author: BARNES, J.,

text:
    Chance WALKER a/k/a Chance Donovan Walker, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00365-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      Mollie Marie McMillin, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court:

¶ 1. Following a trial in the Copiah County Circuit Court, the jury found Chance Walker guilty of capital murder, for a murder during the commission of a robbery. Upon conviction, Walker was sentenced to life in prison without the possibility of parole or early release.

¶ 2. Walker argues on appeal that the trial court erred by allowing prejudicial photographs to be admitted into evidence. Additionally, Walker argues that the trial court erred by not granting a new trial based upon an unannounced familial relationship between a juror and a witness. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. On January 15, 2011, Enrique Ixcot was found severely beaten outside his home. Earlier that evening, Chance Walker, Natara Ellis, and Erica Sutton were driving in Walker’s automobile when Walker exited the car and instructed Ellis and Sutton to pick him up once he called them. After some time had passed, Walker instructed Ellis to pick him up. According to testimony by Ellis, Walker was in possession of a hammer and wallet when he reentered the car. The three then traveled to the home of Ellis’s grandmother, and Walker went into the back yard. Ixcot’s passport and other personal items were later found there.

¶ 4. During the trial, two photographs were admitted into evidence. Exhibit S-l was a photograph of Ixcot following his autopsy, and Exhibit S-3 was a photograph of Ixcot showing his pockets turned out and his face grievously injured. At trial, Walker objected to the admission of both photographs on the ground that they were more prejudicial than probative. The trial judge disagreed and allowed both to be admitted.

¶ 5. Additionally, a discrepancy concerning one of the jurors arose during the trial. The court could not locate the record of a summons for one juror, Deotis Catchings. However, both parties waived objections to his remaining on the jury, and the trial continued. Following the trial, information came to light concerning a familial relationship between Catchings and Ellis, a witness for the prosecution. Catchings’s brother, Roy, was married to Ellis’s great aunt (mother’s father’s sister). Catchings was thus the brother of Ellis’s great uncle by marriage. Ellis’s mother was listed a possible witness for the prosecution, but was not ultimately called to testify. Ellis’s mother stated that she knew Catchings, but she could not show that he knew her daughter, Ellis, or that Ellis knew Catchings.

ANALYSIS OF THE ISSUES

I. Voir Dire

¶ 6. Walker argues that the trial court erred by not granting a new trial based upon the failure of juror Catchings to reveal his familial relationship to the prosecution’s witness. The Mississippi Supreme Court has stated that when “a party shows that a juror withheld substantial information or misrepresented material facts, and where a full and complete response would have provided a valid basis for challenge for cause, the trial court must grant a new trial, and, failing that, we must reverse on appeal.” T.K. Stanley, Inc. v. Cason, 614 So.2d 942, 949 (Miss.1992) (quoting Myers v. State, 565 So.2d 554, 558 (Miss.1990)). Under the Mississippi Code, “the parties or their attorneys in all jury trials shall have the right to question jurors who are being impaneled with reference to challenges for cause.” Miss.Code Ann. § 13-5-69 (Rev. 2012).

¶ 7. When determining whether a new trial is warranted, the trial court must determine: (1) the question asked of the juror was “relevant to the voir dire examination,” (2) the question was “unambiguous,” and (3) “the juror had substantial knowledge of the information sought to be elicited.” Odom v. State, 355 So.2d 1381, 1383 (Miss.1978).

¶ 8. The juror in question, Catchings, was not related to the prosecution’s witness by blood, but was distantly related through the marriage of his brother. Catchings was, as previously explained, the brother of Ellis’s great uncle by marriage.

¶ 9. The question of whether or not the members of the venire knew Ellis was both relevant and unambiguous. However, Walker has failed to show that Catchings had substantial knowledge of his relationship with Ellis. Testimony provided by Ellis’s mother during the post-trial hearing failed to show that Catchings was aware of the familial connection between Ellis and himself. Ellis’s mother testified that while she knew Catchings, she was unaware whether or not Catchings knew Ellis. She also could not definitely say whether Ellis knew Catchings.

¶ 10. Walker relies on T.K Stanley, 614 So.2d 942, in arguing that Catchings should have answered affirmatively when the questions were posed concerning the relationship between members of the veni-re and witnesses. However, the instant case is distinguishable due to the fact that in T.K. Stanley, the juror in question clearly had substantial knowledge concerning the questions asked during trial. See id. at 949. The knowledge was then withheld during the voir dire process. Walker has not adequately shown, through the testimony of Ellis’s mother, that Catchings was even aware of his relationship with Ellis. So unlike T.K. Stanley, this case fails the third prong of the Odom test.

¶ 11. Furthermore, concerning the issue of the lack of a jury summons for Catchings, both parties waived their objections for him to remain a member of the jury. The trial judge postulated that either the record of Catchings’s summons was lost or he was inadvertently added to the jury-selection process. The trial judge stated:

Well, he could have been up to buy a car tag. I don’t know. We have a procedure. So we’ve got two choices, and I want it to be agreeable by all parties, because we can either proceed with him — he’s qualified, legally sworn — or we can replace him with an alternate. Whatever you all want to do.

Both parties’ counsel then agreed to allowing Catchings to remain as a member of the jury. While this waiver occurred prior to discovering the relationship between Catchings and Ellis, there is no indication that Catchings’s arrival without summons was in any way related to the case set to be tried. Therefore, the trial court did not err in denying Walker’s motion for a new trial.

II. Admission of “Gruesome” Photographs

¶ 12. Walker argues that the admission of two photographs was unfairly prejudicial and that these photographs unduly influenced the jury’s verdict. Specifically, he maintains that the trial court erred in allowing the photographs of a bloodied Ixcot lying on the ground and of Ixcot’s autopsy to be admitted at trial. Unless there is clearly an abuse of discretion by the trial court, “a decision favoring admissibility will not be disturbed.” Chamberlin v. State, 989 So.2d 320, 340 (¶ 73) (Miss.2008) (citing Dampier v. State, 973 So.2d 221, 230 (¶ 25) (Miss.2008)). The Mississippi Supreme Court has explained that, regarding the admission of photographs, “[t]he discretion of the trial judge is almost unlimited regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Id. (quoting Dampier, 973 So.2d at 230 (¶ 25)).

¶ 13. In the admission of gruesome photographs, the court must determine “(1) whether the proof is absolute or in doubt as to [the] identity of the guilty party, as well as, (2) whether the photographs are necessary evidence or simply a ploy on the part of the prosecutor to arouse the passion and prejudice of the jury.” McNeal v. State, 551 So.2d 151, 159 (Miss.1989). A photograph has a meaningful evidentiary purpose when it “(1) aids in describing the circumstances of the killing; (2) describes the location of the body or cause of death; or (3) supplements or clarifies witness testimony.” Chamberlin, 989 So.2d at 340 (¶ 73) (citing Dampier, 973 So.2d at 230 (¶ 25)). “The mere fact that photographs depict an unpleasant or gruesome scene is no bar to their admission if they are relevant.” Ramsey v. State, 959 So.2d 15, 25 (¶ 27) (Miss.Ct.App.2006) (citing Dase v. State, 356 So.2d 1179, 1181 (Miss.1978)).

¶ 14. In this case, the two photographs contained probative value. Exhibit S — 1, the photograph depicting the autopsy of Ixcot, not only offered a description of the wounds inflicted upon Ixcot by his attacker, but also clarified testimony of the coroner. See Chamberlin, 989 So.2d at 340 (¶ 73).

¶ 15. Likewise, Exhibit S-3, the photograph of Ixcot lying bloodied on the ground with his pockets turned out, offers a “meaningful evidentiary purpose” in that it showed that the killing occurred during the course of a robbery. Although Exhibit S-3 can be considered “gruesome” in nature, the photograph offers proof that Ix-cot was, in fact, the victim of a robbery. It was within the court’s discretion to allow admission of this evidence. Accordingly, the trial court’s decision is affirmed.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Tyderius FORD a/k/a Tydrius Ford, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-01366-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      Tyderius Ford, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Tyderius Ford appeals the Washington County Circuit Court’s denial of his motion for post-conviction relief (PCR). Ford argues that the trial judge erred in failing to recuse himself from ruling on Ford’s PCR motion. Finding no error, we affirm.

FACTS

¶ 2. On November 4, 1997, a jury before the Washington County Circuit Court found Ford guilty of conspiracy to commit robbery, armed robbery, and possession of a weapon by a convicted felon. Ford received consecutive sentences of five years for the conspiracy conviction, forty years for the armed-robbery conviction, and three years for the possession-of-a-weapon conviction. In 1999, this Court affirmed Ford’s convictions. See Ford v. State, 753 So.2d 489, 492 (¶¶ 17-18) (Miss.Ct.App.1999).

¶ 3. On March 3, 2010, after receiving permission from the Mississippi Supreme Court, Ford filed a PCR motion seeking a new trial based on newly discovered evidence. The alleged newly discovered evidence consisted of two affidavits from Ford’s codefendant, Robert McCullough, wherein McCullough purportedly recanted his trial testimony implicating Ford. The trial judge set Ford’s case for a July 2010 evidentiary hearing. When McCullough failed to appear at the hearing, even though subpoenaed, the trial judge continued the hearing in order for McCullough to be located and brought before the trial court.

¶ 4. On June 17, 2011, Ford filed a motion for recusal of the trial judge. By order dated June 29, 2011, the trial judge denied Ford’s motion for recusal. The trial judge thereafter granted Ford’s motion for appointed counsel and ordered a Washington County public defender to represent him in his PCR matter.

¶5. The trial court later set a second hearing for March 2012. Once again, McCullough failed to appear. Following the hearing, the trial judge granted a motion for an indefinite continuance until such a time that McCullough could be located and brought before the court.

¶ 6. Then, in April 2012, Ford filed a rebuttal to the State’s response to his PCR motion. The trial judge considered Ford’s rebuttal as a withdrawal of his request for an indefinite continuance. On July 26, 2012, the trial judge denied Ford’s PCR motion after determining Ford was not entitled to a new trial. Aggrieved, Ford appeals.

STANDARD OF REVIEW

¶ 7. This Court will not reverse a trial judge’s denial of a PCR motion “absent a finding that the trial judge’s decision to deny the motion was clearly erroneous.” Johnson v. State, 70 So.3d 262, 263 (¶4) (Miss.Ct.App.2011). “However, when reviewing issues of law, this Court’s proper standard of review is de novo.” Id.

DISCUSSION

I. RECUSAL

¶ 8. In his only assignment of error on appeal, Ford argues that the trial judge, who presided over his criminal trial and sentenced him, erred in denying his request for the trial judge’s recusal in this PCR action. Ford asserts that the trial judge’s comments during his sentencing hearing indicated the judge’s personal bias against him. Specifically, Ford alleges that at his December 1997 sentencing hearing, the trial judge stated:

It’s even worse for you because you don’t even live in Washington County. I don’t know why you had to come in Washington County to commit a crime, but I would recommend in the future that you go commit your crimes in some other area, particularly the county of your residence, but not in our county.

¶ 9. The Mississippi Code of Judicial Conduct, our state statutes, and the state constitution speak to the matter of recusal. See Miss.Code of Jud. Cond.Can-on 3(E)(1); Miss.Code Ann. § 9-1-11 (Rev.2002); Miss. Const, art. 6, § 165; see also King v. State, 821 So.2d 864, 868 (¶ 12) (Miss.Ct.App.2002). ‘When reviewing whether a judge should have recused himself, this Court uses an objective test: A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” King, 821 So.2d at 867 (¶ 13) (internal quotations omitted). The challenger holds the burden of overcoming the presumption “that a judge, sworn to administer impartial justice, is qualified and unbiased.” Id. (citation omitted).

¶ 10. “When a judge is not disqualified under the constitutional or statutory provisions, the decision is left up to each individual judge and is subject to review only in a case of manifest abuse of discretion.” Johnson, 70 So.3d at 264 (¶ 7). When asked to review a trial judge’s denial of recusal, this Court “will look to the whole trial and pass upon questions on appeal in the light of the completed trial. Every act and movement had during the entire trial will be considered, and if we are unable to find that rulings have been prejudicial to the defendant, we will not reverse.” King, 821 So.2d at 868 (¶ 15).

¶ 11. A photocopy of one page of Ford’s sentencing-hearing transcript is attached as Exhibit “A” to his motion for recusal. However, the complete transcript of the sentencing hearing is not part of the record in this PCR proceeding. As such, Ford’s allegation is unsupported. Even if a full transcript of the sentencing hearing was contained in the appellate record, the words allegedly spoken by the trial judge fall short of showing prejudice or partiality. Hence, Ford’s accusation fails to overcome the presumption that the trial judge was qualified and unbiased. See Fulks v. State, 110 So.3d 764, 771 (¶¶ 23-27) (Miss.2013) (finding that the trial judge committed no manifest error in denying the defendant’s motion for recusal based on comments made by the judge during the course of trial); Shumpert v. State, 983 So.2d 1074, 1078 (¶ 15) (Miss.Ct.App.2008) (finding no manifest error in the trial judge’s denial of a motion to recuse based on the judge’s alleged relationship with the victims). The record before this Court fails to suggest prejudice or partiality by the trial judge. No evidence exists showing that the trial judge abused his discretion by failing to recuse himself.

II. NEWLY DISCOVERED EVIDENCE

¶ 12. In his PCR motion, Ford claimed newly discovered evidence. On appeal, however, Ford fails to argue this issue that he presented to the trial judge in his PCR motion; instead, he asks that this Court reverse and remand his case for the appointment of another judge, an issue we have already addressed. Issues raised in a PCR motion that are not supported on appeal are abandoned and need not be considered by this Court. See Fluker v. State, 17 So.3d 181, 182-83 (¶ 4) (Miss.Ct.App.2009). Accordingly, we find that Ford abandoned the newly-discovered-evidence issue that he presented in his PCR motion to the trial judge, and we will not consider it on appeal.

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

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

      . The trial court’s order states that the matter was set for a second hearing in March 2012 at Ford's request.

      . We also note that Ford's motion seeking recusal of the trial judge was untimely. Ford failed to comply with Rule 1.15 of the Uniform Rules of Circuit and County Court, which requires a party filing a motion for recusal to file the motion with the judge who is the subject of the motion within thirty days following notification of the judge’s name who is assigned to the case; or, if based upon facts that could not have reasonably been known to the filing party within such time, within thirty days after the party filing the motion could have reasonably discovered the facts underlying the asserted grounds. Ford filed his motion seeking recusal well after this thirty-day period.

      . See Esco v. State, 102 So.3d 1209, 1213-14 (¶¶ 10-14) (Miss.Ct.App.2012) (finding no error in trial court’s denial of defendant's PCR motion alleging recanted testimony by material witness).


text:
    Thomas TAYLOR a/k/a Thomas Edward Taylor a/k/a Tinker, Appellant v. STATE of Mississippi, Appellee. Thomas Taylor a/k/a Thomas Edward Taylor a/k/a Tinker, Appellant v. State of Mississippi, Appellee.
    Nos. 2012-CP-00713-COA, 2012-CP-01041-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.
    Thomas Taylor, appellant, pro se.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Thomas Taylor appeals the trial court’s dismissal of his motion for post-conviction relief (PCR). We find that Taylor’s claims are time-barred, and procedurally barred based on res judicata. Additionally, the record fails to reflect any documentation showing Taylor received permission to file a petition for post-conviction relief subsequent to the affirmance of his conviction of direct appeal. See Miss.Code Ann. § 99-89-7 (Supp.2012). Accordingly, we dismiss this appeal for lack of jurisdiction.

FACTS

¶ 2. On February 11, 1998, a Lowndes County jury convicted Taylor of capital rape, and the trial court sentenced him to life imprisonment. Taylor appealed his conviction and sentence on February 20, 1998, which this Court affirmed. See Taylor v. State, 744 So.2d 306, 320 (¶ 66) (Miss.Ct.App.1999).

¶ 3. On February 15, 2012, Taylor filed a request for a writ of habeas corpus in Greene County Circuit Court, the court of confinement, claiming illegal confinement. Taylor alleged that his indictment charging him with capital rape was forged and altered and, as a result, he had never been tried, convicted, and sentenced. The Greene County Circuit Court transferred the motion to the Lowndes County Circuit Court via an order transferring venue, explaining that “the trial court which ... sentenced [Taylor] has exclusive jurisdiction” over the matter.

¶4. In a notice of appeal postmarked May 4, 2012, Taylor filed an appeal in Greene County Circuit Court regarding the order transferring venue to Lowndes County. The Greene County Circuit Clerk informed Taylor that the case was transferred to Lowndes County Circuit Court, and therefore, “in the interest of justice,” she would forward his notice of appeal to Lowndes County as well.

¶ 5. The Lowndes County Circuit Court, treating Taylor’s filing as a PCR motion, summarily denied the motion on May 22, 2010. The trial court explained that on direct appeal, this Court had previously affirmed Taylor’s conviction to capital rape and sentence to life imprisonment. The trial court also stated that Taylor had failed to obtain permission from the supreme court to proceed in the trial court, thus barring Taylor’s PCR motion pursuant to Mississippi Code Annotated section 99-39-7. See Williams v. State, 98 So.3d 484, 487 (¶¶ 8-9) (Miss.Ct.App.2012). The trial court entered a second order relating to Taylor’s appeal of the Greene County Circuit Court’s order transferring venue, concluding that the trial court lacked jurisdiction to consider Taylor’s notice of appeal since the original order transferring venue was an order from another district. The court explained that it “[was] without jurisdiction to consider an appeal of an order from another district.”

¶ 6. Taylor now appeals, arguing that the circuit court erroneously dismissed his PCR motion. Upon review, we dismiss Taylor’s appeal for lack of jurisdiction, but we differ in our analysis regarding the basis for the lack of jurisdiction.

STANDARD OF REVIEW

¶ 7. A trial court’s dismissal of a motion for PCR will not be disturbed unless the trial court’s factual findings were clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). Questions of law are reviewed de novo. Robinson v. State, 904 So.2d 203, 204 (¶ 3) (Miss.Ct.App.2005).

DISCUSSION

¶ 8. Taylor asserts that the trial court erred in denying his motion for PCR. Taylor argues that he is illegally confined, and that his indictment for capital rape constitutes a “forgery.” As a result of this allegedly forged indictment, Taylor asserts that he has never been tried, convicted, and sentenced, and thus he is entitled to file his PCR motion.

¶9. Taylor also argues that the trial court erred in treating his request for a writ of habeas corpus as a motion for PCR. However, Mississippi Code Annotated section 99-39-3 (Rev.2007) provides:

[T]his article ... abolishes the common law writs relating to post-conviction collateral relief, including by way of illustration but not limitation ... post-conviction habeas corpus, as well as statutory post-conviction habeas corpus. The relief formerly accorded by such writs may be obtained by an appropriate motion under this article.

¶ 10. The record reflects that Taylor previously filed a direct appeal of his conviction and sentence, which this Court affirmed. See Taylor, 744 So.2d at 320 (¶ 66). Additionally, the record before us provides that on September 22, 2011, the supreme court denied Taylor’s application for leave to file the present PCR motion. See Miss.Code Ann. § 99-39-7. The supreme court explained that since Taylor’s current claim “was raised and addressed on direct appeal,” the application for leave was procedurally barred by the doctrine of res judicata and failed to meet any exceptions. Taylor filed a motion for rehearing on October 14, 2011, seeking reconsideration of the dismissal of his application to file for post-conviction relief. The supreme court dismissed Taylor’s motion to reconsider. Taylor failed to obtain permission to file the present motion, and hence the trial court lacked jurisdiction to hear the matter as well as Taylor’s appeal of its transfer. See Miss.Code Ann. § 99-39-7. We note that in his PCR motion, Taylor re-argues issues previously determined on the direct appeal of his conviction. Id. at 316-17 (¶¶ 39-40), 320 (¶ 61).

¶ 11. Mississippi Code Annotated section 99-39-21(3) (Rev.2007) states: “The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.” In Lockett v. State, 614 So.2d 888, 893 (Miss.1992), the Mississippi Supreme Court held that “[rephrasing direct appeal issues for post-conviction purposes will not defeat the procedural bar of res judicata.” The supreme court also clarified that for purposes of post-conviction relief, “an alleged error should be reviewed, in spite of any procedural bar, only where the claim is so novel that it has not previously been litigated, or, perhaps, where an appellate court has suddenly reversed itself on an issue previously thought settled.” Irving v. State, 498 So.2d 305, 311 (Miss.1986). We recognize that the law requires that the petitioner carry the burden of demonstrating that his claim is not procedurally barred. Miss. Code Ann. § 99-39-21(6) (Rev.2007). See Sykes v. State, 919 So.2d 1064, 1066 (¶¶ 7-8) (Miss.Ct.App.2005).

¶ 12. The record also contains a November 1, 2011 order by the supreme court denying Taylor’s petition for a writ of habeas corpus. The order reflects:

Taylor has previously raised the same issue in a motion for post-conviction relief, which was dismissed by ... this Court on September 22, 2011. Taylor also filed a motion for reconsideration ... that ... was dismissed on October 14, 2011. The present motion is in the nature of a second motion for reconsideration of the same issue and should be dismissed.

¶ 13. This Court entered its opinion affirming Taylor’s conviction and sentence on March 23, 1999. The record shows that Taylor filed his PCR motion on January 23, 2012, and the record shows that the trial court entered its order dismissing the motion on May 22, 2012. We lack jurisdiction since the Mississippi Supreme Court denied Taylor’s application for leave to file a PCR petition.

¶ 14. Finding no jurisdiction exists to empower this Court with authority to consider or review Taylor’s PCR motion, we affirm the trial court’s dismissal of Taylor’s motion.

¶ 15. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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

      . Section 99-39-7 provides:
      Where the conviction and sentence have been affirmed on appeal ... the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, convened for said purpose either in termtime or in vacation, and an order granted allowing the filing of such motion in the trial court.

      . Mississippi Code Annotated section 99-39-5(2) (Supp.2012) provides that "a motion for relief under this article shall be made within three (3) years after the time in which the petitioner's direct appeal is ruled upon[.]”

      . See generally Robinson v. State, 836 So.2d 747, 751 (¶ 11) (Miss.2002) (affirming judgment of the trial court but on a different basis than that relied on by the trial court).


author: STUART, Justice.

text:
    EX PARTE STATE of Alabama DEPARTMENT OF REVENUE. (In re State of Alabama Department of Revenue v. HealthSouth Corporation et al.).
    1111190.
    Supreme Court of Alabama.
    Nov. 21, 2012.
    Luther Strange, atty. gen., and William G. Parker, Jr., asst. atty. gen., and Ron Bowden, chief counsel, and David E. Avery III, asst, counsel, Alabama Department of Revenue, for petitioner.
    Marc James Ayers, David G. Hymer, Joseph B. Mays, Jr., Bruce P. Ely, Kevin C. Newsom, James E. Long, Jr., and Anna Manasco Dionne of Bradley Arant Boult Cummings LLP, Birmingham, for respondents.
   STUART, Justice.

The State of Alabama Department of Revenue (“the Department”) petitioned this Court for a writ of certiorari to review the Court of Civil Appeals’ no-opinion af-firmance of the circuit court’s judgment awarding HealthSouth Corporation and related entities (hereinafter referred to collectively as “HealthSouth”) refunds of Alabama income tax it had overpaid for the 1996, 1997, and 1998 tax years and awarding interest on those refunds. See State Dep’t of Rev. v. HealthSouth Corp. (No. 2100330, March 2, 2012), - So.3d - (Ala.Civ.App.2012) (table). We granted the writ.

Before oral argument was conducted in this case, HealthSouth, in a letter to this Court, withdrew its claim to interest on the refunds of the income taxes it had overpaid. During oral argument, Health-South conceded that it was not entitled to interest on those refunds. Therefore, we reverse the judgment of the Court of Civil Appeals insofar as it affirms the circuit court’s award of interest to HealthSouth on the income-tax refunds.

After reviewing the record and considering the applicable law, we quash the writ insofar as the petition asked us to decide whether the Court of Civil Appeals had erred in affirming the circuit court’s judgment awarding HealthSouth refunds of its overpaid Alabama income tax for the subject years.

Based on the foregoing, the writ is quashed in part; the judgment of the Court of Civil Appeals is reversed in part; and this case is remanded for the Court of Civil Appeals to reverse the circuit court’s judgment insofar as it awards HealthSouth interest on the refunds of overpaid income taxes it had ordered the Department to pay HealthSouth and to remand the cause to the circuit court with instructions to vacate the portion of its judgment awarding HealthSouth interest on the refunds.

WRIT QUASHED IN PART; JUDGMENT REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

MALONE, C.J., and WOODALL, BOLIN, PARKER, SHAW, and WISE, JJ., concur.

MURDOCK, J., dissents.


author: PITTMAN, Judge.

text:
    STATE of Alabama Department of Revenue v. HEALTHSOUTH CORPORATION et al.
    2100330.
    Court of Civil Appeals of Alabama.
    Jan. 25, 2013.
    Ron Bowden, counsel, and David E. Avery III, asst, counsel, Legal Division, Alabama Department of Revenue, for appellant.
    Joseph B. Mays, Jr., Bruce P. Ely, James E. Long, Jr., and Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, for appellees.
   After Remand from the Alabama Supreme Court

PITTMAN, Judge.

This court affirmed, without an opinion, the trial court’s judgment awarding HealthSouth Corporation and related entities (hereinafter referred to collectively as “HealthSouth”) refunds of Alabama income tax they had overpaid for certain tax years and awarding interest on those refunds. State Dep’t of Revenue v. HealthSouth Corp. (No. 2100330, March 2, 2012), — So.3d - (Ala.Civ.App.2012) (table). This court’s judgment has been reversed in part, and the cause remanded by the Supreme Court of Alabama. Ex parte State Dep’t of Revenue, 121 So.3d 333 (Ala.2012). On remand to this court, and in compliance with the Supreme Court’s opinion, the judgment of the Jefferson Circuit Court is hereby reversed “insofar as it awards HealthSouth interest on the refunds of overpaid income taxes it had ordered the [State Department of Revenue] to pay HealthSouth,” and the cause is remanded to the circuit court for that court to “vacate the portion of its judgment awarding HealthSouth interest on the refunds.” We note that, as to the refund issue, the supreme court quashed the writ of certiorari it had issued, leaving our original affirmance in effect.

REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and THOMAS and MOORE, JJ., concur.


author: BRYAN, Justice. MOORE, Chief Justice

text:
    BEAR BROTHERS, INC. v. ETC LAKE DEVELOPMENT, LLC, and E.T. “Bud” Chambers.
    1110688.
    Supreme Court of Alabama.
    Feb. 15, 2013.

      David E. Allred and D. Craig Allred of Allred & Allred, P.C., Montgomery; and Tabor R. Novak of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellant.
    Champ Lyons III, Birmingham; and Brian P. Strength of Strength & Connally, LLC, Tuskegee, for appellees Joe F. Watkins, Patricia M. Smith, and RE/MAX Lake Martin Properties, LLC.
   BRYAN, Justice.

Joe F. Watkins, Patricia M. Smith, and RE/MAX Lake Martin Properties, LLC (hereinafter collectively referred to as “the plaintiffs”), sued Bear Brothers, Inc., ETC Lake Development, LLC (“ETC Lake”), and E.T. “Bud” Chambers, among others, in the Tallapoosa Circuit Court, asserting claims related to the construction and development of the Crowne Pointe condominium project on Lake Martin. ETC Lake and Chambers filed a cross-claim against Bear Brothers, seeking to recover losses suffered on the project as well as indemnification for the costs of litigating the plaintiffs’ action and any damages for which they might be found liable to the plaintiffs.

In January 2010, Bear Brothers moved the circuit court to compel arbitration of the cross-claim against it. The circuit court did not rule on that motion. Bear Brothers renewed its motion in July 2011, and the circuit court granted the motion to compel arbitration of the cross-claim in December 2011. Bear Brothers then moved the circuit court “to stay [the] proceedings [in the plaintiffs’ action] pending the outcome of a related arbitration” (i.e., the arbitration of the cross-claim). After a hearing, the circuit court denied the motion to stay.

Bear Brothers appealed the circuit court’s order denying the motion to stay to this Court; ETC Lake and Chambers have filed a motion to dismiss the appeal. Bear Brothers cites Rule 4(d), Ala. R.App. P., as the basis for the appeal. Rule 4(d) provides, in pertinent part, that “[a]n order granting or denying a motion to compel arbitration is appealable as a matter of right.” As ETC Lake and Chambers point out in their motion to dismiss the appeal, Rule 4(d) applies to rulings on motions to compel arbitration and “is not applicable to an order denying a request for continuance and/or stay.” We agree with ETC Lake and Chambers that Rule 4(d) will not support an appeal in this case.

Bear Brothers also cites Johnson v. Jefferson County Racing Association, Inc., 1 So.3d 960 (Ala.2008), as authority for its appeal of the denial of its motion to stay the proceedings in this case. However, Bear Brothers’ reliance on Johnson is misplaced. In Johnson, the circuit court granted a motion filed by the Jefferson County Racing Association, Inc.,- d/b/a The Birmingham Race Course (“JCRA”), to compel the arbitration of claims filed against it by Debra Johnson. After granting the motion to compel arbitration, the circuit court dismissed Johnson’s action against JCRA. Johnson filed a Rule 59(e), Ala. R. Civ. P., motion for postjudgment relief, arguing, among other things, that, instead of dismissing her action against JCRA, the circuit court should have stayed the action pending arbitration of the claims. The circuit court denied Johnson’s postjudgment motion, and Johnson appealed.

In setting forth the standard of review to be applied to the circuit court’s denial of Johnson’s postjudgment motion, this Court stated in a footnote:

“We recognize that in other cases, this Court has applied a de novo standard of review; however, in those cases, this Court was reviewing a trial court’s denial of a party’s motion to stay, not reviewing a postjudgment motion in which a party, for the first time, asks the trial court for a stay. See Liberty Nat’l Life Ins. Co. v. Douglas, 826 So.2d 806, 809 (Ala.2002) (We review de novo a trial court’s denial of a motion to stay pending arbitration.’); Lee v. YES of Russellville, Inc., 784 So.2d 1022, 1025 (Ala.2000) (‘A trial court’s denial of a motion to stay proceedings pending arbitration is reviewable by direct appeal.... Our review of that decision is de novo.’).”

Johnson, 1 So.3d at 968 n. 10.

Bear Brothers cites the language from Lee v. YES of Russellville, Inc., 784 So.2d 1022 (Ala.2000), found in the footnote in Johnson as recognizing a right to appeal at this stage of the proceedings the circuit court’s denial of the motion to stay the plaintiffs’ action pending arbitration of the cross-claim. Seen in context, however, it is clear that this Court in Johnson did not address that issue or recognize any such right.

Moreover, the “motion to stay proceedings pending arbitration” at issue in Lee was actually a motion to compel arbitration that included a simultaneous request for a stay of the proceedings in the circuit court while the requested arbitration was pending. See Lee, 784 So.2d at 1023 (“The [circuit] court’s order denying Lee’s motion to compel mediation/arbitration made no specific findings of fact.”), and 784 So.2d at 1025 (“Lee ... moved to stay the proceedings pending mediation and arbitration .... YES and [Narendra] Sheth opposed that motion, arguing that they did not have a contract with Lee and that, therefore, they could not be required to submit to arbitration.”).

The motion at issue in this case, however, is a motion to stay related proceedings pending the arbitration of a cross-claim between codefendants and was filed separately from the initial motion to compel arbitration of the cross-claim and subsequent to the circuit court’s order granting the motion. Lee did not involve any such motion, and we decline to interpret this Court’s statement in Lee recognizing a general right to appeal rulings on motions to compel arbitration also seeking to stay the proceedings as providing a right in this case to appeal the denial of a separate motion to stay proceedings on the plaintiffs’ claims pending the arbitration of a cross-claim between codefendants. Thus, Bear Brothers has not demonstrated a right to appeal the denial of the motion to stay at this time, and the appeal is dismissed as being from a nonfinal judgment.

APPEAL DISMISSED.

STUART, BOLIN, and MURDOCK, JJ., concur.

MOORE, C.J., concurs specially.

MOORE, Chief Justice

(concurring specially).

I concur with the main opinion, but I write to enlarge on the reasons for dismissing the appeal.

Rule 4(d), Ala. R.App. P., provides: “An order granting or denying a motion to compel arbitration is appealable as a matter of right....” In this case, it is not the order to compel arbitration that is being appealed, only the order refusing to stay the proceedings pending arbitration. Nonetheless, this Court has considered a motion to stay proceedings pending arbitration as implicitly encompassed within the right of appeal provided in Rule 4(d). Rule 4(d) was adopted in 2001. In 2002 and again in 2008, this Court held that a direct appeal is the proper means to challenge an interlocutory order denying a stay pending arbitration. Johnson v. Jefferson Cnty. Racing Ass’n, 1 So.3d 960, 968 n. 10 (Ala.2008); Liberty Nat’l Life Ins. Co. v. Douglas, 826 So.2d 806, 809 (Ala.2002).

In this case, however, the arbitration is solely between codefendants on a cross-claim. Although Rule 4(d) may implicitly permit the appeal of a denial to stay proceedings pending arbitration, such an appeal could pertain only to a stay of those claims subject to the arbitration order. A court has no power under Rule 4(d) to stay nonarbitrable claims. Compare Lippus v. Dahlgren Mfg. Co., 644 F.Supp. 1473, 1483 (E.D.N.Y.1986) (“Although this Court must stay the adjudication of arbitrable claims pending arbitration, 9 U.S.C. § 3, this is not the case with non-arbitrable claims.”).

Because the plaintiffs’ claims in this matter are not subject to the arbitration clause in the contract between the codefen-dants, Rule 4(d) cannot be applied to stay them. Further, to stay the entire action pending resolution by arbitration of the cross-claim would prejudice the plaintiffs, who desire to have their claims heard. Judicial economy would also suffer. As the Lippus court stated: “[Arbitration is unlikely to result in a speedier resolution of the case. Quite the opposite, a stay of these proceedings to permit arbitration ... will likely result in a lengthy delay to a cause that is already over two years old.” 644 F.Supp. at 1483. Finally, trial on the merits may determine that the defendants have no liability to the plaintiffs, rendering the arbitration moot.

This Court has not previously recognized a right of appeal under Rule 4(d) to stay the adjudication of related claims of parties not subject to the arbitration order. For the reasons stated above and in the main opinion, this Court correctly declines to recognize such a right.