author: BARNES, J.,

text:
    Zelma JOHNSON, Appellant, v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2013-CC-01120-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2014.

      Zelma Johnson, appellant, pro se.
    Albert B. White, Madison, Leanne F. Brady, attorneys for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. Zelma Johnson, appearing pro se, appeals the decision of the Circuit Court of Washington County, which affirmed the decision of the Board of Review (Board) of the Mississippi Department of Employment Security (MDES) denying her unemployment benefits. Finding there was not substantial evidence to support the Board’s decision, we reverse and remand to the MDES for a computation of unemployment benefits.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Johnson had been employed with Washington County Opportunities Inc. (Employer), which operates a “Head Start” program for low-income parents of preschool children in Greenville, Mississippi. She had been employed for thirty-eight years as a family-service worker, until she was discharged on September 27, 2012, for insubordination. The Employer claims Johnson repeatedly refused to follow a direct work-related order to perform a job duty.

¶ 3. After discharge, Johnson filed for unemployment benefits. An MDES claims examiner investigated the facts surrounding the discharge, interviewing Johnson and Gracie Williams, the Employer’s human resource director. Williams stated Johnson was discharged because Johnson was asked several times to relocate a special-needs child from a three-year-old class to a four-year-old class and failed to do so.

¶4. The date of the incident at issue was on or around September 14, 2012. Johnson stated the special-needs child transferred from another center, and the child’s transfer slip incorrectly had the child’s age as three years old. Checking the birth certificate, Johnson found the child was actually four years old. Johnson claimed she was asked by her supervisor, Lena Berry, to relocate the child to her four-year-old .class, but Johnson told Berry her four-year-old class was already full with the maximum capacity of twenty children. Berry then told her to place the child in a classroom. Johnson stated that she needed the other workers’ permission to place a child in their classroom, and asked Berry in which classroom to place the child. Berry did not respond; so Johnson asked her coworkers who did not have full classrooms if they would take the child. Johnny Smith, whose classrooms were not full, offered to take the child, but then changed his mind after speaking with a coworker. He in turn gave the child’s information folder to another coworker, Glenda Nelson, and asked if she could take the child, but she declined as her classrooms were full. Johnson maintained that once she passed the child to another caseworker who had space in his classroom to take the child, the matter was out of her hands, and she had done as she was told to do.

¶ 5. On September 20, 2012, Berry sent a memo via email to Terry Jones, Executive Director of the Employer, stating Johnson did not follow Berry’s order to place the child in the correct classroom for her age, and instead put her in “family-service,” and “the child is just sitting in her stroller.” Berry complained that “no one in family service has placed this child” and that “this situation is out of control.”

¶ 6. On September 21, 2012, Johnson received a fax from Jones stating Johnson was suspended with pay for not placing the child in a classroom. Memos by coworkers over the incident were • written and later entered into evidence. Evidence showed Johnson was also given a previous verbal warning in February 2012 for being rude to a parent, but the parent denied it. Evidence also showed that over her thirty-eight years of employment, all of Johnson’s evaluations had been either “very good” or “good.”

¶ 7. Based on the investigation, the claims examiner determined that Johnson’s discharge for insubordination constituted disqualifying conduct for unemployment benefits. Johnson appealed, and a telephonic hearing was held with an MDES administrative law judge (ALJ), Johnson, and Williams. The ALJ affirmed the claims examiner’s decision, finding that Johnson was discharged for insubordination and misconduct for not following directions to place a child in the correct age-group classroom. Johnson then appealed to the Board, which also affirmed, adopting the ALJ’s decision.. Johnson next appealed to the Washington County Circuit Court, which affirmed the Board’s decision. Johnson now appeals to this Court.

STANDARD OF REVIEW

¶ 8. This Court’s standard of review for administrative appeals is well established. If the Board’s findings of fact are supported by substantial evidence and absent of fraud, they are conclusive. Miss.Code Ann. § 71-5-531 (Rev. 2011). An administrative agency’s conclusions will remain undisturbed unless the agency’s order is: (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope or power granted to the agency, or (4) in violation of the employee’s statutory or constitutional rights. Miss. Dep’t of Emp’t Sec. v. Good Samaritan Pers. Servs., 996 So.2d 809, 812 (¶ 6) (Miss.Ct. App.2008) (citing Miss. Comm’n on Envtl. Quality v. Chickasaw Cnty. Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993)). “ ‘Substantial evidence’ is that which is relevant and capable of supporting a reasonable conclusion, or ‘more than a mere scintilla of evidence.’ ” Gilbreath v. Miss. Emp’t Sec. Comm’n, 910 So.2d 682, 686 (¶ 13) (Miss.Ct.App.2005) (quoting Hooks v. George Cnty., 748 So.2d 678, 680 (¶ 10) (Miss.1999)).

ANALYSIS

¶ 9. The gist of Johnson’s pro se argument is that the Board’s decision to deny her receiving unemployment benefits for misconduct and insubordination was not supported by substantial evidence.

¶ 10. An employee is disqualified from receiving unemployment benefits if he or she is discharged for misconduct. Miss.Code ’ Ann. § 71-5-513(A)(l)(b) (Supp.2014). The Mississippi Supreme Court has defined “misconduct” as:

[C]onduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term.

Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982) (citation omitted). Not considered “misconduct” are: “Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion....” Id. Further, “[t]he conduct may be harmful to employer’s interests and justify the employee’s discharge; nevertheless, it evokes the disqualification for unemployment insurance benefits only if it is wilful, wanton, or equally culpable.” Miss. Emp’t Sec. Comm’n v. Hudson, 157 So.2d 1010, 1014 (¶ 11) (Miss.Ct.App.2000) (citation omitted). For unemployment-compensation cases, “insubordination” is included within the scope of “misconduct.” Shannon Eng’g & Constr., Inc. v. Miss. Emp’t Sec. Comm’n, 549 So.2d 446, 449 (Miss.1989). “Insubordination” is a “constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority.” Hudson, 757 So.2d at 1014 (¶ 12) (quoting Shannon, 549 So.2d at 449). “The employer has the burden of showing by ‘substantial, clear, and convincing evidence’ that the former employee’s conduct warrants disqualification from eligibility for benefits.” City of Clarksdale v. Miss. Emp’t Sec. Comm’n, 699 So.2d 578, 580 (¶ 15) (Miss.1997) (quoting Foster v. Miss. Emp’t Sec. Comm’n, 632 So.2d 926, 927 (Miss. 1994)).

¶ 11. The ALJ’s findings of fact include the following:

The claimant’s supervisor instructed the claimant to place the child in a classroom with the correct age group. The claimant did not have room in her classroom. However, another employee agreed to take the child in his class. This same employee later changed his mind and decided not to take the child. The claimant witnessed this employee state he decided not to take the child. However, the claimant informed her supervisor the child had been placed.
The claimant determined she had performed the requested task when her coworker initially agreed to take the child. However, she did not take any action when she discovered the child was not actually placed.
The child had to be placed in the correct classroom by another employee.

The ALJ affirmed the denial of benefits, reasoning: “The employer discharged the claimant for failure to follow instructions given by management. The claimant was instructed to place a child in the correct age group, but failed to do so. However, the claimant informed her supervisor she had performed the requested task.”

¶ 12. Affirming the MDES Board’s decision to deny benefits, the circuit court’s order stated:

It is undisputed that a child was placed in the wrong classroom. Johnson was instructed to place the child in a classroom with the correct age group, but failed to do so. She relies on another worker’s initial acceptance of the child into his room to claim that she resolved the problem or had at least passed it on to someone else. However, this reasoning is undercut by the [ALJj’s finding based on undisputed evidence that Johnson knew the other worker changed his mind and rejected the placement shortly after accepting. The responsibility to place the child as directed remained with Johnson. The [ALJ] found that she never completed the placement. The [ALJ]’s finding that Johnson’s conduct amounted to a disregard of the standard of behavior that an employer has the right to expect is supported by sufficient evidence..

¶ 13. Although the appellate standard of review is deferential to the factual findings of the Board, if the Board “offers an explanation for its decision that runs counter to the evidence before it, the [B]oard’s action is arbitrary and capricious.” Gilbreath, 910 So.2d at 687 (¶ 15). Here, we find the Board’s decision counter to the evidence.

¶ 14. Although in the MDES’s brief, it states Johnson’s discharge was based on several incidents, the ALJ’s decision, which was adopted by the Board, bases its denial of benefits only on the alleged incident of “misconduct” and “insubordination” on September 14, 2012. On that date, Johnson stated that her classrooms were full, and it was Berry’s job as manager to tell her where to place the child. Berry never advised Johnson as to where to place the child. Johnson claimed she did her job in attempting to place the child anyway. The record indicates Johnson made an attempt to place the child with one of her coworkers. Smith initially took the child, but changed his mind, without reason. Smith then asked Nelson to take the child, but Nelson’s classrooms were full. Johnson was no more insubordinate than her other coworkers were, who did not accept the child, one without reason. Further, we fail to see how, as the circuit court’s order states, Johnson was insubordinate because she knew Smith changed his mind about placing the child. No one has explained how Johnson was to have placed the child when her classrooms were full and her coworkers declined to accept the child.

¶ 15. However, Johnson did apparently misrepresent to Berry that the child had been placed after Smith rejected the child. Johnson claims that procedures are such that when Smith assented to taking the child and she handed him her folder, she “was out of it.” This evidence does not arise to a wilful and wanton disregard for the Employer’s interest. Nor do we find Johnson’s conduct during this one incident — the only incident in the record — the equivalent of “a constant or continuing intentional refusal to obey a direct or implied order.” See Hudson, 757 So.2d at 1014 (¶ 12). Accordingly, the Board’s decision is not supported by substantial evidence, and it is necessary for this Court to reverse the Board’s decision and remand this case to the MDES for a computation of unemployment benefits.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS REVERSED, AND THIS CASE IS REMANDED TO THE MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Johnson said this Head Start program has over three hundred preschoolers.

      . A memo from Nelson to Johnson, dated September 26, 2012, corroborated Johnson’s explanation of the incident on September 14, as did a memo from Jones dated September 25.

      . The only other complaint against Johnson in the record, which was also mentioned in the circuit court’s order, was a verbal warning on February 14, 2012, for being rude to a parent, which the parent denied.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Bobby SETTLEMIRES, Appellant v. CAPITAL CITY INSURANCE COMPANY, Appellee.
    No. 2013-WC-01544-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2014.
    Phil R. Hinton, Wendell Jett Wilson, Corinth, Terry Lynn Wood, attorneys for appellant.
    Loraleigh Christine Phillips, Jackson, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   LEE, C.J.,

for the Court:

¶ 1. Bobby Settlemires seriously injured his left leg in an on-the-job injury on September 12, 2008. Settlemires filed a petition to controvert. Capital City Insurance Company (CCI) admitted the injury was work-related but denied Settlemires was permanently disabled. The administrative judge (AJ) awarded Settlemires 87.5 weeks of permanent partial disability benefits for the fifty percent industrial loss of use of his lower left extremity. The Mississippi Workers’ Compensation Commission affirmed the AJ’s decision.

¶ 2. Settlemires then appealed to this Court. We reversed and remanded for the Commission to determine whether Settlemires raised the presumption of total occupational loss of the scheduled member and, if so, whether CCI adequately rebutted that presumption. See Settlemires v. Capital City Ins. Co., 114 So.3d 789, 792-93 (¶ 12) (Miss.Ct.App.2013).

¶ 3. On remand, the Commission determined Settlemires did raise the presumption of total occupational loss of his lower left leg, but CCI adequately rebutted this presumption with overwhelming vocational and medical evidence showing Settlemires had the ability to earn the same wages as those at the time of his injury. Settle-mires again appeals, arguing the Commission erred in failing to award him a one hundred percent industrial loss of use of his lower left leg.

STANDARD OF REVIEW

¶ 4. The standard of review in a workers’ compensation case is well settled. If the findings of the Commission are supported by substantial evidence, then they are binding on this Court. Mitchell Buick, Pontiac & Equip. Co. v. Cash, 592 So.2d 978, 980 (Miss.1991). “The [Commission] sits as the ‘ultimate finder of facts’ in deciding compensation cases, and therefore, ‘its findings are subject to normal, deferential standards upon review.’ ” Pilate v. Int’l Plastics Corp., 727 So.2d 771, 774 (¶ 12) (Miss.Ct.App.1999) (quotations omitted). “We are bound even though the ‘evidence would convince the [C]ourt otherwise if it were instead the ultimate fact[-]finder.’ We will overturn [the] Commission’s decision only when there is an error of law or an unsupportable finding of fact.” Montana’s Sea Kettle Rest. v. Jones, 766 So.2d 100, 102 (¶7) (Miss.Ct. App.2000) (quotation omitted).

DISCUSSION

¶ 5. Settlemires contends the Commission erred in failing to award him a one hundred percent industrial loss of use of his lower left leg. In Mendian Professional Baseball Club v. Jensen, 828 So.2d 740, 747-48 (¶21) (Miss.2002), the Mississippi Supreme Court stated

Where a permanent partial disability renders a worker unable to continue in the position held at the time of injury, we hold that such inability creates a rebuttable presumption of total occupational loss of the member, subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury. The presumption arises when the claimant establishes that he has made a reasonable effort but has been unable to find work in his usual employment, or makes other proof of his inability to perform the substantial acts of his usual employment. Rebuttal is shown by all the evidence concerning wage-earning capacity, including education and training which the claimant has had, his age, continuance of pain, and any -other related circumstances.

The supreme court defined “[u]sual employment in this context [as] the jobs in which the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by his age, education, experience, and any other relevant factual criteria.” Id. at 747 (¶ 20).

¶ 6. The AJ had found that “[Settle-mires] cannot do everything he did in his previous line of work for the same period that he did them before, he clearly can do them for some time period. He can drive a truck, but not for as long of a time period.” Agreeing with the AJ’s findings, the Commission determined that Settle-mires’s “injury did not prevent him from performing the specific ‘substantial acts’ of employment, but rather limited the duration which these ‘substantial acts’ could be performed.” The Commission also noted that Settlemires performed his same pre-injury job for approximately five months after reaching maximum medical improvement. The Commission further found Settlemires could perform jobs similar to his employment prior to working in the timber industry. According to Bruce Brawner, the licensed vocational-rehabilitation counselor, Settlemires had the education, training, and experience to find employment within his restrictions. Sett-lemires testified he had applied for several jobs without success. However, Settle-mires admitted that several of his unsuccessful job applications were the result of the poor economy and not necessarily due to his work restrictions. See Lott v. Hudspeth, 26 So.Bd 1044, 1050 (¶ 22) (Miss.2010) (claimant’s unemployability must be related to injury, not “depressed economic conditions”).

II7. We find the Commission’s decision was supported by substantial evidence; thus, we affirm.

¶ 8. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: GRIFFIS, P.J.,

text:
    Carl Anthony HOUSTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01853-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2014.

      Edmund J. Phillips Jr., Newton, attorney for appellant.
    Office of Attorney General by Laura H. Tedder, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS AND CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Carl A. Houston Jr. was convicted and sentenced for the possession of contraband in a correctional facility, pursuant to Mississippi Code Annotated section 47-5-193 (Rev. 2011). In this appeal, Houston argues that section 47-5-193 is unconstitutionally vague and that the court erred in sentencing him.

¶ 2. On March 3, 2012, Houston was incarcerated in Leake County Regional Correctional Facility. Antwon Pankey, a guard at the facility, searched Houston after-he had completed his visitation with his girlfriend. Pankey felt something hard in the back pocket of Houston’s pants,, and he reached into Houston’s pants pocket and pulled out a Subscriber Information Module (SIM) card, which is used in cellular phones. A SIM card is contraband under the facility’s rules. Pankey took the SIM card and Houston to the booking officer, Jimmy Price. Price testified that Houston was a county inmate, and he had been at the facility since January 2012. Price placed the SIM card in an evidence envelope.

¶ 3. Houston denied the charges. Houston testified that he did not have a SIM card in his back pocket and that no one gave him a SIM card.

¶ 4. Houston was convicted for the possession of contraband while confined in the Leake County Regional Correctional Facility, in violation of section 47-5-193. It is from this judgment that Houston now appeals.

ANALYSIS

1. Due Process

¶5. In his first issue, Houston claims that he was denied due process because section 47-5-193 is unconstitutionally vague. Specifically, Houston contends that the statute is unconstitutionally vague because the designation of “offender” does not include him. He argues that he was incarcerated at the facility as an accused and not as an offender.

¶ 6. The State responds that the statute was not unconstitutionally vague. Instead, the statute clearly prohibited “any other person or offender” from “possessing] ... [a] contraband item.” The State argues that the statute included Houston, and thus, he was properly convicted under section 47-5-193.

¶ 7. “Because there is a strong presumption that a legislative enactment is valid, the party challenging a statute’s constitutionality must prove his case beyond a reasonable doubt.” Fulgham v. State, 47 So.3d 698, 701 (¶ 8) (Miss.2010). And “[a]ll doubts are resolved in favor of the validity of the statute.” Id. The United States Supreme Court has ruled that the test for the void-for-vagueness doctrine “is whether the language conveys sufficiently definite warnings as to the proscribed conduct when measured by common understanding and principles.” Id.

¶ 8. At the time of the offense, Mississippi Code Annotated section 47-5-193 (Rev. 2011) provided:

It is unlawful for any officer or employee of the department, of any county sheriffs department, of any private correctional facility in this state in which offenders are confined or for any other person or offender to possess, furnish, attempt to furnish, or assist in furnishing to any offender confined in this state any weapon, deadly weapon, unauthorized electronic device, cell phone, or any of its components or accessories to include, but not limited to, Subscriber Information Module (SIM) cards, chargers, etc., or contraband item. It is unlawful for any person or offender to take, attempt to take, or assist in taking any weapon, deadly weapon, unauthorized electronic device, cell phone or any of its components or accessories to include, but not limited to, Subscriber Information Module (SIM) cards, chargers, etc., or contraband item on property belonging to the department which is occupied or used by offenders, except as authorized by law.

¶ 9. Houston argues that the statute’s designation of “offender” does not apply to him. Instead, he claims that he was in the facility merely as an “accused” and not an “offender.” Mississippi Code Annotated section 47-5-4 (Rev. 2011) defines an “offender” as “any person convicted of a crime or offense under the laws and ordinances of the state and its political subdivisions.” However, section 47-5-193 makes it unlawful “for any ... person or offender” to possess a SIM card in a correctional facility. Accordingly, we find no merit to this issue.

2. Sentencing

¶ 10. Houston next argues that he should have been sentenced as a non-offender under Mississippi Code Annotated section 47-5-192 (Rev. 2011). Because we hold that Houston was in violation of Mississippi Code Annotated section 47-5-193, the circuit court did not err in sentencing him under Mississippi Code Annotated section 47-5-195 (Rev. 2011) rather than section 47-5-192. Section 47-5-195 provides that “[a]ny person who violates any provision of Section 47-5-193 ... shall be guilty of a felony and upon conviction shall be punished by confinement in the Penitentiary for not less than (3) years nor more than (15) years[.]” Houston was sentenced to serve fifteen years with five years suspended. We find no error in his sentence.

¶11. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF CONTRABAND IN A CORRECTIONAL FACILITY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.

LEE, CJ., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ„ CONCUR.


author: FAIR, J.,

text:
    Abdullah Qasem ALSAHQUNI a/k/a Mike a/k/a Abdullah Alsahquni a/k/a Abdullah Alsahqani a/k/a Abdullah Alsaquani, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CA-01378-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2014.

      Mark Kevin Horan, Greenwood, Hart-well Virginia Harris, attorneys for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., FAIR and JAMES, JJ.

      . Alsahquni claimed that the United States Supreme Court's recent holding in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), required his attorney to inform him of the immigration consequences of a guilty plea. Finding no merit to this claim, the court ruled that Padilla did not apply retroactively to Alsahquni’s 2008 guilty plea. In 2013, the United States Supreme Court also held that Padilla does not apply retroactively to cases already final on direct review. Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149 (2013).

   FAIR, J.,

for the Court:

¶ 1. Abdullah Qasem Alsahquni received five years of nonadjudicated probation following a guilty plea. Shortly after his charges were dismissed, he filed two separate motions for post-conviction relief (PCR). The trial court dismissed both motions, stating it had no jurisdiction. We agree, finding that “nonadjudication” of guilt resulting in dismissal of charges is not a “conviction” or “sentence” within the purview of the Mississippi Uniform Post-Conviction Relief Act. Therefore, Alsah-quni lacks standing to make any claims under Mississippi Code Annotated section 99-39-5 (Supp.2014). The judgment of the trial court is affirmed.

FACTS

¶ 2. On October 12, 2006, and November 7, 2006, a confidential informant entered Alsahquni’s convenience store and purchased over 250 dosage units of pseu-doephedrine; both times, the informant told Alsahquni she intended to manufacture methamphetamine. Consequently, Alsahquni was indicted for two counts of selling pseudoephedrine to unlawfully manufacture a controlled substance. See Miss.Code Ann. § 41 — 29—315(5)(a) (repealed July 1, 2010). He pled guilty to the first charge, and the State retired the second charge. The court withheld Alsah-quni’s guilty plea and placed him on no-nadjudieated probation for five years. He was also assessed a $5,000 fine. On September 14, 2011, the court released Alsah-quni from probation and dismissed his charges. Despite the dismissal of the charges, Alsahquni’s guilty plea negatively affected his immigration status; he was taken into federal custody for potential deportation.

¶ 3. Alsahquni filed a PCR motion on October 21, 2011, claiming that his guilty plea was involuntary and that he received ineffective assistance of counsel. Specifically, he claimed his attorney should have advised him of the consequences associated with his guilty plea. The court issued a writ of habeas corpus ad prosequendum to the Federal Detention Center in Oak-dale, Louisiana, and Department of Homeland Security to transport Alsahquni to the evidentiary hearing set for April 20, 2012. The federal authorities would not cooperate, so Alsahquni and the State agreed to submit memorandums briefing the issues in lieu of a hearing. Additionally, Alsah-quni submitted an affidavit stating that his attorney did not inform him that entering a guilty plea would affect his immigration status. Alsahquni’s trial attorney also filed an affidavit, recognizing that he had no experience in immigration law and therefore did not inform Alsahquni he would be deported following a guilty plea. He also stated, however, that he referred his immigration clients, including Alsah-quni, to consult an immigration attorney on issues of immigration.

¶ 4. In dismissing Alsahquni’s PCR motion, the court stated it lacked jurisdiction since Alsahquni’s charges were dismissed in September 2011. Jurisdiction notwithstanding, the court addressed both of Al-sahquni’s claims and found no merit to either.

¶ 5. Alsahquni filed a second PCR motion on June 28, 2013, arguing ineffective assistance of counsel. The court summarily dismissed the motion, again finding it lacked jurisdiction and also holding his second PCR motion to be a successive writ. Alsahquni appealed.

STANDARD OF REVIEW

¶ 6. When reviewing the dismissal of a PCR motion, an appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young v. State, 731 So.2d 1120, 1122 (¶9) (Miss. 1999).

DISCUSSION

¶ 7. The trial court dismissed Alsahquni’s second PCR motion for the same reason it had dismissed his first, finding it had no jurisdiction because Al-sahquni’s charges were dismissed. As an appellate court, it is our affirmative duty to determine whether we' have jurisdiction over the matter before addressing the merits. Winborn v. State, 213 Miss. 322, 323, 56 So.2d 885, 885 (1952). “A lack of standing ‘robs the court of jurisdiction to hear the case.’ ” Pruitt v. Hancock Med. Ctr., 942 So.2d 797, 801 (¶ 14) (Miss.2006) (quoting McNair v. U.S, Postal Serv., 768 F.2d 730, 737 (5th Cir.1985)). Therefore, absent standing, the appropriate disposition would be to dismiss the case.

¶ 8. Alsahquni filed his PCR motions after his charges were dismissed. The purpose of the Mississippi Uniform Post-Conviction Relief Act is to “streamline and clarify the rules and statutes pertaining to post-conviction collateral relief law and procedures, to resolve any conflicts therein and to provide the courts of this state with an exclusive and uniform procedure for the collateral review of convictions and sentences.” Miss.Code Ann. § 99-39-3 (Rev.’ 2007) (emphasis added). Further, Mississippi Code Annotated section 99-39-5 states that “[a]ny person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation or. subject to sex offender registration ... may file a motion to vacate, set aside or correct the judgment or sentence[.]”

, ¶ 9. Although Alsahquni pled guilty, the court did not accept his guilty plea. Al-sahquni instead received five years of no-nadjudicated probation under Mississippi Code Annotated section 99-15-26 (Rev. 2007). Section 99-15-26 states in relevant part:

(1) In all criminal cases, felony and misdemeanor, other than crimes against the person, the circuit or county court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section....
(2)(a) Conditions which the circuit, county, justice or municipal court may impose under subsection (1) of this section shall consist of:
(i) Reasonable restitution to the victim of the crime.
(ii) Performance of not more than nine hundred sixty (960) hours of public service work approved by the court.
(iii) Payment of a fine not to exceed the statutory limit.
(iv) Successful completion of drug, alcohol, psychological or psychiatric treatment, successful completion of a program designed to bring about the cessation of domestic abuse, or any combination thereof, if the court deems treatment necessary.
(v) The circuit or county court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed five (5) years....
(4) Upon successful completion of the court-imposed conditions permitted by subsection (2) of this section, the court shall direct that the cause be dismissed and the case be closed. (5) Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.

Miss.Code Ann. § 99-15-26 (emphasis added).

¶ 10. Alsahquni was released from his nonadjudicated probation, and his charges were dismissed. He was neither convicted nor sentenced in accordance with Mississippi Code Annotated section 99-39-5. Therefore, Alsahquni lacked standing to file a PCR motion. So this Court need not address the merits of Alsahquni’s claim that he received ineffective assistance of counsel. We affirm the trial court’s dismissal of Alsahquni’s PCR motion.

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

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


author: ROBERTS, J.,

text:
    Kevin WARREN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2013-CP-02024-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2014.
    Kevin Warren, appellant, pro se.

      Office of the Attorney General by Melanie Thomas, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS, MAXWELL and FAIR, JJ.
   ROBERTS, J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. In May 2000, agents with the El Paso Texas International Airport Interdiction Unit contacted the Mississippi Bureau of Narcotics (MBN). The El Paso agents informed the MBN that Kevin Warren had checked luggage that contained marijuana on a flight to Jackson. When Warren landed in Jackson, he could not find his luggage. Warren reported that it was missing. Before Warren could leave the airport, MBN agents confronted Warren and arrested him based on an outstanding warrant from Jackson. Authorities then obtained a warrant to search Warren’s luggage, which contained marijuana.

¶ 2. Warren was indicted and charged with possession of more than five kilograms of marijuana. He was also charged as a habitual offender under Mississippi Code Annotated section 99-19-83 (Supp. 2014). On October 9, 2001, a jury sitting before the Rankin County Circuit Court found Warren guilty of the lesser offense of possession of more than one kilogram but less than five kilograms of marijuana. The circuit court found that Warren qualified for enhanced sentencing as a habitual offender, and sentenced him to life in the custody of the Mississippi Department of Corrections.

¶ 3. On November 12, 2002, Warren filed a “notice of out of time appeal.” Warren did not list any justification regarding why he should be allowed to file an untimely appeal of his conviction. The circuit court treated Warren’s notice as a request for an out-of-time appeal. The circuit court noted that Warren had until November 9, 2001, to file a timely appeal, and Warren did “not state sufficient grounds” for an out-of-time appeal, or show good cause to justify his request. Warren did not appeal the circuit court’s decision.

¶ 4. On October 28, 2010, Warren filed a document titled “Reconsideration of Sentence.” Within that document, Warren stated that he had no constitutional or statutory right to a reduction in his sentence, but if the circuit court would relieve him of his sentence, he planned to become a chef, write an inspirational book, and be “very active in ministering the word of God.” He also explained that he planned to get married, he had a son, and there were a number of people who would be active in his life if the circuit court relieved him of his sentence. Approximately one month later, the circuit court denied Warren’s request for reconsideration of his sentence. In so doing, the circuit court noted that Warren’s sentence was required by statute, and it was not grossly disproportionate to the crime that he had committed.

¶ 5. On October 4, 2013, Warren filed a motion for post-conviction relief (PCR) and claimed that a search warrant was defective and the circuit court had no jurisdiction to convict or sentence him because he did not actively or constructively possess marijuana in Rankin County. The circuit court summarily dismissed Warren’s PCR motion because it was untimely. Warren appeals. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 6. “This Court will not disturb a [circuit] court’s dismissal of a [PCR motion] unless the [circuit] court’s decision was clearly erroneous.” Wardley v. State, 37 So.3d 1222, 1223-24 (¶ 4) (Miss.Ct.App. 2010). A circuit court may summarily dismiss a PCR motion “where ‘it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.’ ” White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011) (quoting Miss.Code Ann. § 99-39-11(2) (Supp.2010)). Questions of law receive a de novo review. Id.

ANALYSIS

¶ 7. On appeal, Warren essentially argues that he is entitled to post-conviction relief because there was insufficient evidence that he had active or constructive possession of marijuana in Rankin County. Warren had three years from the entry of the judgment of conviction to file a PCR motion. Miss.Code Ann. § 99-39-5(2) (Supp.2014). The judgment of Warren’s conviction was executed on January 18, 2002, with a note that it was “nunc pro tunc October 10, 2001.” It was filed on February 11, 2002. Even if we assume that the actual date of the entry of Warren’s conviction was February 11, 2002, Warren still had until February 11, 2005, to file a PCR motion. Warren’s PCR motion was more than seven years too late. Consequently, it is barred because it was untimely.

¶ 8. Furthermore, Mississippi Code Annotated section 99-39-3(2) (Rev. 2007) provides:

Direct appeal shall- be the principal means of reviewing all criminal convictions and sentences, and the purpose of [the Mississippi Uniform Posl^Conviction Collateral Relief Act] is to provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal.

The sufficiency of the evidence against Warren could have and should have been raised at trial or on direct appeal. It is not a proper issue for a PCR motion.

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

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


author: MURDOCK, Justice. MOORE, Chief Justice

text:
    Ex parte Torey JONES. (In re Torey Jones v. State of Alabama).
    1130406.
    Supreme Court of Alabama.
    Feb. 28, 2014.
    Torey Jones, pro se.
   MURDOCK, Justice.

WRIT DENIED. NO OPINION.

BOLIN, MAIN, and BRYAN, JJ„ concur.

MOORE, C.J., concurs specially.

MOORE, Chief Justice

(concurring specially).

In 2009, Torey Jones pleaded guilty to attempted murder and received a 20-year sentence. He filed a Rule 32, Ala. R.Crim. P., petition in 2013, claiming that he actually had agreed to a split sentence (five years in prison followed by five years on probation). See § 15-18-8, Ala.Code 1975. Jones claimed that had he known he would be sentenced to 20 years rather than the split sentence, he would not have pleaded guilty. The trial court summarily dismissed his petition, and the Court of Criminal Appeals affirmed the dismissal.

Jones did not appeal his 2009 sentence. Thus, we have no transcript from the trial proceedings to verify his claims. The record on appeal in this Rule 32 proceeding contains what appear to be four pages from the original trial proceedings. In one of those pages the trial judge states: “I will give him a five-year split, I believe, on a 20, followed by five years’ probation.” No transcript of the actual sentencing hearing (held at a later date) appears in the record on appeal. Therefore, the ultimate significance of the trial judge’s statement is impossible to discern.

In his Rule 32 petition, Jones stated as a ground for relief: “Guilty plea was involuntarily given, due to erroneous legal advice.” On appeal, however, he argues that he voluntarily pleaded guilty, understanding that he would receive a split sentence but that he wrongly was sentenced to 20 years in prison. Whether his attorney or the trial judge misled him, if at all, is impossible to tell in the absence of the transcript of the sentencing hearing, which he does not provide. Although a district attorney is obligated to offer a freely bargained plea agreement to the court for its consideration, the trial court itself is not bound by the agreement. See Ex parte Yarber, 437 So.2d 1330, 1336 (Ala.1983); Rule 14.3(b), Ala. R.Crim. P. Furthermore, although a defendant “would not be precluded from raising, in a timely filed post-conviction proceeding, the question of the voluntariness of the guilty plea,” Cantu v. State, 660 So.2d 1026, 1029 (Ala.1995), Jones’s petition, filed four years after the expiration of the time for filing an appeal of his sentence, is indeed untimely. Rule 32.2(c), Ala. R.Crim. P.

Insofar as Jones claims that his sentence is illegal, I note that “a challenge to an illegal sentence is jurisdictional and can be raised at any time.” Ginn v. State, 894 So.2d 793, 796 (Ala.Crim.App.2004). However, Jones’s 20-year sentence for attempted murder, a Class A felony, § 13A-4-2(d)(l), Ala.Code 1975, falls within the statutory range of punishment for that offense. See § 13A-5-6, Ala.Code 1975.

For the reasons stated, I concur in denying Jones’s petition.for a writ of certio-rari.


author: MURDOCK, Justice. MOORE,, Chief Justice

text:
    SANTA FE DAY SPA, LLC v. Brenda RUSSELL a/k/a Brenda Corrigan.
    1120338.
    Supreme Court of Alabama.
    Feb. 28, 2014.
    Linda L. Cole, Birmingham, for appellant.
    Virginia P. Meigs, Birmingham, for ap-pellee.
   MURDOCK, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P.

STUART, BOLIN, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

MOORE,, Chief Justice

(dissenting).

Because I believe that material issues of fact are evident in the record of this ease, I dissent from affirming the trial court’s summary judgment in favor of defendant Brenda Russell a/k/a Brenda Corrigan.

I.Facts and Procedural History

Richard Cowden and Gail Cowden, owners of the Santa Fe Day Spa, LLC' (“Santa Fe”), hired Corrigan as a hair stylist in June 2005. She signed a “Non-compete Contract” (“the contract”) in which she agreed not to work in the same business as the spa within a five-mile radius for one year after the termination of her employment. In October 2009 Corrigan left the Santa Fe Day Spa tó work for RL Salon, a business located within two miles of the Santa Fe Day Spa. Santa Fe sued Corri-gan seeking liquidated damages of six months of salary and alleging that Corri-gan had violated the contract, including converting proprietary customer information, and that she had intentionally interfered with Sánta Fe’s business relationship with its customers. The trial court entered a summary judgment for Corrigan, its only reasoning being the conclusory statement that “[Santa Fe] has not met its evidentiary burden.”

II.Standard of Review

In reviewing a summary judgment, we apply the same standard as did the trial court: Did Corrigan demonstrate the absence of a genuine issue of material fact and, if so, is she entitled to judgment as a matter of law? Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

III.Analysis

Section 8-1-1, Ala.Code 1975, generally prohibits contracts restraining trade with certain exceptions:

“(a) Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind otherwise than is provided by this section is to that extent void.
“(b) ... [0]ne who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof so long as the ... employer carries on a like business therein.”

Section 8-1-1 does not apply to independent contractors. Premier Indus. Corp. v. Marlow, 292 Ala. 407, 411, 295 So.2d 396, 399 (1974). The definition of an “independent contractor” is one whose work is not controlled by the employer. “ ‘For one to be an employee, the other party must retain the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done.’ ” 292 Ala. at 411-12, 295 So.2d at 399 (quoting Odess v. Taylor, 282 Ala. 389, 396, 211 So.2d 805, 811 (1968)).

Because evidence in the record indicates that Santa Fe trained and instructed Cor-rigan as to how to work with its customers, whether Corrigan is characterized as an employee or an independent contractor is an issue of fact unsuitable for resolution at the summary-judgment stage. Evidence indicating that Corrigan was an independent contractor is that she was paid on a commission basis and that she received an IRS 1099 form, as opposed to a W-2 form. Other evidence indicating that she functioned as an employee of Santa Fe is that she was expected to work regular business days and hours and that all the equipment she used belonged to Santa Fe. Because all factual inferences are to be drawn in favor of the nonmovant, here Santa Fe, on a motion for a summary judgment, the issue whether Corrigan was an independent contractor is one for a jury to determine under proper instructions.

In my view, Santa Fe also presented substantial evidence showing that Corri-gan had converted proprietary customer information. According to the affidavit of Richard Cowden, a security camera recorded Corrigan printing out Santa Fe’s entire customer list and leaving the premises with it. Also, 60% of the calls listed in Corrigan’s cellular-telephone records in the two months after the termination of her employment were to or from Santa Fe customers. In the six weeks after the termination of her employment, 34 of her 59 pre-booked appointments at Santa Fe canceled or did not show. Corrigan claims that the customer information was not confidential because hair stylists kept “jump journals” with customer names and styling preferences. But although these journals recorded customers’ names and their styling and product preferences, the journals did not, according to evidence in the record, contain telephone and address information. These facts create a reasonable inference, as stated in Cowden’s affidavit, that Corrigan was “soliciting clients from information [she had] obtained or gleaned from Santa Fe Day Spa business records.” See Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349,1350 (Ala.1994) (noting that, in evaluating a motion for a summary judgment, “the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party”).

At a minimum, genuine issues of fact exist as to whether Santa Fe’s customer information was confidential and whether Corrigan improperly appropriated it.

IV. Conclusion

Because “[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d “202 (1986), I dissent from the no-opinion affirmance of the trial court’s summary judgment in favor of Corrigan.


author: STUART, Justice. MOORE, Chief Justice

text:
    William E. MOSELEY et al. v. Leona Marie Onderdonk COOK et al.
    1120887.
    Supreme Court of Alabama.
    Feb. 28, 2014.
    Timothy C. Halstrom, Montgomery, for appellants.
    Joseph C. McCorquodale III of McCor-quodale & McCorquodale, Jackson; and Gordon K. Howell and E. Tatum Turner of Turner, Onderdonk, Kimbrough, Howell, Huggins & Bradley P.A., Chatom, for ap-pellees.
   STUART, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.

BOLIN, PARKER, MURDOCK,

SHAW, MAIN, WISE, and BRYAN, JJ„ concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

In my view the Washington Circuit Court improperly certified its judgment in this case as final and appropriate for appeal under Rule 54(b), Ala. R. Civ. P. Accordingly, this Court does not have jurisdiction, and the proper disposition is to dismiss the appeal.

I. Facts and Procedural History

In December 2005, the Washington Probate Court appointed William E. Moseley executor of his mother’s estate, which consisted of 2,740 acres of timberland and which was worth $4.4 million. The mother’s will also created trusts for her four granddaughters and appointed Moseley as trustee of the trusts. The will granted Moseley discretion in managing the lands and allowed him to receive compensation for his duties. Three of the granddaughters removed the administration of the estate to the circuit court in October 2006. See § 12-11-41, Ala.Code 1975. In November 2010, the removing granddaughters filed a complaint seeking Moseley’s removal as executor and trustee and the assessment of damages against him.

On November 14, 2012, the removing granddaughters also filed a motion asking the circuit court to require Moseley to repay the estate for any fees he had received without court approval and to deny him attorney fees for defending the removal action. At the hearing on November 20, 2012, Moseley appeared and requested a continuance because he was without a lawyer. The court refused, noting that Moseley had had several lawyers in the matter and that on August 22, 2012, the court had given him 30 days to find an attorney. After asking to be excused, Moseley left the hearing and did not return. The court heard the matter without him, found he had violated his fiduciary duty, and entered an order removing him as executor of his mother’s estate and as trustee of the three granddaughters’ trusts. The court also ordered Moseley to reimburse the estate for fees and commissions he had received in the amount of $389,183.21, and disallowed any attorney fees for defending the removal action.

On November 26, 2012, the circuit court entered a Rule 54(b) order rendering final the judgment on the claims heard on November 20, 2012. On December 18, 2012, Moseley filed a postjudgment motion requesting the court to vacate its order because of its failure to allow him a continuance to hire counsel. On March 5, 2013, he filed a supplement to the motion, arguing that the circuit court had improperly tried the damages issues and thus had denied him a jury trial on that count. Moseley’s answer, however, did not contain a jury demand. The Rule 59(e), Ala. R. Civ. P., motion was denied by operation of law.

Moseley did not appeal the trial court’s order of November 20, 2012, but only its denial of his Rule 59(e) motion to vacate the judgment.

II. Analysis

In its order of November 20, 2012, the circuit court stated that it was trying count one of the complaint to remove Moseley as executor and count two to remove him as trustee. “[T]he rest of the case,” the court stated during the hearing, “depending on my ruling, will be severed.” The court thus did not try counts three and four seeking damages and an accounting. Moseley raises three issues on appeal: (1) whether he was wrongfully denied a continuance to obtain counsel, (2) whether the court acted beyond its jurisdiction in awarding reimbursement for fees and commissions when the issue before the court was limited to Moseley’s removal as executor and trustee, and (3) whether the court erred in denying him a hearing on his Rule 59(e) motion to vacate its order.

I believe that the circuit court acted within its discretion in denying the continuance and the hearing on the Rule 59 motion. However, I do not believe we have appellate jurisdiction to review the circuit court’s order requiring that Moseley reimburse the estate for what he terms “a small fortune” in fees and commissions.

Rule 54(b) provides that a court may enter a final judgment on particular claims or against particular parties even though other claims and other parties remain in the action. But such a judgment is final only if it “has completely disposed of one of a number of claims, or one of multiple parties.” Committee Comments on 1973 Adoption of Rule 54(b). The circuit court’s adjudication of Moseley’s liability for commissions and fees was only an interim determination. In ordering that Moseley repay to the estate all moneys he had paid himself, the court cited McGallagher v. Estate of DeGeer, 934 So.2d 391 (Ala.Civ.App.2005). In that case the Court of Civil Appeals held that an order to remove an executrix could also include a requirement that she return funds she had paid herself from the estate. The court reasoned that “the repayment order was aimed at maintaining the status quo until the final settlement.” Id. at 402.

Although McGallagher approves the issuance of an ancillary order of repayment in a removal hearing, it does not provide grounds for certifying such an order as final under Rule 54(b). Because the repayment order was merely an interim order subject to modification upon final settlement, it has not “completely disposed of’ the removing granddaughters’ monetary claim against Moseley nor his claims against the estate. “An order that does not dispose of the entire claim is inherently interlocutory in nature,” and thus “was ineffective to transform [the] ... order into a final judgment.” Tanner v. Alabama Power Co., 617 So.2d 656, 657 (Ala. 1993). Moseley does not appeal his removal as executor and trustee but only the repayment portion of the circuit court’s order. Because that part of the removal order, though formally certified for appeal under Rule 54(b), is interlocutory, I would not affirm the circuit court’s order but would instead vacate that portion of the order and dismiss the appeal as premature.

      . A court may permit an amendment to a timely filed Rule 59(e) motion, even if made after the 30-day period for filing the motion. Forester & Jeme, Inc. v. Daniels, 409 So.2d 830, 831-32 (Ala. 1982).

      . In a motion to this Court, Moseley states that he has “valid and substantial claims” still pending against the estate.

      . Had this appeal arisen from the probate court rather than the circuit court, my analysis would be different. This Court may hear an appeal from an order of the probate court "removing an executor or administrator.” § 12-22-21(3), Ala.Code 1975. This express statutory authority renders a Rule 54(b) certification of finality unnecessary. But no comparable statute provides jurisdiction to hear such an appeal from the circuit court. (McGallagher was an appeal from the probate court.) Although this Court has stated that it “has traditionally treated such orders of the circuit court as though they were orders of the probate court,” Tate v. Kennedy, 578 So.2d 1079, 1080 n. 2 (Ala.1991), that statement cited no authority. See also Eustace v. Browning, 30 So.3d 445, 449-50 (Ala.Civ.App. 2009) (following Tate)', Brown v. Brown, 21 So.3d 1, 2-3 (Ala.Civ.App.2009) (same).
      I believe the Tate Court erred in construing a statute that by its express language applies only to appeals from the probate court to also encompass appeals from the circuit court. We are not at liberty to rewrite a statute. ”[W]e deem it inappropriate to engraft by judicial fiat a change the legislature has apparently not chosen to make.” Dale v. Birmingham News Co., 452 So.2d 1321, 1323 (Ala. 1984). In fact, "traditionally” this Court has recognized that an order of removal of an estate administrator is appealable from the probate court but not from the circuit court. Brewer v. Brewer, 250 Ala. 658, 35 So.2d 557 (1948). Although § 12-22-4, Ala.Code 1975, provides for an appeal to this Court from a judgment of the circuit court "on á partial or annual settlement of an estate of a deceased person,” the circuit court did not partially settle a portion of the estate; it only entered an interim repayment order.