author: LEE, C.J.,

text:
    Johnny Lee FLOYD, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01715-COA.
    Court of Appeals of Mississippi.
    June 10, 2014.
    Rehearing Denied Sept. 30, 2014.

      Office of State Public Defender by Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Brad Alan Smith, attorney for appellee.
    Before LEE, C.J., ROBERTS and JAMES, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Johnny Lee Floyd was convicted of possession of a controlled substance with intent to distribute. Floyd was sentenced as a habitual offender to serve sixty years in the custody of the Mississippi Department of Corrections, with no eligibility for parole or probation. Floyd was also ordered to pay a fine of $2,000,000.

¶2. Floyd now appeals, asserting the following issues: (1) the trial court erred in refusing jury instruction D-5, (2) the trial court erred in allowing evidence of his prior convictions, (3) the evidence was insufficient, (4) the State failed to establish he was a habitual offender, and (5) the trial court erred in allowing evidence concerning the results of a field test for cocaine.

FACTS

¶ 3. On October 20, 2010, the Gulfport Police Department received an anonymous call claiming Floyd was storing and selling cocaine from an apartment located at 3503 Hancock Avenue in Gulfport, Mississippi, and that Floyd was driving a white GMC Envoy. Officer Tim Adams helped conduct surveillance on the apartment and saw Floyd exit a white GMC Envoy, go into the apartment, leave the apartment after several minutes, and drive away. Officer Adams testified Floyd’s hands were empty. Officer Chuck Koewers followed Floyd. Upon learning Floyd’s license had been suspended, Officer Koewers conducted a traffic stop. Officer Koewers testified Floyd did not stop immediately and was moving around in the car. After approaching the car, Officer Koewers noticed white powder on the seats and on Floyd’s mouth. Officer Koewers said it appeared Floyd was attempting to swallow something.

¶ 4. Officer Wendell Johnson assisted Officer Koewers with the traffic stop. Officer Johnson also noticed Floyd moving around in the car prior to stopping. Officer Johnson saw the white powder in the car and around Floyd’s mouth. Additionally, Officer Johnson observed a clear plastic bag containing white residue. Floyd had $558 in his pocket. ■ After arresting Floyd, Officer Johnson procured a search warrant for the apartment Floyd had previously entered. Upon entering the apartment, Officer Johnson spoke with Keisha Floyd, Floyd’s sister. Keisha told Officer Johnson it was her apartment and that she shared it with her four children and Floyd. Keisha said Floyd had been staying with her for several months.

¶ 5. The officers searched the bedroom where Floyd had resided and found the following: a picture of Floyd on the dresser, digital scales in the closet, a bag of cocaine powder and a bag of crack cocaine in the closet, a receipt bearing Floyd’s name, various municipal court documents bearing Floyd’s name, Floyd’s Social Security card, cocaine residue in the dresser drawer and under the bed, and a gun under the bed. The forensic scientist from the Mississippi Crime Lab testified that one of the bags of cocaine weighed 6.8 grams and the other weighed 26.7 grams.

¶ 6. Keisha testified that Floyd had lived with her at one time but moved out of her apartment in August 2010. Keisha stated Jerome Boose, her cousin, then moved into Floyd’s old bedroom. Keisha never gave Floyd or Boose a key to the apartment. Keisha also denied speaking with Officer Johnson- at the scene and in-' forming him that Floyd was currently living with her. On cross-examination, Keisha admitted she never told the authorities Boose was living with her.

¶ 7. Boose testified he moved into Keisha’s apartment in June 2010 and was living there at the time the police searched the apartment. Boose claimed ownership of the drugs, the gun, and the digital scales found in the search. On cross-examination, the State introduced a taped conversation between Boose and Floyd, discussing Boose’s decision to testify at Floyd’s trial. The State had only learned of Boose’s involvement a few days prior to trial, and Officer Adams went to interview Boose at the correctional center where he was incarcerated at the time. This conversation between Boose and Floyd occurred after Officer Adams visited Boose to discuss Boose’s involvement in Floyd’s case. In the tape, Boose and Floyd discuss Floyd’s three prior felony convictions and Boose’s decision to claim ownership of the drugs. At one point Floyd mentioned he would retain an attorney to represent Boose.

DISCUSSION

I. JURY INSTRUCTION D-5

¶ 8. Floyd contends the trial court committed reversible error by refusing jury instruction D-5. We first note that the State asserts this issue is procedurally barred because Floyd failed to object to the trial court’s decision to refuse D-5. However, the Mississippi Supreme Court has stated that “there is a long line of cases which affirm the tenet that the refusal of instructions offered by the defendant need not be objected to in order to preserve the issue for appeal.” Green v. State, 884 So.2d 733, 736 (¶ 10) (Miss.2004).

¶ 9. “In determining whether error lies in the [giving] or refusal of various [jury] instructions, the instructions actually given must be read as a whole.” Ford v. State, 52 So.3d 1245, 1247 (¶ 10) (Miss.Ct.App.2011) (quoting Wess v. State, 926 So.2d 930, 934 (¶ 20) (Miss.Ct.App.2005)). “[I]f the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. “[T]he court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence.” Id. (quoting Hager v. State, 996 So.2d 94, 97 (¶ 9) (Miss.Ct.App.2008)).

¶ 10. Instruction D-5 stated the following:

There must be sufficient facts [to] warrant ] a finding that Johnny Lee Floyd was aware of the presence and character of cocaine at 3503 Hancock Avenue Apartment # 1 in Gulfport, Mississippi!,] on October 20, 2010[,] and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive] possession may be shown by establishing that the drug involved was subject due [sic] to his dominion or control.

Floyd argues that an essential element of possession is that the defendant be “aware of the presence and character” of the controlled substance. However, the State contends that instruction S-8, as given, properly instructed the jury on the law of possession. Instruction S-8 stated the following:

Possession, as the term is used in this case, may be actual or constructive. A person has actual possession when he or she knowingly has direct, immediate, and exclusive physical control over the thing or object. A person has constructive possession when he or she lacks actual possession of the thing or object but knowingly has both the power and the intention, at a given time, to exercise control or dominion over the thing or object, either directly or through another person.

(Emphasis added).

¶ 11. When refusing instruction D-5, the trial court noted that instruction S-8 was identical to the model jury instruction on actual and constructive possession. The State agrees that whether a defendant was “aware of the presence and character” of the drug is an element of constructive possession, but argues that the “knowledge” and “intent” language in S-8 is essentially the same as the “aware of the presence and character” language most commonly cited in jury instructions. See Mosley v. State, 89 So.3d 41, 48 (¶ 25) (Miss.Ct.App.2011) (noting jury instruction with “aware of character and presence” language has been approved numerous times over the years). In Hudson v. State, 30 So.3d 1199, 1206 (¶ 19) (Miss.2010), the Mississippi Supreme Court stated that the State was required to prove Hudson was “aware of the presence and character of the cocaine[,] ... in other words, the prosecution had to prove both ‘knowledge’ and ‘intent;’ i.e., that [Hudson] knew it was in his pockets, knew it was cocaine, and intended to possess it.” Furthermore, the statute under which Floyd was indicted states “it is unlawful for any person knowingly and intentionally to ... possess with intent to sell ... a controlled substance.” Miss.Code Ann. § 41-29-139(a)(1) (Rev.2013) (emphasis added). We find no error by the' trial court in refusing instruction D-5 for the following reasons: instruction S-8 was identical to the model jury instruction; instruction S-8 used similar language to section 41-29-139(a)(1); and instruction D-5 was fairly covered in instruction S-8. This issue is without merit.

II. PRIOR CONVICTIONS

¶ 12. In his next issue on appeal, Floyd contends the trial court erred in allowing the jury to hear of his prior convictions for transfer of a controlled substance. Prior to trial, Floyd filed a motion in limine to exclude evidence of his prior convictions. The trial court denied Floyd’s motion, finding that evidence of these convictions was admissible under Mississippi Rule of Evidence 404(b) to prove intent. The trial court relied upon this Court’s decision in Hosey v. State, 77 So.3d 507, 516 (¶ 34) (Miss.Ct.App.2012), where we stated that “[i]t is settled in Mississippi jurisprudence that under [Rule] 404(b) evidence of prior sales is admissible to show or prove intent to distribute.” (Quoting Mitchell v. State, 754 So.2d 519, 524 (¶ 16) (Miss.Ct.App.1999)). The trial court did give a limiting instruction to the jury, S-4, which stated the following:

The Court instructs the Jury that any evidence of prior bad acts or crimes of the defendant may be considered solely for the purpose of determining the defendant’s intent or knowledge in this case. If the defendant has committed bad acts or crimes, they are not evidence corroborating or suggesting that the defendant is guilty of the crime charged in this case.

In reviewing whether a trial court properly admitted or excluded evidence, we apply our familiar abuse-of-discretion standard. Brown v. State, 965 So.2d 1023, 1026 (¶ 10) (Miss.2007). Pursuant to Hosey, we cannot find the trial court abused its discretion in allowing Floyd’s prior convictions into evidence.

III. SUFFICIENCY AND WEIGHT OF THE EVIDENCE

¶ 13. Floyd argues the evidence was insufficient to support the guilty verdict. In the alternative, Floyd contends the verdict was against the overwhelming weight of the evidence.

A. SUFFICIENCY OF THE EVIDENCE

¶ 14. Regarding whether the evidence was legally sufficient to support the verdict, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. The jury determines the credibility of witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 15. As previously stated, Floyd was convicted of possession of a controlled substance with intent to distribute under section 41 — 29—139(a)(1), which states “it is unlawful for any person knowingly and intentionally to ... possess with intent to sell ... a controlled substance.” The Mississippi Supreme Court has stated that for a conviction of possession of a controlled substance to stand, “there must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Glidden v. State, 74 So.3d 342, 345-46 (¶ 12) (Miss.2011) (internal citations omitted). In other words, the State has “to prove both ‘knowledge’ and ‘intent.’ ” Hudson, 30 So.3d at 1206 (¶ 19). However, this possession “need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself it is not adequate in the .absence of other incriminating circumstances.” Cheatham v. State, 12 So.3d 598, 601 (¶ 7) (Miss.Ct.App.2009) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)).

¶ 16. The State’s evidence showed the following: the police received a tip that Floyd was distributing cocaine from the apartment in question; that same day, Floyd was seen entering the apartment; the police conducted a traffic stop shortly after Floyd was seen leaving the apartment; Floyd attempted to swallow a white powder; a white powder was found on Floyd’s face and in his car; Floyd was carrying a large amount of cash; Keisha told the police Floyd lived with her at the apartment in question; and personal items belonging to Floyd were found in the room where the cocaine and digital scales were discovered. Although Boose claimed ownership of the drugs, it is clear the jury found his testimony was not credible after hearing the taped conversation between Floyd and Boose at the correctional center.

¶ 17. Viewing the evidence in the light most favorable to the State, a reasonable juror could find beyond a reasonable doubt that Floyd was guilty. Therefore, this issue is without merit.

B. WEIGHT OF THE EVIDENCE

¶ 18. Floyd also argues the verdict was against the overwhelming weight of the evidence. This Court will not disturb a jury’s verdict unless it “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). Additionally, an appellate court must view the evidence in the light most favorable to the verdict. Knight v. State, 72 So.3d 1056, 1065 (¶ 34) (Miss.2011). Viewing the evidence in this light, we cannot say that allowing Floyd’s guilty verdict to stand would sanction an unconscionable injustice. This issue is without merit.

IV. HABITUAL-OFFENDER STATUS

¶ 19. Floyd argues the State failed to prove his habitual-offender status. Prior to trial, the indictment was amended to charge Floyd as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007), which states as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

To establish Floyd’s habitual-offender status, the State produced an order from the Harrison County Circuit Court indicating Floyd pleaded guilty to three counts of “transfer of a controlled substance” on the same day, March 1, 1999, and was sentenced to three concurrent fifteen-year sentences. The order states Floyd was found guilty of “transfer of a controlled substance in B24019800717 and transfer of a controlled substance — 2 cts. in B24019800865.” The record also includes an order revoking Floyd’s probation on these three sentences and ordering him to serve three concurrent six-year sentences.

¶ 20. The record does not include any further information on these three charges, as required by section 99-19-81— whether they constitute at least two prior charges “separately brought and arising out of separate incidents at different times.” The Mississippi Supreme Court has cautioned against the “tendency to routinely allow the [S]tate to produce some documentation of prior offenses and for the trial court to perfunctorily find the defendant [a] habitual offender, then routinely pass out [the] sentence.... ” Young v. State, 507 So.2d 48, 50 (Miss.1987) (quoting Seely v. State, 451 So.2d 213, 215 (Miss.1984)). The Young court further stated: “We wish to leave no doubt that the requirement of a bifurcated trial means a full two-phase trial prior to any finding that the defendant is [a] habitual offender and subject to enhanced punishment.” Id. It appears this same scenario occurred during Floyd’s sentencing.

¶ 21. Floyd is correct that the State failed to follow the statutory requirements to prove his habitual-offender status; thus, we must vacate Floyd’s sentence and remand for resentencing. On resen-tencing, we note that the “State is not entitled to a second chance to prove a defendant’s habitual-offender status on remand, because that would violate the prohibition against double jeopardy under the Mississippi Constitution.” Grayer v. State, 120 So.3d 964, 969-70 (¶ 20) (Miss.2013). On remand, Floyd should be sentenced as a nonhabitual offender.

¶ 22. We note that Floyd was given an enhanced sentence for being a subsequent offender under Mississippi Code Annotated section 41-29-147 (Rev.2013). However, Floyd does not take issue with the application of this particular sentence enhancement.

V. FIELD TEST

¶ 23. Floyd argues the trial court erred in allowing the State to present evidence concerning the results of a field test for cocaine. After opening statements, Floyd objected to any mentioning of a field test for cocaine during his traffic stop. The State responded that it had no intention of mentioning the field test during trial. During cross-examination of Officer Johnson, Floyd repeatedly asked him about the white powder removed from Floyd’s mouth, whether the substance was tested, and the results of any testing. Floyd specifically asked Officer Johnson: “So scientifically speaking, we don’t know whether it was a controlled substance?” Floyd continued to ask Officer Johnson several variations of this question. Based upon this line of questioning, the State argued Floyd had opened the door by allowing Officer Johnson to give an explanation concerning the results of the field test. The trial court agreed. On redirect, the State questioned Officer Johnson about conducting the field test and its result.

¶ 24. Floyd does not take issue with the trial court’s ruling on whether he opened the door to this testimony. Rather, Floyd contends that Officer Johnson lacked personal knowledge, since another officer conducted the field test, and Officer Johnson’s testimony exceeded the scope of his expert qualifications. During trial, the State offered Officer Johnson as an expert witness in drug investigations and drug trafficking. Floyd elected not to voir dire Officer Johnson.

¶ 25. In regard to whether Officer Johnson lacked personal knowledge since Officer Koewers actually conducted the field test, Floyd relies upon Mississippi Rule of Evidence 602 for support. Rule 602 states that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” It is clear from the record and Officer Johnson’s testimony that, as the case detective, he was present during the entire investigation, including the traffic stop where he witnessed Officer Koewers perform the field test on the white powder from Floyd’s mouth. Officer Johnson saw the results from the field test, which indicated the presence of cocaine. The record shows Officer Johnson had personal knowledge of the field test, regardless of whether he physically conducted the test.

¶ 26. Floyd’s other argument is that Officer Johnson’s testimony exceeded the scope of his expert qualifications— namely that he was qualified in the field of drug investigation and drug trafficking, not in the fields of chemistry or forensic science. However, Floyd, not the State, elicited the information from Officer Johnson concerning how the field test was conducted and its results. Since Floyd elicited this information during cross-examination of Officer Johnson, it is disingenuous to now complain of error. See Caston v. State, 823 So.2d 473, 502 (¶ 101) (Miss.2002) (appellant “cannot complain on appeal of alleged errors invited or induced by himself’) (citation omitted). This issue is without merit.

¶ 27. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE IS AFFIRMED. THE SENTENCE OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $2,000,000 IS VACATED, AND THIS CASE IS REMANDED FOR RESENTENCING AS A NONHABITUAL OFFENDER. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ, CONCUR. CARLTON, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Rule 404(b) states that "[ejvidence of other crimes ... is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may; however, be admissible for other purposes such as proof of ... intent....”


source: Caselaw Access Project

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

license: Public Domain

text:
    Greg WILLIAMS a/k/a Gregory W. Williams a/k/a Williams, Gregory Wayne a/k/a Gregory Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KM-01883-COA.
    Court of Appeals of Mississippi.
    June 24, 2014.
    Rehearing Denied Oct. 14, 2014.
    Blewett W. Thomas, Gulfport, attorney for appellant.
    Office of the Attorney General by Brad Alan Smith, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. The appellant, Greg Williams, was-convicted in justice court of misdemeanor home-repair fraud in violation of Mississippi Code Annotated section 97 — 23—103(5)(a) (Rev.2006). The issue on appeal is whether it was reversible error for the circuit court to have affirmed the county court’s dismissal of Williams’s appeal for failure to timely file a notice of appeal, cost bond, and appearance bond as required by Uniform Rule of Circuit and County Court 12.02.

¶ 2. Finding that the dismissal was proper, we affirm.

Facts and Procedural History

¶ 3. In December 2005, homeowner Roslyn Robertson and Williams entered into a contract for him to repair damage to her residence caused by Hurricane Katrina. On August 21, 2007, Robertson signed an affidavit alleging that Williams committed felony home-repair fraud against her in violation of Mississippi Code Annotated section 97-23-103. The district attorney’s office declined to prosecute the matter as a felony, and it was referred to the county prosecutor’s office. On February 9, 2009, the justice court approved the prosecutor’s handwritten amendment of the affidavit to reduce it from a felony charge to a misdemeanor charge.

¶ 4. Williams’s attorney sought and obtained continuances in March and June 2008. Trial was finally set for May 11, 2009, almost two years after the criminal affidavit. On May 9, 2009, Williams’s attorney moved again to postpone the trial. The motion alleged only that Williams’s counsel was unavailable on May 11, and said nothing about a federal subpoena served on Williams, as he later alleged in his July 8, 2009 motion for an out-of-time appeal. The motion to continue was denied and trial was held on May 11, 2009. Williams was not present, although his attorney was. Williams was found guilty and sentenced to serve six months in the county jail, but the sentence was suspended. He was placed on six months of reporting probation. The sentence further imposed a $500 fine, $145 in assessments, and $5,000 in restitution.

¶ 5. On June 4, 2009, Williams’s attorney faxed a notice of appeal to the circuit court clerk, without any bond. Williams did not submit a cost bond or an appeal bond as required by Rule 12.02. In fact, his notice of appeal stated that it was filed “without supersedeas.” The appeal was not docketed.

¶ 6. The first official docket entries in county court concerning this appeal were filed on July 8, 2009, some fifty-eight days after the conviction and sentence on May 11, 2009. These docket entries reflect, and the file contains, a notice of appeal and a motion for an out-of-time appeal filed that day. The docket entries for July 9, 2009, reflect a $5,000 appearance bond by “A Sonshine Bail Bonds, Inc.” The appearance bond is defective for at least three reasons. The bond is returnable to justice court rather than to county court. A power of attorney authorizing “Robert Cohen” to sign bonds on behalf of A Sonshine Bail Bonds was filed, but the appearance bond was not signed by Cohen; it was instead signed by “Stacy Goodison.” Perhaps most importantly, although there was a signature line for approval of the bond by either a judge or the clerk, the signature line is blank. As to the second bond required to perfect an appeal, there is no reference in the record to a cost bond at all. Only a docket entry indicates that a cash payment of $220 was tendered to the clerk by Williams’s attorney.

¶ 7. Williams fired and rehired his initial counsel several times after May 11, 2009, and placed a lien on his house. His counsel filed a motion to withdraw in August and was released by order of the court dated August 28, 2009. New counsel (currently representing Williams in this appeal) entered the case on November 12, 2009.

¶ 8. The county prosecutor moved to dismiss the appeal because it was not timely filed in compliance with Rule 12.02. A hearing was held on the motion to dismiss the appeal on November 18, 2009. Williams was represented by his present counsel. The county court dismissed the appeal as untimely under Rule 12.02 on December 7, 2009. In a letter sent to the parties dated December 7, 2009, explaining the ruling, the court noted that Rule 12.02 was controlling and that a “rule not enforced is not a rule.” The court expressed the view that Rule 12.02 was “mandatory, and in my judgment, jurisdictional.”

¶ 9. Williams filed a motion to reconsider, arguing that the court should exercise its discretion to overlook the late appeal and that he had received ineffective assistance of counsel regarding the late appeal. The county court denied the motion to reconsider on March 31, 2010.

¶ 10. Williams timely appealed to the circuit court. Following briefing by the parties and a hearing, the circuit court affirmed the dismissal of the appeal and remanded for execution of the sentence. Williams timely appealed the dismissal to this Court.

Discussion

¶ 11. Williams raises the following issues which we have recharacterized for clarity: (1) the justice court exceeded its jurisdiction by imposing a $5,000 fine; and (2) counsel was ineffective in failing to properly perfect the appeal, which entitles Williams to a discretionary out-of-time appeal.

¶ 12. Before we may consider Williams’s issues, we must first consider our jurisdiction to hear this appeal.

¶ 13. The Mississippi Supreme Court has sole authority for the adoption of rules of court. The Mississippi Rules of Appellate Procedure apply to appeals to the Mississippi Supreme Court and appeals it assigns to this Court. By enacting Rule 2(c), the Mississippi Supreme Court has permitted “suspension” of these appellate rules for “good cause” shown to the supreme court or this Court. M.R.A.P. 2(c).

¶ 14. The Mississippi Rules of Appellate Procedure do not govern appeals from justice or municipal courts to county or circuit court, however. Appeals from justice court are governed by Rule 12.02. This is a distinction we made clear in Reeves v. City of Crystal Springs, 54 So.3d 322 (Miss.Ct.App.2011). In Reeves, we rejected an argument that Rule 4(h) permitted the appellate court to excuse untimely notices of appeal based upon “excusable neglect.” M.R.A.P. 4(h). We stated:

We agree with the City’s argument that Rule 4(g) is not applicable to appeals from municipal court to circuit court. Rule 1 of the Mississippi Rules of Appellate Procedure states that the rules “govern procedure in appeals to the Supreme Court of Mississippi and the Court of Appeals of the State of Mississippi, and proceedings on petitions for writs or other relief which the Supreme Court or the Court of Appeals ... is empowered to grant.” As already stated, appeals from municipal court are governed by Rule 12.02 of the Uniform Rules of Circuit and County Court. There is no “excusable neglect” provision or condition for an extension applicable to that rule. While Rule 12.02(C) “provides for liberal amendments to allow a case to go to trial[,] ... this language only applies to an appeal that is timely perfected.” Hill [v. City of Wiggins], 984 So.2d [1086,] 1089 (¶ 14) [ (Miss.Ct.App.2008) ] (citing Riley [v. Town of Lambert ], 856 So.2d [721,] 725 (¶ 6) [ (Miss.Ct.App.2003) ]). While we acknowledge that this interpretation may result in. a seemingly unfair dismissal of a case, this Court must interpret the rule as written. Modifications to the Uniform Rules of Circuit and County Court may only be made by the Mississippi Supreme Court.

Reeves, 54 So.3d at 326 (¶ 14). We noted that “[t]his Court has applied a strict standard when interpreting Rule 12.02” and affirmed the dismissal of the untimely appeal from municipal court. Reeves, 54 So.3d at 325 (¶ 10) (citing Hill, 984 So.2d at 1089 (¶ 15); Riley, 856 So.2d at 724 (¶ 11)).

¶ 15. Rule 12.02 was adopted to address a very specific concern of the trial courts. If a convicted defendant did not appeal, immediate steps could be taken to enforce collection of whatever fines, assessments, or restitution were imposed. If an appeal was taken, however, no enforcement of the judgment was possible. An appeal of a misdemeanor conviction to the county court or circuit court was not, in the traditional sense, a true appeal to review errors made by the trial court. By statute, Mississippi Code Annotated section 99-35-1 (Rev.2007), as well as by Rule 12.02(C), a timely and properly perfected appeal stayed the lower court conviction and entitled the appellant to a “trial de novo.” No appeal “without supersedeas,” as was attempted by Williams, is permitted since trial de novo is required. If the appellant was acquitted in county or circuit court, no punishment, fines, or assessments could be lawfully imposed on him at all. Upon appeal, the appellant was again presumed innocent, and he was entitled to a trial anew, as if there were no prior conviction. On the other hand, if the appellant failed to appear before the appellate court for trial or his appeal was dismissed by the court, a mechanism — appearance and cost bonds — would be in place to help insure compliance with the lower court’s judgment of conviction. Such provisions promote the integrity of the criminal-justice system and discourage the county and circuit court dockets from effectively becoming boneyards for stale appealed misdemeanor convictions destined to eventually die a slow death on the docket.

¶ 16. The Mississippi Supreme Court adopted Rule 12.02, which does not provide for an exception to the thirty-day perfected-appeal deadline. Further, the Mississippi Supreme Court has not interpreted Rule 12.02 to contain a “suspension for good cause” component. Cases applying Rule 12.02 have consistently upheld the dismissal of untimely appeals.

¶ 17. For example, in Riley v. Town of Lambert, 856 So.2d 721 (Miss.Ct.App.2003), the defendant was convicted in municipal court. He filed a notice of appeal within thirty days but no cost bond was filed until two months after the conviction. Id. at 722 (¶ 6). The defendant did not file an appearance bond. Id. at 723 (¶ 8). This Court affirmed the circuit court’s dismissal of the appeal, noting, “We know of no case which permits the filing of the required bonds past the thirty-day appeal time.” Id. at 725 (¶ 19).

¶ 18. In Spencer v. State, 880 So.2d 1044 (Miss.2004), the defendant was con-victéd in justice court and filed a timely notice of appeal. He did not file a cost bond with the notice of appeal, however. Agreeing with and quoting extensively from Riley, the supreme court affirmed the circuit court’s dismissal of the appeal. Spencer, 880 So.2d at 1046-47 (¶¶ 8-9).

¶ 19. In Hill, 984 So.2d 1086, the defendant was convicted in municipal court. He filed a timely notice of appeal but posted neither an appearance bond nor a cost bond. On appeal after his appeal was dismissed for failure to comply with Rule 12.02, the defendant argued that his payment of all the fines imposed and a, $100 filing fee with his notice of appeal should be construed as posting the two required bonds. This Court disagreed and affirmed the dismissal of his appeal, noting that he had neither filed the required bonds nor a motion to correct that deficiency. Hill, 984 So.2d at 1089 (¶ 13).

¶ 20. The most recent consideration of Rule 12.02 was our unanimous opinion in Ray v. State, 124 So.3d 80 (Miss.Ct.App.2013), cert. denied, 123 So.3d 450 (Miss.2013). In Ray, we considered the case of a defendant who had been convicted in justice court. The defendant filed a timely notice of appeal and a single “appeal bond.” Id. at 81 (¶ 2). On the county prosecutor’s motion, the appeal was dismissed for failure to comply with Rule 12.02. The county court dismissed the appeal, and the dismissal was affirmed by the circuit court. Ray, 124 So.3d at 81 (¶ 3). On appeal, the defendant argued that dismissing his appeal for filing one piece of paper, rather than two, was placing form over substance. Id. at 83 (¶ 12). We disagreed and detailed the two very different purposes served by the two bonds. Id. at 82-83 (¶¶ 7-12). We affirmed the dismissal of the appeal, noting: “Here, Ray’s failure to file an appearance bond was «not a mere technicality but a failure to comply with a substantive requirement of the rule necessary to stay the judgment from the justice court and vest the county court with appellate jurisdiction.” Id. at 83 (¶ 13).

¶ 21. The clear language of Rule 12.02, which this Court is not authorized to ignore or alter, requires dismissal of the appeal. The clerk properly refused to docket the June 4, 2009 notice of appeal because there were no simultaneously filed bonds as required by Rule 12.02(A)(1). When the notice of appeal was docketed on July 8, 2009, it was too late. In addition, only a defective appearance bond was then filed, and there is only a mere docket entry concerning receipt of $220 from Williams’s attorney, with no cost bond evident in the file.

¶ 22. The appeal was properly dismissed for lack of jurisdiction. Neither the county court, circuit court, or this Court in this appeal is empowered to consider issues relating to the amount of restitution or ineffective assistance of counsel.

¶ 23. For the foregoing reasons, we affirm the dismissal of appeal and remand to the justice court for execution of the sentence.

¶ 24. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DISMISSING THE APPEAL IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

CARLTON, J.,

dissenting:

¶25. I must respectfully dissent from the majority’s finding of no reversible error in the trial court’s dismissal of Williams’s appeal.

¶ 26. Williams appeals the county court’s dismissal of his appeal of his justice court criminal conviction for home-repair fraud. The procedural history reflects that on August 21, 2007, Roslyn Robertson issued an affidavit alleging Greg Williams violated Mississippi Code Annotated section 97-23-103 (Rev.2006) for committing felony-home repair fraud against her in an amount exceeding $5,000. The record reflects that on December 5, 2007, the district attorney’s office declined to prosecute the alleged offense as a felony, but the record shows that the county prosecuted the case in justice court on May 11, 2009, and the justice court convicted Williams in absentia.

¶ 27. On May 9, 2009, Williams’s counsel filed a pretrial motion requesting a delay in his case in justice court. However, on May 11, 2009, the Harrison County Justice Court found Williams guilty, in ab-sentia, and the justice court also sentenced Williams in absentia to serve six months at the county jail, which was suspended upon the completion of six months of reporting probation, the payment of a $500 fine, $145 in assessments, and $5,000 in restitution.

¶ 28. On June 4, 2009, Williams’s counsel filed a notice of appeal with the County Court of Harrison County via facsimile, but failed to file the required appeal bonds until July 9, 2009. Williams had instructed his counsel to appeal the conviction but was unaware that the appeal had not been properly perfected for lack of posting the required bonds. As a result, the appeal was not properly perfected within thirty days of the judgment in compliance with Uniform Rule of Circuit and County Court 12.02 until July 9, 2009, but was instead perfected in fifty-eight days.

¶ 29. Williams’s counsel also filed a motion for an out-of-time appeal on July 8, 2009, acknowledging that the notice of appeal and appropriate attachments, as well as a check for filing fees of $220, were provided to the county court clerk within thirty days of the judgment on June 5, 2009. The motion also asserts that Williams could not attend trial on May 11, 2009, because he was under a federal subpoena, and the motion averred that the county failed to ever lawfully arrest Williams for the justice court charge. The record reflects that after the tardy perfection of the appeal and upon setting a trial date in county court, the county court judge then released Williams’s initial counsel due to conflicts in the attorney-client relationship.

¶ 30. The county court then dismissed the appeal with prejudice on December 7, 2009, on motion of the county prosecutor after finding that Williams failed to properly perfect his appeal within thirty days of conviction in accordance with Rule 12.02. Williams then filed a motion to reconsider and for amendment of the order in county court. In the motion to reconsider, Williams argued that the county court possessed discretion to allow the appeal of his conviction in justice court, and he alleged that he received ineffective assistance of counsel in the prosecution against him in justice court and also in representation post-trial due to his counsel’s failure to timely perfect the appeal of his justice court conviction and sentence. The county court denied Williams’s motion to reconsider its order dismissing his appeal.

¶31. Williams then filed an appeal in the Harrison County Circuit Court, which affirmed the county court’s dismissal of the appeal. Upon review of the appeal, the circuit court determined that the county court and circuit court both lacked discretion to allow Williams’s untimely appeal, since Williams’s appeal was not perfect within thirty days pursuant to Rule 12.02.

¶ 82. Williams now appeals to this Court, requesting reversal of the county court order that dismissed his appeal of his justice court conviction and remand to county court to proceed with his appeal. Appellate courts review de novo an issue regarding “[wjhether a circuit court has jurisdiction to hear a particular matter [as it] is a question of law[.]” Raspberry v. City of Aberdeen, 964 So.2d 1211, 1213 (¶ 7) (Miss.Ct.App.2007) (citing Edwards v. Booker, 796 So.2d 991, 994 (¶ 9) (Miss.2001)). Consistent with this precedent, and with respect to the motion to dismiss for an out-of-time appeal in the case at hand, this Court reviews motions to dismiss de novo. Ray v. State, 124 So.3d 80, 81 (¶ 4) (Miss.Ct.App.2013). This Court also reviews a dismissal based on a failure to perfect an appeal utilizing a de novo standard of review, and we also apply de novo standard of review to determine the issue of whether the appellate court possessed jurisdiction. Reeves v. City of Crystal Springs, 54 So.3d 322, 324 (¶ 6) (Miss.Ct.App.2011).

¶ 33. As set forth in Ex parte Grubbs, due process and precedent applicable to justice court appeals allow an appellate court to suspend the procedural rules regarding the time to perfect an appeal in criminal cases in order to prevent manifest injustice and, when necessary, in the interest of justice. In so doing, I submit that this Court must apply the demands of due process to an application of Rule 12.02 to the facts of this case. See Ex parte Grubbs, 80 Miss. 288, 288, 31 So. 741, 742 (1902) (holding that statutory time limitations on appeals from justice court to circuit court do not apply in criminal cases); see also Ball v. State, 202 Miss. 405, 408, 32 So.2d 195, 196 (1947); Little v. Wilson, 189 Miss. 825, 825, 199 So. 72, 72-73 (1940). I acknowledge that this separate opinion applies due-process demands in criminal appeals to Rule 12.02, but for application of due process under these rules, see and compare Mississippi Rule of Appellate Procedure 2(c).

¶ 34. Rule 12.02 governs appeals from justice and municipal court, and this rule provides that perfecting an appeal to county court from justice court requires the simultaneous filing of a notice of appeal, a cost bond, and an appearance bond or cash deposit within thirty days of the judgment. See URCCC 12.02. As discussed, the Harrison County prosecutor moved to dismiss the appeal in county court, arguing that the appeal had not been perfected until July 8, 2009, and that the appeal therefore failed to comply with Rule 12.02. The record herein reflects that the county court dismissed the case due to Williams’s failure to perfect his appeal within thirty days of the justice court’s judgment, upon finding it possessed no jurisdiction under Rule 12.02. The county court then remanded the case to justice court for the imposition of the sentence. Williams filed a motion to reconsider, which the county court denied. Williams then appealed to the circuit court, which found that the county court properly dismissed the appeal due to Williams’s failure to perfect the appeal in accordance with Rule 12.02, and the circuit court also found no discretion existed under Rule 12.02 to allow the appeal in this criminal case.

¶ 35. A comparison of the application of due process to criminal appeals to Mississippi Rule of Appellate Procedure 2(c) and also a review of precedent applicable to appeals from justice court reflect judicial discretion exists to allow the suspension of the rules in criminal cases where demanded by the interests of justice. Precedent pertaining to appeals from justice court, including Ex parte Grubbs, 80 Miss. at 288, 31 So. at 742, and Ball, 202 Miss. at 408, 32 So.2d at 196, as well as the comment to Mississippi Rule of Appellate Procedure 2(c), recognizes that a criminal defendant’s right to due process protects him from losing his right to appeal for failure to comply with procedural rules for the time period to perfect an appeal when the delinquency or defect in the timely perfection of the appeal was caused by a third party or the defendant’s lawyer and not the fault of-the defendant. See and compare M.R.A.P. 2(c) & cmt.; Williams v. State, 456 So.2d 1042, 1043 (Miss.1984).

¶ 36. I acknowledge that this case is not a case wherein no appeal bonds were ever posted. I further acknowledge that Williams’s appeal was perfected within fifty-eight days of judgment, but not within thirty days from his judgment of conviction in justice court as required by Rule 12.02. This Court has held that “[t]he failure to post any bond or cash deposit required by this rule shall be grounds for the court, on its own motion or by motion of another, to dismiss the appeal with prejudice and with costs.” Ray, 124 So.3d at 82 (¶ 8). In Ray, this Court affirmed the dismissal of an appeal from justice court where the appellant failed to properly perfect his appeal because he failed to file an appearance bond. Id. at 83 (¶ 12).- In Ray, the appellant filed only the cost bond. In contrast, Williams filed both of the bonds required by Rule 12.02 and perfected his appeal on July 9, 2009, fifty-eight days after conviction.

¶ 37. In the case of Riley v. Town of Lambert, 856 So.2d 721, 723 (¶ 10) (Miss.Ct.App.2003), Riley, like the appellant in Ray, failed to ever file an appearance bond and filed only one of the bonds, a cost bond, which he filed outside of the time limit. Significantly, I submit that this Court in Riley provided that the trial court possessed the discretion to dismiss an appeal therein for failure to comply with Rule 12.02, and this Court found that such discretion was granted to the circuit court by that same rule. Riley, 856 So.2d at 723-24 (¶¶ 10-11).

¶ 38. In deciding whether to dismiss Williams’s appeal, this Court should first examine whether due-process concerns allow for suspension of procedural rules establishing the time for Williams to appeal his criminal conviction from justice court, in order to prevent manifest injustice, as allowed pursuant to Ex parte Grubbs, 80 Miss, at 288, 31 So. at 742, and Ball, 202 Miss. at 408, 32 So.2d at 196. In comparing the application of due process to the rules of appellate procedure, the Mississippi Supreme Court clearly embraced this appellate authority in McGruder v. State, 886 So.2d 1, 2 (¶ 4) (Miss.2003), with respect to the suspension of the Mississippi Rules of Appellate Procedure, stating:

[ W]e may grant an out-of-time appeal “where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.” We may suspend Rules 2 and 4 ‘when justice demands’ to allow an out-of-time appeal in criminal cases.

(Internal citations omitted); compare also Adams v. Day, 212 Miss. 778, 781-82, 55 So.2d 490, 491 (1951).

¶ 39. In further comparison of the application of due-process demands to the Mississippi Rules of Appellate procedure, precedent reflects that in addition to granting out-of-time appeals in criminal cases when demanded by justice, this Court has also acknowledged that in some instances we may exercise discretion and suspend the thirty-day limit for perfecting appeals in criminal cases before this Court to prevent manifest injustice, as allowed by Mississippi Rule of Appellate Procedure 2(c), in the interest of justice. See Parker v. State, 921 So.2d 397, 399 (¶ 5) (Miss.Ct.App.2006). In Parker, this Court held that appellate courts may grant a criminal defendant such an appeal if failure to perfect the appeal was through no fault of his own, and if justice demands. Id., see McGruder, 886 So.2d at 2 (¶ 4). Therefore, to resolve the issues before us on appeal herein, I submit that this Court must determine if Rule 12.02 requires consideration of due-process demands and also allows the discretion to determine whether the interests of justice require the suspension of the rules for the time to perfect an appeal from justice court in order to prevent manifest injustice similar to the Mississippi Rules of Appellate Procedure’s due-process considerations. For this determination, I again turn to the record and precedent to determine if the interests of justice in this case raise sufficient cause to suspend the procedural rule applicable, Rule 12.02, to the period for perfecting the appeal herein to prevent manifest injustice. In so doing, I again acknowledge that Rule 12.02 applies to the appeal herein and that in the precedent of Ex parte Grubbs, the Mississippi Supreme Court recognized that due process indeed provides discretion in appeals from justice court in criminal cases to suspend procedural rules to prevent manifest injustice. See Ex parte Grubbs, 80 Miss. at 288, 31 So. at 742.

¶ 40. As discussed, the record herein shows the justice court tried Williams in absentia on May 11, 2011, over the request for continuance raised by motion from Williams’s counsel. The justice court judgment and sentence were also entered on that date in Williams’s absence, finding him guilty of home-repair fraud. Williams argues that justice court improperly prosecuted him for a felony and imposed a sentence upon him that was outside the authority of justice court to impose for a misdemeanor violation of section 97-23-103. With respect to this claim of an illegal sentence, the record shows that the justice court imposed a six months sentence at the county jail, which was suspended upon the completion of six months of reporting probation, the payment of a $500 fíne, $145 in assessments, and $5,000 in restitution. Section 97-23-103(5) shows that the fine and confinement imposed fall within the punishment authorized for misdemeanor home-repair fraud. The record reflects an affidavit alleging felony home-repair fraud. The record also includes a declination to prosecute as a felony by the district attorney’s office. The record also reflects no initial appearance by Williams in justice court on any misdemeanor charge or any amended charging affidavit. Thus, on its face, the record raises due-process and jurisdictional issues, since justice courts possess no jurisdiction to prosecute felony offenses, and justice court jurisdiction in felony cases is limited to acting as a conservator of the peace to preliminary matters, i.e., determining probable cause, issuing warrants, setting bonds, and conducting initial appearances and preliminary hearings. Miss. Att’y Gen. Op., 96-0301, 1996 WL 306634, Regan (May. 10, 1996). A felony charge can be dismissed and misdemeanor charges then filed in justice court. However, justice court loses jurisdiction when a defendant waives his preliminary hearing, and then the jurisdiction lies in such case with the circuit court. Miss. Att’y Gen. Op., 2003-0364, 2003 WL 21962324, Wood (July 25, 2003).

¶ 41. As stated, the record shows that Williams was tried in absentia despite the pretrial motion for continuance filed by his counsel. The record also shows that Williams requested his counsel to appeal the justice court judgment and sentence. His counsel filed Williams’s notice of appeal and filing fee on June 4, 2011, within thirty days of the justice court judgment, but failed to properly perfect the appeal and file the required bonds within thirty days, in accordance with Uniform Rule of Circuit and County Court 12.02. The record also reveals conflict and communication problems between Williams and his counsel.

¶42. Williams’s counsel filed a motion for an out-of-time appeal on July 8, 2009, arguing Williams could not attend trial on May 11, 2009. due to a federal court subpoena, and that success on appeal was likely. The motion also seems to argue that Williams was never lawfully arrested or charged with a misdemeanor charge of home-repair fraud. Again, in considering the facts of this case, I acknowledge that since Williams’s initial counsel indeed perfected his appeal delinquency on July 9, 2009, with the required bonds and fees, this case is factually distinguished from cases wherein the appellant failed to ever post one or both bonds. I also acknowledge due-process concerns reflected on the face of the record.

¶ 43. Relative to the time to perfect the appeal, the record reflects Williams’s brief asserts that the post office returned numerous letters to him that he had sent to his initial trial counsel, and Williams’s relationship with his counsel involved communication problems and conflict. The record is clear, however, that Williams requested his counsel to appeal the conviction and sentence imposed upon him in absentia. Eventually the county court allowed Pittman, Williams’s counsel, to withdraw on August 28, 2009. Williams then retained new counsel in November 2009. The county court took no action on Williams’s motion for an out-of-time appeal after the Harrison County prosecutor filed a motion to dismiss the appeal for the failure of Williams’s first counsel to perfect a timely appeal with the required cost bond in accordance with Rule 12.02. A review of the record shows that both the circuit court and county court reviewed this case pursuant to Rule 12.02. Neither court applied the discretion provided by the demands of due process recognized by Ex parte Grubbs in criminal appeals from justice court; hence both found no discretion existed under such procedural rule to extend or suspend the procedural rules for the time for perfecting or granting the appeal of Williams’s criminal conviction. However, precedent regarding criminal appeals from justice court shows that due process indeed provides judicial discretion exists to prevent manifest injustice. See Ex parte Grubbs, 80 Miss. at 288, 31 So. at 742 (finding discretion to waive time to appeal from justice court); see also Ball, 202 Miss. at 408, 32 So.2d at 196; Little, 189 Miss. at 825, 199 So. at 72-73. In Ex parte Grubbs, the Mississippi Supreme Court acknowledged that the statutory time period for appeal from justice court did not apply in criminal cases. Ex parte Grubbs, 80 Miss. at 288, 31 So. at 742.

¶ 44. The record reflects no dispute as to the fact that Williams obtained a delinquent cost bond on July 9, 2009, or that Williams’s initial counsel sought a continuance in the trial by motion in justice court that was denied, resulting in a trial conviction in absentia. The county prosecutor filed no response to Williams’s motion for an out-of-time appeal and provided no response to the proffer in Williams’s motion for an out-of-time appeal asserting that Williams could not attend the trial in justice court on May 11, 2009, due to a federal district court subpoena.

¶ 45. As acknowledged, neither the county nor circuit court determined whether in their discretion if the interests of justice in this criminal appeal warranted suspension of the rules for the time to perfect an appeal to allow Williams to proceed to prevent manifest injustice since his appeal was perfected, albeit with tardy bonds. See and compare M.R.A.P. 2(c); McGruder, 886 So.2d at 2 (¶ 5); see also Ex parte Grubbs, 80 Miss. at 288, 31 So. at 742; see also Ball, 202 Miss. at 408, 32 So.2d at 196; Little, 189 Miss. at 825, 199 So. at 72-73. I, however, have reviewed the record to determine if the demands of due process provide such discretion, and whether the record establishes sufficient due-process concerns, to suspend the procedural rule Rule 12.02 for the time to perfect a criminal appeal from justice court herein to prevent manifest injustice and the forfeiture of Williams’s right to appeal his conviction. Based upon that review, I find that upon the due-process concerns and sufficient good cause established herein, justice demands suspension of the applicable rule of procedure, Rule 12.02, for the time to perfect the instant criminal appeal from justice court herein to prevent manifest injustice.

¶ 46. In so doing, I acknowledge the record reflects no fault of Williams in the delay of the perfection the appeal of his criminal conviction from justice court to county court. In the interest of justice, as acknowledged in Ex parte Grubbs, and upon finding sufficient cause in the record exists to suspend Rule 12.02, the procedural rule for perfecting the appeal from justice court in this criminal case, to allow Williams’s appeal, I submit reversal of the order of the Harrison County Court dismissing Williams’s appeal of his criminal conviction is proper. I would therefore remand this case to the county court to proceed with Williams’s appeal. See Ex parte Grubbs, 80 Miss. at 288, 31 So. at 742; see also Ball, 202 Miss. at 408, 32 So.2d at 196; Little, 189 Miss. at 825, 199 So. at 72-73; compare M.R.A.P. 2(c) (appellate court possesses authority to suspend the procedural rules in criminal cases in the interest of justice and may order proceedings in accordance with our diseretion). Accordingly, I respectfully dissent from the majority’s opinion.

IRVING, P.J., JOINS THIS OPINION. BARNES AND JAMES, JJ., JOIN THIS OPINION IN PART.

JAMES, J.,

dissenting:

¶ 47. Because it appears that the justice court did not have original jurisdiction to entertain this action, I respectfully dissent.

¶ 48. Williams alleges, as one of his assignments of error on appeal, that the justice court exceeded its jurisdiction under Mississippi Code Annotated section 97-23-103 (Rev.2006), by trying a claim involving $5,000 or more. This issue is not addressed in the majority opinion. Section 97-23-103(5)(a), which deals with misdemeanor home-repair fraud, provides in part: “A first conviction under this section shall be a misdemeanor when the amount of the fraud is less than Five Thousand Dollars ($5,000.00) and shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00) or imprisonment in the county jail not to exceed six (6) months, or both.” Miss.Code Ann. § 97-23-103(5)(a).

¶ 49. Robertson alleged that she paid Williams $15,000 for home repairs that were never completed. Robertson filed an affidavit with the Harrison County Justice Court, charging Williams with felony home-repair fraud in violation of section 97-23-103. Section 97-23-103(5)(c) provides that a “first or subsequent conviction under this section shall be a felony when the amount of the fraud is over Five Thousand Dollars ($5,000.00).... ” Robertson then executed a felony affidavit alleging that Williams did willfully, unlawfully, and feloniously enter into an agreement with her, stating that she paid Williams a total of $15,000. ■ This felony affidavit was initiated in justice court to be forwarded to the district attorney so that Williams’s case could be given to the grand jury to be considered for an indictment in a criminal action so that the case could be tried in circuit court if Williams were to be indicted by the grand jury.

¶ 50. Following a preliminary hearing in justice court, the district attorney wrote the officer in the case advising him that his office was declining to prosecute the case. The district attorney advised the officer that the case would best be handled in justice court. This is where the jurisdictional issue arose. The record does not indicate that a misdemeanor affidavit was ever filed in justice court. It appears that the case proceeded on the original felony affidavit. However, in order for a misdemeanor prosecution to properly proceed in justice court, an affidavit needed to be filed alleging a misdemeanor in violation Mississippi Code Annotated section 97-23-103(5)(a), and also stating that the home-repair fraud was $5,000 or less. It has long been held that an affidavit is “a prerequisite to the prosecution ... [of] a misdemeanor. The affidavit is the foundation of the jurisdiction of the justice of the peace and the court has no jurisdiction without it.” Conner v. State, 196 Miss. 335, 17 So.2d 527, 528 (1944) (internal quotations omitted) (citing Bramlette v. State, 193 Miss. 24, 8 So.2d 234 (1942)).

¶ 51. Justice courts do not possess jurisdiction to prosecute felony offenses, and a justice court’s jurisdiction in felony cases is limited to acting as a conservator of the peace to preliminary matters, such as making determinations of probable cause, issuing warrants, setting bonds, and conducting initial appearances and preliminary hearings. See Miss. Att’y Gen. Op., 96-0301, 1996 WL 306634, Regan (May 10, 1996); see generally Miss.Code Ann. §§ 99-37-3 (Rev.2007), 99-33-1 (Rev. 2007), and 9-11-9 (Supp.2013) (setting forth the jurisdictional limits of justice court). Here, however, after the district attorney referred the case back to justice court, the record does not show that misdemeanor charges were ever filed. The majority opinion states that the felony affidavit was amended to a misdemeanor affidavit. However, as previously stated, once the preliminary hearing was held, the justice court lost its jurisdiction and a new affidavit, alleging facts constituting a misdemeanor, needed to be filed. This is not the same as an amendment of an indictment in circuit court over a matter in which the circuit court has continuous jurisdiction of both the felony and any possible lesser-included misdemeanor.

¶ 52. I respectfully disagree with the majority’s statement that the justice court’s approval of the prosecutor’s handwritten amendment to Robertson’s affidavit on February 9, 2009, had the effect of reducing the felony affidavit to a misdemeanor affidavit. The record contains Robertson’s felony affidavit in which she alleges that, on or about the fifth day of December 2005, she and Williams entered into an agreement to perform home improvements on her residence, and that Williams “did knowingly promise performance which he did not intend to perform[,] or knew would not be performed.” In the affidavit, Robertson states that she paid Williams a total of $15,000, making the alleged crime a felony pursuant to Mississippi 97-23-103. This affidavit was signed by Robertson and notarized on August 21, 2007. The purported amendment, alluded to by the majority, consists of two handwritten notations. The first notation reads: “Based on the letter from the district attorney’s office[,] the State moves to amend misdemeanor home-repair fraud and will set it for trial.” However, the accompanying signature is illegible and it is not the signature of the affiant, Robertson. The second notation, which is found on the left-hand side of the page, simply states: “Granted J-2 2/5/09,” and nothing more. Finally, the document is not stamped “filed.” Nevertheless, the affidavit still alleges $15,000 in fraud, making the alleged crime a felony and beyond the jurisdictional limits of justice court. To view this document as an amended affidavit, which amended the charges in order to confer jurisdiction to the justice court, requires quite a bit of guessing and speculation.

¶ 53. In footnote 1, the majority points to the testimony, or, more precisely, the statements of the county prosecutor, Cox, during a hearing in circuit court on Williams’s motion for an out-of-time appeal. During the hearing, Cox stated:

Judge, as you noted, when there was initially a felony affidavit ... the District Attorney’s Office ... declined to handle it as a felony ... and sent it back to the justice court. And I as the county prosecutor review it, and that’s niy handwriting on the affidavit where I moved to amend that to a misdemeanor home repair fraud case, and the judge in February of '09 granted that amendment.

The county prosecutor’s statement does little to obviate the ineffectiveness of the affidavit as a charging document because the “amended affidavit” was not properly sworn to by Robertson. There is nothing, either in the record or on the face of the document itself, that indicates that Robertson took part in the amendment, or that she swore or affirmed that the statements in the amended affidavit were true. In order to proceed on a proper charging affidavit, the county prosecutor should have had Robertson execute a new affidavit alleging a misdemeanor violation of the home-repair statute. Further, it was improper to amend an affidavit over , which the justice court had lost jurisdiction. The amended affidavit still raises jurisdictional issues in that it alleges home-repair fraud of $15,000, which is a felony violation pursuant to Mississippi Code Annotated section 97-23-103, and outside the jurisdiction of justice court. A new affidavit needed to allege fraud of $5,000 or less in order to qualify as a misdemeanor and bring the crime within the justice court’s jurisdiction.

¶ 54. Williams was convicted in justice court in absentia, and ordered to pay $5,000 in restitution, a fine of $500, and assessments of $145. The Mississippi Supreme Court has long held that “where a justice of the peace had no jurisdiction to try a person for a misdemeanor, the circuit court has no power on appeal from such justice of the peace to try the cause, and the question of jurisdiction may be raised at any time.” Ivy v. State, 141 Miss. 877, 106 So. 111, 113 (1925). Thus, since a proper affidavit charging Williams with a misdemeanor violation of the home-repair-fraud statute was never filed with the justice court to initiate a misdemeanor case, and the justice court proceeded with the trial by acting on the improperly amended felony affidavit, over which it had lost jurisdiction, I would dismiss this appeal without prejudice, and vacate the conviction for lack of jurisdiction.

¶ 55. Accordingly, I respectfully dissent.

CARLTON, J„ JOINS THIS OPINION.

Appendix

      . The affidavit with the handwritten amendment and the justice court's acceptance of the amended affidavit are found in the record. The motion to amend was not made by an unknown party, as the dissent claims. In the hearing before the circuit court on Williams’s motion to allow an out-of-time appeal, the county prosecutor, Herman F. Cox, testified:
      Judge, as you noted, when there was initially a felony affidavit^] ... the District Attorney's Office ... declined to handle it as a felony ... and sent it back to the justice court. And I as the county prosecutor review it, and that’s my handwriting on the affidavit where I moved to amend that to a misdemeanor home repair fraud case, and the judge in February of [2009] granted that amendment.

      . Rule 12.02(A)(1) is entitled "Mandatory Bonds or Cash Deposits’’ and governs appeals from justice court to county court. A valid appeal requires:
      filing simultaneously a written notice of appeal, and both a cost bond and an appear-anee bond (or cash deposit) as provided herein within 30 days of such judgment with the clerk of the circuit court having jurisdiction. This written notice of appeal and posting of the cost bond and appearance bond or cash deposit perfects the appeal. The failure to post any bond or cash deposit required by this rule shall be grounds for the court, on its own motion or by motion of another, to dismiss the appeal with prejudice and with costs.
      URCCC 12.02(A)(1).

      . Rule 12.02(A)(1) provides, in part: “The clerk of the court shall not accept, file and docket the written notice of appeal without the accompanying cost bond and appearance bond or cash deposit, unless the court has allowed the defendant to proceed in forma pauperis.” (Emphasis added).

      . The motion for an out-of-time appeal explained the late attempt to file a bond by alleging that Williams had “attempted, but was unable to find a bonding agency that would work with him."

      . Prior,to its amendment in 2007, Rule 12.02 required the filing of only one bond.

      . The opinion cited Riley, with approval, and analogized Hill’s situation with that in Riley in which there was no timely but deficient bond filed which could be corrected by a motion to amend. Hill, 984 So.2d at 1088 (¶ 11).

      .We nonetheless note that the record is quite clear that the case was tried on the amended affidavit as a misdemeanor and that the restitution of $5,000 was proper under Mississippi Code Annotated section 99-37-3(1) (Rev. 2007).

      . This opinion does not apply the Mississippi Rules of Appellate Procedure to resolve this appeal, but merely references them for comparison of the application of due-process demands to the interests of justice in criminal appeals.

      . See and compare the application of due process in Mississippi Rule of Appellate Procedure 2(c), which states:
      In the interest of expediting decision, or for other good cause shown, the Supreme Court or the Court of Appeals may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction; provided, however, in civil cases the time for taking an appeal as provided in Rules 4 or 5 may not be extended.

      . During the argument to the circuit court on appeal, the county prosecutor claimed that the felony affidavit had been amended to a misdemeanor. The transcript shows that the county prosecutor alleged that he wrote a notation on the original affidavit and made a motion to amend the original affidavit. The transcript also references that the motion to amend was granted in February 2009, the same date as the preliminary hearing on the felony charge; however, no amended misdemeanor affidavit appears in the record before us. The original felony affidavit appears in the record, with unidentified handwriting stating that the charge will be prosecuted as a misdemeanor, along with a notation that reads "Granted 2/5/09.” However, the record fails to contain an order by the justice court granting the amendment; an amended affidavit reflecting that Williams would instead be charged with a misdemeanor; or any misdemeanor sworn charges.

      . See also Miss.Code Ann. §§ 99-37-3 (Rev.2007), 99-33-1 (Rev.2007), and 9-11-9 (Supp.2013) for justice court jurisdictional limits.

      . Rule 12.02 was amended in 2007 to reflect that filing only one bond does not perfect an appeal. The current version of Rule 12.02 provides that the written notice of appeal and posting of cost bond and appearance bond or cash deposit perfects the appeal. See URCCC 12.02(a)(1); see also Nelson v. State, 72 So.3d 1038, 1041-42 (¶ 11) (Miss.2011); Ray, 124 So.3d at 82 (¶ 8). But see McGruder, 886 So.2d at 2 (¶ 4) (Appellate courts "may suspend Rules 2 and 4 'when justice demands’ to allow an out-of-time appeal in criminal cases.”). Ex parte Grubbs, 80 Miss, at 288, 31 So. at 742 (statutory time limits on appeals from justice court to circuit court do not apply in criminal cases).

      . But see McGruder, 886 So.2d at 2 (¶ 4).

      . For other cases applying Mississippi Rule of Appellate Procedure 2(c) in criminal cases, see Williams v. State, 107 So.3d 1016, 1018 (¶¶ 4-5) (Miss.Ct.App.2012); Parker, 921 So.2d at 399 (¶ 5).

      . See Ex parte Grubbs, 80 Miss. at 288, 31 So. at 742; see also Ball, 202 Miss. at 408, 32 So.2d at 196; Little, 189 Miss. at 825, 199 So. at 72-73.

      . The handwritten notations are somewhat illegible; therefore, for convenience, a photocopy of the document is attached to this opinion as an appendix.


author: MAXWELL, J.,

text:
    In the Matter of the Last Will and Testament of Herman BOWLING, Deceased: Paula B. Hicks, Appellant v. Mark S. Bowling, Appellee.
    No. 2013-CA-01174-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.
    Rehearing Denied Jan. 20, 2015.

      Joe M. Davis, New Albany, attorney for appellant.
    Mark Nolan Halbert, Tupelo, attorney for appellee.
    Before IRVING, P.J., MAXWELL and JAMES, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. When a case is tried without a jury, the judge may dismiss a plaintiffs claim if the evidence, viewed fairly, did not obligate the judge to find for the plaintiff. Here, Paula Hicks tried her will contest without a jury. And when she finished presenting her evidence, the chancellor dismissed her claim that her brother unduly influenced their father’s will.

¶ 2. After review of this dismissal, we find the chancellor was right that evidence of a confidential relationship between Paula’s brother and father was not enough by itself to raise a presumption of undue influence over the will. Paula also had to show either attendant suspicious circumstances or that her brother was somehow involved in making his father’s will. And Paula showed neither. So we find the will contest was properly dismissed.

¶ 3. While Paula is correct that a mere confidential relationship is enough to raise a presumption of undue influence over inter vivos property transfers between her brother and father, this particular distinction makes no difference for Paula on these facts. Because Paula’s father’s will left his entire estate to her brother, once the chancellor dismissed her will contest, her request that her brother return certain property to the estate became moot. We thus affirm the dismissal of this claim as well.

Background Facts and Procedural History

I. Will Formation

¶ 4. Paula and her brother, Mark Steve Bowling (Steve), are the only two children of Herman Bowling. When Herman met with attorney Greg Pirkle in April 2010 to draft his will, the ink was still drying on the lawsuit settlement between his two children over their grandmother’s estate.

A. Paula’s Lawsuit

¶ 5. Paula and Steve’s grandmother had died in 2005, leaving everything to her two grandchildren. But before she died, Steve had used his power of attorney to transfer significant amounts of cash to himself and his wife. What would have been an estate worth more than half a million dollars had only $140,000.

¶ 6. In 2007, Paula sued Steve to set aside the money transfers. Three years later, on the day of trial, the siblings announced a settlement. Paula got everything she had asked for — her attorney’s fees, expert — witness fees, and an amount to equal what she would have inherited if Steve had never transferred any funds.

B. Herman’s Will

¶ 7. Herman had been deposed as a potential witness in Paula’s suit. While waiting for his deposition, he had what the chancellor described as a “spontaneous meeting in the [law firm’s] waiting room” with Pirkle. While Pirkle had, years before, drafted articles of incorporation for Steve’s limited liability company, Pirkle was not handling the litigation between Steve and Paula. When Herman learned that Pirkle specialized in estate planning, Herman told Pirkle he wanted to make a will.

¶8. Herman’s first appointment with Pirkle was two days after his children settled their dispute over their grandmother’s estate. A neighbor drove Herman to Pirkle’s office. In his deposition weeks earlier, Herman had testified that he handed over to Steve $171,000 in cash, “so when I get disabled where I can’t go or nothing he’ll have something to pay my bills with.” And when asked what would happen to that money when he died, Herman testified that his children would halve whatever was left.

¶ 9. But in Pirkle’s office that day, Herman proposed a different idea for his money. He told Pirkle he wanted to disinherit Paula and leave everything to Steve. Herman explained to Pirkle that he was mad at how Paula had handled her dispute with her brother — not only suing him but then refusing to settle for less money. Herman thought Steve had taken good care of his grandmother and had only received from her what he was due. So Herman decided to leave all his property to Steve. The only exception was his house, which he wanted to give to Paula’s daughter.

¶ 10. Because Herman’s stated intention was to exclude one of his children, Pirkle carefully scrutinized Herman and his reasoning. According to Pirkle, Herman appeared competent and sure of what he was doing. So Pirkle had a paralegal prepare a will to that effect, as well as two property deeds. The first deed transferred Herman’s house to his granddaughter. The other deed transferred another piece of real property to Steve’s LLC.

¶ 11. Pirkle testified he had been careful to wall off his estate work for Herman from any .other litigation matters his firm was working on for Steve. Pirkle never contacted Steve about working on Herman’s estate. And Pirkle instructed his staff to not discuss the will or its contents with anyone. Herman went back to Pir-kle’s law firm two months later, without any family members, and executed the documents.

C. Paula and Herman’s Relationship

¶ 12. Herman lived for almost two more years after he executed his will. Until the last six months of his life when he moved into Steve’s house, Herman lived in a mobile home parked on Steve’s property. While in the aftermath of the settlement, Steve had ordered Paula never to come onto his property, Steve apparently allowed Paula to visit their father’s home whenever she wanted.

¶ 13. Paula testified that her relationship with her father had not changed based on the lawsuit with her brother. But she did admit to the chancellor that Herman had asked her to settle for less, but she refused. She also admitted on cross-examination that, as part of her lawsuit with Steve, she had Steve’s assets frozen. Included in these frozen assets was her father’s $171,000, which he had placed in Steve’s bank account. So from 2008 to the settlement in 2010, Paula’s lawsuit kept Herman from accessing or using any of his money. While Paula was adamant that Herman told her in private that all of this money would be hers when he died, the chancellor noted this supposed assurance was contradicted by both Herman’s will and his earlier deposition testimony that Paula would get half of anything left.

II. Will Contest

¶ 14. When Herman died in March 2012, Steve immediately probated the will. Paula quickly responded by filing a complaint to contest. In this complaint, she also requested certain inter vivos transfers from Herman to Steve, his wife, and their LLC be set aside. Neither party asked for a jury trial. So in April 2013, the chancellor conducted a bench trial.

A Paula’s Evidentiary Burden

¶ 15. As the will’s proponent, Steve presented evidence first. He made a prima facie case by admitting into evidence Herman’s will and record of probate. See In re Estate of Laughter, 23 So.3d 1055, 1061 (¶ 18) (Miss.2009); In re Will & Estate of Smith, 722 So.2d 606, 611-12 (¶ 13) (Miss.1998). Steve also called Pirkle to testify about the will and deeds’ creation.

¶ 16. Then it was Paula’s turn to try to overcome Steve’s prima facie case. See id. Paula’s claim was that Steve had exerted undue influence to receive everything under Herman’s will. “From its very nature, ... [ujndue influence is an intangible thing, which only rarely is susceptible of direct or positive proof.” Croft v. Alder, 237 Miss. 713, 727, 115 So.2d 683, 688 (1959). A presumption of undue influence arises when a contestant like Paula shows the testator and beneficiary were in a confidential relationship and that relationship was coupled with suspicious circumstances — such as the testator’s mental infirmity — or the beneficiaries’ participation in the will’s preparation or execution. Id. at 723-24, 115 So.2d at 686. Had Paula been able to make such a showing, the burden would have shifted back to Steve to show by clear and convincing evidence his inheriting everything under the will was not a product of undue influence. See Wright v. Roberts, 797 So.2d 992, 999 (¶¶ 21, 23) (Miss.2001).

¶ 17. But when Paula finished offering her evidence, the chancellor agreed with Steve that Paula had failed to establish a presumption of undue influence. So the chancellor granted Steve’s Rule 41(b) motion to dismiss Paula’s complaint. See M.R.C.P. 41(b).

B. Dismissal Under Rule fl(b)

¶ 18. In contrast to a motion for a directed verdict under Mississippi Rule of Civil Procedure 50(a), which applies to jury trials and requires the trial judge to view the evidence in the light most favorable to the plaintiff, a Rule 41(b) motion to dismiss differs somewhat. It applies to cases tried by a judge sitting without a jury and requires the judge to view the evidence fairly. Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency, Inc., 937 So.2d 1000, 1004 (¶ 13) (Miss.Ct.App.2006) (contrasting Rule 41(b) with Rule 50(a)). When considering a Rule 41(b) motion to dismiss, the judge must deny the motion to dismiss “only if the judge would be obliged to find for the plaintiff if the plaintiffs evidence were all the evidence offered in the case.” Id. at 1004-05 (¶ 13) (quoting Stewart v. Merchs. Nat’l Bank, 700 So.2d 255, 259 (Miss.1997)).

¶ 19. Here, the chancellor viewed the evidence more than fairly toward Paula. In his order dismissing her complaint, he stated he had viewed her evidence in the light most favorable to her. But even in this favorable light, the chancellor held he was not obliged to find for her. While Paula’s evidence established Steve and her father were in a confidential relationship, this relationship was “not in itself sufficient to raise a presumption of undue influence.” Estate of Laughter, 23 So.3d at 1064 (¶ 37). According to the chancellor, there had been no challenge to Herman’s mental capacity. There was also no evidence “Steve was in any way involved in the preparation of the will or abused his relationship with his father,” nor any suspicious circumstances surrounding the will’s formation.

¶20. The chancellor also noted that, even if Paula’s evidence had been sufficient to raise a presumption of undue influence, Steve would have overcome the presumption through the evidence he had presented first — evidence which clearly and convincingly showed he had acted in good faith. This included evidence of his father’s full knowledge and deliberation of his actions and consequences and his independent consent and action. See Wright, 797 So.2d at 999 (¶ 23). So the chancellor dismissed Paula’s entire complaint, which included both the petition to contest the will and the request to set aside the inter vivos transfers.

¶ 21.” After an unsuccessful post-trial motion, Paula timely appealed. We review Rule 41(b) dismissals under the deferential substantial-evidence/manifest-error standard. Id. Under this standard, we must affirm unless the chancellor applied an incorrect legal standard or made manifestly wrong or clearly erroneous factual findings. Estate ex rel. Campbell v. Calhoun Health Servs., 66 So.3d 129, 133 (¶ 14) (Miss.2011).

Discussion

¶ 22. On appeal, Paula insists we must first consider whether the chancellor applied the wrong legal standard to her request to set aside the inter vivos transfers. But if Paula’s will contest was properly-dismissed, then the validity of the inter vivos transfers is moot. This is so because the will left the entire estate — real and personal, tangible or intangible — to Steve. Thus, even if, based on Paula’s evidence, the chancellor .was obliged to find Steve had to return the property to the estate, which he was not, the practical result would be the same — Steve still gets to keep the property under the will. So we start with the dispositive issue — whether the chancellor properly dismissed the will contest.

I. Will Contest

¶23. Paula maintains the chancellor bungled the evidentiary burdens in a will contest. As she sees it, the chancellor ended her claim prematurely by not finding the nature of Steve and Herman’s confidential relationship raised a presumption of undue influence. She insists a mere finding of a confidential relationship should have shifted the burden back to Steve to disprove the presumption. She also suggests the chancellor — in alternately holding any presumption- of undue influence had in fact been disproved — wrongly saddled her with the burden of proving Steve acted in bad faith or participated in the will, instead of requiring Steve to exonerate himself.

A. When the Presumption of Undue Influence Arises

¶ 24. Citing the will-contest case Harris v. Sellers, 446 So.2d 1012, 1014 (Miss.1984), Paula argues her evidence that Steve and her father were in a confidential relationship was enough to raise the presumption of undue influence, shifting the burden of proof back to Steve. While at first blush Paula seems right, a closer look at Mississippi law supports the chancellor’s finding of what is really required for undue influence to be presumed.

¶ 25. Paula is correct that in Harris the supreme court did say, “Under the case law of our state, the existence of a confidential or fiduciary relationship gives rise to a presumption of undue influence.” Id. But it is very obvious from Croft — the case on which the Harris court relied — and several later supreme court cases that this is not what the Harris court meant.

¶26. In Croft, the supreme court emphasized that “the mere existence of confidential relations between a testator and a beneficiary under his will does not raise a presumption that the beneficiary exercised undue influence over the testator, as it does with gifts inter vivos[.]” Croft, 237 Miss. at 723-24, 115 So.2d at 686 (emphasis added). Instead, “such consequence follows where the beneficiary has been actively concerned in some way with the preparation or execution of the will, or where the relationship is coupled with some suspicious circumstances, such as mental infirmity of the testator; or where the beneficiary in the confidential relation was active directly in preparing the will or procuring its execution, and obtained under it a substantial benefit.” Id.

¶27. Fifty years later, our supreme court again maintained this principle with equal clarity — “The mere existence of a confidential relationship ... is not in itself sufficient to raise a presumption of undue influence.” Estate of Laughter, 23 So.3d at 1064 (¶ 37). Rather, “[s]uch a presumption would arise only in certain circumstances” — the same circumstances listed in Croft. Id. (citing Croft, 237 Miss. at 723-24, 115 So.2d at 686).

B. The Findings

¶28. The chancellor here found Paula could show nothing else besides the confidential relationship between Herman and Steve. He found Steve did not actively participate in either procuring or preparing the will. And there were no suspicious circumstances surrounding the creation of the will. The chancellor supported his finding with credible evidence — namely the attorney Pirkle’s testimony.

¶ 29. Pirkle testified that Herman had initiated the appointment to make a will and had dictated all its terms. This was done without any influence from Steve. Because Herman’s intent was to disinherit one of his children, Pirkle carefully probed to ensure Herman knew what he was doing. Pirkle did not contact Steve about the will or its contents. And since Steve’s litigation with Paula was considered an open matter with his firm, Pirkle and his staff had been careful to “wall off’ Herman’s estate work. Finally, Pirkle testified that when Herman came in to execute the will, no other family members were present, and Pirkle was satisfied that Herman was carrying out his own wishes. After review, we see no manifest error in the chancellor’s finding Steve was not involved in any part of the process.

¶ 30. The chancellor also found Steve did not abuse his relationship with his father. In her brief, Paula asserts that Steve isolated her from her father at the time he executed his will. But at trial, the chancellor carefully explored this allegation. When pointedly asked, Paula clarified that her brother allowed her onto the property to visit her father. And her visits only stopped when Herman moved into Steve’s house six months before his death — a year and a half after Herman had executed his will.

¶ 31. Paula also claims Steve “has a history of abusing positions of trust in regards to the elderly” — presumably a reference to Steve’s handling of their grandmother’s estate. But Paula points to no record evidence showing Steve abused his position of trust with their father. In his 2010 deposition, Herman testified he had full faith in Steve, which is why he placed his $171,000 in Steve’s bank account. And at trial, Paula testified that, to her knowledge, Steve had never taken advantage of their father — financially or otherwise.

¶ 32. Our review shows the chancellor applied the correct legal standard and supported his factual findings with credible evidence. There is no manifest error in the chancellor’s finding that the presumption of undue influence did not arise. Thus, we find Paula was unable to meet her burden of proof. See Estate of Laughter, 23 So.3d at 1061 (¶ 18); Estate of Smith, 722 So.2d at 611-12 (¶ 18).

C. When the Presumption of Undue Influence Is Disproved

¶ 33. In his opinion, the chancellor also held, “[e]ven if the presumption of undue influence had been proven, it would have been overcome by clear and convincing evidenee[.]” He reached this alternative finding because “[t]here was no proof that Steve acted improperly, that [Herman] lacked knowledge of his actions and their consequences, or that his actions were not independent.” See Murray v. Laird, 446 So.2d 575, 578-79 (Miss.1984). Paula interprets this portion of the order as an “improper shift” in the burden of proof. She views herself as being penalized for not proving Steve unduly influenced her father. She urges that Steve should have been required to respond with additional evidence that he did not unduly influence their father.

¶ 34. According to Paula, if the presumption of undue influence had arisen, it was error to dismiss her will contest after she rested. She instead insists that to meet his burden of clear and convincing evidence, Steve should have been required to put on additional evidence. See Wright, 797 So.2d at 999 (¶ 23). But Paula is mistaken. What she overlooks is that this was not a traditional lawsuit where she, as the one who filed the complaint, goes first to make her prima facie case. This was a will contest. As such, Steve, as the will’s proponent, was the first to put on evidence. And instead of presenting a bare bones prima facie case — the will and record of probate — Steve opted to go ahead and call Pirkle to testify. So even if the burden had shifted back to Steve, the already-presented evidence was more than sufficient for the chancellor to have found Steve clearly and convincingly proved that he had acted in good faith and that his father had known what he was doing and had exhibited independent consent and action. See id.

¶ 35. For this reason, after Paula rested her case, the chancellor was not obligated to find in her favor. We affirm the order dismissing the will contest under Rule 41(b).

II. Inter Vivos Tmnsfers

¶ 36. As the will left Herman’s entire estate to Steve, Paula’s request that Steve return certain property to the estate became moot when the chancellor dismissed the will contest. But it is still worth clarifying that Paula did have sufficient evidence to raise the presumption of undue influence on the inter vivos transfers.

¶ 37. Unlike a will contest, if an inter vivos transfer is challenged, once it is established that the grantor and grantee were in a confidential relationship, no additional proof is needed to raise the presumption of undue influence. Wright, 797 So.2d at 998 (¶ 21). For the inter vivos transfers, Paula’s evidence that Steve and Herman were in a confidential relationship was enough to shift the burden to Steve to prove by clear and convincing evidence that he had acted in good faith, his father had full knowledge and deliberation of his actions and their consequences, and Herman’s independent consent and action. See id. at (¶ 23). But as discussed in the previous section, Steve met this burden through Pirkle’s testimony, which Steve had already offered before Paula presented her evidence. There was simply no reason to require Steve to recall Pirkle to rehash his earlier testimony.

¶ 38. Therefore, we find the chancellor’s dismissal of this claim was also proper.

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

LEE, C.J., GRIFFIS, P.J, BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . By statute, either party to a will contest has an automatic right to a jury trial if requested. Miss.Code Ann. § 91-7-19 (Rev. 2013); see also In re Will and Estate of Varvaris, 477 So.2d 273, 277-78 (Miss.1985).

      . The only exceptions were items of personal property listed on a separate hand-written sheet, which were to be bequeathed according to that document. If such a document exists, it was not made part of the record. And Paula makes no claim that the allegedly improper inter vivos transfers involve property on that list.