author: GRIFFIS, P.J.,

text:
    William C. JACKSON a/k/a William Christopher Jackson, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01620-COA.
    Court of Appeals of Mississippi.
    March 19, 2013.
    Rehearing Denied July 23, 2013.
    Certiorari Denied Oct. 10, 2013.

      William C. Jackson, appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, John R. Henry Jr., attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. William Jackson appeals the dismissal of his motion for post-conviction collateral relief, “PCCR.” Jackson argues several issues that center on ineffective assistance of counsel, an involuntary guilty plea, and the circuit court’s abuse of discretion when it denied Jackson’s motion to withdraw his guilty plea. -We find no error and affirm the circuit court’s judgment.

FACTS

¶ 2. Jackson was stopped on February 1, 2008, at a checkpoint set up by the Clarke County Sheriffs Department and the South Mississippi Narcotics Task Force. Jackson was asked for his driver’s license. Jackson stated that he did not have his license. The agent asked him for his driver’s license number. Jackson replied that did not know it. The agent then asked for his social security number. Jackson did not know that number either. Jackson produced a rental agreement that showed he had rented the vehicle from his girlfriend, who had rented it from an agency in Louisiana.

¶ 3. Jackson then consented to a search of the vehicle. During the search, agents located a large Tide detergent box. When they found the box, Jackson began to run. The Tide box contained about 11,996 pills of different colors. The tests from the Mississippi Crime Lab revealed that a representative sample of each color of pill all contained methamphetamine. Jackson claims the Tide box was left by previous renters of the vehicle in Louisiana.

¶ 4. Jackson was arrested and transported to the county jail. On February 4, 2008, an arrest warrant was issued for the charge of trafficking a Schedule II controlled substance, methamphetamine. The next day, Jackson had his initial appearance and posted bond. He was set to return to circuit court on February 25, 2008. Nothing happened on that date, but Jackson was set to return to court on August 25, 2008. On August 25, 2008, Jackson’s name was not on the docket, presumably because the grand jury had not indicted him.

¶ 5. On February 25, 2009, the grand jury indicted Jackson. On March 2, 2009, the Clarke County Sheriffs Office issued a warrant for Jackson’s arrest. On May 4, 2009, Jackson surrendered and entered a plea of not guilty. His trial date was set for October 28, 2009. He received several plea offers in the days leading up to the trial date.

¶ 6. On October 28, 2009, Jackson pled guilty with an Alford plea. See North Carolina v. Alford, 400 U.S. 25, 37, 91 5.Ct. 160, 27 L.Ed.2d 162 (1970). Based on the plea agreement, the district attorney agreed to certain sentencing recommendations: a sentence of thirty years, with ten years to serve, twenty years suspended, and five years of post-release supervision. On December 8, 2009, Jackson was to return to court for sentencing. The sentencing recommendation was based on Jackson’s timely appearance at the sentencing hearing and a clean record in the time between his plea and his sentencing. The circuit court also stated that if Jackson failed to appear for sentencing, then his plea would be taken as a blind plea.

¶ 7. Jackson failed to appear for his sentencing hearing. Jackson was arrested in Louisiana and extradited to Mississippi. His sentencing was set for June 24, 2010. At the sentencing hearing, Jackson moved to set aside or withdraw his guilty plea and to dismiss his counsel. Initially, the circuit court denied both motions. The circuit court sentenced Jackson to thirty years, with fifteen years suspended, followed by five years of post-release supervision. Then, the circuit court allowed Jackson’s counsel to withdraw.

¶ 8. Jackson is now before the court on his PCCR motion, which was filed on May 6, 2011. In the motion, Jackson alleged that there were several occasions he tried to contact his attorney and his attorney was unresponsive. Jackson also alleged that the times he spoke to his attorney, his attorney did not know anything about his case and was not preparing for trial. Jackson alleged that the evening before the trial he was pressured into taking a plea deal because his attorney had failed to prepare a defense.

¶ 9. Jackson alleged that on his trial date he met his attorney outside of the courthouse and an argument ensued. Jackson alleged he told his attorney that he wanted a trial and was not going to take a plea. Jackson alleged that his attorney “pointed out the fact that regardless of his performance, or how [Jackson] felt about it, he was still without much of a defense, and that signing the plea petition was the best option under the circumstances.”

¶ 10. Jackson alleged that he then insisted on going to trial, and his attorney went back inside to tell the circuit court judge of Jackson’s decision. Jackson alleged that his attorney came back and said the judge was upset. His attorney stated that the judge said that if Jackson wanted a trial, it would be sometime in February 2010. Jackson alleged his attorney said that the judge said he would revoke Jackson’s bond and put him back in jail.

¶ 11. Jackson alleged his attorney next said that because of the “25% law,” he would actually serve only two and a half years. Jackson alleged that he hurriedly signed the plea petition without reading it and without a thorough explanation of it. Jackson alleged that on November 4, 2009, he told his attorney that he wanted to withdraw his plea. Jackson alleged his attorney said there was nothing he could do and hung up the phone. In the summer of 2010, Jackson’s attorney visited him a few times in jail to discuss Jackson’s options.

¶ 12. Jackson attached an affidavit from Jackson’s mother to his PCCR motion. Jackson’s mother stated that outside the courtroom on October 28, 2009, Jackson’s lawyer told him if he did not sign the plea agreement, his bond would be revoked and he would go back to jail. She stated that the lawyer said “the way the plea was written up that he would only get 10 years under the 25% law.” This is different from Jackson’s account of two and a half years. She stated that she and Jackson felt pressured, but did not state what they felt pressured to do.

¶ 13. On November 16, 2011, the circuit court issued an eighteen-page order that denied Jackson’s PCCR motion, finding the allegations lacked merit, and dismissed it as frivolous. Jackson filed his notice of appeal on November 28, 2011.

STANDARD OF REVIEW

¶ 14. We will not reverse a circuit court’s dismissal of a PCCR motion unless the circuit court’s decision was clearly erroneous. Madden v. State, 75 So.3d 1130, 1131 (¶ 6) (Miss.Ct.App.2011) (citation omitted). When reviewing questions of law, this Court’s standard of review is de novo. Id. (citation omitted).

ANALYSIS

1. Involuntary Guilty Plea

¶ 15. Jackson argues that his plea was not voluntary. Jackson argues that: (1) the circuit court failed to explain the effects of a suspended sentence and supervised release; (2) the circuit court failed to inform him that by entering a guilty plea, he waived certain constitutional rights, such as the right to a speedy trial; and (3) his plea was produced by fear, coercion, and misinformation.

¶ 16. A guilty plea is enforceable only if entered voluntarily and intelligently. See Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is voluntary and intelligent when the defendant knows the nature of the charge against him and the consequences of a guilty plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).

¶ 17. At Jackson’s plea hearing, the circuit court went over each of the elements of the charge. Jackson acknowledged that he was entering his guilty plea “freely, voluntarily and knowingly with a full understanding of all matters that are set forth not only in [his] indictment that charge[d][him] with [his] felony but in [ ]his petition to plead guilty.”

¶ 18. Great weight may be placed on a defendant’s sworn testimony given at a plea hearing because “[s]olemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). A defendant faces a “high hurdle in recanting that testimony.” Pevey v. State, 914 So.2d 1287, 1290 (¶ 8) (Miss.Ct.App.2005). The only evidence offered by Jackson in support of his claim that his guilty plea was involuntary was his own unsupported assertions and his mother’s twelve-sentence affidavit.

¶ 19. Before Jackson entered his plea, the circuit court verified that Jackson understood and that his attorney had explained what rights he was giving up by pleading guilty. Jackson acknowledged that he wanted to plead guilty and wanted to give up those rights. Jackson acknowledged that was why he initialed the end of paragraph five of his plea petition. We address Jackson’s specific arguments in the sections below.

a. Failure to Explain the Effects of Suspended Sentence and Supervised Release

¶ 20. Jackson’s argument that the circuit court did not ensure that he understood his suspended sentence and supervised release is not supported by the record. The plea colloquy demonstrates that the circuit court explained the possible sentences:

Q. ... Do you understand that if convicted of that felony and sentenced under the enhanced statute, you could be sentenced to serve from not less than ten years, no more than sixty years with the [MDOC] and fined from zero to $2,000,000? Do you understand that?
A. Yes, sir.
Q. ... Paragraph 7 reflects a plea bargain agreement has been reached in your case, but you’re not going to receive that plea bargain agreement or be sentenced today. I’m going to go over first the plea bargain agreement, then explain to you how your deal works. The plea bargain agreement that you’ve reached with the District Attorney’s Office as I understand it is you will be sentenced to serve 30 years with the [MDOC] of which 20 years of that will be suspended, so you will have to serve 10 years in custody initially. That will be followed by five years post-release supervision. [ (Discussion of required payments.) ] ... [I]s that the plea bargain agreement you’ve reached with the District Attorney’s Office in your case and your understanding of how it works?
A. Yes, sir.
[ (Jackson’s attorney and the State both agreed it was their understanding as well.) ]
Q. ... Now, the way your deal works is if you timely show up at sentencing hearing and you don’t get arrested on any new felonies between today and that sentencing hearing, your sentence will be the plea bargain agreement that you’ve reached with the State. On the flip side, if you do violate — if you either don’t show up at that sentencing hearing timely at 9:00 or you get arrested on a new felony, then whenever we pick you up and hold that sentencing hearing your plea will be treated as a plea in the blind. That is, I can sentence you to any lawful sentence that I could under the statute.... Now, is that your understanding of what you’re doing this morning and your understanding of how it works?

A. Yes, sir.

As the record reflects; Jackson understood the plea bargain that he reached with the State.

¶ 21. In Smith v. State, 919 So.2d 989, 993 (¶ 9) (Miss.Ct.App.2005), the PCCR petitioner argued that her plea was involuntary because she was not informed of the “effects” of supervised release, or that she could be imprisoned again if she violated the terms of her release. There, the PCCR petitioner’s participation in the post-release supervision program “in no way affected the length of the sentence imposed by the trial court, but only affected the form of [her] confinement.” Id. at 994 (¶ 10). The circuit court was not required to explain that the MDOC could reclassify her confinement status and imprison her again for violations of her supervised release. Id.

¶ 22. Here, the circuit court was not required to explain to Jackson the details of the “effects” of post-release supervision. This issue is without merit.

b. Failure to Inform-that a Guilty Plea Waived Certain Constitutional Rights, such as the Right to a Speedy Trial

¶ 23. Jackson argues that the circuit court did not advise him of the constitutional rights he waived when he pled guilty. However, the record demonstrates the opposite.

Q. Now Paragraph 5 sets out certain constitutional rights or guarantees that you and every defendant are entitled to receive if you were to plead not guilty and you went to trial; but by pleading guilty this morning, you would be giving up each of these rights under paragraph 5 because you will not have a trial. Do you understand that?
A. Yes, sir.
Q. Have you read Paragraph 5 in its entirety?
A. Yes, sir.
Q. Have you gone over each of those rights with your attorney?
A. Yes, sir.
Q. And [your attorney] explained each of those rights to you and answered any questions you might have had?
A. Yes, sir.
Q. All right. Do you now understand each of those rights under Paragraph 5 that you are giving up at this time by pleading guilty?
A. Yes, sir.
Q. And that is what you want to do?
A. Yes, sir.
Q. And that is acknowledged by your initials at the end of Paragraph 5?
A. Yes, sir.

¶ 24. Additionally, Jackson’s plea petition contradicts his argument that his guilty plea was involuntary. “The plea petition was not an oral statement in open court, but it was a sworn document presumptively prepared with an appreciation of its fateful consequences.” Ward v. State, 879 So.2d 452, 455 (¶ 11) (Miss.Ct.App.2003). A plea petition is similar to a sworn statement made before the court and “may be used to discredit post-plea allegations.” Id.

¶ 25. Jackson initialed Paragraph 5 of the plea bargain agreement and swore:

I understand that I may plead “NOT GUILTY” to any offense charged against me. If I choose to plead “NOT GUILTY” the Constitution guarantees me:
(a) the right to a speedy and public trial by jury;
(b) the right to see, hear, and face in open court all witnesses called to testify against me; and the right to cross-examine those witnesses.
(c) the right to use the power and process of the court to compel the production of any evidence, including the attendance of any witnesses in my favor;
(d) the right to have the assistance of a lawyer at all stages of the proceedings;
(e) the presumption of innocence, i.e.[,] the State must prove beyond a reasonable doubt that I am guilty;
(f) the right to take the witness stand at my sole option; and, if I do not take the witness stand, I understand the jury may be told that this shall not be held against me;
(g) the right to appeal my case to the Mississippi Supreme Court if I am convicted at a trial on the charge(s) in the indictment.
Knowing and understanding the Constitutional guarantees set forth in this paragraph, I hereby waive them and renew my desire to enter a plea of guilty.

¶ 26. Jackson’s arguments here ignore his sworn plea petition and his testimony before the court when he pled guilty. The circuit court informed Jackson that a guilty plea waived certain constitutional rights. Additionally, the plea petition addressed the right to a speedy trial. Accordingly, based on a thorough review of the record, we find that Jackson’s guilty plea was entered voluntarily and intelligently. Therefore, we find this issue is without merit.

c. Plea Produced by Fear, Coercion, and Misinfonnation

¶ 27. Jackson next argues that his counsel coerced him to plead guilty. “It is [Jackson’s] duty to justify his arguments of error with a proper record, which does not include mere assertions in his brief, or the trial court will be considered correct.” See Dearman v. State, 910 So.2d 708, 711 (¶ 8) (Miss.Ct.App.2005) (internal quotation marks omitted).

¶ 28. A review of the transcript from the plea hearing demonstrates that the circuit court thoroughly questioned Jackson to ensure that his guilty plea was freely and voluntarily given.

Q. Do you feel like anyone has put any pressure on you to make you plead guilty this morning?
A. No, sir.
Q. Do you feel like anyone is tricking you or manipulating you in any way to make you plead guilty this morning?
A. To the best of my knowledge, no, sir. I’ve — from my understanding from the way he explained it to me, I understand basically what you’re saying.
Q. Just do you feel like anybody is tricking you or manipulating you in any way to make you plead guilty right now?
A. No, sir.

¶ 29. Further, Jackson declared in his plea petition:

[N]o officer or agent of any branch of government (Federal, State or Local) or Judge has made any promise or suggestion of any kind to me, or within my knowledge to anyone else, that I will receive a lighter sentence or probation, or any form of leniency if I plead “GUILTY” except: NONE.

¶ 30. There is no evidence in the record to indicate that Jackson’s plea was coerced. Jackson’s mother’s affidavit and Jackson’s bare assertions in his' appellate brief and PCCR motion do not overcome the strong presumption that his sworn statements in court and in his petition were true. After reviewing the plea colloquy and the thorough line of questioning by the circuit court, we conclude that Jackson’s guilty plea was not coerced. Therefore, Jackson’s argument that his plea was involuntary due to coercion is without merit.

2. Ineffective Assistance of Counsel

¶ 31. Jackson argued in his PCCR motion that he received ineffective assistance of counsel because his counsel failed to properly investigate his case, interview witnesses, and request an examination of the State’s evidence. Jackson argued that his counsel failed to request a speedy trial, investigate the State’s delay with the grand jury, and inquire into any Fourth Amendment violations.

1132. To prove ineffective assistance of counsel, Jackson must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Jackson to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, Jackson must “show that there is a reasonable probability that, but for counsel’s unprofessional erroi’S, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 33. As this case involves a guilty plea, Jackson must show that, but for counsel’s performance, he would have gone to trial, and the outcome would have been different. Mitchell v. State, 58 So.3d 59, 62 (¶¶ 14-15) (Miss.Ct.App.2011). Jackson has made no such showing.

a. Speedy Trial and State’s Delay in Indicting

¶ 34. The Mississippi Supreme Court has held that a voluntary guilty plea waives the right to a speedy trial. Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991). As' we have already found that Jackson voluntarily pled guilty, Jackson waived his right to a speedy trial. Further, Jackson swore in his plea petition that he knew and understood that by pleading guilty, he waived his right to a speedy trial.

¶ 35. Additionally, Jackson argues that his counsel failed to investigate the State’s delay in presenting the charge to the grand jury. Mississippi Code Annotated section 99-1-5 (Supp.2012) provides that for certain crimes, a person shall not be prosecuted unless the prosecution is commenced within two years after the commission of the crime. The State had two years in which to indict Jackson, and the State did so within one year and twenty-five days of his arrest. Therefore, these issues are without merit.

b. Failure to Suppress: Illegal Checkpoint, Involuntary Consent,- Unrea- . sonable Search and Seizure, Illegal Arrest and Detention

¶ 36. Jackson argues that his attorney failed to investigate Fourth Amendment matters or attempt to suppress evidence related to an illegal checkpoint, involuntary consent, unreasonable search and seizure, and illegal arrest and detention. A guilty plea waives certain Fourth Amendment violations, including illegal searches. King v. State, 738 So.2d 240, 241 (¶¶ 4-5) (Miss.1999). The United States Supreme Court has explained:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

¶ 37. Jackson waived the alleged Fourth Amendment violations with his voluntary guilty plea. Therefore, this issue has no merit.

c. Pretrial Preparation: Failure to Investigate, Interview Witnesses, and Request Examination of State’s Evidence

¶ 38. Jackson argues that he received ineffective assistance of counsel because his counsel had not prepared a defense before the trial date. Jackson argues that his attorney failed to investigate his case, interview witnesses, and request an examination of the State’s evidence. Jackson is obligated to provide affirmative proof of ineffective assistance of counsel and prejudice to support his claims.

¶ 39. Jackson’s attorney fulfilled his duty “to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Considering Jackson’s attorney’s strategy to pursue a plea bargain, his decision not to investigate was reasonable given the deference we afford to a counsel’s judgment.

¶ 40. Even assuming that the attorney’s failure to investigate was deficient performance, Jackson has not shown prejudice. Jackson has not told this Court “what facts ... a further investigation would have revealed or uncovered” and how this would have affected his decision to plea guilty. See Hebert v. State, 864 So.2d 1041, 1045 (¶ 10) (Miss.Ct.App.2004). All Jackson argues is that his attorney did not interview witnesses and did not inspect certain evidence.

¶ 41. A petitioner is required to “allege with specificity and detail the claimed ineffective assistance and how such actions, or inactions, prejudiced him.” Garner v. State, 864 So.2d 1005, 1008 (¶ 13) (Miss.Ct.App.2004) (citation omitted). Jackson does not specifically allege how such an investigation would have impacted his case favorably.

¶ 42. Jackson has not shown that knowledge of facts from an investigation would have caused his counsel to vary from his advice to take a plea bargain. See King v. State, 503 So.2d 271, 275 (Miss.1987). While Jackson states that his girlfriend, her friend, and the rental clerk would have all corroborated his story, he fails to explain how such information would have changed the outcome. Since Jackson has failed to show prejudice, his allegations of failure to investigate do not rise to the level of ineffective assistance of counsel. Therefore, this issue has no merit.

3. Abuse of Discretion with Motion to Withdraw, Guilty Plea

¶ 43. Jackson argues that the trial court abused its discretion when it denied his motion to withdraw his guilty plea. The decision of whether to permit a defendant to withdraw a guilty plea lies within the discretion of the circuit court. Burrough v. State, 9 So.3d 368, 372-73 (¶ 11) (Miss.2009). Uniform Rule of Circuit and County Court Practice 8.04(A)(5) states that “[i]t is within the discretion of the court to permit or deny a motion for the withdrawal of a guilty plea.”

¶ 44. Based on the facts already discussed in Jackson’s other issues, we find that Jackson voluntarily entered his guilty plea and that the circuit court did not abuse its discretion when it denied Jackson’s motion to withdraw his guilty plea. Therefore, this issue has no merit.

¶ 45. In summary, Jackson’s plea was voluntary; Jackson received effective assistance of counsel; and the circuit court had discretion to permit or deny Jackson’s motion to withdraw his plea. Because we find that the issues Jackson argues have no merit, we affirm the circuit court’s denial of his PCCR motion.

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

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


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    James LUDWIG a/k/a James Elwood Ludwig a/k/a James E. Ludwig, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KM-00461-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.
    Rehearing Denied Oct. 8, 2013.

      Kevin Dale Camp, Jackson, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. On September 30, 2010, James Ludwig entered a nolo contendere plea in Madison County Justice Court to one count of driving under the influence (DUI), first offense, and one count of careless driving. Ludwig appealed to Madison County County Court where, after a trial de novo, he was convicted of both charges. On the DUI conviction, Ludwig was sentenced to forty-eight hours in the county jail, but the sentence was suspended provided he complete two years of probation in addition to completion of the Mississippi Alcohol Safety Education Program, and he was ordered to pay a $900 fine. On the careless-driving charge, Ludwig was ordered to pay court costs and a $25 fine. Ludwig then appealed to the Madison County Circuit Court, which affirmed the county court’s conviction and sentence. Ludwig now appeals to this Court, asserting the following issues: (1) the county court erred in allowing the calibration certificate of the Intoxilyzer 8000 into evidence; (2) there was no probable cause to stop his car that night; and (3) the evidence was insufficient to support his conviction for DUI, first offense.

FACTS

¶ 2. Around 8:00 p.m. on March 17, 2010, Lieutenant Tony Murphy, with the Madison County Sheriffs Office, was driving to assist Deputy Mark Sandridge with a traffic stop on 1-220 in Madison County, Mississippi, when he noticed a truck pass dangerously close to Deputy Sandridge. Deputy Sandridge was standing at the driver’s side window of the car he had stopped. Deputy Sandridge did not remember a truck passing that closely to him at that time. Lieutenant Murphy followed the truck and observed it run off the road onto the shoulder. This occurred in the area where 1-220 turns into 1-55 North, near the Natchez Trace exit. Lieutenant Murphy then activated his blue lights and saw Ludwig’s truck run off the road into the shoulder a second time on the exit ramp to the Natchez Trace Parkway.

¶ 3. Lieutenant Murphy approached the driver of the truck, identified as Ludwig, and informed Ludwig he was stopped for running off the road. Ludwig admitted to Lieutenant Murphy that he had run off the road onto the shoulder. Lieutenant Murphy testified that he smelled alcohol emanating from the truck and noticed Ludwig’s eyes were glassy and bloodshot. Lieutenant Murphy then asked Ludwig how much alcohol he had consumed that night. Ludwig responded that he had consumed two beers, two shots of whiskey, and a margarita in addition to a burrito, chips, and salsa at a Mexican restaurant in Clinton, Mississippi. Ludwig was returning to his apartment in Ridgeland, Mississippi. Lieutenant Murphy called Deputy Sandridge, a DUI enforcement officer, to the scene to assist. While waiting for Deputy Sandridge, Lieutenant Murphy performed a portable breath test on Ludwig. The test was positive, indicating the presence of alcohol.

¶ 4. Deputy Sandridge arrived at the scene around 8:30 p.m. and proceeded to conduct field-sobriety tests on Ludwig. Deputy Sandridge testified that Ludwig smelled like alcohol, his speech was slurred, his face was flushed, he swayed while standing, and his eyes were bloodshot and watery. Ludwig told Deputy Sandridge he started drinking around 5:30 p.m. and finished at approximately 7:45 p.m. Ludwig submitted to several field-sobriety tests, including the horizontal-gaze nystagmus (HGN), the one-leg-stand test, and the walk-and-turn test. Deputy Sandridge also performed a portable breath test on Ludwig. Taking into account the totality of the circumstances, Deputy Sandridge arrested Ludwig for DUI, first offense.

¶ 5. After arriving at the Madison County Jail, Deputy Sandridge administered two Intoxilyzer 8000 tests on Ludwig, the first at 9:27 p.m. and the second at 9:29 p.m. The tests indicated Ludwig’s blood-alcohol content (BAC) was .10%.

¶ 6. Dr. Steven Hayne testified in Ludwig’s defense as an expert in clinical, anatomic, and forensic pathology. Dr. Hayne calculated that if Ludwig’s BAC was .10% around 9:30 p.m., then based upon the relevant data, his BAC would have been .067% at 8:15 p.m. and .083% at 8:30 p.m.

¶ 7. Ludwig testified that he only remembered driving off the road onto the shoulder one time, and it was after he saw blue lights and heard a police siren. Ludwig further stated he did not remember driving too closely to Deputy Sandridge.

DISCUSSION

I. AUTHENTICITY OF CALIBRATION CERTIFICATE

¶ 8. In his first issue on appeal, Ludwig contends the State failed to prove the person certifying the truthfulness of the In-toxilyzer 8000 certificate of calibration had reviewed the document; thus, the signature on the certificate was not authentic. Over Ludwig’s objection, the State introduced two calibration certificates, one dated prior to Ludwig’s DUI and the other dated after his DUI. Each certificate found the specific machine used on Ludwig to be in working condition and the calibration to have “met acceptable standards of accuracy.” These documents were certified by Maury Phillips, section chief of the Implied Consent Section of the Mississippi Crime Lab. The certificates contained a stamp with Phillips’s signature. The certificates also contained the signature of the operator, Wendy Hathcock. Hathcock was Phillips’s deputy at the crime lab.

¶ 9. Ludwig claims Phillips’s signature was stamped on by a third party; therefore, the certificates were not self-authenticating and not admissible. However, if the calibration certificates bear the seal of the crime lab and the signature of the one attesting to the truth of their contents, then the certificates are considered self-authenticating. Pulliam v. State, 856 So.2d 461, 464-65 (¶¶ 12-13) (Miss.Ct.App.2003). Furthermore, “[njothing in the rules suggests] that when an official public record has been admitted, that the party offering the document still must prove the authority of the person named in the certificate.” Callahan v. State, 811 So.2d 420, 423 (¶ 14) (Miss.Ct.App.2001). There is no genuine issue as to the authenticity of the signatures on the calibration certificates; thus, this issue is without merit.

II. PROBABLE CAUSE

¶ 10. In his next issue on appeal, Ludwig claims Lieutenant Murphy did not have probable cause to make the initial traffic stop. Ludwig implies that Lieutenant Murphy’s account of the evening is untrustworthy for two reasons: first, Deputy Sandridge did not notice Ludwig’s truck as it passed close by him; and second, Deputy Sandridge was unaware Lieutenant Murphy witnessed Ludwig’s truck run off the road where 1-220 turns into I-55 north.

¶ 11. The careless-driving statute, Mississippi Code Annotated section 68-3-1213 (Rev.2004), states in part:

Any person who drives any vehicle in a careless or imprudent manner, without due regard for the width, grade, curves, corner, traffic and use of the streets and highways[,] and all other attendant circumstances is guilty of careless driving. Careless driving shall be considered a lesser offense than reckless driving.

¶ 12. As a general rule, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “Carelessness is a matter of reasonable interpretation, based on a wide range of factors.” Henderson v. State, 878 So.2d 246, 247 (¶ 8) (Miss.Ct.App.2004). During trial, Lieutenant Murphy testified he saw Ludwig’s truck pass so close to Deputy Sandridge that “the mirror could have struck the officer” and then run off the road onto the shoulder. We find that the reasons articulated by Lieutenant Murphy were sufficient to find probable cause for a traffic stop based on careless driving. This issue is without merit.

III. SUFFICIENCY OF THE EVIDENCE

¶ 13. In his final issue on appeal, Ludwig contends the evidence was insufficient to support his DUI conviction. “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed[.]’ ” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id.

¶ 14. Ludwig’s sole contention is that he may have been intoxicated at 9:27 p.m., but he was not over the legal limit while he was driving approximately one hour earlier. Ludwig refers to Dr. Hayne’s retrograde-extrapolation theory, which showed Ludwig’s BAC to be .067% at 8:15 p.m. and .083% at 8:30 p.m. Dr. Hayne’s testimony is somewhat confusing, as he also stated, “At 8:30, [Ludwig’s] alcohol level was 0.083 with a range of 0.071 to 0.077.” Ludwig was charged pursuant to Mississippi Code Annotated section 63 — 11— 30 (Supp.2012), which states:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; ... [or] (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law....

According to this statute, a defendant can be charged and convicted for driving under the influence by the testimony of a witness who observed the defendant exhibiting signs of intoxication, or by the results of an Intoxilyzer test. The record mostly contains references to section 63-11-80 without specific cites to the applicable subsection. The traffic citation indicates Ludwig violated section 63 — 11—30(l)(a) and (c). The judgment of conviction in the county court indicates the county court judge found “there [was] a factual basis which establishes [Ludwig’s] guilt beyond a reasonable doubt under [s]ection 63-11-19(a).... ” Although the judgment referenced section 63 — 11—19(a), we consider this to be a clerical error, and the judgment was intended to reference section 63 — 11— 30(l)(a).

¶ 15. The Intoxilyzer tests indicated Ludwig’s BAC at 9:27 p.m. was .10%. There is no requirement that the State must prove a defendant’s exact BAC at the time of the incident, only that the defendant’s BAC was equal to or above the legal limit. See Smith v. State, 942 So.2d 308, 314-15 (¶¶ 15-16) (Miss.Ct.App.2006) (BAC test was relevant and admissible despite being administered over four hours after accident). Regardless, Lieutenant Murphy stated that Ludwig admitted to drinking two beers, two shots of whiskey, and one margarita. Deputy Sandridge testified that Ludwig smelled like alcohol, his speech was slurred, his face was flushed, he swayed while standing, and his eyes were bloodshot and watery. After conducting field-sobriety tests on Ludwig, Deputy Sandridge decided to arrest him for DUI. From the evidence presented, we find there was sufficient evidence to find Ludwig guilty of DUI, first offense. This issue is without merit.

¶ 16. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS IN THE MADISON COUNTY JAIL, WITH THE SENTENCE SUSPENDED WHILE ON TWO YEARS’ PROBATION, AND TO PAY A $900 FINE; AND COUNT II, CARELESS DRIVING, AND TO PAY A $25 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . "Retrograde extrapolation" has been described as "a scientific method of making a determination of the BAC at a particular point in time by predicting an earlier unknown value by calculating a known later value with a series of generally used average values, and projecting that result back in time.” Evans v. State, 25 So.3d 1061, 1065 (¶ 9) (Miss.Ct.App.2008) (citation and internal quotation omitted). The Mississippi Supreme Court noted in Evans v. State, 25 So.3d 1054, 1058 n. 5 (Miss.2010), that it had “not yet ruled on the admissibility of such testimony.”


author: FAIR, J.,

text:
    Richard Matthew Guy SMITH, Appellant v. NORMAND CHILDREN DIVERSIFIED CLASS TRUST, Appellee.
    No. 2011-CA-01703-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.
    Rehearing Denied Oct. 8, 2013.

      Alben Norris Hopkins Jr., Mariano Javier Barvie’, Gulfport, attorneys for appellant.
    William E. Whitfield III, Kaara Lena Lind, Biloxi, attorneys for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   FAIR, J.,

for the Court:

¶ 1. Richard Smith was injured on the job in an explosion. He received workers’ compensation benefits through his employer, but in this third-party action he seeks tort damages from various other entities he contends are responsible for his injury.

¶ 2. Smith initially filed a lawsuit (Smith I) in the Circuit Court of Harrison County against three defendants that shared the workspace with his employer. He later sought to add the Normand Children Diversified Class Trust (“the Trust”), the owner of the building where the explosion occurred, as a defendant. Smith filed a motion for leave to amend the complaint in Smith I, but he became concerned it would not be addressed before the running of the statute of limitations. He therefore filed the instant action, Smith II, seeking damages for the same injury but naming the Trust as the sole defendant. Smith then filed a motion to consolidate the two suits, but the trial court dismissed Smith II without prejudice as an improperly split claim. Smith appeals from that judgment.

DISCUSSION

¶ 3. We addressed a similar issue in our recent decision in Carpenter v. Kenneth Thompson Builder, Inc., — So.3d - (Miss.Ct.App.2013), where this Court concluded the rule against claim splitting was not violated when a similar procedure was employed in that case. Today’s case, even though it involves different parties and a different lower court, is more straightforward and presents many of the same issues and arguments, probably because all of the attorneys in today’s case were also involved in Carpenter. For largely the same reasons as in Carpenter, we reverse and remand this case.

¶ 4. The trial court based its decision to dismiss for claim splitting on the Mississippi Supreme Court’s opinion in Wilner v. White, 929 So.2d 315 (Miss.2006). The issue in Wilner was whether an amended complaint related back to the original complaint. Claim splitting was not implicated, but the supreme court addressed a statement by this Court that endorsed the same procedure employed by Smith in the instant case. In Wilner v. White, 929 So.2d 343, 350 (¶ 24) (Miss.Ct.App.2005), we had opined:

If Wilner had named the four new parties in a separate, original complaint and moved to consolidate the two cases, we would not have an issue with the statute of limitations, nor would there be an issue regarding relating back.

On certiorari, the supreme court responded as follows:

Respectfully, the Court of Appeals is mistaken in its assumption that Wilner could have properly named the new parties in a separate complaint. Had Wil-ner done this, she would have offended the long-standing principal of law in Mississippi prohibiting a party from splitting a cause of action into the subject of two different actions, reaching back to this Court’s decision in Kimball v. Louisville and Nat’l R.R. Co., 94 Miss. 396, 48 So. 230 (1909). See also Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 234 (Miss.2005); Alexander v. Elzie, 621 So.2d 909, 910 (Miss.1992). Suggesting that a party should take this course of action in the future is encouraging that party to ignore the law.

Wilner, 929 So.2d at 320 (¶ 5). The supreme court also quoted at length from the Restatement of Judgments:

§ 62 SPLITTING CAUSE OF ACTION-JUDGMENT FOR PLAINTIFF OR DEFENDANT.
Where a judgment is rendered, whether in favor of the plaintiff or of the defendant, which precludes the plaintiff from thereafter maintaining an action upon the original cause of action, he cannot maintain an action upon any part of the original cause of action, although that part of the cause of action was not litigated in the original action, except[:]
(c) where the defendant consented to the splitting of the plaintiffs cause of action.
Comment:
a. Rationale: The rule stated in this Section is based on the idea that where a person has a single cause of action, in the interests of convenience and economy to the public and to the defendant he should be entitled to but one right of action and hence should be required to unite in one proceeding all matters which are part of it.

Id. at 320-21.

¶ 5. While Wilner does seem to encompass the facts of today’s case, the discussion is dicta. Dicta are statements “not necessary to the court’s ruling.” McKibben v. City of Jackson, 193 So.2d 741, 745 (Miss.1967). Naturally, “comment [by the supreme court] upon dicta [from a lower court] is probably also dicta.” Id. Dicta “are not within the strict rule of stare decisis; but they do show the ‘views entertained by the court at that time[,]’ are ‘of persuasive force[,]’ and should be followed unless found to be erroneous.” State v. McDonald, 164 Miss. 405, 423, 145 So. 508, 512 (1933) (Smith, C.J., concurring) (citations omitted).

¶ 6. We certainly agree with the supreme court that claim splitting is not permitted in Mississippi. But we do not find the dicta in Wilner persuasive, at least in today’s case, where the second suit names entirely different defendants. The Wilner court relied on the Restatement of Judgments § 62, quoting it at length, but it neglected the second comment, which states in relevant part:

b. Different parties. The rule stated in this Section presupposes a claim and judgment of a single plaintiff against a single defendant. It does not deal with situations in which there is a single event or transaction from which arise a number of claims by one person against several or by several persons against one or a number of persons. Thus, a person may have a claim against a number of others on a joint and several contract or because of a joint tort; or a number of persons may be entitled to maintain actions for a single act....

¶ 7. It is important to note that the doctrine of claim splitting is closely related to res judicata, and our courts have often used “claim splitting” or “splitting a cause of action” to refer to certain forms of res judicata. See, e.g., Hill v. Carroll Cnty., 17 So.3d 1081, 1084 (¶ 8) (Miss.2009). For the bar of res judicata to apply in Mississippi, there must be a final judgment on the merits, as well as four identities: “(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made.” EMC Mortgage Corp. v. Carmichael, 17 So.3d 1087, 1090 (¶ 10) (Miss.2009); see also Channel v. Loyacono, 954 So.2d 415, 424 (¶ 31) (Miss.2007).

¶ 8. The doctrine actually implicated in Wilner and today’s case is similar but distinct from res judicata and ordinary claim splitting in that it does not require a final judgment, only another pending action meeting the four identities of res judi-cata. Dismissal or suspension of a suit under these circumstances is a form of docket management that permits trial courts to deal with duplicative litigation when two cases are pending and neither has reached a final judgment. See Katz v. Gerardi, 655 F.3d 1212, 1218-19 (10th Cir. 2011); see also 18 Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 4406 (Supp.2012) (“In dealing with simultaneous actions on related theories, courts at times express principles of ‘claim splitting’ that are similar to claim preclusion, but that do not require a prior judgment. A dismissal on this ground has been viewed as a matter of docket management. ... ”). Trial courts in Mississippi likewise have the inherent authority to control their own dockets. See City of Jackson v. Rhaly, 95 So.3d 602, 607 (¶ 10) (Miss.2012). The question when dismissing or suspending a case for “claim splitting” as docket management is whether the first action would have a preclusive effect on the second when a final judgment on the merits is ultimately entered. See Katz, 655 F.3d at 1219.

¶ 9. The docket management incarnation of the claim splitting doctrine still requires all four identities of res judi-cata and claim splitting — one of which is the identity of the parties to the cause of action. The Mississippi Supreme Court discussed that element in Harrison v. Chandler-Sampson Ins., 891 So.2d 224, 236-37 (¶ 37) (Miss.2005). It held: “To satisfy the identity of parties element, strict identity of the parties is not necessary. A non-party defendant can assert res judicata so long as it is in ‘privity’ with a named defendant.” Id. (quoting Russell v. SunAmerica Secs., Inc., 962 F.2d 1169, 1173 (5th Cir.1992)).

¶ 10. Dismissal as a form of docket management is subject to an abuse of discretion standard of review. Katz, 655 F.3d at 1217. Nonetheless, since the identity of parties element has not been met, the trial court clearly abused its discretion in dismissing this case. The trial court’s discretion in controlling its docket should be exercised within “the bounds of the rationally available choices given the facts and the applicable law in the case at hand.” Id. As we pointed out in our recent decision in Carpenter, there is another option available when multiple cases are filed involving the same operative questions of law or fact, one that can be employed even when there are different parties: consolidation.

¶ 11. Rule 42(a) of the Mississippi Rules of Civil Procedure provides:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

The decision of whether to consolidate cases remains “within the sound discretion of the trial court.” Smith v. H.C. Bailey Cos., 477 So.2d 224, 231 (Miss.1985). However, the trial court ought to weigh its options in light of Mississippi Rule of Civil Procedure 1, the comment to which states in part that “the rules [should] be interpreted liberally in order that the procedural framework in which litigation is conducted promotes the ends of justice and facilitates decisions on the merits, rather than determinations on technicalities.” We recognize that Smith I has been proceeding in the trial court during the pen-dency of this appeal, and so consolidation with today’s case may no longer be feasible or expedient. Nonetheless, the trial court should at least consider it on remand.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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


author: IRVING, P.J.,

text:
    In the Interest of S.L.B., A Minor.
    No. 2012-CA-00970-COA.
    Court of Appeals of Mississippi.
    Oct. 8, 2013.

      Joseph Preston Durr, W. Brady Rel-lenas, Brookhaven, attorneys for appellants.
    Francis Jones, appellant, pro se.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This case arises out of a custody dispute between Erica and David Smith, S.L.B.’s foster parents, and Francis Jones, S.L.B.’s biological grandmother. On May 23, 2012, the Pike County Youth Court awarded Jones physical and legal custody of S.L.B., terminated the Smiths’ court-ordered visitation, and ordered the Smiths to pay $268.50 of the guardian ad litem’s (GAL) fees. The Smiths appeal and argue that the youth court erred in terminating their court-ordered visitation without finding that a material change in circumstances had occurred. They also contend that the court erred in assessing them one-half of the GAL’s fees.

¶ 2. Finding that the youth court judge did not err in terminating the Smiths’ visitation rights, but erred in assessing the Smiths a portion of the GAL’s fees, we affirm in part and reverse and render in part.

FACTS

¶ 3. On September 27, 2010, the Smiths executed a contract with the Mississippi Department of Human Services (DHS), acknowledging, among other things, that by placing a child in their home for foster care, DHS did not confer any right to the custody of that child to the Smiths. The contract further stated:

We agree to cooperate with [DHS] in carrying out [DHS’s] plans for any foster child placed in [our] home, including the plan to return a child to his/her parents, to transfer a child to another foster home or institution, or any other plan which [DHS] may have.

Soon after, S.L.B. was placed in the Smiths’ home. During the permanency hearing on January 11, 2012, the youth court held that it was in S.L.B.’s best interest to be in Jones’s custody for the three months leading up to the review hearing, and not in the custody of DHS. The youth court also granted the Smiths visitation with S.L.B. every other weekend. After the review hearing, in its final order, the youth court gave Jones full custody of S.L.B., terminated the visitation previously granted to the Smiths, and ordered the Smiths to pay $268.50 to the GAL within sixty days.

¶ 4. Additional facts, as necessary, will be related during our discussion and analysis of the issues.

DISCUSSION AND ANALYSIS OF THE ISSUES

¶ 5. A youth court judgment will not be reversed by an appellate court unless the judgment is manifestly wrong or clearly erroneous, or an erroneous legal standard was applied. In re B.S., 105 So.3d 1120, 1122 (¶ 6) (Miss.2013).

I. Termination of Visitation Rights

¶ 6. The Smiths argue that the substance of the permanency order is “in effect a custody order” and should be considered as such, but offer no authority to support their position. The Smiths further assert that because the permanency order is considered a custody order, any modification of the order must be based upon a material change in circumstances. However, the contract that the Smiths signed with DHS clearly states that the Smiths have no custodial rights regarding S.L.B. Therefore, the permanency order cannot be considered a custody order, and the youth court was not required to find that a material change in circumstances had occurred before terminating the Smiths’ visitation. This issue is without merit.

II. Guardian ad Litem Fee

¶ 7. The Smiths argue that the court erred in ordering them to pay a portion of the GAL’s fees. The court can order that the payment of a GAL’s-fees come from two sources: “financially able parents” under Rule 13(d) of the Uniform Rules of Youth Court Practice or “the county general fund” under Mississippi Code Annotated section 43-21-121(6) (Rev. 2009). Rule 13(d) states:

The [GAL] shall be paid a fee in the performance of duties pursuant to section 43-21-121(6).... The court may order financially able parents to pay for the reasonable fees of the [GAL], or a portion thereof, pursuant to [Mississippi Code Annotated section 43-21-619 (Rev. 2009) ].

And section 43-21-121(6) states:

Upon order of the youth court, the [GAL] shall be paid a reasonable fee as determined by the youth court judge or referee out of the county general fund as provided under [Mississippi Code Annotated] [s]eetion 43-21-123 [ (Rev.2009) ]. To be eligible for such fee, the [GAL] shall submit an accounting of the time spent in performance of his duties to the court.

Although the record does not indicate why the youth court did not assess the GAL’s fees to the county fund, the court nevertheless erred in ordering the Smiths to pay a portion of the GAL’s fees. The Smiths do not meet the definition of “parent” under Mississippi Code Annotated section 43-21-105(e) (Supp.2012), and there is no authority that would allow the youth court to assess GAL’s fees to foster parents. Therefore, the youth court’s judgment assessing the Smiths $268.50 in GAL’s fees must be reversed and rendered.

¶ 8. THE JUDGMENT OF THE PIKE COUNTY YOUTH COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANTS AND ONE-HALF TO THE AP-PELLEE.

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

      . Due to the confidential nature of this case, the parties have been given fictitious names.

      . The record does not indicate when or why the youth court assigned a GAL to this case.

      . The youth court, based on a statement of charges submitted by the GAL, ordered the Smiths and Jones to each pay $268.50 under the belief that the total amount of the services rendered by the GAL amounted to $537, and that both parties would be paying half of the total amount. However, the total charges on the GAL’s statement were $617. Consequently, $268.50 is less than half of the GAL’s fees.

      .Rule 29(a)(3) of the Uniform Rules of Youth Court Practice requires a youth court to "conduct a permanency hearing for any child placed in foster care on or after July 1, 1998[.]”

      . Section 43-21-105(e) defines "parent” as a "father or mother to whom the child has been born, or the father or mother by whom the child has been legally adopted.”


author: ISHEE, J.,

text:
    Robert Ed POLLARD a/k/a Robert Pollard, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00931-COA.
    Court of Appeals of Mississippi.
    Oct. 8, 2013.
    Robert Ed Pollard, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., BARNES, ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2011, Robert Ed Pollard pleaded guilty to and was convicted in the Lauder-dale County Circuit Court of one count of motor-vehicle theft. He was sentenced as a habitual offender to five years, day for day, in the custody of the Mississippi Department of Corrections (MDOC). In January 2012, Pollard filed a motion to correct his sentence. The motion was treated as one requesting post-conviction relief (PCR). The PCR motion was denied. Approximately one year later, he filed another PCR motion challenging his sentence. The subsequent PCR motion was dismissed as a successive writ. Pollard now appeals the dismissal of his second PCR motion. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Pollard was convicted in the Lauder-dale County Circuit Court of embezzlement in 1989, aggravated assault in 1998, and stealing timber in 2003. Although the conviction for stealing timber was reversed and remanded by this Court in 2006, Pollard subsequently pleaded guilty to the charge in 2007. The record also indicates that Pollard was convicted of timber stealing again in the Kemper County Circuit Court in 2009.

¶ 3. Pollard was arrested again in Laud-erdale County, Mississippi, in 2010 and charged with four counts of motor-vehicle theft. In February 2011, subsequent to plea-bargain negotiations, Pollard pleaded guilty to one count of motor-vehicle theft. The circuit court entered an order of nolle prosequi as to the remaining three counts of motor-vehicle theft. The circuit court then sentenced him as a habitual offender to five years in the custody of the MDOC, to be served day for day.

¶ 4. On January 23, 2012, Pollard filed a motion to correct his sentence and claimed he was illegally sentenced as a habitual offender because the circuit court did not have enough evidence before it of prior convictions. The circuit court denied the motion in a lengthy order dated May 4, 2012, and cited evidence from the record and from Pollard’s criminal history rendering Pollard’s claims moot. Pollard then filed another PCR motion on December 18, 2012, asserting the same issues. The circuit court dismissed the second PCR motion as a successive writ. Pollard now appeals.

DISCUSSION

¶ 5. “We will not disturb a circuit court’s denial of a PCR motion unless the decision is found to be clearly erroneous.” Brown v. State, 71 So.3d 1267, 1268 (¶ 4) (Miss.Ct.App.2011) (citation omitted). Questions of law are reviewed de novo. Id.

¶ 6. Mississippi Code Annotated section 99-39-23(6) (Supp.2012) applies to successive writs and provides that an issue raised by a movant and addressed in a final judgment cannot be raised by the movant again. Any motion filed after entry of the final judgment and asserting the same issue is procedurally barred as a secondary or successive writ. Id.

¶ 7. Here, Pollard filed a motion to correct his sentence in January 2012. The record reflects that the circuit court properly addressed Pollard’s motion as a PCR motion. The circuit court conducted an in-depth analysis of Pollard’s claims and produced a lengthy order in May 2012 detailing the reasoning behind the denial of the motion.

¶ 8. Nonetheless, in December 2012, Pollard filed another PCR motion challenging his sentence on the same grounds. The issues he raised in his second PCR motion are virtually identical to those raised in his first PCR motion. Since the first PCR motion was adjudicated in a final judgment dated May 4, 2012, Pollard’s second PCR motion classifies as a successive writ under section 99-39-23(6), and no exception to that procedural bar applies. As such, the circuit court properly dismissed Pollard’s PCR motion as procedurally barred. This issue is without merit.

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

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

      . See Pollard v. State, 932 So.2d 82, 89 (¶ 21) (Miss.Ct.App.2006).


author: STUART, Justice.

text:
    CITY OF IRONDALE v. CITY OF LEEDS.
    1111347.
    Supreme Court of Alabama.
    Feb. 15, 2013.
    Rehearing Denied April 12, 2013.

      Jeffrey W. Brumlow and Gregory L. Morris of Morris & Brumlow, P.C., Truss-ville, for appellant.
    Emily Sides Bonds and Edward J. Ash-ton of Jones, Walker, Waechter, Poitevent, Carrére & Denegre, LLP, Birmingham, for appellee.
   STUART, Justice.

The City of Irondale appeals the summary judgment entered by the Jefferson Circuit Court declaring invalid Irondale’s annexation of a parcel of property owned by the Black Warrior-Cahaba Rivers Land Trust (“the Land Trust”) adjacent to the Cahaba River at the point the Cahaba River intersects U.S. Highway 78, also known as Bankhead Highway, in Jefferson County (this property is hereinafter referred to as “the Land Trust property”). We affirm.

I.

On December 9, 2006, Jefferson County conveyed multiple parcels of property it owned along the Black Warrior River and the Cahaba River to the Land Trust, which covenanted to preserve and protect in perpetuity the water quality and habitat values of the property, which were declared in the deeds conveying the property to be “of great importance to [Jefferson County], the people of Jefferson County and the people of the State of Alabama.” Included in those parcels of property was the Land Trust property. On July 6, 2010, the Land Trust petitioned Irondale to annex the Land Trust property, which at that time did not lie within the corporate limits of any municipality, but fell within the police jurisdiction of both the City of Irondale and the City of Leeds. The Irondale City Council thereafter voted to grant the petition for annexation and, in August and September 2010, adopted a series of four ordinances annexing the property pursuant to § 11-42-20 et seq., Ala.Code 1975, the statutes governing annexation by municipalities having 2,000 inhabitants or more.

On April 29, 2011, the City of Leeds filed an action in the Jefferson Circuit Court, seeking a judgment declaring invalid the annexation of the Land Trust property and declaring the corporate limits of the City of Irondale to be the same as they were before the adoption of the annexing ordinances. Leeds argued that the Land Trust property was “not contiguous to any part of the corporate limits of Irondale” and that its annexation by Irondale was therefore improper because § 11-42-21, Ala.Code 1975, authorizes annexation by petition only when the subject property is “contiguous to the corporate limits” of the annexing municipality. See Fort Morgan Civic Ass’n v. City of Gulf Shores, 100 So.3d 1042, 1047 (Ala.2012) (“Annexation by petition is governed by § 11-42-21, Ala. Code 1975, which requires only that the annexed land be ‘contiguous to the corporate limits’ of the annexing municipality.”).

On October 10, 2011, Irondale moved the trial court to enter a summary judgment in its favor, arguing that contiguity existed between the Land Trust property and property within the Irondale corporate limits, specifically along the east side of the Land Trust property where Iron-dale alleged there was contiguity in the center of the Cahaba River. On January 20, 2012, Leeds filed its own summary-judgment motion, arguing that the Land Trust property was separated from the corporate limits of Irondale by the Cahaba River, which Leeds alleged was a public waterway, and that a finding of contiguity across that waterway was inappropriate in light of this Court’s decisions in City of Spanish Fort v. City of Daphne, 774 So.2d 567 (Ala.2000), City of Madison v. City of Huntsville, 555 So.2d 755 (Ala.1989), and Johnson v. Rice, 551 So.2d 940 (Ala.1989), cases in which this Court considered the circumstances in which the contiguity requirement of § 11-42-21 could be met notwithstanding the existence of a public waterway between the property to be annexed and the corporate limits' óf the municipality desiring the annexation. Leeds also argued that Irondale’s annexation of the Land Trust property would adversely affect the proper and efficient functioning of the Leeds city government.

On February 10, 2012, the parties filed responses to each other’s summary-judgment motions. At a hearing on those motions, the trial court ordered additional briefing from the parties addressing the question whether the Cahaba River was, in fact, a public waterway. On March 30, 2012, Leeds submitted a brief and eviden-tiary materials supporting its position that the Cahaba River was a public waterway because, Leeds alleged, the stretch of the Cahaba River at issue was navigable both in law and in fact. See, e.g., Ala. Const. 1901, Art. I, § 24 (“[A]ll navigable waters shall remain forever public highways, free to the citizens of the state and the United States, without tax, impost, or toll.... ”), and § 83-7-1, Ala.Code 1975 (“All navigable waters in this state are public thoroughfares.”). Irondale subsequently filed a response, arguing that the Cahaba River was not a public waterway because the deed conveying the Land Trust property to the Land Trust clearly indicated that the Land Trust owned the bed and bottom of the river up to its center and the State could not, therefore, simultaneously own that bed and bottom. Irondale further argued that the stretch of the Cahaba River at issue was not navigable under the federal test of navigability, which test, Ir-ondale argued, was the only test that mattered. Evidence of individual opinions or state determinations of the navigability question were, Irondale argued, irrelevant. See United States v. State of Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 79 L.Ed. 1267 (1935) (“[T]he question, whether the waters within the state under which the lands lie are navigable or nonnavigable, is a federal, not a local, one. It is, therefore, to be determined according to the law and usages recognized and applied in the federal courts.... ”).

On June 6, 2012, the trial court ruled on the parties’ summary-judgment motions, granting the motion filed by Leeds and denying the motion filed by Irondale. In entering a summary judgment in favor of Leeds, the trial court concluded that “the Cahaba River, under Alabama state law, is a public waterway” and that the conditions for finding contiguity across a public waterway were not met. Accordingly, the trial court concluded, Irondale’s annexation of the Land Trust property was improper and void. On July 3, 2012, Iron-dale filed a timely notice of appeal to this Court.

II.

Irondale argues that the trial court erred in entering a summary judgment in favor of Leeds. We review this argument pursuant to the following standard:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

III.

The trial court correctly identified the primary issue in this case: Whether the Cahaba River is a public waterway at the point it separates the Land Trust property from property within the corporate limits of Irondale. On appeal, Irondale emphasizes the fact that the deed conveying the Land Trust property to the Land Trust states on its face that the Land Trust owns the property to the center of the Cahaba River and argues essentially that this fact (1) forecloses a finding that the Cahaba River is a public waterway and (2) obviates the need to consider whether the Cahaba River is a public waterway because, even if it is, there is nevertheless contiguity between the Land Trust property and property in the corporate limits of Irondale where those properties meet in the bed at the center of the Cahaba River. In Johnson, however, this Court stated:

Annexation across a public waterway, in many respects, is substantially similar to annexation across a public road. The question is: “What did the legislature mean and intend when requiring that the parcel to be annexed be contiguous to the existing city limits?” Our Supreme Court, in answering that question, has said that two parcels of land are contiguous, within the meaning and intent of the legislature, if they lie on opposite sides of a public road. This finding does not, and should not, turn on an exhaustive analysis of who owns the underlying fee to, or who has rever-sionary rights to, the road right-of-way, or any similar principles of real estate law. Rather, the basis for this interpretation rests most comfortably upon a common sense recognition and understanding of what is necessary for the proper and efficient functioning of city government.’ ”

551 So.2d at 944 (quoting order of the trial court; emphasis added). Thus, in Johnson this Court recognized that whether there is contiguity between properties separated by a public road does not hinge on who owns the land underlying the public road; rather, common-sense principles should be applied. Similarly, if we hold the Cahaba River to be a public waterway in this case, we will apply the principles developed by this Court in Johnson, City of Madison, and City of Spanish Fort, and not base our conclusion on an analysis “of who owns the underlying fee to, or who has reversionary rights to, the [water] right-of-way, or any similar principles of real estate law.” Johnson, 551 So.2d at 944. For this reason, we need not be concerned with whether the Land Trust and the adjacent property owner own the bed and bottom of the Cahaba River, as Irondale argues, or whether the State is its true owner, as Leeds argues. Rather, we must first determine whether, in fact, the Cahaba River is a public waterway.

Irondale argues that the Cahaba River is not a public waterway because it does not meet the federal test for navigability. Leeds counters by arguing that it is unnecessary to apply the federal test of navigability in light of the other evidence indicating that the Cahaba River is navigable and is a public waterway. However, Leeds argues, if this Court does apply the federal test for-navigability, the only reasonable conclusion is that the Cahaba River is navigable and is therefore a public waterway.

In Wehby v. Turpin, 710 So.2d 1248 (Ala.1998), this Court considered whether individual property owners owning part of a lake bed had a right to use the entire man-made lake or just the surface waters covering their property. Among the arguments made by the property owners seeking the use of the entire lake was the argument that the lake was “public waters” because Yellowleaf Creek, which they alleged to be a navigable stream, flowed into the lake. 710 So.2d at 1249-50. See § 9-11-80(a), Ala.Code 1975 (stating in part that “[a]ny water impounded by the construction of any lock or dam or other impounding device placed across the-channel of a navigable stream is declared a public water”). In considering whether Yellowleaf Creek was navigable, this Court first applied the federal test of navigability set forth in The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L.Ed. 999 (1870):

“Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”

Applying this test, the Court ultimately concluded that there was no evidence indicating that Yellowleaf Creek was navigable under the federal test. 710 So.2d at 1250. However, the Court did not end its inquiry there, instead continuing on to consider whether Yellowleaf Creek was “navigable in law”:

“A stream is navigable in law if it has an aptitude for beneficial public servitude, capable of being traversed for valuable floatage for a considerable part of the year. Rhodes v. Otis, 33 Ala. 578, 597-98 (1859). Proof of occasional use by ‘fishing boats’ and ‘canoes’ during some parts of the year is not sufficient to demonstrate that Yellowleaf Creek is capable of any beneficial public use. Therefore, we hold that Yellowleaf Creek and, necessarily, [the man-made lake into which it flows], are, as a matter of law, not navigable waterways.”

710 So.2d at 1250. Thus, it is apparent that the Wehby Court did not rely exclusively upon the federal navigability test to decide the issue but, instead, considered other factors — namely, whether the waterway “has an aptitude for beneficial public servitude, capable of being traversed for valuable floatage for a considerable part of the year.” Id. An examination of the purpose of the federal navigability test makes it clear that this Court violated no legal principles by looking beyond that test in the context of Wehby.

As Irondale emphasizes, there is extensive caselaw indicating that the question of navigability is generally a federal question. See, e.g., United States v. State of Oregon, 295 U.S. at 14 (quoted supra), and United States v. Harrell, 926 F.2d 1036, 1040 (11th Cir.1991) (“The question of navigability ... is a federal question and has been defined by decisions of the federal courts.”). This Court even recognized this principle in Wehby, stating: “[t]he Federal Government- has paramount authority respecting navigation; therefore, the test of navigability is a federal question.” 710 So.2d at 1250. However, other caselaw makes clear that this is true only when the issue before the court is of a constitutional nature. See, e.g., United States v. Holt State Bank, 270 U.S. 49, 55-56, 46 S.Ct. 197, 70 L.Ed. 465 (1926) (“Navigability, when asserted as the basis of a right arising under the Constitution of the United States, is necessarily a question of federal law to be determined according to the general rule recognized and applied in the federal courts.” (emphasis added)). As explained by the Arizona Court of Appeals in Defenders of Wildlife v. Hull:

“A federal determination of ‘navigability’ may serve many different purposes, the three most typical being: to confer admiralty jurisdiction, to define Congress’ reach under the commerce power, and to grant title under the equal footing doctrine. See State of Alaska v. United States, 563 F.Supp. 1223, 1225 n. 3 (D.Alaska 1983). In addition to the federal tests, states have also adopted a variety of navigability definitions to satisfy different policies regarding resource conservation, apportionment of waterways between private and public uses, and protection of public access to waterways. No aspect of the federal test of navigability used to determine title under the equal footing doctrine precludes the various states from adopting more liberal tests in order to advance other important interests or public uses. See Hitchings v. Del Rio Woods Recreation and Park Dist., 55 Cal.App.3d 560, 127 Cal.Rptr. 830, 834 (1976) (‘for purposes of public use of waters, the state may adopt different and less stringent tests of navigability’).
“Because of the variant circumstances in which navigability is raised, the cases interpreting navigability ‘cannot be “simply lumped into one basket.” ’ Boone v. United States, 944 F.2d 1489, 1499 (9th Cir.1991) (quoting Kaiser Aet-na v. United States, 444 U.S. 164, 170, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979)); see also Glenn J. MacGrady, The Navigability Concept in the Civil and Common Law, 3 Fla. St. U.L.Rev. 511, 515 (1975). Indeed, when discussing navigability, any reliance on judicial precedent should be predicated on a careful appraisal of the purpose for which the concept of navigability is invoked. See id.”

199 Ariz. 411, 418-19, 18 P.3d 722, 729-30 (Ariz.Ct.App.2001) (footnotes omitted).

In the instant case, the issue before this Court is whether the section of the Cahaba River in question should be considered a public waterway for annexation purposes. The organization and boundaries of municipalities within this State is a state issue, not a federal constitutional issue. Accordingly, we are not bound by the federal test of navigability in determining whether the Cahaba River is a public waterway; we may instead consider other factors.

In Wehby, this Court indicated that it would find a stream to be navigable “if it has an aptitude for beneficial public servitude, capable of being traversed for valuable floatage for a considerable part of the year.” 710 So.2d. at 1250 (citing Rhodes v. Otis, 33 Ala. 578, 597-98 (1859)). In Rhodes, this Court stated:

“From the somewhat conflicting authorities which we have examined, we attain the conclusion, that in determining the character of a stream, inquiry should be made as to the following points: whether it is fitted for valuable floatage; whether the public, or only a few individuals, are interested in transportation; whether any great public interests are involved in the use of it for transportation; whether the periods of its capacity for floatage are sufficiently long to make it susceptible of use benefi-dally to the public; whether it has been previously used by the people generally, and how long it has been so used; whether it was meandered by the government surveyors, or included in the surveys; whether, if declared public, it will probably in future be of public use for carriage.”

33 Ala. at 596-97. Leeds has submitted evidence indicating that this stretch of the Cahaba River is used and capable of use by the public, that it is navigable at least by canoe year-round, and that it is “meandered” on government survey maps maintained by the Secretary of State. We additionally note that Irondale’s stated reason for annexing the Land Trust property was to construct a public canoe launch and that the deed conveying the Land Trust property from Jefferson County to the Land Trust indicated on its face that the water quality and habitat values of the property were “of great- importance to [Jefferson County], the people of Jefferson County and the people of the State of Alabama.” Finally, Leeds has also submitted evidence indicating that the Alabama Department of Conservation and Natural Resources has determined this stretch of the Cahaba River to be navigable. These facts all indicate that the Ca-haba River at the site in question is, in fact, a public waterway.

Irondale’s argument to the contrary is focused entirely on the federal definition of navigability and Irondale’s assertion that there is no evidence indicating that the Cahaba River, at the point in question, is used or capable of any commercial — as opposed to merely recreational — use. See The Daniel Ball, 77 U.S. (10 Wall.) at 563. However, as explained supra, we are not required to apply the federal navigability test when making a navigability determination in this case because no constitutional issue is being presented. See also Montana Coalition for Stream Access, Inc. v. Curran, 210 Mont. 38, 51, 682 P.2d 163, 170 (1984) (“Navigability for use is a matter governed by state law. It is a separate concept from the federal question of determining navigability for title purposes.”). Accordingly, we are free to apply a less stringent test, and, doing so, we conclude that the Cahaba River at the point where it borders the Land Trust property is navigable because it has an aptitude for beneficial public use, even if that use is merely recreational as opposed to commercial. Irondale has submitted no evidence that would create a genuine issue of material fact on this point. See also People ex rel. Baker v. Mack, 19 Cal.App.3d 1040, 1046, 97 Cal.Rptr. 448, 451 (1971) (stating that “[t]he modern tendency in several other states, as well as here, [is] to hold for use of the public any stream capable of being used for recreational purposes”), and State v. Korrer, 127 Minn. 60, 63, 148 N.W. 617, 618 (1914) (“It is not necessary that the water should be capable of commerce of pecuniary value. If a body of water is adapted to use for public purposes other than commercial navigation it is held to be public water, or navigable water, if the old nomenclature is preferred. Boating for pleasure is considered navigation, as well as boating for mere pecuniary profit.”).

Having established that the Cahaba River is a public waterway, we must next consider whether Irondale’s annexation of property across that public waterway from its corporate limits was appropriate. In City of Spanish Fort, we stated:

“This Court has ... recognized that some annexations across public waterways may also meet the contiguity requirement of the statute, although we find only two Alabama cases discussing this issue: City of Madison v. City of Huntsville, 555 So.2d 755 (Ala.1989), and Johnson v. Rice, supra. In those cases, both decided in 1989, this Court approved annexations by the City of Gun-tersville across Lake Guntersville and by the City of Decatur across Wheeler Lake. (City of Madison v. City of Huntsville involved not only the two cities named in the style, but also Limestone County and the cities of Decatur and Athens.) In Johnson, the Court analogized the analysis to be applied when considering annexations across a body of water to the analysis to be applied when considering annexations across a public roadway. We reaffirm that analogy.
“In Johnson v. Rice, the City of Gun-tersville purported to annex territory directly across Lake Guntersville from the then existing city limits. This Court quoted at length the findings of fact, conclusions of law, and judgment of the trial court and ‘found no reason for reversing’ the trial court’s judgment. See 551 So.2d at 946. The trial court concluded that the annexation met the contiguity requirement because of the presence of a number of specific factors:
“ ‘ “In reaching this conclusion, we find essential facts to exist in this case with respect to the [property the City of Guntersville sought to annex] in relation to the existing city limits of Guntersville, and were it not for the presence of each and all these facts, our conclusion as to contiguity would be otherwise:
“ ‘ “a) But for the intervention of a public waterway (Guntersville Lake, owned and operated by the Tennessee Valley Authority, a public government entity) and the appurtenant lake-shore property rights owned by TVA (such as flooding rights), the [property sought to be annexed] would actually touch the existing city limits of Guntersville. “ ‘ “b) The [property sought to be annexed] lies directly across the public waterway from the existing city limits of Guntersville, and not diagonally across the waterway.
“ ‘ “c) There is a public road (including a bridge and approaches thereto) which crosses the public waterway and connects the existing city limits of Guntersville to the [property sought to be annexed], with no intervening landowners which abut said public road other than TVA. In other words, the bridge and approaches begin inside the City of Guntersville and cross the public waterway (Guntersville Lake), and the first private property owner on the other side of the lake which abuts the public road [owned the property sought to be annexed].
“ ‘ “d) Ordinance 592 annexes both the [property sought to be annexed] and the public road right-of-way which connects it to the city, so after the annexation it is not necessary to go outside of the city to reach the [property sought to be annexed].”
551 So.2d at 945 (second emphasis added). In City of Madison v. City of Huntsville, this Court also approved Decatur’s annexation of property lying directly across Wheeler Lake from Decatur’s then existing corporate limits. Just as in Johnson, the annexation also included the public roadway running across the lake joining the newly annexed property to the then existing city limits.
“Applying the principles established in the cited cases to the facts of this case, we conclude that Daphne’s purported annexation of the causeway properties did not meet the § 11 — 42—21[, AIa.Code 1975,] requirement of contiguity, as that requirement has been explained by this Court. In its purported annexation of the causeway properties, Daphne did not attempt to annex the public roadways that might have allowed access from the then existing Daphne corporate limits to the properties to be annexed. The properties comprise several ‘pockets’ of territory that are surrounded on all sides by property Daphne did not attempt to annex. To reach by automobile any of the causeway properties Daphne purported to annex, one would have to travel outside Daphne and through areas that Daphne did not attempt to annex.
“The trial court found that all the causeway properties were contiguous to the city’s existing city limits because they touch ‘by land or by water.’ However, as explained above, there is no existing route by which the properties may be reached by automobile from the original Daphne boundaries without traveling outside the city; thus, this case is different from Johnson and City of Madison, where the annexing cities annexed public roadways leading directly from the existing boundaries of those cities to the property sought to be annexed.”

774 So.2d at 574-76. Considering the facts of this case in light of the four factors considered in City of Spanish Fort and Johnson, we must agree with the trial court that Irondale’s purported annexation of the Land Trust property does not meet the § 11^42-21 requirement of contiguity because it is impossible to travel by automobile from the annexing municipality (Ir-ondale) to the proposed annexed land without crossing into a neighboring municipality (Leeds).

Irondale argues that this Court should not base its decision on the four factors discussed in Johnson and City of Spanish Fort and that we should instead rely on “common sense.” See Johnson, 551 So.2d at 944 (explaining that the basis for the rule that two parcels of land on opposite sides of a public road are contiguous “rests most comfortably upon a common sense recognition and understanding of what is necessary for the proper and efficient functioning of city government” (emphasis added)). In truth, however, there is no distinction; the four factors discussed are really no more than formalized articulations of common sense. In Johnson, the Court explained that the rule holding that properties on opposite sides of a public road are contiguous for annexation purposes comports with common sense because both properties would have equal access to existing city services “such as police and fire protection, school bus routes, utility services, and similar functions of city government.” 551 So.2d at 944-45. By contrast, the evidence in this case indicates that the Land Trust property would be on the far edge of Irondale, isolated from the core of the city’s residential and commercial areas, and without access to existing city services offered by Irondale unless those services were routed through Leeds. Specifically, Leeds submitted affidavit testimony from a professional engineer describing the Land Trust property and the surrounding parcels and specifically stating that “[i]t is not possible to travel by automobile from any point within the City of Irondale to the Land Trust Property without leaving the City of Irondale and passing through the City of Leeds.” Indeed, the map prepared and submitted by that engineer establishes that the only road frontage the Land Trust property has is with U.S. Highway 78, which is itself within the City of Leeds, thus indicating that Irondale would be unable to provide city services of the type described in Johnson without first traveling through Leeds. Irondale’s annexation of the Land Trust property was accordingly invalid because of a lack of contiguity.

IV.

Irondale appealed the summary judgment entered in favor of Leeds, in which the trial court held that Irondale’s annexation of the Land Trust property was improper and void because of a lack of contiguity between the Land Trust property and property within the corporate limits of Irondale. Because the Land Trust property is separated from property within the corporate limits of Irondale by a public waterway and because the factors set forth in City of Spanish Fort and Johnson for finding contiguity across a public waterway are not present, that judgment is hereby affirmed.

AFFIRMED.

MOORE, C.J., and BOLIN, PARKER, and WISE, JJ., concur.

      . Pursuant to § ll-40-10(a), Ala.Code 1975, the police jurisdiction in cities having 6,000 or more inhabitants extends three miles from the corporate limits.

      . Unlike in Wehby, where the evidence indicated only that the stream in question was capable "of occasional use by ‘fishing boats' and ‘canoes’ during some parts of the year," 710 So.2d at 1250 (emphasis added), Leeds submitted affidavit testimony from two employees of the Cahaba River Society, each of whom claimed to have participated in over 500 canoe trips on the Cahaba River, stating that "[t]his portion of the Cahaba River in Jefferson County is navigable year-round.”

      . In its reply brief, Irondale argues that a determination that this stretch of the Cahaba River is a public waterway would essentially constitute a taking of that portion of the Land Trust property that extends to the bed and bottom of the river. However, as explained supra, it is unnecessary for us to determine ownership of the Cahaba River bed, which Irondale argues belongs to the Land Trust, to determine the navigability issue, and we have expressed no opinion in that regard. The Land Trust has made no claim to the waters; thus, there has been no taking. Other courts to consider this argument have reached similar results. See, e.g., Ciaran, 210 Mont, at 53, 682 P.2d at 171 ("The counterclaim for inverse condemnation was based upon [the appellee's] claim to ownership of the riverbed .... However, the question of title to the bed is irrelevant to determination of navigability for use, and [the appellee] has no claim to the waters. Since there is no claim to the waters, there is no taking and, therefore, no grounds for an inverse condemnation claim.”), and Hitchings v. Del Rio Woods Recreation & Park Dist., 55 Cal.App.3d 560, 571, 127 Cal.Rptr. 830, 837 (1976) ("Respondents have devoted a substantial portion of their argument on appeal to the matter of title to the stream bed, asserting that a finding of navigability will result in a taking of private land. As in both the Bohn [v. Albertson, 107 Cal.App.2d 738, 749, 238 P.2d 128 (1951),] and Mack cases, however, the question of title to the bed of a navigable stream is not raised in this action to determine public use rights, nor is it relevant to the issues herein presented for decision.... The ownership of the bed is not determinative of public navigational rights, nor vice-versa.” (citations omitted)).