ 11. As to the first prong, the record before us does not indicate that Parker’s attorney’s performance was deficient. At no point did Parker indicate that he was unsatisfied with his attorney’s performance. In fact, he indicated several times that he was satisfied with the advice and assistance his attorney had provided. However, even if Parker did satisfy the first prong and showed his attorney’s deficient performance, he did not demonstrate that he was prejudiced by the deficient performance. The maximum sentence Parker could have received for both counts was fifty years in the custody of the MDOC and a $1,500,000 fine; however, he was sentenced to serve a total of twenty years plus one day in the custody of the MDOC with five years of PRS and ordered to pay a $5,000 fine and court costs in the amount of $310. 50. His sentence was clearly less than the maximum he could have received had he gone to trial. In addition, besides simply stating that he would have gone to trial had he been properly informed, Parker did not provide any specific evidence to show that he would have insisted on going to trial and would not have entered his guilty pleas. This specific evidence is required under the standard articulated in Ivy.

¶ 12. Parker failed to present any evidence of his attorney’s deficient performance and any specific evidence of prejudice he suffered as a result of the deficient performance; thus, he failed to satisfy the two-prong test found in Strickland. We find this issue is without merit.

II. Circuit Judge’s Participation in the Plea Bargain

¶ 13. Parker next argues that this Court should reverse the circuit court’s order because the circuit judge used coercion and threats to force Parker into entering his guilty pleas. In particular, Parker claims that the circuit judge stated the following: “If you don’t take the plea bargain today[,] I will sentence you to the maximum on each charge and the enhancement [sic] punishment.” A thorough reading of the transcript of the guilty-plea hearing shows that the circuit judge made no such statement. The circuit judge advised Parker of the maximum sentences and fines for each count. He then stated that the plea recommendation by the State was not binding on the circuit court and that Parker could be sentenced to the maximum time, but at no point did the circuit judge indicate that Parker would receive the maximum sentences if he refused to enter his guilty pleas. Further, the guilty-plea petition Parker signed also contained the following language:

I declare that no officer or agent of any branch of government, federal, state, or local, has made any promise or suggestion of any kind to me, or within my knowledge, to anyone else, that I will receive a lighter sentence, or probation, or any other form of leniency if I plead guilty, and that I have not been threatened, forced, intimidatedf,] or coerced in any manner by anyone.

(Emphasis added).

¶ 14. Just as in his ineffective-assistance-of-counsel claim, there is no evidence in the record before us that the circuit judge acted improperly or participated in the plea-bargain process. Parker acknowledged through his guilty-plea petition and affirmation at the plea hearing that he signed and understood his guilty-plea petition; thus, his statement that he was not “threatened, forced, intimidated[,] or coerced in any manner by anyone” does not support his contention that the circuit judge acted improperly by threatening him into entering his guilty plea. This issue is without merit.

III. Newly Discovered Evidence

¶ 15. Parker’s last argument on appeal is that Reed’s affidavit constitutes newly discovered evidence. To qualify as newly discovered evidence sufficient to warrant a new trial, the supreme court has articulated, in Shelby v. State, 402 So.2d 338, 340-41 (Miss.1981), that such a request must:

be supported by an affidavit of the defendant and [his] attorney that diligence was exercised with reference to discovery of the evidence and that the evidence was unknown to them at the time of trial. The court must be satisfied that (1) the evidence came to the defendant’s knowledge since trial, (2) the evidence could not have been discovered sooner by diligence, and (3) such evidence would probably produce a different result, if a new trial were granted.

(Citing Stewart v. State, 203 Miss. 295, 33 So.2d 787, 789 (1948)).

¶ 16. Although the affidavit from Reed that Parker submitted with his original motion to withdraw his guilty plea is dated almost a year after Parker had entered his guilty pleas, it is not newly discovered evidence. In his brief, Parker states that evidence and information that Reed could have provided was available when the police originally arrested them. Reed’s affidavit specifically states that on September 9, 2008, he “advised the arresting officers that Jerry Tyrone Parker was not involved with my dealing, nor did he have any knowledge of my transaction.” Reed’s own affidavit makes it clear that the evidence could have been discovered sooner. Clearly this evidence was available to Parker at the time he entered his guilty pleas; thus, it cannot qualify as newly discovered evidence.

¶ 17. This issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY 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, MAXWELL AND RUSSELL, JJ., CONCUR.

      . Although Reed was charged on the same indictment, he is not involved in this appeal.


author: SMITH, Justice. STUART, Justice

text:
    Ex parte William C. COLEMAN. (In re William C. Coleman v. State of Alabama).
    1090975.
    Supreme Court of Alabama.
    Aug. 27, 2010.

      William C. Coleman, pro se.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for respondent.
   SMITH, Justice.

William C. Coleman pleaded guilty to first-degree rape, first-degree sodomy, and two counts of first-degree sexual abuse. Coleman then filed a petition for postcon-viction relief pursuant to Rule 32, Ala. R.Crim. P., alleging ineffective assistance of counsel; the circuit court summarily dismissed Coleman’s Rule 32 petition. The Court of Criminal Appeals affirmed the circuit court’s summary dismissal of Coleman’s petition. Coleman v. State (No. CR-09-0088, Feb. 19, 2010), — So.3d - (Ala.Crim.App.2010) (table). We granted Coleman’s petition for the writ of certiorari. We now reverse the judgment of the Court of Criminal Appeals and remand the case to that court with directions to remand it to the circuit court for an evidentiary hearing on Coleman’s Rule 32 petition.

Facts and procedural history

On April 7, 2008, Coleman pleaded guilty to the following offenses: (1) first-degree rape, see Ala.Code 1975, § 13A-6-61(a)(3); (2) first-degree sodomy, see Ala. Code 1975, § 13A-6-63(a)(3); and (3) two counts of first-degree sexual abuse, see Ala.Code 1975, § 13A-6-66(a)(l). The Jefferson Circuit Court sentenced him to 20 years’ imprisonment on the rape conviction, 20 years’ imprisonment on the sodomy conviction, and 10 years’ imprisonment on each of the sexual-abuse convictions and ordered that the sentences were to run concurrently.

Coleman signed a “defendant’s statement of satisfaction of services rendered by court appointed attorney” with regard to each of the guilty pleas he entered. In each of those statements of satisfaction, Coleman placed a check mark indicating an answer of “yes” to the following questions:

“1. Are you satisfied that your attorney ... is a competent, good attorney and has represented you to your best interest in the settlement of this case (these cases)?
“2. Are you satisfied with the plea bargaining in this case (these cases)?
“3. Did you plead guilty of your own free will?”

Additionally, Coleman placed a check mark indicating an answer of “no” to the following questions:

“4. Has anyone forced you or coerced you in any manner to get you to plead guilty in this case (these cases)?
“5. Has anyone promised you anything to get you to plead guilty?”

At the bottom of each statement of satisfaction, the following language appears: “If you answered ‘yes’ to questions 1, 2 & 3 and ‘no’ to questions 4 & 5, sign this form indicating your attorney has looked to your best interest and your concurrence with this Statement of Satisfaction.” As noted, Coleman signed a statement of satisfaction as to each of the guilty pleas.

In March 2009, Coleman filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. In the Rule 32 petition, Coleman contended that his attorney’s ineffective assistance rendered his guilty pleas involuntary because, Coleman said, his attorney had provided him and his wife with erroneous information “concerning parole eligibility and work-release.” Specifically, Coleman claimed that his attorney informed him that the attorney had “data” showing that persons sentenced to 20 years’ imprisonment serve only 6 years and 8 months before being paroled; that if Coleman accepted the plea agreement he could be sent to a work-release center in approximately one year; and that, while he was at a work-release center, Coleman could “likely” obtain passes allowing him to visit his wife on weekends. The information allegedly given Coleman by his attorney proved to be inaccurate; Coleman later learned that he was ineligible for either parole or work release. Coleman contended that, but for his attorney’s misrepresentations, he would not have pleaded guilty. Accordingly, Coleman said, he should be allowed to withdraw his guilty pleas.

The State moved the circuit court to dismiss Coleman’s Rule 32 petition. In its motion, the State contended, among other things, that Coleman “offer[ed] no proof to support his claims other than his own self-serving statements” and noted that Coleman “provide[d] no affidavit from either his wife or his attorney” showing that the conversation between Coleman, his wife, and his attorney regarding Coleman’s eligibility for parole and work release ever occurred.

Coleman filed an answer to the State’s motion to dismiss his Rule 32 petition. In the answer, Coleman, citing Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001), argued, among other things, that, “[a]t the pleading stage, Coleman does not have the burden of proving his claims. Rather, he must provide only a clear and specific statement of the grounds upon which relief is sought.” Coleman further stated that, “[d]espite the State’s erroneous argument that Coleman must offer proof of his claim, Coleman does, however, offer he [sic] and his wife’s affidavits showing his material allegations are true.” In his affidavit, Coleman stated, in pertinent part:

“[My attorney] advised that, based on data he had, I could be paroled after 6 yrs, 8 mos, I could be moved to a work release program, and possibly get weekend furloughs. He added that I could possibly get out sooner due to prison overcrowding.
“My options were to accept the plea agreement, based on the statements [my attorney] made, or go to trial and possibly face a longer sentence. My wife and I jointly agreed to accept the plea agreement, based on [my attorney’s] statements, thinking that I would serve considerably less than 20 years.
“Upon researching, I found that sex offenders are not eligible for parole or work release. I would serve the entire 20 years. Had I known that, I would not have accepted the plea agreement. I would have elected to go to trial. After all, at my age of 63, a 20 year sentence is a life sentence for me. I had nothing to loose [sic] by going to trial.”

(Emphasis in original.)

In her affidavit, Coleman’s wife stated, in pertinent part:

“[Coleman’s attorney] advised that, based on some data that he had, that Mr. Coleman would be eligible for parole after 6 yrs, 8 mos. That after a ‘few years’ he could be moved to a work release program. He added that Mr. Coleman could get out sooner due to prison overcrowding.
“Considering my husband’s age of 63, we elected, jointly, to accept the plea agreement instead of going to trial and risking more [prison] time. [Coleman’s attorney’s] statements were the deciding factor in our deliberation. Had we realized the statements to be false, we would have elected to go to trial.”

On September 16, 2009, the circuit court entered an order summarily dismissing Coleman’s Rule 32 petition. In the order, the circuit court found, in pertinent part:

“[Coleman] claims that his guilty pleas were involuntarily made as a result of ineffective assistance of counsel, in that counsel misrepresented to him that he would be eligible for parole after six years and eight months and that he could go to a work release center in about a year. Petitioner offers an affidavit from both himself and his wife to support his claims. However, he provides no affidavit from his attorney that such a conversation actually took place. In fact, Exhibits 1, 2, 3 and 4 [Coleman’s plea agreements] do not contain any of the information relative to ‘shorter prison sentences’, “work release’ or ‘early parole.’ Moreover, Exhibits 5, 6, 7 and 8 attached hereto, which are defendant’s signed statements of satisfaction of services rendered by his attorney, all reflect that defendant pled guilty, in all of his cases, of his own free will, and was not promised anything in exchange for said pleas, etc.”

Coleman moved the circuit court to reconsider its order summarily dismissing his Rule 32 petition; the circuit court denied the motion.

Coleman appealed to the Court of Criminal Appeals, reasserting his claim that he was denied effective assistance of counsel when his attorney allegedly misinformed him about his eligibility for parole and work release if he pleaded guilty. The Court of Criminal Appeals affirmed the circuit court’s summary dismissal of Coleman’s Rule 32 petition in an unpublished memorandum. Coleman v. State (No. CR-09-0088, Feb. 19, 2010), — So.3d - (Ala.Crim.App.2010) (table). In its unpublished memorandum, the Court of Criminal Appeals concluded, in pertinent part, that,

“[e]ven if we are to assume that Coleman has pleaded sufficient facts to support a claim that trial counsel erred under the first prong of Strickland [v. Washington, 466 U.S. 668, 687 (1984),] Coleman has pleaded a bare allegation of prejudice under the second prong of Strickland. Coleman essentially claims that but for counsel’s alleged deficient performance, he would not have pleaded guilty. Coleman fails to plead facts that would demonstrate a reasonable probability that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Hyde [v. State], 950 So.2d [344,] 356 [(Ala.Crim.App.2006)]. Thus, Coleman has failed to meet his burden of pleading with respect to his ineffective assistance of counsel claim. Accordingly, the circuit court did not err in summarily dismissing Coleman’s petition.”

After the Court of Criminal Appeals overruled Coleman’s application for rehearing, Coleman filed a petition for the writ of certiorari in this Court. In the certiorari petition, Coleman contended that the Court of Criminal Appeals’ affirmance of the circuit court’s summary dismissal of his Rule 32 petition conflicts with the following decisions: Elder v. State, 494 So.2d 922 (Ala.Crim.App.1986), overruled on other grounds, Ex parte Booker, 992 So.2d 686 (Ala.2008); Brown v. State, 727 So.2d 885 (Ala.Crim.App.1998); Ex parte Blackmon, 734 So.2d 995 (Ala.1999); and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). We granted Coleman’s petition for certiorari review.

Discussion

Coleman argues that the Court of Criminal Appeals erred in affirming the circuit court’s summary dismissal of his Rule 32 petition. Specifically, Coleman argues that he met his burden of pleading in his Rule 32 petition so as to avoid the summary disposition of his petition; thus, Coleman says, he was entitled to an opportunity to present evidence in order to satisfy his burden of proof. We agree.

“Rule 32.3, Ala. R.Crim. P., states that ‘[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.’ Rule 32.6(b), Alá. R.Crim. P., states that ‘[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.’
“ ‘An evidentiary hearing on a [Rule 32] petition is required only if the petition is “meritorious on its face.” Ex parte Boatwright, 471 So.2d 1257 (Ala.1985). A petition is “meritorious on its face” only if it contains a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the facts relied upon (as opposed to a general statement concerning the nature and effect of those facts) sufficient to show that the petitioner is entitled to relief if those facts are true. Ex parte Boatwright, supra; Ex parte Clisby, 501 So.2d 483 (Ala.1986).’
“Moore v. State, 502 So.2d 819, 820 (Ala.1986). A petitioner bears no burden of ‘proving’ his claims at the pleading stage. See Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001). As this Court noted in Boyd v. State, 913 So.2d 1113 (Ala.Crim.App.2003):
“ ‘ “Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.” Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion “which, if true, entitle[s] the petitioner to relief.” Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitle[s] a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R.Crim. P., to present evidence proving those alleged facts’
913 So.2d at 1125. Further,
“ ‘The burden of pleading under Rule 32.3 and Rule 32.6(b) is a heavy one. Conclusions unsupported by specific facts will not satisfy the requirements of Rule 32.3 and Rule 32.6(b). The full factual basis for the claim must be included in the petition itself. If, assuming every factual allegation in a Rule 32 petition to be true, a court cannot determine whether the petitioner is entitled to relief, the petitioner has not satisfied the burden of pleading under Rule 32.3 and Rule 32.6(b). See Bracknell v. State, 883 So.2d 724 (Ala.Crim.App.2003).’
“Hyde v. State, 950 So.2d 344, 356 (Ala.Crim.App.2006).”

Scott v. State, [Ms. CR-06-2233, March 26, 2010] — So.3d -, - (Ala.Crim.App.2010).

Also,
“[t]o prevail on a claim of ineffective assistance of counsel, a [Rule 32] petitioner must show (1) that his counsel’s performance was deficient, and (2) that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). In the context of a guilty-plea proceeding, a petitioner must show that, but for counsel’s errors, the petitioner would not have pleaded guilty but would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).”

Winbush v. State, 18 So.3d 423, 423 (Ala.Crim.App.2009).

Coleman contends that his decision to plead guilty to the four offenses “was based solely upon counsel’s representations of parole and work-release eligibility” and that, had he known that he was actually ineligible for parole and work release because of the- nature of the offenses, he would not have pleaded guilty but, instead, “would have insisted on proceeding to trial.” Coleman’s brief, p. 10. Coleman further contends that his Rule 32 petition “presented sufficiently pleaded facts relied upon in seeking relief,” id., and, thus, he says, “relief should have been granted or, a hearing set to allow Coleman to present proof of his claims.” Id. at 11.

In his Rule 32 petition, Coleman stated, in pertinent part:

“It is Coleman’s contention that had he known that he would not been [sic] eligible for work-release [and parole], ... he would not have pleaded guilty, but would have insisted on proceeding to trial. Thus, Coleman avers his plea of guilty was involuntary [sic] given upon misrepresentations of Counsel.”

Coleman has alleged facts that, if true, would entitle him to relief. As noted, Coleman alleged in the Rule 32 petition that, but for his attorney’s misrepresentations concerning Coleman’s eligibility for parole and work release, he would not have pleaded guilty but, instead, would have insisted on going to trial. See Win-bush, supra (citing Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). Furthermore, in his affidavit, Coleman alleged “special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty.” See Hill, 474 U.S. at 60. Specifically, Coleman alleged that he had no reason to plead guilty to a 20-year sentence without the possibility of parole or work release because, Coleman said, “at my age of 63, a 20 year sentence is a life sentence.” Therefore, if the allegations of Coleman’s petition are taken as true, Coleman placed “particular emphasis” on his attorney’s statements regarding his eligibility for parole and work release in deciding to accept the plea agreement.

Based on the foregoing, we conclude that Coleman’s Rule 32 petition was “meritorious on its face” and, thus, that the circuit court erred in summarily denying Coleman’s Rule 32 petition. See Scott, supra; see also Johnson v. State, 835 So.2d 1077, 1080 (Ala.Crim.App.2001) (“[W]hen a petition contains matters which, if true, would entitle the petitioner to relief, an evidentiary hearing must be held.” (citing Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala.1985)) (emphasis added)); Rash v. State, 968 So.2d 552, 554 (Ala.Crim.App.2006) (“Rule 32, Ala. R.Crim. P., requires the circuit court judge to conduct an evidentiary hearing on a Rule 32 petition that appears meritorious on its face.” (emphasis added)).

Conclusion

Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand this case for that court to remand it to the circuit court for an evidentiary hearing on Coleman’s allegation that he was denied effective assistance of counsel. In lieu of an evidentiary hearing, the circuit court may take evidence by affidavits, written interrogatories, or depositions, as provided in Rule 32.9, Ala. R.Crim. P. In either event, the circuit court shall make specific findings of fact as required by Rule 32.9(d), Ala. R.Crim. P.

REVERSED AND REMANDED WITH DIRECTIONS.

COBB, C.J., and LYONS, WOODALL, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

STUART, J., concurs in the rationale in part and concurs in the result.

STUART, Justice

(concurring in the rationale in part and concurring in the result).

The decision in this case rests on whether William C. Coleman pleaded a claim of ineffective assistance of counsel in his Rule 32, Ala. R.Crim. P., petition that is “meritorious on its face.” If he did, then the circuit court was required to conduct an evidentiary hearing. See Ex parte Boatwright, 471 So.2d 1257 (Ala.1985). I write to emphasize the reasons I conclude that Coleman’s ineffective-assistance-of-counsel claim is “meritorious on its face” and that an evidentiary hearing is required.

In his Rule 32 petition, Coleman alleged that his guilty plea was involuntary by reason of ineffective assistance of counsel because his attorney had misinformed him as to his eligibility for work release and parole. According to Coleman, his attorney advised him that he was eligible for work release and parole when in light of the offenses he had committed he was ineligible for either. In pleading his ineffective-assistance-of-counsel claim, Coleman alleged that he pleaded guilty and did not proceed to trial because of his belief that he was eligible for work release and parole. In essence, Coleman maintained that his plea was “involuntary” because his attorney supplied him with information about parole and work-release eligibility that was erroneous and that, in so doing, his attorney had rendered ineffective assistance.

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the United States Supreme Court held that the two-part test provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applied to a challenge to a guilty plea based on ineffective assistance of counsel. The United States Supreme Court stated:

“In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence .... The second, or ‘prejudice,’ requirement, on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

474 U.S. at 58-59.

In Hill, the petitioner claimed in his petition for federal habeas corpus relief that his plea was “involuntary” as a result of ineffective assistance of counsel because his court-appointed attorney had provided him with erroneous information about his parole eligibility. The United States Supreme Court refused to address the substantive issue because the petitioner had failed to properly plead his claim. The Court stated:

“In the present case the claimed error of counsel is erroneous advice as to eligibility for parole under the sentence agreed to in the plea bargain. App. 31. We find it unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel, because in the present case we conclude that petitioner’s allegations are insufficient to satisfy the Strickland v. Washington requirement of ‘prejudice.’ Petitioner did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial. He alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty. Indeed, petitioner’s mistaken belief that he would become eligible for parole after serving one-third of his sentence would seem to have affected not only his calculation of the time he likely would serve if sentenced pursuant to the proposed plea agreement, but also his calculation of the time he likely would serve if he went to trial and were convicted.”

474 U.S. at 60.

In pleading his claim of ineffective assistance of counsel, Coleman satisfied the first prong of Strickland by alleging that his attorney’s performance was deficient in providing him with erroneous information about his parole and work-release eligibility. Unlike the petitioner in Hill, Coleman satisfied the second prong of Strickland by alleging that “but for” the attorney’s misrepresentation he would not have pleaded guilty and would have proceeded to trial. Coleman also pleaded special circumstances, i.e., his age and life expectancy, to support the conclusion that he placed particular emphasis on his parole and work-release eligibility in deciding whether to plead guilty. Therefore, as the majority concluded, Coleman properly pleaded his claim of ineffective assistance of counsel.

I also agree with the majority’s conclusion that if the allegations, as pleaded by Coleman, are taken as true, Coleman is entitled to an evidentiary hearing. Generally, misinformation from counsel about speculative, collateral consequences of a guilty plea does not establish that a defendant entered an involuntary plea, even if the defendant relied upon the misinformation in pleading guilty. As the Court of Criminal Appeals of Texas stated in Ex parte Evans, 690 S.W.2d 274, 278-79 (Tex.Crim.App.1985):

“The question for resolution, therefore, is: Is applicant’s plea of guilty involuntary simply because his attorney relayed erroneous parole eligibility advice upon which applicant relied, at least in part, in pleading guilty?
“... [W]e examine the importance that we wish to attach to parole eligibility vis-a-vis voluntariness of a guilty plea. We do so from the premise that some expectations of a defendant about the circumstances or consequences of his plea, though perhaps important to him, are just too speculative to warrant being given effect upon his guilty plea. It would be unimaginable to label a guilty plea [involuntary] because the defendant was misinformed about the quality of rehabilitation services or living conditions or working conditions or social conditions, etc., in prison. This is so, in large part, because these things, though important, commonly are subject to (and in fact often do) change. They are, at best, speculative both in general and as to a particular individual.
“Likewise, parole becomes an important factor in the future of every actual and potential prison inmate. It is likely to be considered by most defendants as a factor that influences their decision to accept a particular offer of years from the State in exchange for a guilty plea. The criminal justice system accepts this, for the well known objectives of parole are laudatory. But eligibility for parole is a fluctual societal decision; highly subject to change. As stated in Hill v. Lockhart, 731 F.2d 568 (8th Cir.1984), cert. granted, 470 U.S. 1049, 105 S.Ct. 1745, 84 L.Ed.2d 811 (1985):
“ ‘Further reasons ... make it undesirable that claimed misadvice on parole eligibility render the plea involuntary. The petitioner’s behavior and legislative and administrative changes in parole eligibility rules may effect this date. Every plea bargaining arrangement thus would be subject to reopening any time a defendant did not become eligible for parole at the time estimated.’
“Further, and more to the point, the actual obtaining of parole is even more elusive.
“ ‘Parole is very much a speculative proposition. Its happening is contingent on many factors unknown and nonexistent at the time of a guilty plea. Factors such as the conduct of appellant in prison, the composition and attitude of the parole board, the population of the prison system, the identity and attitude of the governor, the regulations governing ‘good time,’ etc., all are yet to be when the defendant decides to plead guilty. The erroneous advice from counsel about the time frame of parole eligibility is then about an event, parole whose time of occurrence, if any, cannot even be accurately guessed at.’ Ex parte Carillo, 687 S.W.2d 320 (Tex.Cr.App.1985) (Concurring opinion).
“We think, then, that the speculative nature of parole attainment is such as to discount its legal importance on the subject of voluntariness of a guilty plea. This legal importance is discounted to the extent that erroneous advice of counsel on the subject of parole eligibility will not render the plea involuntary.”

In this case, however, the misrepresentation by Coleman’s counsel was more than speculation. If counsel had merely represented that Coleman would be eligible for work release or parole within a certain period and counsel grossly misinformed Coleman of the period, then the misrepresentation involved mere speculation, and I could not conclude that the facts, if true, warranted an evidentiary hearing. A misrepresentation regarding work-release or parole attainment, which is so speculative in nature, cannot render a plea involuntary; however, an affirmative misrepresentation regarding a defendant’s eligibility for work release or parole can. Cf. O’Tuel v. Osborne, 706 F.2d 498 (4th Cir.1983) (holding that the defendant’s plea was involuntary because the defendant was “grossly misinformed” that if he would plead guilty in exchange for a recommendation of a life sentence, he would be eligible for parole in 10 years, when he would actually be eligible after 20 years, and he relied on that information). Here, Coleman pleaded that his counsel affirmatively represented to him that he would be eligible for work release and parole, when by law Coleman cannot qualify for either; such a misrepresentation is concrete, specific, and gross. Because Coleman alleged in his pleading facts that, if proven to be true, establish that he was grossly misinformed, that it was reasonable for him to rely upon the misrepresentation, and that a manifest injustice would result if relief is not granted, an evidentiary hearing is warranted.

      . Alabama Code 1975, § 13A — 6—61(a)(3), provides that "[a] person commits the crime of rape in the first degree if ... [h]e or she, being 16 years or older, engages in sexual intercourse with a member of the opposite sex who is less than 12 years old.”

      . Alabama Code 1975, § 13A-6-63(a)(3), provides that "[a] person commits the crime of sodomy in the first degree if ... [h]e, being 16 years old or older, engages in deviate sexual intercourse with a person who is less than 12 years old.”

      .Alabama Code 1975, § 13A-6-66(a)(l), provides that "[a] person commits the crime of sexual abuse in the first degree if ... [h]e subjects another person to sexual contact by forcible compulsion.”

      . When he filed the Rule 32 petition, Coleman did not pay the filing fee; instead, he filed a request to proceed in forma pauperis. On April 1, 2009, the circuit court denied Coleman’s request to proceed in forma pauperis. Coleman then filed a petition for a writ of mandamus with the Court of Criminal Appeals, seeking an order requiring the circuit court to grant his request to proceed in forma pauperis; the Court of Criminal Appeals denied the mandamus petition on July 2, 2009. On July 21, 2009, Coleman paid the requisite filing fee for his Rule 32 petition.

      . Coleman alleges that, "[ajfter processing into the [Alabama Department of Corrections,]” he “was informed by classification specialist that ... [he] is barred from parole consideration due to alleged victim being under the age of twelve.” See Coleman's brief, p. 3; see also Ala.Code 1975, § 15-22-27.3 (providing that "[a]ny person convicted of a criminal sex offense involving a child ... which constitutes a Class A or B felony shall not be eligible for parole”). Coleman also alleges that the “classification specialist informed Coleman he would not be considered nor is eligible for work-release or any lesser restrictive custody due to his convictions for sexual offenses.” See Coleman’s brief, p. 12.

      . See supra note 5.

      . The State contends that the Court of Criminal Appeals correctly affirmed the circuit court's summary dismissal of Coleman’s Rule 32 petition, arguing, among other things, that “Coleman’s ineligibility for work release and parole is a collateral [rather than a direct] consequence of his guilty plea and does not support the prejudice prong [of the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984)].” The State’s brief, p. 11. However, the State did not raise this issue in its motion to dismiss; thus, Coleman had no opportunity to address this issue before the circuit court. Nonetheless, the object of Coleman’s petition is not per se his ineligibility for work release and parole; rather, it is the involuntariness of his guilty plea itself.

      . We express no opinion on the merits of Coleman’s ineffective-assistance-of-counsel claim.

      . See Rule 14.4(e), Ala. R.Crim. P.


author: KELLUM, Judge.

text:
    William C. COLEMAN v. STATE of Alabama.
    CR-09-0088.
    Court of Criminal Appeals of Alabama.
    Nov. 5, 2010.
    William C. Coleman, pro se.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   After Remand from the Alabama Supreme Court

KELLUM, Judge.

The appellant, William C. Coleman, appealed from the circuit court’s denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he challenged his April 7, 2008, guilty-plea convictions for first-degree rape, first-degree sodomy, and two counts of first-degree sexual abuse. Specifically, Coleman alleged in his Rule 32 petition that his guilty plea was involuntary because, he says, he was denied effective assistance of counsel. This Court affirmed, without an opinion, the circuit court’s judgment denying Coleman’s petition for postconviction relief on the basis that Coleman’s petition was insufficiently pleaded under Rule 32.3, Ala. R.Crim. P., and Rule 32.6, Ala. R.Crim. P. See Coleman v. State (No. CR-09-0088, Feb. 19, 2010), - So.3d -(Ala.Crim.App.2010) (table).

Coleman then petitioned the Alabama Supreme Court for certiorari review, arguing that he had met his burden of pleading in his Rule 32 petition and that, on that basis, he was entitled an opportunity to present evidence in order to satisfy his burden of proof. The Supreme Court granted certiorari review, and on August 27, 2010, reversed this Court’s judgment, holding that the circuit court erred in summarily denying Coleman’s petition without first conducting an evidentiary hearing because Coleman had alleged facts that, if true, would entitle him to relief and because his Rule 32 petition was “meritorious on its face.” Ex parte Coleman, 71 So.3d 627, 633 (Ala.2010).

In accordance with the Supreme Court’s opinion, we remand this case to the circuit court for that court to conduct an eviden-tiary hearing on Coleman’s allegation that he was denied effective assistance of counsel. In lieu of an evidentiary hearing, the circuit court may take evidence by affidavits, written interrogatories, or depositions, as provided in Rule 32.9, Ala. R.Crim. P. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Coleman’s claim in accordance with Rule 32.9(d), Ala. R.Crim. P.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the circuit court, together with the circuit court’s written findings of fact.

REMANDED WITH INSTRUCTIONS.

WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.


author: WOODALL, Justice.

text:
    CITY OF HUNTSVILLE v. COLSA CORPORATION.
    1091797.
    Supreme Court of Alabama.
    April 8, 2011.

      George W. Royer, Jr., and David J. Ca-nupp of Lanier Ford Shaver & Payne P.C., Huntsville, for appellant.
    Gary V. Conchin of Morris, Conchin & King, Huntsville; and F. Gerald Burnett and Roy J. Crawford of Cabaniss, Johnston, Gardner, Dumas & O’Neal LLP, Birmingham, for appellee.
   WOODALL, Justice.

The City of Huntsville (“the City”) appeals from a summary judgment ordering the City to refund to COLSA Corporation (“COLSA”) $982,933.99 in taxes the City had assessed against COLSA, plus interest. We vacate the judgment, dismiss the case, and dismiss the appeal.

I. Factual Background

COLSA describes itself as a “technology service and solutions company,” which engineers, designs, and tests weapons-systems programs for the United States Department of Defense, pursuant either to its own prime government contracts or to its subcontracts with other entities for similar work. A dispute arose between COLSA and the City over COLSA’s alleged underpayment to the City of municipal consumer’s use tax. On April 14, 2009, the City sent COLSA a document styled “Notice of Final Assessment,” in which it sought $932,933.99 in underpayment of the use tax (“the notice”). The notice bore the signature stamp of Randall E. Taylor, finance director of the City.

On May 13, 2009, COLSA filed in the Madison Circuit Court an instrument styled “Notice of Appeal [Appeal of Final Assessment of Municipal Consumer’s Use Tax]” (hereinafter referred to as “the tax appeal”) (bracketed language in original; emphasis added). The tax appeal stated, in pertinent part:

“JURISDICTION
“3. On April 14, 2009, over two years following the commencement of the audit examination, the City made an assessment of consumer’s use tax, penalty and interest against COLSA in the amount of $932,933.99 for the tax period of January 1, 2004 through December 31, 2006 (the ‘Final Assessment’). A copy of the Final Assessment is attached to this [tax appeal] as Exhibit ‘A’ (excluding the 88-page computational schedules).
“4. This [tax] appeal is pursuant to § 24-95(b) of the Code of Ordinances of the City of Huntsville, Alabama [Ordinance No. 93-19, § 14(b) ], which, in relevant part, provides:
“ ‘[A]t the option of the taxpayer, the taxpayer may appeal from any final assessment to the circuit court of the county or to the circuit court of the county in which the taxpayer resides or has a principal place of business in the state, as appropriate, by filing notice of appeal within 30 days from the date of entry of the final assessment with both the city clerk-treasurer and the clerk of the circuit court in which such appeal is filed. If the appeal is to the circuit court, the taxpayer must, also within the 30-day period allowed for appeal, either pay the assessment plus interest, or file a super-sedeas bond with the court in double the amount of the assessment.’
“5. This court has jurisdiction over this [tax] appeal in that (i) this [tax appeal] has been filed with the City Clerk-Treasurer of the City and the Clerk of the Circuit Court of Madison County, Alabama, within thirty (30) days from the date of the entry of the Final Assessment and (ii) COLSA has paid the sum of $932,933.99 at or prior to the time of the filing of the [tax appeal], as evidenced by official bank check issued by First Commercial Bank attached as Exhibit ‘B’ hereto, constituting payment in full of the tax, penalty and interest of the Final Assessment and being the required payment amount as evidenced by the written confirmation of the City attached as Exhibit ‘C’ hereto.”

(Emphasis added.) Thus, the tax appeal relied for its jurisdictional underpinnings on the proposition that the notice was a final assessment.

Nevertheless, on December 31, 2009, COLSA filed a motion for a summary judgment, arguing that it was entitled to a judgment as a matter of law for the disputed amount of the tax because, it insisted, the notice was not a final assessment. The trial court agreed with COLSA’s argument and granted COLSA’s motion. In so doing, it also denied the City’s cross-motion for a summary judgment. Although the court held that “no effective final assessment was made by the City,” the court went further and decided the case on its merits, entering a judgment “in favor of COLSA, and against the City, for the amount that was paid to the City by COL-SA.” On September 28, 2010, the City appealed.

That same day, the City moved the trial court for an order, pursuant to Rule 67, Ala. R. Civ. P., for leave “to discharge its obligations ... by unconditionally remitting the funds (together with all interest)” into the trial court. The next day, the trial court granted the City’s motion.

II. Discussion

One of the issues presented by the City in its briefs on appeal is whether the notice was a final assessment. The City contends that the notice was a final assessment, and it argues that the trial court erred in granting COLSA’s summary-judgment motion and in denying the City’s motion. The City asks this Court to render a judgment in its favor.

In response, COLSA renews its arguments in favor of the invalidity of the notice. Its arguments rely on an array of legislative sources, including statutes, administrative regulations, and municipal ordinances. In particular, COLSA relies on the Alabama Taxpayers’ Bill of Rights and Uniform Revenue Procedures Act, Ala. Code 1975, § 40-2A-1 et seq. (“the TBOR”), and regulations of Chapter 810-14-1 of the Alabama Administrative Code, which were adopted by the State Department of Revenue (“the department”) to implement the TBOR, Ala. Admin. Code (Dep’t of Rev.), r. 810-14-1-.01, as well as provisions of the Huntsville Municipal Code. According to COLSA, the notice was nonfinal, and therefore invalid, because, it insists, the signature stamp of Randall Taylor, which was affixed to the notice, did not comply with the signature requirements of the TBOR and the implementing regulations. We agree.

“The TBOR prescribes uniform procedures that must be followed in assessing and collecting taxes. § 40-2A-1 and -2.” General Motors Acceptance Corp. v. City of Red Bay, 894 So.2d 650, 653 (Ala.2004) (emphasis added). The TBOR is made applicable to use and sales taxes assessed by municipalities through the Local Tax Simplification Act of 1998, Act No. 98-192, Ala. Acts 1998. Red Bay, 894 So.2d at 655. The TBOR requires that “[a]ll preliminary and final assessments ... shall be executed as provided by regulations promulgated by the department.” § 40-2A-7(b)(l)c. (emphasis added). See § 40-2A-7(a)(5) (“The department may ... make reasonable regulations concerning any matter administered by the department.”).

The manner in which final assessments “shall be executed” is set forth in regulation 810-14-1-15(4), which provides: “The final assessment shall be entered by the ... assessment officer by signing the final assessment document. However, a final assessment document may also be signed by facsimile signature if a summary record which includes the information on the final assessment has been signed by the [officer] or his delegate.” (Emphasis added.)

It is undisputed that the City had no signed “summary record which include[d] the information on the final assessment,” and the City concedes that regulation 810-14-1-15(4) “has been duly adopted by the City.” The City’s brief, at 60. Indeed, Huntsville Mun.Code, § 24-33, states:

“The rules and regulations as promulgated by the state department of revenue as they pertain to the state sales and use tax are adopted for the purpose of providing the administration and enforcement, the rules ánd regulations for making returns, and for the ascertainment, assessment and collection under articles IV and V of this chapter.”

However, the City argues:

“But the signature on the final assessment by the City’s Finance Director manifestly was an ‘original signature’: he testified that he personally picked up an ink stamp and pressed it to the page to release ink in a pattern, just as he might have picked up a pen and pressed it to the page to release ink in a pattern.”

The City’s brief, at 62 (emphasis in original). Thus, the City’s position is essentially that there is no difference between a manual signature and a “facsimile signature.” That position is untenable.

Black’s Law Dictionary defines “facsimile signature” as “[o]ne which has been prepared and reproduced by some mechanical or photographic process. Many states have adopted the Uniform Facsimile Signatures of Pub. Officials Act.” Black’s Law Dictionary 591 (6th ed.1990). The uniform act defines such a signature as “a reproduction by engraving, imprinting, stamping, or other means of the manual signature of an authorized officer.” Unif. Facsimile Signatures of Pub. Officials Act § 1(d) (1958), 13(11) U.L.A. 3 (2002) (emphasis added). A signature stamp is clearly such a reproduction.

A facsimile signature may be used or affixed by anyone. Indeed, the City’s finance director testified by deposition that, although he personally stamped the notice in this case, other persons were authorized to, and did occasionally, use his signature stamp. If regulation 810-14-1-.15(4) had accorded legal equivalency to manual and facsimile signatures, it would not have distinguished the two modes by imposing the additional requirement of a manually signed “summary record” in the second sentence.

To be sure, this Court has said that, “in the absence of a statute otherwise providing, [a signature] may be printed, stamped, typewritten, engraved, photographed or cut from one instrument and attached to another.” Dunning v. New England Life Ins. Co., 890 So.2d 92, 97 (Ala.2003) (quoting other cases) (emphasis added). It is “otherwise providfed]” in this case, however, by the department’s regulation, which has been duly adopted by the City. The regulation plainly precludes the use of a signature stamp to execute a notice of a final assessment in the absence of a manually signed “summary record which includes the information on the final assessment.” We conclude that, because no such record exists in this case, the notice was effectively unexecuted and, therefore, invalid.

However, this conclusion does not produce the result that COLSA anticipates. The invalidity of the notice does not authorize the trial court to enter — or this Court to affirm — a judgment for COL-SA. This is so, because it is the appeal from an effective final assessment that confers upon the courts subject-matter jurisdiction to entertain the case in the first instance. Specifically, Huntsville Mun. Code, § 24-95, provides, in pertinent part:

“(a) A taxpayer may appeal from any final assessment entered by the city by filing a notice of appeal with the city clerk-treasurer within 30 days from the date of entry of the final assessment, and such appeal, if timely filed, shall proceed as provided in this article for appeals to a hearing officer.
“(b) In lieu of the appeal under subsection (a) of this section, at the option of the taxpayer, the taxpayer may appeal from any final assessment to the circuit court of the county or to the circuit court of the county in which the taxpayer resides or has a principal place of business in the state, as appropriate, by filing notice of appeal within 30 days from the date of entry of the final assessment with both the city clerk-treasurer and the clerk of the circuit court in which such appeal is filed. If the appeal is to the circuit court, the taxpayer must, also within the 30-day period allowed for appeal, either pay the assessment plus interest, or file a superse-deas bond with the court in double the amount of the assessment....
“(c) The filing of the notice of appeal with the city clerk-treasurer for a hearing before a hearing officer or, in the case of appeals to the circuit court, the filing of the notice of appeal with both the city clerk-treasurer and the clerk of the circuit court in which such appeal is filed and also the payment of the assessment in full and applicable interest or the filing of a bond as provided in this section, are jurisdictional. If such prerequisites are not satisfied within the time provided for appeal, the appeal shall be dismissed for lack of jurisdiction.”

(Emphasis added.) Indeed, COLSA quoted from these very provisions in the tax appeal under the heading “Jurisdiction.”

As we stated in Cadle Co. v. Shabani, 4 So.3d 460, 463 (Ala.2008): “When the absence of subject-matter jurisdiction is noticed by, or pointed out to, the trial court, that court has no jurisdiction to entertain further motions or pleadings in the case. It can do nothing but dismiss the action forthwith.” It follows that when a trial court purports to exercise jurisdiction where it has none, every order and judgment entered pursuant thereto is void ab initio.

III. Conclusion

Because the jurisdictional basis for the tax appeal is absent, § 24-95(c) of the Huntsville Municipal Code expressly directs the dismissal of the action “for lack of jurisdiction.” Every order and judgment entered in this case was void, including the judgment from which this appeal was taken. A void judgment will not support an appeal. Health Care Auth. for Baptist Health v. Davis, [Ms. 1090084, January 14, 2011] — So.3d -, - (Ala.2011). Consequently, the judgment is vacated, and the case and the appeal are dismissed.

JUDGMENT VACATED; CASE DISMISSED; AND APPEAL DISMISSED.

COBB, C.J., and BOLIN and MAIN, JJ., concur.

MURDOCK, J., concurs in the result.

      . This description is exclusively for the purposes of this opinion.