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

text:
    R.C. HIBBLER, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01124-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2012.
    Rehearing Denied April 2, 2013.
    Certiorari Denied June 20, 2013.

      Ottowa E. Carter Jr., attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Noxubee County Circuit Court found R.C. Hibbler guilty of statutory rape. The circuit court sentenced Hibbler to twenty years in the custody of the Mississippi Department of Corrections (MDOC). Hibbler appeals. Because we find merit to Hibbler’s claim that he received ineffective assistance of counsel, we decline to address Hibbler’s claims that there was insufficient evidence to find him guilty and that the jury’s verdict is contrary to the overwhelming weight of the evidence. Consequently, we reverse the judgment of the circuit court and remand this matter for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. Hibbler’s conviction stems from his contact with Jane, a thirteen-year-old girl who had been diagnosed with “reactive attachment disorder” and who has been described as having “borderline intellectual functioning.” It is undisputed that Jane visited Hibbler’s home to play with Hib-bler’s twin daughters on Saturday, April 16, 2005. Hibbler was sixty-nine years old at that time.

¶ 3. The following Tuesday, Jane told an unidentified “case manager” that Hibbler had raped her the previous Saturday. She had not told her family or anyone else that Hibbler had raped her. The case manager told Jane’s school counselor, Travonder McCloud, that Jane said she had been raped. That same day, McCloud relayed Jane’s allegation to the Macon Police Department. Later that Tuesday, Robert Brown, the Macon Chief of Police, and Janie Tate, a social worker, took Jane to see Dr. Sykes, a pediatrician. Dr. Sykes examined Jane and concluded that her hymen was still intact. Dr. Sykes also recommended that Chief Brown and Tate take Jane to be examined by Dr. Mark Burtman, a obstetrician and gynecologist. Still that same day, Dr. Burtman tested Jane for sexually transmitted diseases and concluded that Jane had chlamydia. On April 28, 2005, Chief Brown and Tate took Jane to meet with Carla Horne, a Licensed Professional Counselor with the East Mississippi Children’s Advocacy Center.

¶ 4. On June 29, 2005, Hibbler voluntarily went with Chief Brown to the Noxubee County Health Department, where Hib-bler was tested for sexually transmitted diseases. Hibbler did not have chlamydia. Approximately two months later, Hibbler was indicted and charged with statutory rape. He pled not guilty and hired Attorney Jeffrey Hosford to represent him.

¶ 5. Hibbler went to trial in March 2008. The prosecution called Jane, who was sixteen years old at that time, as its first witness. The circuit court allowed the prosecution to ask Jane leading questions during direct examination due to what the circuit court later described as Jane’s “obvious ... diminished intellectual functioning.”

¶ 6. Jane testified that on April 16, 2005, she had been playing outside Hibbler’s house with Hibbler’s twin daughters when Hibbler told her to “come in the house.” Jane said that Hibbler “pulled [her] in [his] room” after she complied. According to Jane, Hibbler “put [her] on the bed” and “had sex with [her].” When asked to explain what she meant, Jane said, “He raped me.” Jane testified that she did not see any of Hibbler’s “body parts,” but Hibbler hurt her and made her bleed. Jane further testified that when Hibbler was finished having sex with her, he slapped her and told her, “Don’t tell.” Jane said she then got dressed and ran home. When the prosecution asked Jane to identify Hibbler, the following exchange transpired:

Q. And the individual that you’ve indicated here is Mr. Hibbler, the one who had sex with you. Is that — do you see him in the courtroom today?
A. (No verbal response).
Q. If you would just take a minute and look around the courtroom and see whether or not he’s in here. Do you see him in the courtroom, [Jane]?
A. (No verbal response).
Q. Do you see Mr. Hibbler here, [Jane]? If you see him, could you point to him, please, ma’am?
A. [ (]The witness pointed to Mr. Hib-bler).

The following exchange is Hosford’s entire cross-examination of Jane:

Q. [Jane]—
A. Yes.
Q. —were you diagnosed by the doctors with a condition called [c]hlamydia?
A. Yes.
Q. And you had to take medication for that; is that correct?
A. Yes.
Q. And after that, you went to see several doctors, didn’t you?
A. Yes.

¶ 7. Next, the prosecution called McCloud, who testified regarding her involvement in relaying Jane’s report. During cross-examination, Hosford asked McCloud to elaborate regarding why she had been counseling Jane for approximately two years. McCloud responded that Jane “has what we call reactive attachment disorder. She has a diagnosis — she had a diagnosis of — I can’t remember, borderline intellectual functioning or something.” McCloud elaborated that reactive attachment disorder occurs “when the child is not getting everything that she needs at home[, so] she develops an attachment.” McCloud went on to testify that “it’s hard for [Jane] to socialize.”

¶ 8. The prosecution called Horne as an expert forensic interviewer. The prosecution asked Horne to explain “the protocol that [she] used” when she interviewed Jane. Horne explained, and then said that during her interview, Jane had said that Hibbler had “touched her on her pancake.” Next, the prosecution asked Horne to identify a document. Horne again testified that Jane had said that she had been touched “on her pancake.” Horne clarified that Jane meant “where you go to the potty.” Hosford did not object to Horne’s hearsay testimony.

¶ 9. Hosford finally objected when Horne began to testify as to what Jane said when Horne had asked Jane, “[W]hat did he touch you with[?]” The circuit court excused the jury from the courtroom. During arguments on the admissibility of Horne’s hearsay testimony, the prosecution requested a hearing on the tender-years exception. The circuit court later stated that “Hosford should have objected to the testimony of the witness to begin with that she is not competent as a witness.” The circuit court went on to state that “if you had made an objection to the child testifying ..., I might have declared the child unavailable.” Ultimately, the circuit court held that Horne was prohibited from testifying as to what Jane said during her interview. However, the circuit court further held that Horne would be allowed to “testify as to her observations of [Jane’s] demeanor,” and that Horne could “offer an opinion as to whether or not the symptoms and characteristics she observed in [Jane were] consistent with the symptoms and characteristics of small children who have had sexual abuse.” After the jury returned to the courtroom, Horne testified that Jane’s “knowledge of sexual — her knowledge about the physical body changes in someone who is having sex. She shouldn’t have that knowledge unless she’s been provided that information from somewhere.”

¶ 10. During cross-examination, Horne conceded that “[thirteen-]year[-]old children get pregnant every day.” Horne also admitted that she had not asked Jane whether she had any other sexual experiences. Next, Chief Brown testified that his observation of Hibbler’s bedroom was consistent with Jane’s description.

¶ 11. Called as an expert witness, Dr. Burtman testified that Jane denied that she had ever had any sexual contact with anyone other than Hibbler. Dr. Burtman confirmed that Jane tested positive for chlamydia. Dr. Burtman testified that he decided to test Jane for sexually transmitted diseases after he discovered that Jane had a white vaginal discharge. According to Dr. Burtman, the only way that Jane could have tested positive for chlamydia was “if there was actual penile penetration of the vagina.”

¶ 12. Dr. Burtman also testified that the antibiotic Azithromycin can successfully treat chlamydia in approximately two to four weeks. The prosecution asked Dr. Burtman the following hypothetical question: “If a male had [c]hlamydia on April the 16th, 2005, would he have time to clear up, say, in late June or July?” Dr. Burt-man answered, “It’s entirely possible even without treatment he may become negative after a matter of a few weeks. So, yes, by June he could be completely free of the disease.”

¶ 13. On cross-examination, Dr. Burt-man testified that Jane’s hymen was intact when Dr. Sykes examined her. However, Dr. Burtman explained that Jane’s hymen could remain intact even if Hibbler had intercourse with her. When asked whether he could “say [with] medical certainty that [chlamydia] would have cleared up in two to three weeks,” Dr. Burtman conceded that he could not be certain, but it was possible. Dr. Burtman added that some people contract chlamydia and clear up without even realizing that they had ever been infected.

¶ 14. Hibbler’s first witness was Jane’s mother, Cathy. Hosford attempted to have Cathy testify that she told Hibbler’s wife, Betty, that Jane had said that Hib-bler did not rape her. However, Cathy denied that she had ever told Betty that Jane had lied about Hibbler raping her. Cathy’s testimony did not benefit Hibbler’s defense in any way. Hibbler’s wife, Betty, testified after Cathy. Betty testified that Hibbler was diabetic and that he had suffered from erectile dysfunction during their entire twenty-year marriage. According to Betty, she and Hibbler had never had intercourse.

¶ 15. Betty also testified that Cathy had said that an unspecified person persuaded Jane to falsely accuse Hibbler. Hosford never asked Betty whether she had tested positive for chlamydia. During cross-examination, the prosecution asked Betty to elaborate on whether she and Hibbler had ever had intercourse. Betty answered, “We make out every now and then.” She also testified that Hibbler is “unable to even put his penis in anybody.”

¶ 16. Hibbler chose to testify. He denied that he had sex with Jane. He also testified that he had been unable to obtain an erection during his and Betty’s twenty-year marriage. Hosford attempted to introduce documentary evidence that Hib-bler did not have chlamydia when he was tested at the Noxubee County Health Department. However, the circuit court would not allow Hosford to introduce those documents because Hibbler could not interpret the test results. However, Hibbler was allowed to testify that he did not receive any prescriptions to treat chlamydia as a result of his tests at the health department.

¶ 17. During a lunch recess, Hosford rushed to find a witness to sponsor the documents from the health department. He was able to call Linda Jones, a nurse employed by the health department. Jones testified that Hibbler tested negative for chlamydia during June 2005. However, to Hosford’s apparent surprise, Jones eviscerated Hibbler’s defense theories during cross-examination. That is, Jones noted that Hibbler had indicated that he had one female sexual partner on June 1, 2005. Jones further testified that Hibbler had also indicated that he had taken unspecified medication to treat bronchitis during the two weeks prior to his visit to the health department. According to Jones, if Hibbler had chlamydia, it could have cleared up if he had taken antibiotics to treat his bronchitis. On redirect, Jones reiterated that Hibbler tested negative for chlamydia during June 2005.

¶ 18. The prosecution called McCloud again during its rebuttal. McCloud bolstered Jane’s credibility by testifying that McCloud had “never known [Jane] to be untruthful with [her].” As previously mentioned, the jury found Hibbler guilty of statutory rape, and the circuit court sentenced Hibbler to twenty years in the custody of the MDOC.

¶ 19. On July 31, 2008, Hibbler fired Hosford, replaced him with his current counsel, and later filed a supplemental motion for a JNOV or new trial. In his post-trial motions, Hibbler claimed that he had received ineffective assistance of counsel. Hibbler also filed a motion to investigate juror misconduct. Hibbler claimed a juror—the foreperson of the jury—concealed that she had been the victim of a sexual assault during her childhood. Hibbler further claimed that the juror was biased and that she improperly inflamed the jury against him by presenting matters that were not in evidence to the other jurors during deliberations. Hibbler attached an affidavit from a person who swore she worked with the juror central to Hibbler’s juror-misconduct allegation. According to the affiant:

At the conclusion of [Hibbler’s] trial, [the juror] returned to the store[,] and I heard her make statements to customers regarding sexual assaults that were made upon her as a child. She also made statements to me about her childhood which concerned her being raped as a child by a family member. She said that nothing was ever done about it even though she reported it to her mother. She then stated that her mother stood by and allowed [the juror] to be molested[,] and blamed her for the molestation.

Finally, the affiant swore that she heard the juror make the following statements:

a. [“Hibbler] thought he was going to get some free p-, but we put his black a—away.”
b. “This ... is something that will haunt [Jane] for the rest of her life[,] and it will cause her to do things she wouldn’t normally/ordinarily do.” After being asked what, [the juror] stated[,] “[I]t will make her promiscuous because that’s how I am.”
c. [“Hibbler’s] wife was there defending him when he was f-with his daughters.... [”]
d. [“] Different members of the jury were uncertain about [Hibbler’s] guilt or innocence, but when I told them that s— about him f- his daughters ... they hurried up and made up their minds.[”]

¶20. On February 5, 2010, the circuit court conducted an evidentiary hearing on Hibbler’s post-trial motions. Although Hibbler had subpoenaed the former juror he accused of misconduct, the circuit court admonished Hibbler’s attorney for doing so without first obtaining the circuit court’s permission. Hibbler’s attorney clarified that he had not interviewed or otherwise communicated with the former juror. Hibbler went forward with his motion for a JNOV or new trial. The prosecution called Hibbler’s former attorney, Hosford, as a witness during the evidentia-ry hearing. Hosford’s testimony is discussed below in greater depth. Ultimately, the circuit court found no merit to Hibbler’s claim that he had received ineffective assistance of counsel. Hibbler appeals.

ANALYSIS

INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 21. In general, we should address the merits of an ineffective-assistance-of-counsel claim on direct appeal only when “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Robinson v. State, 68 So.3d 721, 723 (¶ 10) (Miss.Ct.App.2011) (citation omitted). Furthermore, on direct appeal, “[r]eview ... of an ineffective-assistance-of-counsel claim is confined strictly to the record.” Id. The dissent would affirm the circuit court’s judgment so Hibbler could raise his ineffective-assistance-of-counsel claim in a motion for post-conviction relief. However, it is unnecessary to do so because the circuit court has already conducted an evidentiary hearing on Hibbler’s claim and addressed it on the merits. Hibbler’s direct appeal is unusual because the prosecution called Hosford, Hibbler’s trial counsel, as a witness during the hearing on Hibbler’s post-trial motions. During that hearing, Hosford waived the attorney-client privilege and testified regarding the extent of his pretrial preparation — or lack thereof, his trial tactics, his decision to focus his trial strategy solely on Jane’s chlamydia infection, and his decision not to pursue other defense theories. The record contains the circuit court’s ruling on Hib-bler’s ineffective-assistanee-of-counsel claim. Accordingly, the record is quite adequate to review Hibbler’s claim on direct appeal. The evidentiary hearing on Hibbler’s post-trial motions is the functional equivalent of an evidentiary hearing on ineffective assistance of counsel in the context of a motion for post-conviction relief.

¶ 22. Hibbler must prove that: (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In so doing, Hibbler faces the “strong presumption that counsel’s performance falls within the range of reasonable professional assistance.” Robinson, 68 So.3d at 723 (¶ 9). To overcome that presumption, Hibbler “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

¶ 23. Hibbler raises several claims of ineffective assistance of counsel. First, Hibbler claims that Hosford was ineffective because Hosford did not interview any witnesses other than Hibbler. Hosford admitted that his defense theory relied entirely on the basis that Jane tested positive for chlamydia three days after the date she claimed Hibbler raped her, but Hibbler did not have chlamydia when he was tested approximately two months later. Hosford did not attempt to interview Jane. Nor did Hosford interview Hibbler’s daughters, whom Jane had been playing with on the date that Jane said Hibbler raped her. Hibbler’s daughters could have shed light on whether Hibbler called Jane into their house or whether Jane left abruptly and ran home.

¶ 24. Likewise, Hosford failed to interview Jane’s father, who would have been the first person to encounter Jane after she returned from Hibbler’s house. Hosford also failed to interview any of Jane’s teachers, McCloud, or the unidentified person to whom Jane first reported her accusations against Hibbler. If Hos-ford had interviewed Dr. Burtman or Jones, whose expert testimonies caught Hosford by surprise and eviscerated his defense theories, Hosford could have been prepared to impeach them. “It takes no deep legal analysis to conclude that an attorney who never seeks out or interviews important witnesses and who fails to request vital information was not engaging in trial strategy.” Davis v. State, 87 So.3d 465, 469 (¶ 21) (Miss.2012). “Basic defense ... required complete investigation to ascertain every material fact about this case, favorable and unfavorable.... It required ... interviewing every possible eyewitness, and getting statements from each.” Triplett v. State, 666 So.2d 1356, 1361 (Miss.1995). The Mississippi Supreme Court has further held: “It is true that this Court should give deference to an attorney’s judgment in what investigation should be conducted. However, there are limits. At a minimum, counsel has a duty to interview potential witnesses and to make [an] independent investigation of the facts and circumstances of the case.” Payton v. State, 708 So.2d 559, 561 (¶ 8) (Miss.1998) (citation and internal quotations omitted).

¶25. Additionally, Hosford failed to adequately cross-examine Jane. Hosford only asked her three questions during cross-examination, revealing only that Jane had tested positive for chlamydia three days after the day she claimed Hib-bler raped her. Hosford claimed that he did not want to inflame the jury against Hibbler by appearing to attack Jane. But there are many degrees of cross-examination between “attacking” a witness and leaving her testimony unchallenged. Hos-ford could have treated Jane gently and still asked her why she did not tell her father that Hibbler had raped her as soon as she returned from Hibbler’s home. Hosford could have also gently asked Jane why she waited until Tuesday to tell someone that Hibbler had raped her the previous Saturday.

¶26. Hosford also admitted that he had information that Jane had previously accused someone else of raping her, but Hosford incorrectly believed that he would unequivocally be prohibited from introducing the evidence. Hosford could have filed a motion under Rule 412 of the Mississippi Rules of Evidence to attempt to show that Jane’s chlamydia was the result of sexual contact with a third party. It is true that “in a criminal case in which a person is accused of a sexual offense against another person, reputation or opinion evidence of the past sexual behavior of an alleged victim ... is not admissible.” M.R.E. 412(a). But there are exceptions to Rule 412(a). Under Rule 412(b)(2)(A), evidence of a victim’s past sexual behavior with “persons other than the accused” is admissible if it is “offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of ... disease.” Hosford could have attempted to demonstrate that the person Jane had previously accused of rape was the actual source of Jane’s chlamydia.

¶ 27. Hosford also had information that Jane had indicated that Hibbler did not rape her or otherwise have inappropriate contact with her, but Hosford never confronted Jane with that information. “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Hos-ford completely failed to challenge the believability of Jane’s testimony. In effect, Hosford conceded it.

¶ 28. Hosford also failed to effectively cross-examine Dr. Burtman. According to Hosford, Dr. Burtman’s testimony that “[i]t’s entirely possible even ■without treatment [that Hibbler] may become negative [for chlamydia] after a matter of a few weeks” contradicted “all medical journals that [Hosford] had read.” When asked to elaborate on his research, Hosford replied that he “went online and researched [chlamydia] on WebMD and several other medical sites.” Hosford even claimed that he had brought documentation to trial that contradicted Dr. Burtman’s testimony. However, Hosford had absolutely no explanation as to why he did not attempt to impeach Dr. Burtman’s testimony with learned treatises. If Hos-ford had been adequately prepared for Hibbler’s trial, Hosford could have asked Dr. Burtman about the incubation time of chlamydia, the effectiveness of various antibiotics, or whether Hibbler’s test meant that he had never had chlamydia because the test did not detect the presence of an antigen. Regardless, Hosford was not prepared to contradict the medical testimony regarding the concept that Hibbler somehow cured himself of chlamydia without treatment in two months between the date of the incident and the date he was tested. Nor did Hosford ask Betty whether she had ever been tested for chlamydia or, if she had, whether she tested positive. Such questions would shed light on the issue regarding whether Hibbler infected Jane with chlamydia or, even if he had not, whether he could have raped Jane without becoming infected, and, if the prosecution’s theory was correct, whether Hibbler would have infected Betty if they had sex on June 1, 2005. Unfortunately, those loose ends were never addressed and remain unresolved.

¶ 29. Furthermore, Hosford did not question Dr. Burtman regarding the likelihood that Hibbler’s age and diabetic condition could have negatively impacted Hib-bler’s ability to sustain an erection. Nor was Hosford prepared to ask Dr. Burtman any questions regarding the incubation time necessary between exposure to chlamydia and a positive test for chlamydia. Had Hosford prepared, he could have confronted Dr. Burtman with the fact that “because [cjhlamydial infections rarely cause symptoms in women, they have a long incubation period” and “because the incubation period for [chlamydia] is 6-14 days, women may not relate their subtle symptoms to a distant exposure.” Hos-ford could have demonstrated that Jane’s chlamydia could not have resulted from sexual contact with Hibbler three days earlier because “[i]f symptoms [of chlamydia] do occur, they usually appear within 1 to 3 weeks after exposure.” Nor did Hosford confront Jones with information that “[b]ecause of the unique intracellular characteristics of [chlamydia], only certain antibiotics are effective in treatment” after Jones testified that unspecified medication that Hibbler reportedly took could have “cleared up” chlamydia if Hibbler had actually been infected with it and if Hibbler’s bronchitis medication had been an antibiotic. Such unanswered questions are exactly why the Second Circuit Court of Appeals has held:

[I]n a case where the only direct evidence that any crime occurred or that, if it did, the [defendant] committed it, was the testimony of the alleged victim, for defense counsel to simply concede the medical evidence without any investigation into whether it could be challenged was performance that ... could not ... be objectively reasonable.

Gersten v. Senkowski, 426 F.3d 588, 608 (2d Cir.2005).

¶ 30. By calling Jones, Hosford set the stage for her to eviscerate the defense theories that Hibbler could not have been guilty because (a) he was a diabetic who suffered from erectile dysfunction; and (b) Jane had chlamydia three days after the date she claimed Hib-bler raped her, and Hibbler did not have chlamydia two months after that date. Hibbler had already testified that he did not receive a prescription to treat chlamydia as a result of his visit to the health department. Because Hosford did not impeach Dr. Burtman’s testimony with the learned treatises that Hosford claimed he brought to trial, Hosford’s defense theory regarding Hibbler not having chlamydia had no teeth. Nevertheless, Hosford called Jones to sponsor Hibbler’s health-department records. Jones devastated Hosford’s theories by testifying that whatever bronchitis medication Hibbler took could have cleared up chlamydia, and one of the documents Hosford submitted through Jones indicated that Hibbler had last had sex on June 1, 2005.

¶ 81. The dissent cites Jackson v. State, 73 So.3d 1176, 1181 (¶ 20) (Miss.Ct.App. 2011) for the principle that “[i]nadequaey of counsel refers to representation that is so lacking in competence that the trial judge has the duty to correct it so as to prevent a mockery of justice.” (Internal quotations omitted). However, the “mockery of justice” standard stems from precedent that predates the Supreme Court’s decision in Strickland. See Diggs v. Welch, 148 F.2d 667, 669 (D.C.Cir.1945). As previously mentioned, Hibbler must prove that: (1) his counsel’s performance was deficient, and (2) his counsel’s deficient performance prejudiced Hibbler’s defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The Supreme Court certainly did not base a prima facie case of ineffective assistance of counsel on an analysis of the sufficiency of the evidence, as the dissent seems to suggest. To the extent that the dissent finds that sufficient evidence equates to Hibbler’s failure to demonstrate prejudice, the dissent fails to address the numerous instances of prejudice that this opinion highlights. And although there is corroborative evidence of the appearance of Hib-bler’s bedroom and the fact that Jane had sexual contact with someone, no evidence corroborated Jane’s testimony that Hib-bler had sex with her. Even if there had been more evidence to support a guilty verdict, the Supreme Court recently held that “[tjhere are instances ... where a reliable trial does not foreclose relief when counsel has failed to assert rights that may have altered the outcome.” Lafler v. Cooper, — U.S. -, -, 132 S.Ct. 1376, 1388, 182 L.Ed.2d 398 (2012).

¶ 32. “When determining if both prongs of the Strickland test have been met, deficient performance and resulting prejudice from those deficiencies, this Court must look to the totality of the circumstances.” Payton, 708 So.2d at 563 (¶ 12). Hosford formed a defense theory based on a premise that he was unprepared to defend. Hosford was also unprepared to impeach the prosecution’s witnesses because he incorrectly believed his faulty defense theory would be all that mattered. Hosford failed to present evidence that would have tended to rule out Hibbler as the source of Jane’s sexually transmitted disease. As stated by the Second Circuit:

[W]here the record evidence in support of a guilty verdict is thin, as it is here, there is more likely to be prejudice. This is even more true where counsel’s failures go to something as important as the medical evidence in this case — the only objective evidence that a crime occurred and the only evidence directly corroborating any aspect of the victim’s story.

Gersten, 426 F.3d at 613-14.

¶ 33. Hibbler did not confess or otherwise admit that he was guilty. The prosecution did not present any evidence that corroborated Jane’s testimony that Hibbler had sex with her. The prosecution’s theory of Hibbler’s guilt rested on the claim that Hibbler infected Jane with chlamydia, but somehow mysteriously cured himself. Essentially, this case boiled down to a question of whether Hib-bler was more credible than Jane. And Hosford left Jane’s credibility unchallenged because he incorrectly thought his faulty and incomplete defense theory would render her credibility immaterial. Hosford declined to interview anyone other than Hibbler prior to Hibbler’s trial. Despite Hosford’s claim that he had copies of learned treatises that would have casted doubt on Dr. Burtman’s testimony that chlamydia could “clear up” on its own, Hosford neglected to confront Dr. Burt-man with those treatises. Moreover, Hos-ford erroneously believed that he was unequivocally prohibited from inquiring into Jane’s prior sexual history. He did not file a motion under Rule 412(c) to determine if Jane’s past sexual behavior with another person was the source of Jane’s chlamydia infection. Dr. Burtman decided to test Jane for sexually transmitted diseases after he discovered that Jane had a white vaginal discharge. If the incubation time for a chlamydia infection is between six to fourteen days after exposure, and Jane tested positive for chlamydia on Tuesday, April 19, 2005, then Jane’s positive test could not have been due to any alleged sexual contact with Hibbler on Saturday, April 16, 2005. “Defense counsel may not fail to conduct any investigation and then rely on the resulting ignorance to excuse his failure to explore a strategy that would likely have yielded exculpatory evidence.” Gersten, 426 F.3d at 610. Based on a totality of the circumstances, we must conclude that there is a reasonable probability that, but for Hosford’s deficient performance, the result of Hib-bler’s trial would have been different. Accordingly, we reverse the judgment of the circuit court and remand this matter to the circuit court’s active docket for retrial.

¶ 34. THE JUDGMENT OF THE NOXUBEE COUNTY CIRCUIT COURT OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS REVERSED, AND THE CASE IS REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NOXUB-EE COUNTY.

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

CARLTON, J.,

dissenting:

¶ 35. I respectfully dissent, and I would affirm the conviction and sentence.

¶ 36. The record reflects that sufficient evidence existed in the present case to support the jury verdict, especially in light of our standard of review, where this Court must construe all evidence in the light most favorable to the verdict. McFee v. State, 511 So.2d 130, 133 (Miss.1987); see also James v. State, 86 So.3d 286, 297 (¶ 46) (Miss.Ct.App.2012) (“On review, we find, viewing the testimony in the light most favorable to the verdict, reasonable jurors could have found [the appellant] guilty.”).

¶ 37. In his appeal, Hibbler raises claims of ineffective assistance of counsel. Specifically, Hibbler asserts his counsel failed to thoroughly conduct a pretrial investigation or interviews and deficiently examined witnesses. Mississippi jurisprudence applies the standard from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to such claims. See Collins v. State, 70 So.3d 1144, 1147 (¶ 16) (Miss.Ct.App.2011). Our supreme court has explained that a strong rebuttable presumption exists that trial counsel was competent and performed within the wide range of reasonable conduct expected of counsel. We further recognize that this Court has provided the following guidance to address claims of ineffective assistance of counsel after a trial:

The question presented is not whether trial counsel was or was not ineffective but whether the trial judge, as a matter of law, had a duty to declare a mistrial or to order a new trial, sua sponte on the basis of trial counsel’s performance. “Inadequacy of counsel” refers to representation that is so lacking in competence that the trial judge has the duty to correct it so as to prevent a mockery of justice. If this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm without prejudice to the defendant’s right to raise the ineffective-assistance-of-counsel issue via appropriate post-conviction proceedings.

Jackson v. State, 73 So.3d 1176, 1181 (¶ 20) (Miss.Ct.App.2011) (internal citations and quotations omitted).

¶ 38. I submit that the record in this case is insufficient to raise any issue of presumed prejudice based upon the acts or omissions in the performance of Hibbler’s counsel. Our jurisprudence establishes that when reviewing ineffective-assistance-of-counsel claims, prejudice will not be presumed, and the defendant must show a reasonable probability of a different outcome but for the counsel’s alleged errors. Perry v. State, 682 So.2d 1027, 1031 (Miss.1996).

¶ 39. The United States Court of Appeals for the Fifth Circuit case of Washington v. Watkins, 655 F.2d 1346, 1362 n. 32 (5th Cir.1981), discussed when prejudice may be presumed, explaining that:

no prejudice need be shown in those few instances in which an ineffective[-]assistance claim is premised not on specific acts or omissions of counsel, but instead, on the fact that “no counsel was provided, or counsel was prevented from discharging his normal functions.

(Quoting Ewing v. Williams, 596 F.2d 391, 395 (9th Cir.1979)).

¶ 40. The Washington court also cited Nelson v. Estelle, 642 F.2d 903, 905 n. 3 (5th Cir.1981), where the Fifth Circuit expressly declined to decide whether a petitioner must demonstrate prejudice in order to prevail on an ineffective-assistance-of-counsel claim on direct appeal when the ineffectiveness was premised upon “counsel’s failure to object at trial to clearly inadmissible hearsay evidence.” Washington, 655 F.2d at 1362 n. 32. The Washington court explained that “[t]he Nelson court noted that erroneous evidentiary rulings by state courts may be grounds for federal habeas corpus relief only if the erroneously admitted evidence sapped the trial of fundamental fairness[.]” Id. The Nelson court determined that the erroneously admitted evidence there failed to drain the state court proceedings of fundamental fairness. Id. The Nelson court therefore declined to provide the petitioner with “greater protection through an ineffective assistance claim than that to which he would have been entitled had he challenged the admission of the hearsay directly.” Id.

¶ 41. The Washington court further explained that petitioners must show prejudice from the alleged ineffectiveness, such as by showing how uncalled witnesses would support an alibi or by showing what critical testimony unlocated witnesses would have provided in support of the defense. Id. (citing Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978)); United States v. Doran, 564 F.2d 1176, 1177-78 (5th Cir.1977)z. In the present case, Hibbler’s claims are based upon alleged acts or omissions of his counsel’s performance, and I submit that Hibbler failed to affirmatively demonstrate how the alleged ineffectiveness substantially prejudiced his defense.

¶ 42. Hibbler fails to show a reasonable probability that the outcome would have been different absent his counsel’s alleged errors, since the record contains ample evidence and corroboration of Jane’s claim of statutory rape. To meet the standard of presumed prejudice, the defendant must show that he was actually prejudiced and overcome the existing presumption that his counsel was competent. Moore v. State, 985 So.2d 365, 368-69 (¶ 10) (Miss.Ct.App.2008). Additionally, judicial scrutiny of counsel’s performance must be highly deferential, and counsel must be presumed competent. Russell v. State, 832 So.2d 551, 560 (¶ 18) (Miss.Ct.App.2002).

¶ 43. Moreover, I submit that Hibbler’s claim of ineffective assistance of counsel should not be addressed by this Court on direct appeal. Instead, this issue is more appropriately raised by a petition for post-conviction collateral relief.

¶ 44. Since the appellant’s claims in this case.relate to issues of pretrial preparation, trial strategy, and sufficiency of witness examinations, such as the cross-examination of the child victim, I submit that these claims are beyond the proper scope of direct appeal, and absent an abuse of discretion, we must affirm the factual findings of the trial judge. As this Court stated in Collins, I “cannot find that ... the jury verdict would have been different.” Collins, 70 So.3d at 1148 (¶ 18). It is well settled that “the jury determines the weight and credibility to give witness testimony and other evidence.” Id.; see also Moore v. State, 933 So.2d 910, 922 (¶ 43) (Miss.2006).

¶ 45. In this case, the trial judge conducted an evidentiary hearing after the jury verdict. The trial court denied Hib-bler’s motion for a JNOV or, in the alternative, a new trial. Viewing all evidence in the light most favorable to the verdict, I find no abuse of discretion in the trial court’s denial of Hibbler’s post-trial motions. See Taylor v. State, 744 So.2d 306, 312 (¶ 17) (Miss.Ct.App.1999) (finding we will not disturb a jury’s finding on conflicting testimony where there is substantial evidence to support the verdict). We review the factual findings of the trial court for abuse of discretion. See Rutland v. State, 60 So.3d 137, 142 (¶ 18) (Miss.2011) (motion for new trial reviewed for abuse of discretion) (citations omitted). See also M.R.A.P. 22(b).

¶ 46. A review of the record reflects sufficient evidence in support of the verdict, particularly in light of our standard of review. The testimony supporting the verdict included testimony from Nurse Linda Jones, who, at the time of trial, had worked at the health department for over twenty-eight years. She testified that Hibbler told her that he had taken an unspecified medication to treat bronchitis within the two weeks prior to coming to the health department for the testing at issue in this case. Jones further testified that if Hibbler had taken antibiotics to treat his bronchitis within the two weeks prior to his test, then the chlamydia infection, if any, could have possibly cleared up. Jones also explained in her testimony that Hibbler “had a positive RPR [ (rapid plasma reagin) ],” indicating he previously had syphilis when tested in 1995. Hibbler’s medical records, which were admitted into evidence, reflect that Hibbler had previously tested positive for syphilis and apparently received treatment prior to the 1995 test. This evidence, along with the fact that Hibbler had tested positive for sexually transmitted diseases in the past, raises an inference that Hibbler possessed knowledge regarding sexually transmitted diseases and their treatment. The record showed Hibbler was again tested for syphilis in 2005. This time, he was nonreactive.

¶ 47. Jones further explained that when taking the medical history from Hibbler in 2005 for testing, he stated that he had last engaged in sexual intercourse on June 1, 2005. He also stated that he never used condoms. Jones stated that Hibbler failed to mention any inability to engage in sexual intercourse. She testified that he instead admitted to having sexual intercourse on June 1, 2005. This testimony contradicts and impeaches the trial testimony of Hibbler and his wife that he could not engage in sex and that he had not done so for twenty years.

¶ 48. Testimony supporting the verdict also includes that of the child victim, and this case boils down to a case of credibility. Jane’s testimony was clearly supported and corroborated by other evidence, including her behavior and ability to recall details of Hibbler’s bedroom, which was corroborated by the testimony of other witnesses. Jane testified that Hibbler raped her, and she reported the rape to her counselor.

¶ 49. The record further reflects that Travonder McCloud, who served as a mental-health therapist with Community Counseling Services, testified that Jane reported the rape to a case manager at the counseling center, who then reported the rape to McCloud. McCloud testified that she had worked with Jane approximately two years prior to the incident of sexual abuse and that after the reported incident, Jane became withdrawn. A licensed personal counselor, Carla Horne, also testified, providing support for the jury’s verdict. Horne opined that the level of detail and the hesitancy of Jane in discussing the incident were consistent with a child who had been sexually abused.

¶ 50. Additionally, the testimony of the Macon Police Chief, Robert Brown, further corroborated Jane’s description of Hib-bler’s bedroom, including the furniture and bedding. Dr. Mark Burtman’s testimony confirmed sexual activity. He explained his diagnosis that Jane suffered from chlamydia and his conclusion that her hymen was consistent with one not sexually active.

¶ 51. Based upon the foregoing, and after a review of the sufficiency of the evidence in the record, I conclude that in light of our standard of review of jury verdicts, we must affirm the trial court’s judgment. The record reflects that the evidence, along with its reasonable inferences, sufficiently supports the verdict of the jury and the conviction. See Cousar v. State, 855 So.2d 993, 998 (¶ 15) (Miss.2003). Furthermore, I submit that since Hibbler’s claims are based upon alleged acts or omissions of his trial counsel. Hibbler failed to affirmatively demonstrate how the alleged ineffectiveness of his counsel substantially prejudiced his defense. Accordingly, I would affirm.

      . We use a fictitious name to protect Jane's identity.

      . Dr. Sykes’s first name is not included in the record.

      . Hosford stated that Hibbler hired him before Hibbler was indicted. However, the record is somewhat inconsistent with Hosford's recollection. The record indicates that the circuit court appointed Attorney Richard Bur-dine to defend Hibbler on September 20, 2005. The record does not contain Hosford's entry of appearance, but Hosford filed a motion for discovery on March 6, 2006. On March 20, 2006, Hosford signed an agreed order for a continuance. But on September 11, 2006, the circuit court entered an order allowing Burdine to withdraw as Hibbler’s attorney and substituting Attorney Shane Tompkins for Burdine. It is unclear why the circuit court would appoint Tompkins to represent Hibbler when Hosford had filed a motion for discovery and executed an agreed order for a continuance approximately six months earlier.

      . We use a fictitious name for Jane’s mother to further protect Jane’s identity.

      . Their twin daughters were adopted.

      . Albert John Phillips, “Chlamydial Infections,” Nurse Practitioners in Women's Health, http ://ww w. npwh.org/files/public/ Phillips% 20chapter.pdf (last visited Aug. 2, 2012).

      . Centers for Disease Control and Prevention — Chlamydia Fact Sheet, http://www.cdc. gov/std/chlamydia/STDFact-Chlamydia.htm (last visited Aug. 2, 2012).

      . See also Evans v. State, 725 So.2d 613, 706 (¶ 440) (Miss.1997) (if prejudice cannot be presumed from the defense counsel’s remarks at trial, then defendant’s allegations of ineffective assistance of counsel must show a reasonable probability that the outcome would have been different but for counsel’s statements); McCaleb v. State, 743 So.2d 409, 412 (¶¶ 16-18) (Miss.Ct.App.1999) (counsel not ineffective for failure to object or failure to move to quash the indictment and prejudice will not be presumed).

      . The majority mistakenly claims that the dissent suggests that the United States Supreme Court based "a prima facie case of ineffective assistance of counsel on an analysis of the sufficiency of the evidence!)]” A discussion of the sufficiency of the evidence herein appears only when conducting an appellate review of the evidence in light of our standard of review for jury verdicts. See McFee, 511 So.2d at 133. The dissent addresses Hibbler's failure to show prejudice in his insufficiency claims.

      . When questioned regarding whether Hib-bler had tested positive for syphilis in 1995, Jones responded that "it was a reactive test.” When asked whether that meant Hibbler had tested positive, Jones stated that he "had a positive RPR.”


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Darnice Love SCOTT, Appellant v. Jerry Clyde SCOTT, Appellee.
    No. 2011-CA-00736-COA.
    Court of Appeals of Mississippi.
    Oct. 30, 2012.
    Rehearing Denied April 9, 2013.
    Certiorari Denied June 20, 2013.

      Mark A. Chinn, William Matthew Thompson, Jackson, attorneys for appellant.
    E. Charlene Stimley Priester, Melvin Vincent Priester Jr., attorneys for appel-lee.
    Before GRIFFIS, P.J., CARLTON and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Darnice Scott appeals the chancery court’s amendment of an order that divided her ex-husband Jerry Scott’s retirement benefits under the Railroad Retirement Act. She argues that the chancellor erred in classifying the error in the order as a clerical mistake under Mississippi Rule of Civil Procedure 60(a). On appeal, Darnice argues that the chancellor erred: (1) in amending the order dividing Jerry’s railroad retirement benefits and (2) in denying attorney’s fees to Darnice. We find no error and affirm.

FACTS

¶ 2. Darnice and Jerry were married on July 21, 1973. On December 10, 1997, Jerry and Darnice were divorced pursuant to an Agreed Judgment. A Property Settlement Agreement was incorporated into the Judgment. In December of 1997, the chancellor also entered an Order Dividing Railroad Retirement Benefits. In January of 1998, the Railroad Retirement Board approved the Order.

¶ 3. Paragraph 23 of the 1997 Agreement stated:

Husband and wife agree that the wife shall be entitled to receive all benefíts[ ] under the Tier II of the husband’s retirement under the Railroad Retirement Act. Husband and Wife acknowledge and agree that the only benefit[s] of the husband for which she is receiving under the Railroad Retirement Act is the benefits set forth in Tier II of Jerry C. Scott through the date of divorce.

(Emphasis added). Paragraph 5 of the 1997 Order awarded more benefits to Darnice than the Agreement provided. It stated:

IT IS THEREFORE, ORDERED AND ADJUDGED that Darnice Love Scott is awarded, and the Railroad Retirement Board is directed to pay, an interest in the portion of Jerry Clyde Scott’s benefits under the Railroad Retirement Act.... [Darnice] Love Scott’s share shall be computed as an amount equal to one hundred percent (100%) of Jerry Clyde Scott’s Tier II divisible benefits.

¶ 4. In 2010, Jerry filed a motion to modify the 1997 Order. After a hearing, the chancellor determined that a clerical mistake required correction pursuant to Mississippi Rule of Civil Procedure 60(a). The chancellor amended Paragraph 5 of the 1997 Order to read:

Darnice Love Scott’s share shall be computed as an amount equal to one hundred percent (100%) of Jerry Clyde Scott’s Tier II divisible benefits through December 10, 1997, which is the date of the divorce. Jerry Clyde Scott’s share shall be computed as an amount equal to one hundred percent (100%) ■ of Jerry Clyde Scott’s Tier II divisible benefits from and after December 10,1997.

¶ 5. It is from the 2010 Amended Order that Darnice appeals. Darnice argues the error in the Order was a substantive error and could not be corrected using Rule 60(a).

STANDARD OF REVIEW

¶ 6. In appeals from the chancery court, this Court applies a limited standard of review. See West v. West, 891 So.2d 203, 209 (¶ 8) (Miss.2004). “This [C]ourt will not disturb the findings of a chancellor [when supported by substantial evidence] unless the chancellor was manifestly wrong” or applied an erroneous legal standard. Palmere v. Curtis, 789 So.2d 126, 128 (¶ 4) (Miss.Ct.App.2001) (citation omitted). The standard of review for a chancellor’s decision is abuse of discretion. Townsend v. Townsend, 859 So.2d 370, 372 (¶ 7) (Miss.2003) (citation omitted). For questions of law, the standard of review is de novo. Id. (citation omitted).

ANALYSIS

¶ 7. Mississippi Rule of Civil Procedure Rule 60(a) provides:

Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders....

Rule 60(a) is applicable here because the limiting language contained in the Agreement that was signed by the parties was omitted Jfrom the original 1997 Order by the chancellor. Rule 60(a) does not define “clerical mistakes” or “errors therein arising from oversight or omission.” “Rule 60(a) procedure can be utilized only to make the judgment or other document speak the truth.” M.R.C.P. 60(a) cmt.

¶ 8. “Rule 60(a) cannot be used to reflect a change in mind by the judge.” Seymour v. Seymour, 869 So.2d 1035, 1036 (¶ 4) (Miss.Ct.App.2004). However, it can be used “to correct an order that failed accurately to reflect the judge’s original decision.” Id.

¶ 9. In Whitney National Bank v. Smith, 613 So.2d 312, 315 (Miss.1993), the supreme court stated “the power granted in [Rule 60(a) ] cannot be utilized to change the effect of a judgment, where the changed effect is not manifest from the record that the change reflects the original intent.” Here, the changed effect in the Order is manifest from the record, and the change reflects the original intent in the Agreement signed by both parties.

¶ 10. “Property settlement agreements are contractual obligations.” West, 891 So.2d at 210 (¶ 13). Divorce agreements are “no different from any other contracts].” East v. East, 493 So.2d 927, 931-32 (Miss.1986). When determining the meaning of a property settlement agreement, we employ an objective standard, not taking into consideration the parties’ subjective intent or belief. Palmere, 789 So.2d at 131 (¶ 10) (citation omitted).

¶ 11. Contract interpretation is a three-step process:

First, we look to the “four corners” of the agreement and review the actual language the parties used in their agreement. When the language of the contract is clear or unambiguous, we must effectuate the parties’ intent. However, if the language of the contract is not so clear, we will, if possible, harmonize the provisions in accord "with the parties’ apparent intent. Next, if the parties’ intent remains uncertain, we may discre-tionarity employ canons of contract construction. Finally, we may also consider parol or extrinsic evidence if necessary.

Williams v. Williams, 37 So.3d 1196, 1200 (¶ 10) (Miss.Ct.App.2009) (citations and quotations omitted).

¶ 12. This Court “is not concerned with what the parties may have meant or intended but rather what they said, for the language employed in a contract is the surest guide to what was intended.” Ivison v. Ivison, 762 So.2d 329, 335 (¶ 17) (Miss.2000). Darnice argues that “through the date of divorce” meant that Jerry was acknowledging that he would continue to pay into the Tier II retirement through the date of the divorce. However, reading the Agreement as a whole, the language of it is clear, so “we must effectuate the parties’ intent” as displayed in the Agreement’s express terms. Williams, 37 So.3d at 1200 (¶ 10).

¶ 13. The Agreement reflects that Darnice was to receive all the Tier II benefits through the date of the divorce. It reflects that Jerry was to receive all the Tier II benefits after the date of the divorce and all the Tier I benefits. The original 1997 Order did not effect the terms of the Agreement since it, either by omission or oversight, did not contain the words similar to “through the date of divorce.”

¶ 14. The original 1997 Order gave all the Tier II benefits to Darnice, even those after the marriage ended. This was contrary to the express terms of the Agreement. The 1997 Order relied on its authority from the Judgment and the Agreement.

¶ 15. “[T]he mistake must be in drafting and not in the making of the contract.” Townsend, 859 So.2d at 379 (¶ 28). Here, the mistake was in the drafting of the Order. The contract signed by the parties, the Agreement, had no mistake in it. The chancellor’s 1997 Order contained the omission. The amendment of the 1997 Order was not the reformation of a contract.

¶ 16. The chancellor did not alter or amend the Judgment or the Agreement. Instead, under authority provided in Rule 60(a), the chancellor clarified an oversight or omission in the original 1997 Order that was contrary to the parties’ express terms in the Judgment and the Agreement.

¶ 17. The chancellor did not abuse his discretion, did not apply an erroneous legal standard, and was not manifestly wrong in amending the 1997 Order Dividing Jerry’s Retirement Benefits to correct an omission so that the order accurately reflected the express terms of the Agreement.

¶ 18. As a second issue, Darnice argues that the chancellor erred in denying her request for an award of attorney’s fees. Because we affirm the chancery court’s decision, it is not necessary for us to consider the second issue.

¶ 19. THE JUDGMENT OF THE CHANCERY COURT OF LAUDER-DALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The Agreement was signed by both parties. The Judgment was signed by both parties. The 1997 Order was not signed by either party and does not state which party submitted or prepared the Order. The 1997 Order had the chancellor’s signature and unidentified initials above the typed names of the attorneys.


author: RUSSELL, J., CARLTON, J.,

text:
    Alford CARTER, Appellant v. Carl REDDIX, M.D., and Reddix Medical Group, Appellees.
    No. 2012-CA-00026-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied June 18, 2013.

      Chuck McRae, attorney for appellant.
    Walter T. Johnson, Corey Donald Hin-shaw, Jackson, John Burley Howell III, attorneys for appellees.
    GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. This case involves the dismissal of three claims. First, the circuit court dismissed a claim for tortious interference with a marriage contract on the basis that no such cause of action existed in the state of Mississippi. Second, the circuit court dismissed a claim for alienation of affection on the basis that Alford Carter, the plaintiff below, failed to satisfy the pleading requirements of Mississippi Rule of Civil Procedure 8(a). Finally, the circuit court dismissed a claim for reckless infliction of emotional distress on the basis that the statute of limitations had run, since it was considered a claim for intentional infliction of emotional distress.

¶2. Carter appeals the Hinds County Circuit Court’s order granting Dr. Carl Reddix and Reddix Medical Group’s (“ap-pellees”) motion for a judgment on the pleadings, which dismissed these three claims. He asserts three issues on appeal, which we rephrase for clarity: (1) whether there is a claim for tortious interference with a marriage contract in Mississippi; (2) whether Carter met the liberal pleading requirements of Rule 8(a) for his alienation-of-affection claim; and (3) whether Carter’s claim for infliction of emotional distress was barred by the statute of limitations.

¶ 3. We affirm the dismissal of the claim for tortious interference with a marital contract since no such claim exists in Mississippi. We also affirm the dismissal of the reckless-infliction-of-emotional-distress claim, which was properly treated a an intentional-infliction-of-emotional-distress claim, due to the running of the one-year statute of limitations. Finally, although we find that the alienation-of-affection claim was sufficiently plead under Rule 8(a), we find that this claim is also barred due to the running of the three-year statute of limitations. Therefore, we affirm the circuit court’s dismissal of Carter’s claim for alienation of affection.

FACTS AND PROCEDURAL HISTORY

¶ 4. On March 29, 2010, Carter filed a complaint entitled “tortious interference with a marriage contract” against the ap-pellees, alleging Dr. Reddix had engaged in an extramarital relationship with Carter’s wife, Harriet. The complaint read, in relevant part, as follows:

TORTIOUS INTERFERENCE WITH THE MARRIAGE CONTRACT
Throughout aforementioned extramarital relationship, Harriet L. Carter was a patient of the [defendant, Reddix Medical Group. This defendant negligently and recklessly allowed the illicit relationship between the [defendant, Dr. Carl Reddix, and its patient, Harriet L. Carter, to continue at its office and elsewhere.
Plaintiff would show unto the [c]ourt that at the time of such conduct and activities^] both the [defendants were aware of the marital relationship and contract between Harriet and [p]laintiff, Alford Carter. The Plaintiff was entitled to the lawful, natural, and conjugal rights and privileges with his spouse[,] which included, but [were] not limited to, the love, companionship, services, in-comet,] and comfort that form the foundation of a marriage. Because of the actions of the [defendants herein, the [p]laintiff has lost or suffered damage to these conjugal relationships.
The [defendant, Dr. Carl Reddix[,] did negligently and recklessly interfere with the marriage contract between Harriet L. Carter and [the][p]laintiff. The [defendant, Dr. Carl Reddix, did negligently and recklessly elicit/solicit and alienate the affection of Harriet L. Carter ... from the [p]laintiff, Alford Carter. As a direct and proximate cause of said alienation, the [p]laintiff suffered the loss of his conjugal rights and consortium with ... his wife, resulting in great grievous mental and emotional distress.
As a direct and proximate result of the negligent, wrongful,] and reckless misconduct and behavior of both [defendants with [the][p]laintiffs wife, the [p]laintiff, Alford Carter, has suffered damage to the affection and consortium ... between him and his wife, and also damage to [the][p]laintiff[’]s normal day-to-day relationships.
RECKLESS INFLICTION OF EMOTIONAL DISTRESS
The [p]laintiff would further show that the [defendant’s acts were reckless and without justification, and that the acts of the [defendants evoke outrage and disgust in civilized society. Further, the pattern of conduct perpetrated by the [defendants caused foreseeable harm to the [p]laintiff. The resulting emotional distress was foreseeable from the acts of the [defendants and caused the [p]lain-tiff great emotional distress and injuries directly resulting in damages.
PUNITIVE DAMAGES
Defendant, Dr. Carl Reddix’s wanton and reckless interference with a marriage contract, destruction of family values[,] and his actions of un-condoned adultery with [p]laintiff s wife, Harriet, [were], accompanied with expenditures of money, gifts, and concealment of a serious nature[,] further justifying punitive damages against Reddix.
The [pjlaintiff would further show unto the [cjourt that the Reddix Medical Group engaged in such negligent, wrongful, wanton[,] and reckless conduct and behavior to such an extent, without regard to the consequences to the [pjlaintiff. Therefore, [the][p]laintiff is entitled to an award of punitive damages ... against the Reddix Medical Group in such an amount as to punish them, make an example of them to others, deter them and other similarly situated defendants from engaging in such conduct in the future[,] and otherwise serve the public interest.
COMPENSATORY DAMAGES
As a proximate consequence of the unlawful and tortious acts of both [defendants, [pjlaintiff has suffered these damages.
1. Extreme emotional distress and mental anguish[ — Jpast, present, and future;
2. Loss of the society, companionship, income[,J and consortium of his wife and interruption of [the][p]laintiff[’]s normal day-to-day relationships;
3. Destruction of [the][p]laintifPs family and loss of the comfort [and] society of the [p]laintiff[’]s wife; and,
4. Legal fees, investigative fees, and other costs associated with the interference with the marriage contract between Harriet L. Carter and [the][p]laintiff, Alford Carter.
5. Such other losses as will be shown at a hearing of this cause.

¶ 5. On September 16, 2011, the appel-lees filed a motion for a judgment on the pleadings, arguing that Mississippi does not recognize a cause of action for tortious interference with a marriage contract, and that the statute of limitations had expired on Carter’s infliction-of-emotional-distress claim. On October 5, 2011, Carter filed a response to appellees’ motion for a judgment on the pleadings.

¶ 6. On December 19, 2011, the circuit court entered an opinion and order granting the appellees’ motion for a judgment on the pleadings as follows:

1. [Carter] filed a[c]omplaint against [defendants on March 29, 2010, alleging two causes of action: [tjortious [i]nter-ference with a[m]arriage [c]ontract and [rjeckless [i]nfliction of [ejmotional [distress.
2. Mississippi law does not recognize a cause of action for tortious interference with a marriage contract. Therefore, this claim is due to be dismissed.
3. Mississippi law does, however, provide for an alienation of affection cause of action under certain circumstances. However, the [cjomplaint lacks factual allegations to support a claim for alienation of affection.
4. The [c]ourt further finds [that Carter’s] claim for reckless infliction of emotional distress should be considered as a claim for intentional infliction of emotional distress and is barred by the applicable one-year statute of limitations. This claim is also due to be dismissed.

The circuit court dismissed all claims without prejudice.

¶ 7. Thereafter, Carter did not request leave to amend his complaint. Instead, Carter appealed the circuit court’s order granting the motion for a judgment on the pleadings.

DISCUSSION

¶8. “Since a motion for [a] judgment on the pleadings under Mississippi Rule of [Civil] Procedure 12(c) raises an issue of law, this Court’s standard of review for the granting of that motion is de novo.” R.J. Reynolds Tobacco Co. v. King, 921 So.2d 268, 270 (¶ 10) (Miss.2005) (citing Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1210 (Miss.2001)). “Therefore, this Court sits in the same position as did the trial court.” Id. at 270-71 (¶ 10) (citing Bridges ex rel. Bridges v. Park Place Entm’t, 860 So.2d 811, 813 (Miss.2003)). “A Rule 12(c) motion is similar to a [Mississippi] Rule [of Civil Procedure] 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.” King, 921 So.2d at 271 (¶ 10) (citing City of Tupelo v. Martin, 747 So.2d 822, 829 (Miss.1999)). For a Rule 12(c) motion, “the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond any reasonable doubt that the non-moving party will be unable to prove any set of facts in support of the claim which would entitle the non-movant to relief.” King, 921 So.2d at 271 (¶ 10) (citing Bridges, 860 So.2d at 813).

¶ 9. We note that all of the claims are time-barred due to the running of the statutes of limitations; therefore, they are procedurally barred. Notwithstanding the procedural bar, we will address the merits.

I.Tortious-Imterference-with-a-Con-tract Claim

¶ 10. Carter argues that there is a cause of action for tortious interference with a marriage contract in Mississippi, and that his claim should not have been dismissed. Under Mississippi law, the elements of a claim for tortious interference with a contract are:

1. that the acts were intentional and willful;
2. that they were calculated to cause damage to the plaintiffs in their lawful business;
3. that they were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice); and
4. that actual damage and loss resulted.

Cenac v. Murry, 609 So.2d 1257, 1268-69 (Miss.1992). However, Mississippi has never recognized a cause of action for tortious interference with a marriage contract. Further, this Court refuses to create a common-law cause of action for tortious interference with a marriage contract, because Mississippi already recognizes a cause of action for alienation of affection. Therefore, if Carter wanted relief against the appellees, he should have proceeded under a claim for alienation of affection. Because Carter plead a nonexistent cause of action, we find that the circuit court properly dismissed this claim.

II. Alienation-of-Affection Claim

¶ 11. “It is well-settled law in Mississippi that plaintiffs are bound by what is alleged in the complaint, absent a subsequent amendment or modification.” Scott v. City of Goodman, 997 So.2d 270, 276 (¶ 14) (Miss.Ct.App.2008) (quoting Powell v. Clay Cnty. Bd. of Supervisors, 924 So.2d 523, 527 (¶ 11) (Miss.2006)). Under Rule 8(a)(1), “[a] pleading which sets forth a claim for relief ... shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief];.]” M.R.C.P. 8(a)(1). Under the liberal pleading requirements of Rule 8(a), “a plaintiff must set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Scott, 997 So.2d at 276 (¶ 14). “However, the pleadings need only ‘provide sufficient notice to the defendant of the claims and grounds upon which relief ... is sought.’ ” Id. (quoting Estate of Stevens v. Wetzel, 762 So.2d 293, 295 (¶ 11) (Miss.2000)). “A basic objective of the rule[] is to avoid civil cases turning on technicalities and to require that the pleading discharge the function of giving the opposing party fair notice of the nature and basis or grounds of the pleader’s claim.” Id.

¶ 12. “The elements of the tort of alienation of affection[ ] are: ‘(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss.’ ” Knight v. Woodfield, 50 So.3d 995, 999 (¶ 14) (Miss.2011) (quoting Fitch v. Valentine, 959 So.2d 1012, 1025 (¶ 36) (Miss.2007)). In this case, Carter’s complaint alleged, among other things, that Dr. Red-dix “did negligently and recklessly elicit/solicit and alienate the affection of Harriet L. Carter ... from [Carter,]” and “[a]s a direct and proximate cause of said alienation, [Carter] suffered the loss of his conjugal rights and consortium with ... his wife, resulting in great and grievous mental and emotional distress.” (Emphasis added). We find that Carter met the liberal notice-pleading requirements of Rule 8(a) because Carter set forth factual allegations, either direct or inferential, respecting each material element of a claim for alienation of affection. See Scott, 997 So.2d at 276 (¶ 14).

¶ 13. However, we find that Carter’s alienation-of-affection claim is time-barred. “Though alienation of affection is an intentional tort, it does not have a specifically prescribed statute of limitations. Therefore, we apply the general three-year statute of limitations found in Mississippi Code Annotated section 15-1-49 (Rev.2003).” Fulkerson v. Odom, 53 So.3d 849, 851 (¶ 9) (Miss.Ct.App.2011). For an alienation-of-affection claim, we have stated the following:

Under Mississippi law, a claim of alienation of affection accrues when the alienation or loss of affection is finally accomplished. The accrual of the claim, then, occurs when the affections of the spouse involved in the extramarital relationship are alienated. The affections of the spouse wronged by the affair are irrelevant to a determination of when the cause of action accrued.

Id. at 852 (¶ 11) (quoting Hancock v. Watson, 962 So.2d 627, 631 (¶ 16) (Miss.Ct.App.2007)).

¶ 14. In this case, Carter filed his complaint on March 29, 2010. Within his complaint, Carter alleged: “Unknown to [Carter], prior to May 24, 2004, the Defendant Reddix seduced and continued to negligently and recklessly engage in certain solicitous conduct and activities with Harriet.” (Emphasis added). This is the only date provided by Carter with which we have to base our decision. Obviously, almost six years had passed between the date alleged in the complaint and the date Carter filed his complaint — well over the three-year limitations period for an alienation-of-affection claim. Therefore, we find that this claim was properly dismissed, but on the basis that it was time-barred.

III. Infliction-of-Emotional-Distress Claim

¶ 15. Carter argues that his claim entitled “reckless infliction of emotional distress” was actually a claim for negligent infliction of emotional distress (NIED), which has a three-year statute of limitations, rather than intentional infliction of emotional distress (IIED). A claim for IIED, which has a one-year statute of limitations, requires proof of the following elements:

1. [The defendant] acted willfully or wantonly towards [the plaintiff] by [description of defendant’s actions];
2. [T]he defendant’s [acts are ones] which evoke outrage or revulsion in civilized society;
8. [T]he [acts were] directed at or intended to cause harm to [the plaintiff];
4. [The plaintiff] suffered severe emotional distress as a direct result of the [acts] of the defendant; and
5. Such resulting emotional distress was foreseeable from the intentional [acts] of the defendant^]

J.R. ex rel. R.R. v. Malley, 62 So.3d 902, 906 (¶ 15) (Miss.2011) (emphasis added) (quoting Miss. Practice Model Jury Instr. Civil § 21:1 (2010)).

¶ 16. In the case before us, Carter alleged the following in his complaint regarding the infliction-of-emotional-distress claim:

RECKLESS INFLICTION OF EMOTIONAL DISTRESS
The [p]laintiff would further show that the [defendant's acts were reckless and without justification, and that the acts of the [defendants evoke outrage and disgust in civilized society. Further, the pattern of conduct perpetrated by the [defendants caused foreseeable harm to the [p]laintiff. The resulting emotional distress was foreseeable from the acts of the [defendants and caused the [p]laintiff great emotional distress and injuries directly resulting in damages.

(Emphasis added).

¶ 17. We note that the language employed by Carter in his complaint is consistent with a claim for IIED. See id.; see also Speed v. Scott, 787 So.2d 626, 630 (¶ 17) (Miss.2001) (noting that for an IIED claim, the defendant’s conduct must be “wanton and wilful and ... evoke outrage or revulsion”) (emphasis added); Evans v. Miss. Dep’t of Human Servs., 36 So.3d 463, 475 (¶ 50) (Miss.Ct.App.2010) (noting that “the plaintiff must prove the defendant’s conduct ‘was wanton and willful and evoked outrage or revulsion’ ” for an IIED claim) (emphasis added); Funderburk v. Johnson, 935 So.2d 1084, 1100, 1104 (¶¶ 40, 57) (Miss.Ct.App.2006) (noting that “[t]he tort of [IIED] requires an intentional act, one that is so extreme and outrageous as to exceed all possible bounds of decency” and that “[l]iability does not extend to ‘mere insults, threats, annoyances, or petty oppressions’ ”) (emphasis added); Little v. Collier, 759 So.2d 454, 457 (¶ 13) (Miss.Ct.App.2000) (noting that “the standard [for an IIED claim] is whether the defendant’s behavior is malicious, intentional, willful, wanton, grossly careless, indifferent[,] or reckless”) (emphasis added).

¶ 18. We find that the circuit court properly treated Carter’s claim as one for IIED, which has a statute of limitations of one year. Miss.Code Ann. § 15-1-35. Therefore, we find that the circuit court properly dismissed this claim as time-barred.

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

ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J. GRIFFIS, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., AND FAIR, J., NOT PARTICIPATING.

CARLTON, J.,

concurring in result only:

¶20. I respectfully concur in result only, and I agree that the action appears barred by the statute of limitations. I write separately to address the majority’s dicta analysis of intentional torts, and its analysis of an action for alienation of affection relative to intentional interference with a marriage contract, and also notice pleading. The majority provides that Mississippi has never recognized a cause of action for tortious interference with a marriage contract. While Mississippi does not use the label “intentional interference with a marriage contract,” Mississippi’s cause of action for such tortious interference is inherently an action for alienation of affection. At common law, marriage both created and destroyed rights of action in tort. The marital union created rights and obligations, and injury to those rights by a third person gave rise to a cause of action in tort.

¶ 21. I agree that Mississippi does not enforce the terms of marriage contracts in the same way as commercial business contracts or civil contracts. See Miss.Code Ann. § 93-3-1 (Rev.2004) (“A married woman shall have a cause of action for loss of consortium through negligent injury of her husband.”). Precedent recognizes that marriage is not a civil contract in the sense that all legislative interference with the rights of the parties is precluded by constitutional provisions forbidding interference with private rights or impairing obligations of contracts. Carson v. Carson, 40 Miss. 349, 351 (Err. & App. 1866). Marriage is an institution of society, subject to the control of the Legislature. Id. The marriage contract reflects the parties’ valid and consensual agreement to establish a marriage relationship creating a marital oneness through the marital union. See Bell, at § 1.09; see also Miss.Code Ann. § 93-3-1. The appellees correctly provide in their brief that while marriage possesses some contractual features, such agreement is not a contract in the ordinary common-law use of the word. As a result, the terms of a marriage contract in Mississippi are not judicially enforceable as in civil and commercial contracts.

¶22. As discussed in the majority’s opinion, Mississippi allows for the cause of action of alienation of affection as an intentional tort for interference with a marital relationship by a third party that causes the harm of alienation of affections or loss of consortium. See Knight v. Woodfield, 50 So.3d 995, 999 (¶ 14) (Miss.2011) (“The elements of the tort of alienation of affections are: ‘(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss.’ ”). “The tort of alienation of affection allows a plaintiff whose spouse’s affections have been diverted to recover damages from the responsible third party.” Bell, at § 1.09(8)(a). “Damages for alienation of affection include damages for loss of consortium as well as physical and emotional injuries.” Id. “A plaintiff may also recover for other expenses caused by the defendant’s conduct, including lost wages, medical bills, private investigator’s fees, and attorneys’ fees.” Id. The tort of criminal conversation was a similar tort action until it was abolished in 1992. See Saunders v. Alford, 607 So.2d 1214, 1216 (Miss.1992).

¶23. In Fitch v. Valentine, 959 So.2d 1012, 1020 (¶ 16) (Miss.2007), the supreme court addressed the cause of action for damages resulting from the alienation of affection due to the intentional interference with the marriage relationship by a third party. The court explained that the tort of alienation of affections is a recognized cause of action in Mississippi, the purpose of which is:

protecting the marriage relationship and providing a remedy for intentional conduct which causes a loss of consortium .... Alienation of affections is the only available avenue to provide redress for a spouse who has suffered loss and injury to his or her marital relationship against the third party who, through persuasion, enticement, or inducement, caused or contributed to the abandonment of the marriage and/or the loss of affections by active interference.

Id.

¶ 24. Since Mississippi has embraced notice pleading and since the alienation-of-affection claim can be inferred from the complaint, I submit that the complaint stated a claim upon which relief could be granted in accordance with notice pleading. However, as previously stated, I concur with the majority that the claims in this case appear barred by the statute of limitations. I therefore concur in result only.

LEE, C.J., JOINS THIS OPINION.

      . However, Carter fails to cite one Mississippi case where our courts have applied a claim for tortious interference with a contract to a marriage contract.

      . We note that the term "negligently” is inconsistent with a claim for alienation of affection, which is an intentional tort.

      . Under the prior version of Mississippi Code Annotated section 15-1-49, there was a six-year period of limitations for claims arising before July 1, 1989. The statute now provides for a three-year limitations period for claims arising on or after this date.

      . Miss.Code Ann. § 15-1-49 (Rev.2003).

      . "In accordance with Mississippi Code [Annotated] [s]ection 15-1-35 [(Rev.2003)], the statute of limitations for an intentional-infliction-of-emotional-distress claim is one year after the cause of action accrued.” Trustmark Nat’l Bank v. Meador, 81 So.3d 1112, 1118 (¶ 16) (Miss.2012) (citing Jones v. Fluor Daniel Servs. Corp., 32 So.3d 417, 423 (Miss.2010)).

      . See Maj. Op. (¶ 10) ("However, Mississippi has never recognized a cause of action for tortious interference with a marriage contract.”).

      . "Loss of consortium is an action for loss of a spouse’s services and companionship as a result of injuries caused by a third person.” See Deborah H. Bell, Bell on Mississippi Family Law % 1.09 (2005).

      . Some other states have adopted legislation enacting provisions to establish "covenant” marriages where the statutes allow for: the agreement to enforcement procedures; more formal formation; and more formal dissolution procedures such as premarital counseling and limited grounds of divorce. See Welsh v. Welsh, 783 So.2d 446, 447 (La.Ct.App.2001).

      . See also Overstreet v. Merlos, 570 So.2d 1196, 1198 (Miss.1990).

        .See M.R.C.P. 8(f) (providing that "[a]ll pleadings shall be so construed as to do substantial justice”); M.R.C.P. 8(e) (providing that no technical forms of pleading are required); M.R.C.P. 8(a) (allowing for notice pleading). The comment to Rule 8 explains that the purpose of the rule is to give notice, not to state facts.


author: BARNES, J.,

text:
    Roosevelt WASHINGTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01840-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2013.
    Rehearing Denied June 18, 2013.

      Roosevelt Washington, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. Roosevelt Washington was indicted on December 16, 1994, for two counts of robbery, one count of armed robbery, and three counts of burglary of an inhabited dwelling. A jury trial was held on two of the charges, and Washington was convicted of Count Three, armed robbery, and Count Six, burglary of a dwelling. He was sentenced as a habitual offender to forty-five years in the custody of the Mississippi Department of Corrections for Count Three and fifteen years for Count Six, with the sentences to run consecutively. The Mississippi Supreme Court affirmed these convictions on October 11, 2001. See Washington v. State, 800 So.2d 1140 (Miss.2001).

¶ 2. This appeal pertains to a “Motion to Inspect Grand Jury Minutes” filed by Washington on November 2, 2011, which alleged that the grand jury did not vote on his multi-count indictment. Treating the motion as one for post-conviction relief, the Lincoln County Circuit Court dismissed the claim, finding that the motion was without merit and time-barred. We affirm, finding no error in the circuit court’s dismissal.

STANDARD OF REVIEW

¶ 3. “A circuit court’s dismissal of a motion for post-conviction relief will not be reversed absent a finding that the circuit court’s decision was clearly erroneous.” Shinn v. State, 74 So.3d 901, 904 (¶ 7) (Miss.Ct.App.2011) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). Issues of law, however, are reviewed de novo. Id.

DISCUSSION

¶ 4. Washington contends that his 1994 indictment was defective because it was only signed by the foreman of the grand jury and the assistant district attorney. Thus, he claims the indictment did not conform to the Uniform Rules of Circuit and County Court, as it failed to show that all members of the grand jury considered the indictment.

¶ 5. Although not addressed by the circuit court, the State observes that Washington failed to obtain permission from the Mississippi Supreme Court to file his motion for post-conviction relief. “When a case is affirmed on direct appeal, Mississippi Code Annotated section 99-39-7 (Rev.2007) mandates that permission be obtained from the supreme court to seek post-conviction relief from the trial court.” Johnson v. State, 70 So.3d 262, 264 (¶ 9) (Miss.Ct.App.2011). “This procedure is not merely advisory, but jurisdictional.” Id. (quoting Doss v. State, 757 So.2d 1016, 1017 (¶ 6) (Miss.Ct.App.2000)). Therefore, the circuit court and this Court are without jurisdiction to consider the merits of Washington’s motion.

¶ 6. We also conclude the circuit court was correct in finding Washington’s motion to be time-barred. A motion for post-conviction relief “shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi^]” Miss.Code Ann. § 99-39-5(2) (Supp.2012). Washington’s motion was filed ten years after the supreme court ruled on his direct appeal. Claims alleging a defective indictment are barred when the motion is not filed within the three-year time limitation. Edwards v. State, 90 So.3d 637, 642 (¶ 12) (Miss.Ct.App.2012) (citing Barnes v. State, 949 So.2d 879, 881 (¶ 8) (Miss.Ct.App.2007)).

¶ 7. Despite the procedural bars, we find no merit to Washington’s claim. The indictment contained in the record clearly shows the signature of the grand jury foreman, which satisfies the requirements of Rule 7.06 of the Uniform Rules of Circuit and County Court. Washington has provided no evidence that the grand jury members did not review and consider his indictment.

¶ 8. Accordingly, we find no error in the circuit court’s dismissal of Washington’s motion and affirm.

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

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