author: CARLTON, J.,

text:
    Willie ROSS a/k/a Willie Joe Ross a/k/a Willie J. Ross, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00922-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.

      Willie Ross, appellant, pro se.
    Office of the Attorney General by Elliott George Flaggs, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Willie Ross appeals the Lowndes County Circuit Court’s dismissal of his motion for post-conviction relief (PCR). Ross argues that the trial court erred by: (1) allowing the State to amend the indictment against him after he had entered a plea agreement with the State and during his plea hearing; (2) failing to hold a separate bifurcated trial after he entered his guilty plea prior to sentencing him as a habitual offender; and (3) failing to address both of the issues presented in his PCR motion and to acknowledge the intervening decisions presented. Finding Ross’s PCR motion to be both time-barred and procedurally barred as a successive writ, we affirm the trial court’s dismissal.

FACTS

¶ 2. A grand jury before the Lowndes County Circuit Court indicted Ross on February 4, 2002, for two counts of burglary of a dwelling under Mississippi Code Annotated section 97-17-23 (Supp.2012) and one count of receiving stolen property under Mississippi Code Annotated section 97-17-70 (Supp.2012). On May 22, 2002, Ross filed his petition to enter a guilty plea, agreeing to plead guilty to one count of burglary of a dwelling if the State agreed to drop the two other pending charges and recommend a sentence of twenty years. The next day, the same day as Ross’s plea hearing, the State filed a motion to amend the indictment to reflect Ross’s habitual-offender status under Mississippi Code Annotated section 99-19-81 (Rev.2007). At the start of Ross’s plea hearing, the trial court granted the State’s motion. Ross then entered his guilty plea. Alterations to Ross’s plea petition were made, and authorized by Ross, to reflect his changed status and the required sentence of twenty-five years. The trial court sentenced Ross as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections.

¶ 3. On June 1, 2005, Ross filed a PCR motion asserting that he entered an involuntary guilty plea because the district attorney agreed to recommend a twenty-year sentence, but the trial court imposed a twenty-five-year sentence; he was denied transcripts in his preparation of his PCR motion; and that he received ineffective assistance of counsel. The trial court dismissed Ross’s PCR motion finding that Ross knew that his habitual-offender status would be considered during sentencing and that he agreed to the twenty-five-year sentence imposed upon him. Ross appealed the trial court’s dismissal, and on August 22, 2006, in Ross v. State, 936 So.2d 983, 988 (¶ 13) (Miss.Ct.App.2006), we affirmed the dismissal by the trial court.

¶ 4. On September 10, 2007, Ross filed a second PCR motion claiming that his sentence was illegal pursuant to the Fifth and Fourteenth Amendments to the United States Constitution. On December 4, 2007, the trial court dismissed Ross’s second PCR motion finding it time-barred under Mississippi Code Annotated section 99-39-5(2) (Supp.2012) and that it failed to fall under any exception enumerated in section 99-39-5(2) so as to toll the statute of limitations. Ross appealed the trial court’s dismissal of his second PCR motion asserting that: (1) the court exceeded its authority in sentencing him as a habitual offender; (2) the habitual-offender portion of his sentence was illegal; and (3) the court failed to conduct an evidentiary hearing before dismissing Ross’s PCR motion. On March 24, 2009, we affirmed the trial court’s dismissal, finding Ross’s second PCR motion to be both time-barred and procedurally barred as a successive writ.

¶ 5. On January 24, 2012, Ross filed the present PCR motion. The trial court dismissed the motion as time-barred.

¶ 6. Ross appeals to this Court.

STANDARD OF REVIEW

¶ 7. When reviewing a trial court’s decision to dismiss a PCR motion, this Court will not disturb the trial court’s factual findings unless found to be clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). This Court employs a de novo review when reviewing questions of law. Id.

DISCUSSION

¶8. The Uniform Post-Conviction Collateral Relief Act (UPCCRA) bars PCR motions from our review if the movant has filed a previous PCR motion. Miss.Code Ann. § 99-39-23(6) (Supp.2012). Additionally, under the UPCCRA, a three-year limitations period applies to claims for relief. Miss.Code Ann. § 99-39-5(2). Because Ross challenges a 2002 conviction, his January 24, 2012 PCR motion falls well outside of the three-year statute of limitations. This is also Ross’s third attempt for post-conviction relief. As such, his PCR motion is both time-barred and successive-writ barred unless he can show an exception to these procedural bars. See White v. State, 59 So.3d 633, 635 (¶ 8) (Miss.Ct. App.2011).

¶ 9. There are three statutory exceptions to the three-year limitations period and the successive-writ bar. To be exempted from these bars, a PCR movant must show one of the following: (1) an intervening decision of the United States Supreme Court or the Mississippi Supreme Court adversely affecting the outcome of his conviction or sentence; (2) new evidence, not reasonably discoverable at trial, which would have caused a different result in the conviction or sentence; or (3) that either his sentence has expired or his parole, probation, or conditional release has been unlawfully revoked. Miss.Code Ann. §§ 99 — 39—5(2)(a)—(b), 99-39-23(6).

¶ 10. In his most recent PCR motion, Ross argues that the trial court erred in allowing the indictment to be amended after he had entered into a plea agreement with the State to reflect his habitual-offender status. Ross also asserts that the trial court erred by failing to submit his habitual offender status to a grand jury. Ross alleges that he received an illegal sentence because the trial court failed to hold a separate bifurcated trial after he entered his guilty plea and prior to imposing his sentence as a habitual offender.

¶ 11. Ross raises nothing and relies on his own bare allegations in his most recent motion to overcome the successive-writ bar or the time-bar. Ross cites to Gowdy v. State, 56 So.3d 540, 544-46 (¶¶ 14-22) (Miss.2010), as an intervening decision by the Mississippi Supreme Court that supports his argument that he suffered a violation of his constitutional rights when the trial court granted the State’s motion to amend his indictment to charge him as a habitual offender. Rule 7.09 provides:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as [a] habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement.... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

As noted by the supreme court in Gowdy, Rule 7.09 fails to mention the timing of the amendment to an indictment but only states that the defendant must be provided a fair chance to present a defense and not be unfairly surprised. Gowdy, 56 So.3d at 545 (¶ 16). “This means that the defendant must be afforded due process of law and be given fair notice of ‘the nature and cause of the accusation.” Id.; see also Newberry v. State, 85 So.3d 884, 889 (¶ 10) (Miss.Ct.App.2011). Moreover, “[a] trial court is within its power to allow amendments to indictments to include language reflecting an accused’s status as a habitual offender without grand jury action upon proper motion by the State.” Shumaker v. State, 956 So.2d 1078, 1087 (¶ 24) (Miss.Ct.App.2007).

¶ 12. In the case at bar, on May 22, 2002, Ross filed a petition to enter a guilty plea to the crime of burglary of a dwelling. The next day, Ross’s guilty-plea hearing commenced. At the beginning of the hearing, the State informed the trial court that it had filed a motion to amend the indictment to reflect Ross’s habitual-offender status. The State provided evidence of Ross’s prior convictions of burglary of a dwelling and grand larceny. Ross’s defense counsel raised no objection and stated that she had seen both of Ross’s previous convictions during revocation proceedings. Defense counsel offered no evidence in opposition to the State’s motion to amend the indictment. The trial court notified the parties of its requirement to sentence Ross as a habitual offender to the twenty-five-year maximum term. The trial court explained that the State’s previous twenty-year recommendation, as stated in the plea agreement, was void, and that Ross must serve all of his twenty-five-year sentence. The trial court then granted a recess to provide Ross an opportunity to confer with his attorney and decide whether to change his guilty plea. Following tile recess, Ross decided to continue with his guilty plea, even as a habitual offender. As a result of granting the State’s motion to amend the indictment, the State’s recommendation of twenty years shown on the May 22, 2002 guilty-plea petition was changed to a twenty-five-year sentence to reflect the mandatory maximum sentence as a habitual offender.

¶ 13. Ross argues that the trial court erred when it allowed the State to amend the indictment against him after he entered into a plea agreement with the State. Ross correctly states that the Gowdy court found that the amendment to Gowdas indictment to show habitual-offender status constituted an unfair surprise because it occurred two months after Gowdy’s conviction. Nevertheless, we find Gowdy distinguishable from the case at bar.

¶ 14. In Gowdy, the defendant received no notice of the State’s intent to amend the indictment until after being convicted. Gowdy, 56 So.3d at 542 (¶ 5). The indictment was amended two months after conviction. Id. In contrast, Ross received sufficient notice of the State’s intent to seek habitual-offender status before he pled guilty. Accordingly, the trial court amended the indictment prior to acceptance of Ross’s guilty plea. Furthermore, in Gowdy, one of the reasons provided by the court for finding the amendment improper was that “before a defendant can plead guilty, the trial court has a duty to ensure that he understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law.” Id. at 546 (¶ 21) (citation and quotation marks omitted). In Ross’s case, the trial court provided Ross the opportunity to confer with his attorney to discuss the consequences of pleading guilty as a habitual offender prior to accepting his guilty plea. After conferring with his attorney, Ross still decided to enter a guilty plea.

¶ 15. Furthermore, in Ross, this Court determined that Ross had entered a knowing and voluntary guilty plea. See Ross, 936 So.2d at 986-87 (¶ 7). The Ross Court ultimately found the trial court’s summary dismissal of Ross’s PCR motion to be appropriate, specifically noting:

The trial court’s order specifically found that Ross was fully aware of his habitual offender status as it affected his sentencing, as noted in Ross’s notarized plea agreement and evident from his plea hearing transcript. Specifically, Ross’s plea agreement states that he was fully aware of the consequences of his guilty plea, his habitual offender status, and that the prosecutor would recommend a twenty-five year sentence. Furthermore, the transcript of Ross’s plea hearing evinces his understanding of his plea as a habitual offender and makes clear that said plea was given freely and voluntarily. Though the original plea agreement called for a recommendation of a twenty year sentence, Ross’s habitual offender status precluded such a sentence as the maximum sentence of twenty-five years was the only option available to the lower court.

Ross, 936 So.2d at 986 (¶ 7).

¶ 16. Ross argues that the trial court erred by failing to submit his habitual-offender status to a grand jury. However, this Court has held that a trial court may amend an indictment to include an accused’s habitual-offender status without grand-jury action upon proper motion by the State. Shumaker, 956 So.2d at 1087 (¶ 24) (citing URCCC 7.09; Owens v. State, 869 So.2d 1047, 1050 (¶ 14) (Miss.Ct.App.2004)). As noted above, the State raised a proper motion to amend Ross’s indictment prior to the trial court’s acceptance of Ross’s guilty plea. Therefore, we find that the trial court did not err in allowing the indictment to be amended to show Ross’s habitual-offender status. We cannot say that Ross was unfairly surprised or prejudiced in his defense by the State’s motion to amend the indictment.

¶ 17. Next, we address Ross’s argument that the trial court erred when it failed to hold a bifurcated hearing. Ross alleges that after he entered his guilty plea, the trial court erred by closing his case without holding a bifurcated trial to provide him a chance to “object, present evidence^] and subpoena witnesses in support of his defense.” Under Rule 11.03 of the Uniform Rules of Circuit and County Court, “[i]f the defendant ... enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions.” This hearing must occur before the defendant can be adjudged a habitual offender. Hudson v. State, 891 So.2d 260, 262 (¶ 6) (Miss.Ct.App.2004). However, “a petitioner’s status as [a] habitual offender can be established at the entry of a guilty plea, making it unnecessary to have a separate bifurcated hearing [.]” Id. (emphasis added) (citing Keyes v. State, 549 So.2d 949, 951 (Miss.1989)).

¶ 18. Similar to Ross, on appeal from the denial of his PCR motion, Hudson argued that he received an illegal sentence because the trial court sentenced him as a habitual offender without holding a bifurcated hearing as required under Rule 11.03. Hudson, 891 So.2d at 261 (¶ 1). The Hudson Court found that the trial court informed Hudson that he was being “adjudged and sentenced as [a] habitual offender.” Id. at 263 (¶ 8). Additionally, the Hudson Court noted that Hudson possessed ample opportunity to contest his habitual-offender status but chose instead to acknowledge it. Id. Thus, Hudson failed to show that he received an illegal sentence and that he was denied a fundamental right. Id.

¶ 19. Similar to Hudson, in this case, the trial court informed Ross of his previous convictions during his plea hearing. The State provided the trial court with evidence of Ross’s previous convictions of burglary of a dwelling and grand larceny. Defense counsel indicated that she had seen both of the previous convictions during Ross’s revocation proceedings. The trial court informed Ross that he was being adjudged and sentenced as a habitual criminal. The trial court also asked Ross, “Do you understand the only sentence that I can give you is twenty-five (25) years in the Mississippi Department of Corrections as [a] habitual offender[?],” to which Ross replied in the affirmative. Ross failed to object to his sentence as a habitual offender. Therefore, we find that the trial court did not impose an illegal sentence, since we deem a separate bifurcated trial unnecessary.

¶20. As to Ross’s argument that Rowland qualifies as an intervening decision that acts to circumvent the procedural bars, we likewise find no merit. Ross correctly notes that the supreme court in Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010), found that errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA. Ross alleges that the trial court failed to address his habitual-offender-status and bifurcated-trial issues, errors that affected his fundamental rights. However, as dictated in our findings above, the trial court committed no errors affecting Ross’s fundamental constitutional rights. Therefore, the holding in Rowland fails to adversely affect the outcome of Ross’s conviction or sentence.

CONCLUSION

¶ 21. Since no support exists for Ross’s claimed exceptions to the several procedural bars, we affirm the trial court’s dismissal.

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

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

      . This court has addressed Ross's prior claims as to this conviction and sentence in Ross v. State, 19 So.3d 108 (Miss.Ct.App.2009), and in Ross v. State, 936 So.2d 983 (Miss.Ct.App.2006). We have also addressed Ross's claims as to an unrelated conviction in Ross v. State, 87 So.3d 1080 (Miss.Ct.App.2012).

      . While not delineated as an issue in his appellate brief, in his reply brief, Ross argues that he was denied the right to confrontation when receiving his sentence as a habitual offender at his plea hearing. Ross failed to raise this issue in his PCR motion before the trial court; thus, the issue is procedurally barred from our review. Smith v. State, 75 So.3d 82, 83 (¶ 5) (Miss.Ct.App.2011).

      . Specifically, defense counsel stated, “I’ve seen both of them in his revocation. He’s got a revocation pending on those.’’

      . See Ross, 936 So.2d at 987 (¶ 7) (affirming the trial court’s dismissal of Ross's PCR motion after noting that the trial court’s order specifically found that Ross was fully aware of his habitual-offender status as it affected his sentencing).


source: Caselaw Access Project

license: Public Domain

text:
    Floyd MAYFIELD, Appellant v. ADVANCED DISPOSAL SERVICES MISSISSIPPI, LLC and Arch Insurance Company, Appellees.
    No. 2012-WC-01407-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.

      James Kenneth Wetzel, Garner James Wetzel, Gulfport, attorneys for appellant.
    Betty B. Arinder, Michelle Barlow Mims, Ridgeland, attorneys for appellees.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. On January 6, 2011, Floyd Mayfield filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission) alleging that he had suffered a compensable injury to his “neck, back, legs, knees, and feet” while working as a truck driver for Advanced Disposal Services Mississippi, LLC. Advanced Disposal and Arch Insurance Company, its carrier, admitted compensability as to Mayfield’s left knee, but denied that May-field suffered a work-related compensable injury to his lower back on that same date. A hearing commenced before the administrative judge (AJ). Following the hearing, the AJ entered an order that recognized Advanced Disposal admitted compensability to the left knee and stated that the sole issue for determination at the hearing was whether or not Mayfield sustained a com-pensable work-related injury to his back on the date in question. The AJ concluded that Mayfield sustained a compensable work-related injury to his back. However, no findings were made as to compensation for the left knee injury.

¶ 2. Advanced Disposal appealed the AJ’s decision to the Commission regarding compensability as to Mayfield’s back injury. The Commission reversed the AJ’s grant of benefits for Mayfield’s lower back injury and remanded the case to the AJ for additional proceedings consistent with its opinion.

¶ 3. Feeling aggrieved, Mayfield appeals, arguing that the Commission’s decision is arbitrary and capricious, not supported by substantial evidence, and contrary to the law. Subsequent to the filing of Mayfield’s appeal, Advanced Disposal filed a motion to dismiss, claiming that Mayfield’s appeal is interlocutory. After reviewing the record, this Court concludes that Mayfield has not appealed from a final judgment by the Commission. The Commission did not make a final adjudication as to all issues surrounding Mayfield’s alleged work-related incident. Therefore, we lack jurisdiction to address the merits of this appeal and dismiss.

FACTS

¶4. On September 30, 2010, Mayfield suffered an injury while working as a truck driver for Advanced Disposal. May-field testified that while standing on top of the tire and fender of his truck attempting to remove a tangled tarp, he slipped and fell approximately four feet to the ground. Mayfield stated that he landed on his left leg and then fell onto his buttocks. He testified that he felt pain in his left knee and upper and lower back immediately following the fall. Mayfield claimed that he notified his supervisor, Steven Deeks, that same day.

¶ 5. Mayfield testified that he saw Dr. Ricky Chance the day after the fall with complaints of pain in his left knee and back. The medical records reflect that Mayfield reported to Dr. Chance with complaints of left knee pain and upper back pain. Dr. Chance prescribed pain medication and ordered a MRI of May-field’s left knee. Following the MRI, Dr. Chance referred Mayfield to Dr. Ronald Graham, an orthopedic surgeon, for an evaluation of his left knee. Mayfield was diagnosed with a tear of the medial meniscus. Mayfield testified that Dr. Graham performed arthroscopic surgery of his left knee in November 2010. Following surgery, Dr. Graham prescribed physical therapy. Mayfield testified that because of the continued pain in his leg and back, his physical therapy was limited. May-field continued to complain of lower back pain thereafter.

¶ 6. Dr. Graham ordered a MRI of May-field’s lumbar spine. The MRI revealed degenerative changes and a protrusion at the L5-S1 disc, with no displacement of the thecal sac or nerve roots. The MRI revealed some spurring and facet degenerative joint disease along with moderate to severe stenosis. Dr. Graham opined that the results of the MRI revealed a disc herniation at L5-S1. He referred Mayfield to a neurosurgeon, Dr. Eric Wolfson. Mayfield testified that Dr. Wolfson prescribed conservative treatment that included epidural injections and physical therapy, neither of which provided any relief. Dr. Wolfson recommended lumbar surgery for Mayfield. Mayfield underwent two back surgeries, the first in March 2011, and the second in May 2011. The additional surgeries and testing failed to reveal a disc herniation or other medical cause of Mayfield’s lower back pain. Mayfield’s medical testing showed moderate degenerative changes at L4-5 and mild L3^4 and L4-5 facet arthropathy, but no medical cause of the pain resulting from the work-related accident. Mayfield testified that he still suffers pain and discomfort and cannot work. He stated that Dr. Wolfson recommends further treatment.

¶7. Mayfield testified that Advanced Disposal had paid for all of the treatment for his knee, but it denied coverage of treatment for his back. Mayfield stated that he paid for the treatment using his personal health insurance.

DISCUSSION

¶ 8. The Commission issued no final judgment or order in this case. Even though the Commission reversed the AJ’s finding of compensability as to the lower back injury, Mayfield has not yet reached maximum medical improvement (MMI), and the AJ must still assign benefits relative to his knee injury. In Superior Manufacturing Group, Inc. v. Crabtree, 62 So.3d 992 (Miss.Ct.App.2011), this Court addressed another case where the Commission did not enter a final judgment. In Crabtree, the Commission entered an order that allowed Bill Crabtree to reopen his claim and remanded the matter to the AJ. Id. at 992 (¶ 1). Superior Manufacturing Group, Inc. then filed an appeal of the order of the Commission. Id. We dismissed for lack of jurisdiction, acknowledging that “interlocutory orders by the ... Commission are not appealable.” Id. at 995 (¶ 11) (quoting Cunningham Enters., Inc. v. Vowell, 937 So.2d 32, 34 (¶ 3) (Miss.Ct.App.2006)).

¶ 9. Similarly, in this case, the order entered fails to constitute a final judgment of the Commission; therefore, Mayfield’s appeal is interlocutory. The record shows that the AJ failed to make any rulings as to the remainder of the issues for the September 30, 2010 incident. Specifically, the AJ made no findings as to the extent of permanent disability that Mayfield may suffer as a result of his knee and back injuries, if compensable.

¶ 10. Because no final order has been issued, we dismiss this case for lack of jurisdiction.

¶ 11. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Dr. Daisy M. LaCOUR, Appellant v. CLAIBORNE COUNTY SCHOOL DISTRICT, Appellee.
    No. 2012-CP-00897-COA.
    Court of Appeals of Mississippi.
    Aug. 6, 2013.

      Daisy M. LaCour, appellant, pro se.
    William Buckley Stewart, Robert P. Thompson, Ridgeland, attorneys for appel-lee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. The Claiborne County School District (School District) terminated Daisy LaCour, Ph.D., from her position as principal of Port Gibson High School in Claiborne County on April 5, 2007. Since LaCour failed to properly and timely perfect her appeal of the decision of the Claiborne County School Board (School Board) in chancery court, as required by Mississippi Code Annotated section 37-9-113 (Rev.2007), and since LaCour failed to properly file suit for breach of contract, negligence, intentional tort, or a claim pursuant to 42 United States Code section 1983, before the statute of limitations expired, we affirm the chancery court’s dismissal of her claim.

¶ 2. The School District filed a motion to dismiss this appeal on October 31, 2012, and we passed this motion to the merits. In its motion, the School District claimed that LaCour failed to set forth any assignment of error in the chancery court’s order granting the School District’s motion to dismiss LaCour’s claim. The School District cites to Robinson v. Burton, 49 So.3d 660, 665 (¶ 16) (Miss.Ct.App.2010), for the proposition that the failure to specifically identify assignments of error constitutes a procedural bar. The School District further asserts that LaCour failed to address the issues raised in the School District’s motion to dismiss and the chancery court’s order; instead, she argued the merits of her breach-of-contract claim. The School District argues that LaCour may not raise new issues on appeal. Finally, the School District asserts that LaCour fails to cite any legal authority to rebut the School District’s claims that the chancery court lacked jurisdiction and that LaCour failed to comply with the applicable statute of limitations.

¶ 3. As to the merits of this appeal, LaCour indeed argues in her brief that the School District breached its employment contract with her, and she argues that she timely filed her action. LaCour responds to the School District’s motion to dismiss by arguing that “there are no ease laws that deal with ... School District ... breach of contract.” LaCour argues that the School District breached the contract by failing to pay her during the period after she was terminated and before the School Board issued a final decision after the termination hearing. LaCour’s argument in response to the motion to dismiss lacks merit and fails to address the chancery court’s lack of jurisdiction. As set forth later in this opinion, since LaCour failed to properly perfect in chancery court an appeal of the School Board’s decision to terminate her, then neither the chancery court nor this Court possesses jurisdiction to review these issues raised on appeal. Additionally, LaCour failed to timely or properly file any original action in state court for breach of contract, intentional tort, or negligence under the Mississippi Torts Claims Act (MTCA). We address the merits of the School District’s motion to dismiss , this appeal with the merits of the present matter.

FACTS

¶ 4. On April 5, 2007, the School District terminated LaCour from her position as principal of Port Gibson High School in Claiborne County. On April 10, 2007, she requested a termination hearing before the School Board pursuant to Mississippi Code Annotated section 37-9-59 (Supp.2012). On July 24, 2007, LaCour filed a written charge with the United States Equal Employment Opportunity Commission (EEOC) alleging sexual discrimination by the School District and by Superintendent Annie Kilcrease.

¶ 5. On February 21, 2008, and October 1, 2008, the School District held its hearing with LaCour. On October 1, 2008, the School District, through its School Board, affirmed LaCour’s termination and notified LaCour’s attorney of this decision by letter. On October 17, 2008, LaCour appealed the School District’s decision to the Claiborne County Chancery Court.

¶ 6. Meanwhile, on September 24, 2008, the EEOC issued its written determination, finding that the School District discriminated against LaCour because of her sex, and therefore violated Title VII of the Civil Rights Act of 1964. As a result, the EEOC began conciliation efforts between LaCour and the School District. On October 27, 2008, the U.S. Department of Justice Civil Rights Division (Department) issued LaCour a letter providing notice of her right to sue within ninety days. The Department explained that it would not file suit for LaCour on her charge of discrimination; that conciliation efforts by the EEOC were unsuccessful; and that if LaCour wished to file suit herself under Title VII, then she had ninety days to do so.

¶ 7. While her appeal of her termination was pending in chancery court, LaCour filed a complaint on November 24, 2008, in the United States District Court for the Southern District of Mississippi against Superintendent Kilcrease and the School District, alleging that the District’s termination of LaCour from her position as principal constituted sexual discrimination in violation of Title VII.

¶ 8. On December 22, 2008, the chancery court entered an order dismissing LaC-our’s appeal of the School Board’s decision affirming her termination, holding that LaCour failed to file a statutory appeal bond pursuant to section 37-9-113. The chancellor also explained that since the chancery court only possessed appellate jurisdiction to hear the matter, and since LaCour “elected to file this action as an original bill of complaint,” then the chancery court possessed no jurisdiction to hear her action, since LaCour filed the action as an original complaint. LaCour did not appeal the chancellor’s order of dismissal to the Mississippi Supreme Court, but instead returned to federal court.

¶ 9. On January 20, 2009, LaCour filed an amended complaint in the federal district court adding claims of intentional infliction of emotional distress and tortious interference with business relations and/or contractual relations. On March 30, 2009, the federal district court entered an agreed order dismissing LaCour’s claim for intentional infliction of emotional distress. On July 29, 2009, the federal district court denied LaCour’s motion to dismiss the agreed order and found the claim for intentional infliction of emotional distress barred by the statute of limitations.

¶ 10. On August 13, 2009, the School District and Superintendent Kilcrease filed a motion for summary judgment in federal district court as to the remaining claims of sexual discrimination and tortious interference with business relations and/or contractual relations. Then, on August 20, 2009, LaCour filed a cross-motion for summary judgment alleging a state-law claim for breach of contract.

¶ 11. On December 28, 2009, the federal district court rendered its opinion granting the School District’s motion for summary judgment on the claims of sexual discrimination and tortious interference with business relations and/or contractual relations. The federal district court found LaCour’s cross-motion moot. However, since the cross-motion raised a new state law claim of breach of contract against the School District and Superintendent Kilcrease, the district court construed the cross-motion as a motion to amend the complaint to add that state-law breach-of-contract claim. The federal district court therefore ordered the School District and Superintendent Kilcrease to respond to the motion raising the new state-law claim.

¶ 12. On January 5, 2010, LaCour filed a motion in federal district court to amend her complaint to add a breach-of-contract claim. On January 8, 2010, she filed a supplemental motion to amend asserting the same allegations as set forth in her initial motion as to the new state-law claim of breach of contract.

¶ 13. The federal district court issued an order on January 28, 2010, addressing “[wjhether [LaCour] is statutorily barred under state law from asserting a breach of contract claim under [section] 37-9-59 against [the School District and Superintendent Kilcrease] because she did not exhaust her appeals as required by Mississippi law.” Upon finding that LaCour failed to exhaust her appeals as required by state law, the district court ultimately declined to exercise supplemental jurisdiction over the state-law breach-of-contract claim and dismissed the claim, without prejudice. In its order of dismissal, the district court advised LaCour that Mississippi law provides a three-year statute of limitations on breach-of-contract claims for written contracts, and provided that the limitations period for her breach-of-eon-tract claim would expire on April 5, 2010.

¶ 14. On July 6, 2010, the United States Court of Appeals for the Fifth Circuit affirmed the district court’s ruling granting the School District and Superintendent Kilcrease’s motion for summary judgment and dismissing LaCour’s motion to amend her complaint and supplemental motion to amend.

¶ 15. Then, a year and a half later, on December 21, 2011, LaCour returned to state chancery court, where she filed yet another original bill of complaint alleging breach of contract. In this new action, she alleged that on April 5, 2007, the School District wrongfully terminated her from her position as principal, and she claimed breach of contract due to the School District’s failure to provide a timely hearing and failure to compensate her in accordance with section 37-9-59. LaCour also alleged sexual discrimination and claimed that Superintendent Kilcrease acted with the intent to place LaCour in a state of mental anguish. Significantly, she again failed to exhaust her state statutory remedy of seeking in chancery court appellate review of the School Board’s decision to terminate her.

¶ 16. On January 20, 2012, the School District filed its motion to dismiss in the chancery court pursuant to Mississippi Rule of Civil Procedure 12(b)(6), stating that even if the chancellor accepted all of the allegations in the complaint as true, LaCour could not prove any set of facts to support her claim. The School District alleged that LaCour’s claim expired on April 5, 2010, and that her December 11, 2011 complaint was untimely filed. The School District also asserted that LaCour’s claims for sexual discrimination and intentional infliction of emotional distress were barred by res judicata. LaCour filed a response to the motion to dismiss, denying that the statute of limitations on her breach-of-contract claim had expired.

¶ 17. The chancellor resolved the matters by an order dated May 4, 2012, wherein the chancellor stated that his jurisdiction over the matter was limited to an appellate review of the School District’s record on the termination and, additionally, that LaCour’s complaint for breach of contract was barred by the statute of limitations. The chancellor therefore granted the School District’s motion to dismiss pursuant to Rule 12(b)(6).

¶ 18. LaCour appeals pro se the chancery court’s dismissal of her complaint, and she asserts that the School District breached its employment contract with her by failing to compensate her.

STANDARD OF REVIEW

¶ 19. When reviewing a trial court’s grant or denial of a motion to dismiss, we apply a de novo standard of review. Breland v. Harrison Cnty. Sch. Bd., 96 So.3d 61, 64 (¶ 9) (Miss.Ct.App.2012); Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (¶ 6) (Miss.2006). “[T]he allegations in the complaint must be taken as true[,] and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. (quoting Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (¶ 7) (Miss.1999)). Jurisdictional matters are also reviewed de novo. Breland, 96 So.3d at 64 (¶ 9). We also acknowledge that the supreme court has recognized a “ ‘presumption of honesty and integrity in board members serving as adjudicators in conducting hearings and rendering decisions on employee dismissals.” Harris v. Canton Separate Pub. Sch. Bd. of Educ., 655 So.2d 898, 903 (Miss.1995).

¶ 20. Additionally, the supreme court has provided that the “standard of review governing an appeal from a decision of an administrative agency is that of substantial evidence.” Walters v. Miss. Dep’t of Econ. & Cmty. Dev., 768 So.2d 893, 895 (¶ 8) (Miss.2000) (citation omitted). This Court will not disturb the agency’s conclusions unless the order “1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates [the claimant’s] constitutional rights.” Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 11) (Miss.2000). When this Court reviews a decision by an administrative agency, we apply the same standard of review that the chancery court applied, as provided by Mississippi Code Annotated section 37 — 9—113(3)(a)—(c) (Rev.2007). See Smith Cnty. Sch. Dist. v. Barnes, 90 So.3d 77, 80 (¶ 9) (Miss.Ct.App.2011).

DISCUSSION

¶21. In her brief, LaCour asserts “Claiborne County School District did not pay [LaCour].” She cites to Mississippi Code Annotated section 37-9-59 in support of her argument. The School District argues that LaCour failed to set forth any assignment of error in the chancellor’s grant of the motion to dismiss due to lack of subject-matter jurisdiction and due to expiration of the statute of limitations. The School District also asserts that LaC-our’s breach-of-contract claim is barred by the statute of limitations.

¶ 22. Mississippi Code Annotated section 37-9-59 provides that the superintendent possesses the authority to immediately release a dismissed employee to prevent a disruption of normal school activities. Section 37-9-59 also provides a right to an appeal to the chancery court in the same manner as set forth in section 37-9-113. Section 37-9-59 also allows for compensation to an employee “for a period up to and including the date that the initial hearing is set,” if requested, and LaCour relies upon this language in her argument. Id. Section 37-9-59 provides that if no hearing is requested within five calendar days of termination, then such failure to request a hearing waives the right to any such compensation and the discharge notice is effective on the date set forth in the notice. Id. See also Wilder v. Bd. of Trs. of Hazlehurst City Sch., 969 So.2d 83, 87 (¶ 10) (Miss.Ct.App.2007).

¶ 23. In the case before us, LaCour filed an original complaint in chancery court for breach of contract by the School District, wrongful termination, failure to provide a timely hearing, and failing to compensate her to the date of the hearing. The Legislature has provided, in section 37-9-113, the procedure for appealing a final decision of a school board:

(1) Any employee aggrieved by a final decision of the school board is entitled to judicial review thereof, as hereinafter provided.
(2) An appeal may be taken by such employee to the chancery court of the judicial district in which the school district is located, by filing a petition with the clerk of that court and executing and filing bond payable to the school board with sufficient sureties, in the penalty of not less than two hundred dollars ($200.00), conditioned upon the payment of all of the costs of appeal, within twenty (20) days of the receipt of the final decision of the board.
(3) The scope of review of the chancery court in such cases shall be limited to a review of the record made before the school board or hearing officer to determine if the action of the school board is unlawful for the reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the employee.

(Emphasis added).

¶ 24. As stated, the chancery court possesses only limited appellate subject-matter jurisdiction to review the School District’s decision, and this appellate review is limited to the record made before the School Board. See Miss.Code Ann. § 37-9-113. Section 37-9-113(2) also requires appeals of school-board decision to be perfected within twenty days of receipt of the final board decision by filing a petition with the clerk of court and posting a bond of not less than $200.

¶ 25. We turn now to address the second basis relied upon by the chancellor in dismissing LaCour’s complaint, the statute of limitations. Regarding LaCour’s state-law claim for breach of contract, Mississippi Code Annotated section 15-1-49 (Rev. 2012) states that the limitations period shall commence within three years after the cause of such action accrued, and not after. Since the School Board terminated LaCour by its decision rendered on October 1, 2008, she therefore possessed three years from that date to file suit. The crux of this case nonetheless involves when the statute of limitations expired. The School District states it expired on the latest possible date — April 5, 2010. The School District, however, calculated the statute of limitations from the date of termination, April 5, 2007, and not the date of the School Board’s decision. LaCour asserts that the statute of limitations for her breach-of-contract claim expired three years from the date LaCour exhausted all of her federal court appeals — December 13, 2010. In reviewing the various arguments of the parties as to the applicable statute of limitations, we must again clearly state that the controlling statute allows three years from the School Board’s decision to file suit.

¶ 26. After a hearing on the matter, the School District affirmed LaCour’s termination in its order dated October 1, 2008. LaCour filed an action in chancery court in an attempt to appeal the School District’s decision. However, the chancery court dismissed the action on December 22, 2008, due to lack of jurisdiction after finding that LaCour filed her motion as an original bill of complaint and failed to file an appeal bond, as required by section 37-9-113.

¶ 27. Here, LaCour, like the plaintiff in Breland, 96 So.3d at 65 (¶ 12), failed to file her appeal of the school board’s decision in chancery court in accordance with statutory requirements when she first filed in October 2008. See Miss.Code Ann. § 37-9-113(2). The failure to satisfy the statutory bond requirements is jurisdictional, and a prerequisite for invoking the court’s jurisdiction. Id. at 65-66 (¶ 12). Additionally, as explained in 5K Farms, Inc. v. Mississippi Dept. of Revenue, 94 So.3d 221, 227 (¶ 23) (Miss.2012) (addressing statutory bond requirement of Miss.Code Ann. 27-77-5 (Rev.2010)), the pretrial surety bond requirement constitutes a requirement governing appellate jurisdiction. Failure to properly perfect the appeal barred the chancery court’s jurisdiction. See Cowart v. Simpson Cnty. Sch. Bd., 818 So.2d 1176, 1181 (¶¶ 18-19) (Miss.2002); Davis v. Biloxi Pub. Sch. Dist., 43 So.3d 1135, 1137 (¶ 7) (Miss.Ct.App.2009).

¶ 28. Meanwhile, in LaCour’s federal litigation filed on November 24, 2008, for sexual discrimination in violation of Title VII, the record reflects that the district court dismissed LaCour’s claim for intentional infliction of emotional distress on March 30, 2009, as barred by the statute of limitations. LaCour failed to assert any ancillary state-law claims until August 9, 2009, when she filed a cross-motion for summary judgment alleging breach of contract. On December 28, 2009, the district court granted summary judgment in favor of the School District on LaCour’s remaining claims for sexual discrimination and tortious interference. As noted, on July 6, 2010, the Fifth Circuit affirmed the district court’s ruling granting the School District and Superintendent Kilcrease’s motion for summary judgment and dismissing LaC-our’s motion to amend her complaint and supplemental motion to amend.

II29. The record shows that LaC-our’s state-law breach-of-contract claim was never a part of the complaint filed in federal court, and the district court exercised no ancillary jurisdiction over this claim. In its order dismissing LaCour’s breach-of-contract claim, the district court provided, in dicta, that a three-year statute of limitations applied to LaCour’s claim and stated that the statute of limitations would expire April 5, 2010. However, this Court in Davis, 43 So.3d at 1137 (¶ 7), explained that the claims should have been raised within one year under the MTCA, the one-year statute of limitations applicable to intentional torts, or the three year general statute of limitations of section 15-1 — 49 for section 1983 claims. Pursuant to section 15-1-49, we find that LaCour possessed three years from October 1, 2008, the date of the School District’s final decision, to file suit for breach of contract.

¶ 30. Despite the district court’s comment regarding the statute of limitations, LaCour failed to refile her complaint in chancery court until December 21, 2011, when she again alleged a breach of contract and sexual discrimination as an original complaint. The chancellor noted that even if he applied the savings statute in Mississippi Code Annotated section 15-1-69 (Rev.2012) or the tolling provision in 28 United States Code Annotated § 1367 to LaCour’s claim, the extra time would still fail to save her action due to the delay in filing. The chancellor addressed LaC-our’s additional error of filing her claim for breach of contract as an original action and not as an appellate action. The chancellor noted that although LaCour had twice filed actions in the chancery court, “at no time has the filing been in the form of an appeal.” Thus, the chancellor properly found that he lacked subject-matter jurisdiction to consider the original complaint filed by LaCour on December 21, 2011, as well as the prior complaint filed by her on December 22, 2008. Breland, 96 So.3d at 65-66 (¶ 12).

¶ 31. Therefore, since LaCour failed to properly perfect in chancery court an appeal of the School District’s decision affirming her termination, and since she failed to obtain federal ancillary jurisdiction over her state-law claim, then no tolling of the statute of limitations occurred with respect to that state-law right of appeal. See Miss.Code Ann. § 37-9-113; Owens v. Mai, 891 So.2d 220, 222 (¶ 13) (Miss.2005) Breland, 96 So.3d at 64 (¶ 9). The chancery court correctly determined it lacked subject matter jurisdiction to hear this matter, and the chancery court properly concluded that LaCour’s claim for relief is barred by the statute of limitations. See Miss.Code Ann. § 15-1^49. Accordingly, we affirm the chancellor’s dismissal of LaCour’s claims.

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

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

      . The opinion and order of the United States District Court for the Southern District of Mississippi reflects that gang violence, fighting, and drag use at Port Gibson High School escalated during LaCour’s first year as principal, ultimately resulting in her termination.

      . See also Crockett v. Bd. of Trs. for Mound Bayou Sch., 770 So.2d 1030, 1033 (¶ 7) (Miss.Ct.App.2000); 7 Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 65:94 (2001).

      . See also Floyd v. Amite Cnty. Sch. Dist., 495 F.Supp.2d 619, 625 (S.D.Miss.2007).

      . Federal courts are courts of limited jurisdiction, and a federal court must satisfy itself that it has jurisdiction over the subject matter before it considers the merits of a cause of action. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577-78, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). Federal Rule of Civil Procedure 12(b)(1) authorizes federal courts to dismiss a claim where jurisdiction is lacking. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 376, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) (plaintiff cannot complain if federal court does not accept jurisdiction over state ancillary claims).

      . To toll the statute of limitations, LaCour generally must comply with statutory requirements to suspend the running of the statute of limitations. The filing of a legal proceeding tolls the statute of limitations up to 120 days, to allow time for service of process in that cause of action. M.R.C.P. 4. The supreme court held in Owens v. Mai, 891 So.2d 220, 222 (¶ 13) (Miss.2005), that the saving statute in section 15-1-69 failed to apply to save an action that was dismissed due to lack of jurisdiction, caused by defective service. The supreme court explained that due to the failure to perfect service of process in compliance with Rule 4, then such dismissal is not a matter of form within the context of section 15-1-69. Owens, 891 So.2d at 222 (¶ 13). The court provided that a properly filed complaint tolls the statute of limitations for 120 days for service of process, but if no service is completed, then the statute of limitations resumes after the 120 days. Id. at 223 (¶ 14).
      Additionally, in Arceo v. Tolliver, 19 So.3d 67, 73 (¶ 31) (Miss.2009), the supreme court clarified that in order for the section 15-1-69 savings statute to apply, the dismissal as to form must occur after the action is duly commenced. The supreme court also addressed presuit statutory requirements that are conditions precedent to a claimant’s right to file an action. Arceo, 19 So.3d at 74-75 (¶¶ 38-39).

      . Floyd, 495 F.Supp.2d at 625.

      . The supreme court explained in Arceo, 19 So.3d at 73 (¶ 31), that in order for the section 15-1-69 savings statute to apply, the dismissal as to form must occur after the action is duly commenced. Since LaCour only filed complaints for original actions, and since the chancery court possessed only appellate jurisdiction in this case, then the chancery court lacked subject-matter jurisdiction. See Miss. Code Ann. § 37-9-111 (Supp.2012); Miss. Code Ann. § 37-9-113.

      . As we have previously acknowledged, the supreme court held in Owens that the saving statute in section 15-1-69 failed to apply to save an action that was dismissed due to lack of jurisdiction based on defective service. The supreme court explained that due to the failure to perfect service of process in compliance with Rule 4, then such dismissal is not a matter of form within the context of section 15-1-69. Owens, 891 So.2d at 222 (¶ 13).

      .The School Board’s decision stands as a final decision of the issues relating to LaC-our's termination since she failed to timely perfect her appeal in chancery court. See Davis, 43 S.o.3d at 1137 (¶ 6) (applying collateral estoppel to prevent relitigation of issues already litigated in a prior action).


author: ROBERTS, J.,

text:
    Netra Cooper CATTENHEAD, Appellant v. Terry K. BRANTLEY, M.D., Appellee.
    No. 2012-CA-00595-COA.
    Court of Appeals of Mississippi.
    Aug. 6, 2013.

      Jessie L. Evans, Canton, Wesley Thomas Evans, Tchula, attorneys for appellant.
    Stephen P. Kruger, Jackson, Thurman Lavelle Boykin III, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On November 21, 2007, Netra Cooper Cattenhead filed a suit alleging medical malpractice against Dr. Karen Houston; Jackson Radiology Associates, PA; Jackson HMA Inc. d/b/a Central Mississippi Medical Center; Dr. Terry Brantley; John Doe Persons A-M; and John Doe Entities N-Z. After granting Cattenhead several extensions of time to obtain counsel and an expert witness, the Hinds County Circuit Court granted Dr. Brantley’s motion for summary judgment on October 4, 2011. The circuit court dismissed Cat-tenhead’s case with prejudice. Cattenhead filed a motion to set aside the circuit court’s grant of summary judgment and dismissal of her case, which the circuit court denied on November 9, 2011. As a result, Cattenhead executed the current appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. Cattenhead, a nurse practitioner, visited the Central Mississippi Medical Center emergency room on April 6, 2000. Dr. Brantley was the emergency-room physician who evaluated Cattenhead. Cat-tenhead informed Dr. Brantley that she had felt a mass in her right breast. Dr. Brantley ordered an ultrasound of the mass. An ultrasound was performed on the same day, and Dr. Houston reviewed the ultrasound. According to Catten-head’s medical records, Dr. Houston noted that the mass was “most likely a fibroade-noma!,] but the ultrasound appearance of [the mass was] nonspecific.” The same record indicated that Cattenhead’s medical history from her visit to the emergency room that day included breast pain. Dr. Brantley received Dr. Houston’s notes and informed Cattenhead of the results. Neither Dr. Brantley nor Dr. Houston indicated whether Cattenhead should seek further assessment of the mass.

¶ 3. Cattenhead did not obtain any further tests on the mass until September 2005 when she noticed the mass growing larger. On October 5, 2005, further testing revealed that a mass in her right breast was an infiltrating lobular carcinoma. Cattenhead underwent a bilateral mastectomy with right[-]breast reconstruction, chemotherapy, and hormone therapy.

¶ 4. Cattenhead filed suit against Dr. Houston; Jackson Radiology Associates, PA; Jackson HMA Inc. d/b/a Central Mississippi Medical Center; Dr. Brantley; John Doe Persons A-M; and John Doe Entities N-Z on November 21, 2007. In her suit, she claimed that Dr. Brantley’s failure to diagnose the cancer and/or recommend additional testing resulted in injury and damage to her. She further claimed that there was a breach of warranty since it was implied that in exchange for payment, she would received adequate, safe, and proper care. No other defendant except Dr. Brantley was served with process. Dr. Brantley filed his answer on December 10, 2007, and thereafter filed a motion for summary judgment on July 31, 2008. In his motion for summary judgment, Dr. Brantley denied any wrongdoing or malpractice, and he stated that his motion for summary judgment should be granted because Cattenhead had not designated an expert witness to testify that Dr. Brantley deviated from the standard of care of an emergency-room physician. Additionally, Dr. Brantley claimed that Cattenhead presented no expert testimony that the mass biopsied in September 2005 was the same mass that was studied in April 2000.

¶ 5. On August 7, 2008, Cattenhead moved for additional time to respond to Dr. Brantley’s motion for summary judgment. The circuit court granted the motion, and Cattenhead had until September 1, 2008, to respond to Dr. Brantley’s motion for summary judgment. Cattenhead filed a second motion for additional time on September 2, 2008. She then filed a designation of an expert witness naming Dr. Songhai Barclift, who practices obstetrics and gynecology, as her expert. Catten-head alleged that Dr. Barclift would testify as to Dr. Brantley’s breach of the standard of care.

¶ 6. Then, on February 18, 2010, Catten-head’s attorneys filed a motion to withdraw as counsel; the circuit court granted the motion and gave her sixty days from March 11, 2010, to obtain new counsel or proceed pro se. On May 5, 2010, just five days shy of the deadline, J. Ashley Ogden, an attorney, filed a special entry of appearance and a request for additional time to review Cattenhead’s case. The circuit court granted Cattenhead an additional forty-five days. On November 17, 2010, Cattenhead indicated her intention to proceed pro se.

¶ 7. A hearing on Dr. Brantley’s motion for summary judgement was held before the circuit court on June 10, 2011, with Cattenhead proceeding pro se and relying on Dr. Barclift’s affidavit as sufficient for proof of the standard of care. Dr. Brant-ley presented an affidavit from Dr. Tate Thigpen, chief of the University of Mississippi Medical Center’s Division of Oncology. Dr. Thigpen opined that it could not be said to a reasonable degree of medical certainty that the initial ultrasound revealed any cancerous growth, but, for argument’s sake, assuming that it was a cancerous growth back at the time of her emergency room visit, there would have been no change in her treatment. The circuit court informed Cattenhead that Dr. Barclift’s affidavit was insufficient and, on June 20, 2011, the circuit court filed an order granting Cattenhead an additional forty-five days to find a qualified expert witness to testify as to the standard of care of an emergency-room physician since Dr. Barclift did not possess any familiarity with this standard of care. New counsel for Cattenhead filed entry of appearance on July 26, 2011, and requested additional time to obtain an expert opinion as the standard of care of an emergency-room physician.

¶ 8. No order granting or denying Cat-tenhead’s latest motion for additional time was ever entered; however, some three months later, and with no new expert affidavit having been filed by Cattenhead, the circuit court entered an order on October 5, 2011, granting Dr. Brantley’s motion for summary judgment and dismissing the case with prejudice. Cattenhead filed a motion to set aside the October 5 order and dismissal of the case. In her motion, Cattenhead for the first time argued that the standard of care should not be that of an emergency-room physician since she was not seeing Dr. Brantley in an emergency-room situation. Cattenhead attached a letter from Dr. Fred Mushkat, an emergency-room physician, stating: “Given the information I have, I am making the assumption that [Cattenhead] contacted an [e]mergency [p]hysician whom she somehow knew, and that physician ordered the mammogram. Under these circumstances, if my assumption is correct, this physician was not practicing Emergency Medicine at that time.” Dr. Mushkat further stated that Dr. Brantley had the duty to inform Cattenhead that the test showed a possible fibroadenoma, but that the findings were nonspecific and that she should follow up with a surgeon. The letter was not an affidavit. The circuit court denied Cattenhead’s motion on November 9, 2011.

¶ 9. Cattenhead timely filed her notice of appeal on December 6, 2011. On appeal, she raises the following issue: “Whether the [circuit] court abused ... its discretion when it disqualified [Cattenhead’s] expert Dr. Barclift and granted summary judgment to appellee and erred in concluding [Cattenhead] was being treated emergently.” We find no error, and we affirm the circuit court’s grant of summary judgment in favor of Dr. Brantley.

ANALYSIS

¶ 10. When granting summary judgment, “[t]he trial court must review the evidence in the light most favorable to the nonmoving party. If there is any doubt regarding the existence of a genuine issue of material fact, the benefit goes to the nonmovant.” Ladnier v. Hester, 98 So.3d 1025, 1028 (¶ 9) (Miss.2012) (internal citation omitted). An appellate court applies a de novo standard of review to a trial court’s decision to grant or deny summary judgment. Id. at 1027-28 (¶ 9). However, this Court reviews a trial judge’s disqualification of an expert witness under the abuse-of-discretion standard. Hubbard v. Wansley, 954 So.2d 951, 956 (¶ 11) (Miss.2007) (citing Palmer v. Biloxi Reg'l Med. Ctr., 564 So.2d 1346, 1357 (Miss.1990)).

¶ 11. Cattenhead argues that the circuit court erred in granting summary judgment in favor of Dr. Brantley. According to Cattenhead, Dr. Brantley was not treating her in the context of an emergency-room physician; therefore, the standard of care should actually be that of a general physician. Cattenhead relies on a letter from Dr. Mushkat to support her contention that Dr. Brantley did not act as an emergency-room physician at the time of her examination and that even if the standard was that of an emergency-room physician, Dr. Brantley deviated from that standard of care. Cattenhead further asserts that Dr. Barclift’s affidavit was sufficient to show that Dr. Brantley did not meet the standard of care. Lastly, Cat-tenhead claims that the circuit court improperly disqualified Dr. Barclift as an expert since it is not required that a physician be in a particular field to render a medical opinion in that field.

¶ 12. We first address Catten-head’s assertion that Dr. Brantley was not acting in the capacity of an emergency-room physician at the time he examined her. A review of the record indicates that this particular argument was raised for the first time after the motion for summary judgment was granted. “[A] motion to set aside or reconsider an order granting summary judgment will be treated as a motion under [Mississippi Rule of Civil Procedure] Rule 59(e).” Brooks v. Roberts, 882 So.2d 229, 233 (¶ 15) (Miss.2004) (citation omitted). “[T]he movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Id. (citation omitted). We cannot find where Cattenhead’s argument that Dr. Brantley was not acting as an emergency-room physician satisfies any of the above enumerated situations. We also note that the expert opinion relied on for this argument is in the form of a written letter and not an affidavit. Therefore, the letter alone does not satisfy the requirement that Cattenhead provide an affidavit of an expert witness on Dr. Brantley’s standard of care.

¶ 13. Thus, our primary analysis of this case requires us to determine whether Dr. Barclift’s affidavit was sufficient to survive a summary-judgment challenge. Based upon our standard of review, we find that the circuit court did not abuse its discretion in disqualifying Dr. Barclift as an expert witness. In a claim for medical malpractice, “expert testimony must be used.” Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992). Further, “[n]ot only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id. (citation omitted). To show that Dr. Brantley breached the standard of care, Cattenhead submitted the affidavit of Dr. Barclift. In the affidavit, Dr. Barclift, a board-certified physician practicing in gynecology and obstetrics, opined that she was qualified “to comment on the standards of care of reasonable professional practice in the aspects of [Cattenhead’s] treatment.” Dr. Barclift also provided her opinion as to the departures from the standard of care by Dr. Brantley and Dr. Houston; however, at no point in her affidavit does Dr. Barclift state what specialty she based her findings that Dr. Brantley deviated from the appropriate standard of care. More specifically, she does not state that she is familiar with the specialty of emergent care, which is Dr. Brantley’s specialty. It is correct that a physician need not be in a particular specialty to offer an expert opinion, but it is required that the physician show a satisfactory familiarity with the specialty of the appellee doctor. Paige v. Miss. Baptist Med. Ctr., 31 So.3d 637, 642 (¶ 22) (Miss.Ct.App.2009) (citing Hubbard, 954 So.2d at 957 (¶ 13)). Dr. Brantley’s specialty is that of emergent care, and excluding Cat-tenhead’s argument that Dr. Brantley was not working as an emergency-room physician at the time, it is clear that Dr. Barclift had no experience or familiarity with the standard of care of an emergency-room physician. While there is little doubt that Dr. Barclift was qualified as an expert of women’s health issues, we do not find that she was satisfactorily familiar with the standard of care of Dr. Brantley’s field of emergent care. As such, the circuit court did not abuse its discretion in disqualifying Dr. Barclift as an expert witness.

¶ 14. Therefore, without an expert witness, Cattenhead’s case cannot survive a motion for summary judgment, and the circuit court properly granted Dr. Brant-ley’s motion for summary judgment.

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

GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ„ CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. LEE, C.J., AND JAMES, J„ NOT PARTICIPATING.

      . Dr. Brantley was the only defendant served with process and is the only defendant in the present appeal.


text:
    Robert DICKENS a/k/a Robert Olen Dickens, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00783-COA.
    Court of Appeals of Mississippi.
    Aug. 6, 2013.

      Robert Dickens, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., ROBERTS, MAXWELL and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On June 3, 2008, Robert Dickens pled guilty to one count of sexual battery in the Itawamba County Circuit Court. He was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years suspended and five years of post-release supervision (PRS). Dickens filed a motion for post-conviction relief (PCR) on March 20, 2012, attacking the voluntariness of his plea and the legality of his sentence. The circuit court summarily dismissed this motion on April 16, 2012, and Dickens executed the current appeal. Finding no error, we affirm the circuit court’s judgment summarily dismissing Dickens’s PCR motion.

FACTS AND PROCEDURAL HISTORY

¶2. In December 2007, an Itawamba County grand jury indicted Dickens on one count of sexual battery for placing his penis inside Keisha Johnson Davis’s vagina against her will. Then, on June 3, 2008, Dickens appeared before the circuit court and entered a plea of guilty to the count of sexual battery charged in the indictment. At his guilty-plea hearing, Dickens confirmed that his plea was freely and voluntarily given, and that he was not threatened in any way to plead guilty. He also acknowledged the constitutional rights he was waiving by pleading guilty. The circuit court also explained that the maximum sentence for the crime of sexual battery was thirty years in the custody of the MDOC. The State then recommended that the circuit court sentence Dickens to thirty years in the custody of the MDOC, with fifteen years to serve day-for-day, fifteen years suspended, and five years of PRS.

¶ 3. The circuit court accepted Dickens’s guilty plea and specifically found that Dickens “knowingly, understandingly, freely, and voluntarily entered this plea of guilty[, and] that there is a factual basis for that plea.” The circuit court imposed the State’s recommended sentence of thirty years in the custody of the MDOC, with fifteen years to serve, fifteen years suspended, and five years of PRS.

¶ 4. Dickens filed a PCR motion on March 20, 2012, attacking his guilty plea and sentence. The circuit court summarily dismissed Dickens’s PCR motion on April 16, 2012. In its order summarily dismissing the PCR motion, the circuit court stated that Dickens was time-barred from filing his motion and that only his claim of an illegal sentence was excepted from the time-bar. The circuit court further found that Dickens’s claim that his sentence was illegal because it exceeded the maximum sentence authorized by law had no merit.

¶ 5. Based upon the summary dismissal of his PCR motion, Dickens executed the current appeal. He raises the following four issues for our review:

I. Whether the [circuit] court erred [in finding that Dickens’s PCR motion was time barred.]
II. Whether the [circuit] court erred in not granting [Dickens] a[n evi-dentiary] hearing[.]
III. Whether the [circuit] court erred in not conducting a full-scale [evi-dentiary] hearing[,] also whether to ... allow [an] out[-]of[-]time [PCR motion.]
IV. Whethe[r Dickens] ha[d] the right to [submit] ... evidence and testimony that [petitioner] had hired a[n] attorney to file his [PCR] motion[.]

ANALYSIS

¶ 6. The circuit court may summarily dismiss a PCR motion where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss.Code Ann. § 99-39-11(2) (Supp.2012). This Court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate “a claim procedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009).

¶ 7. Additionally, Dickens’s PCR motion is time-barred pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2012), which states: “A motion for relief under this article shall be made ... in [the] case of a guilty plea, within three (3) years after entry of the judgment of conviction.” There are three exceptions to this time-bar:

(a)(i) That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or
(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.
(b) Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Id. There is no doubt that Dickens filed his PCR motion three years and ten months after he entered his guilty plea; thus, he is procedurally barred from challenging the validity of his guilty plea. His challenge to the validity of his guilty plea does not fall into one of the above exceptions to the time-bar. Dickens claims that the death of his attorney was the reason that his PCR motion was not timely filed; however, a review of the record shows that his attorney died on September 5, 2011. His attorney’s death occurred after the three-year period to file his PCR motion had expired on June 3, 2011. Therefore, his attorney’s death after the expiration of the time period did not prejudice him nor does it entitle him to additional time to file a PCR motion.

¶ 8. Dickens’s claim that his sentence is illegal is a valid exception to the time-bar. “[T]he supreme court has held that the three-year statute of limitations is waived when a fundamental constitutional right is implicated,” and “[t]he right to be free from an illegal sentence is a fundamental right.” Desemar v. State, 99 So.3d 279, 281 (¶ 7) (Miss.Ct.App.2012) (internal citations omitted). However, “mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar.” Hughes v. State, 106 So.3d 836, 839 (¶ 8) (Miss.Ct.App.2012) (quoting White v. State, 59 So.3d 633, 636 (¶ 11) (Miss.Ct.App.2011)). Dickens claims that his sentence of thirty years, with fifteen years suspended, and five years of PRS is a total of thirty-five years and exceeds the maximum sentence authorized by Mississippi Code Annotated section 97-3-101(1) (Rev. 2006). Section 97-3-101(1) provides that the maximum sentence for sexual battery is thirty years to serve. In Triste v. State, 77 So.3d 116, 118 (¶ 8) (Miss.Ct.App.2011), this Court held that Jamie’s Triste’s sentence of six years to serve, nineteen years suspended, and five years of PRS did not violate the statutory maximum of twenty-five years for the burglary of a dwelling. We stated: “Triste’s five years of [PRS] are not in addition to the nineteen years suspended by the circuit court; rather, they are included in the nineteen years.” Id.

¶ 9. In the present case, the statutory maximum was thirty years in the custody of the MDOC. Dickens was sentenced to thirty years, with fifteen years to serve, fifteen years suspended, and five years of PRS. Thus, under Triste, Dickens’s total sentence is thirty years, and it is within the statutorily authorized sentence. Once Dickens serves his initial fifteen years and is discharged by the MDOC, he will be on PRS with the circuit court for five years. During that five-year period, if he should violate the conditions of his PRS, the circuit court could enforce its previously suspended sentence and order Dickens to serve up to fifteen more years in custody. Dickens is never in jeopardy of serving more than thirty years in the custody of the MDOC for sexual battery. Therefore, this issue is without merit.

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

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

      . At the same time, Dickens was sentenced on another cause number after pleading guilty to one count of burglary of a dwelling. He was sentenced to twenty-five years in the custody of the MDOC on this charge, with ten years suspended. The sentence for burglary of a dwelling was ordered to run concurrently to the sentence imposed in the present case. Dickens’s guilty plea and sentence in the burglary of a dwelling charge is not at issue before us.


author: BARNES, J.,

text:
    Rodney Phillip McKENZIE, Jr. a/k/a Rodney McKenzie a/k/a Rodney Phillip McKenzie a/k/a Rodney McKenzie, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00471-COA.
    Court of Appeals of Mississippi.
    Aug. 6, 2013.

      Richard C. Conant, Pascagoula, Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Rodney Phillip McKenzie Jr. was convicted of capital murder and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC), without eligibility for parole. He appeals his conviction, and finding no error, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2. At approximately 3:00 a.m. on August 10, 2010, the Pascagoula Police Department was alerted to a single-vehicle accident. Upon arrival, the police discovered a blue van that had struck a telephone pole. In the driver’s seat was the deceased body of Johnny Bullock, who had been shot in the neck. There was also evidence of blunt-force trauma to Bullock’s head. A witness told police that two males, later identified as McKenzie and Daniel Hatten, had fled the scene of the accident. The police obtained surveillance video from a nearby apartment complex, which showed the two men had headed to another complex, Stewart Apartments. When given a description of the men, a maintenance worker for Stewart Apartments directed police to Apartment 22, where McKenzie resided. No one was in the apartment. However, McKenzie was quickly discovered in Apartment 17 and was taken into custody for questioning; McKenzie had Lortab pills on his person.

¶ 3. During a search of McKenzie’s apartment, police found an empty prescription pill bottle for Lortab with Bullock’s name on the label. Evidence later revealed the pill bottle contained Bullock’s DNA. Zarea Reid, the resident of Apartment 17 and a coworker of McKenzie, told investigators that she had given McKenzie a ride to work that morning at approximately 6:00 a.m. After their shift ended, McKenzie borrowed Reid’s phone, and she heard him ask someone if he wanted to buy some Lortab pills. She also said that McKenzie had lagged behind her while walking back to her apartment, and when she turned to see where McKenzie was, he came from the corner of the apartment building. A .380-caliber pistol was recovered in that same area, and ballistics testing later revealed that the recovered firearm had fired the bullet fragment that was removed from Bullock.

¶ 4. When interviewed by Detective David Sepulveda, McKenzie initially denied any involvement with Bullock’s murder. However, when he was told police had discovered video-surveillance evidence placing him near the crime scene, a picture of him holding a pistol on an internet social-media website, and the pill bottle with Bullock’s name at his apartment, McKenzie admitted he had been in Bullock’s van. He said he had been walking to a nearby store that evening when Bullock picked him up and agreed to sell him some Lortab. McKenzie has a liver disease and claimed that he needed the medication for pain. At approximately 2:11 a.m., Bullock and McKenzie went to a local convenience store, where Bullock met with Hatten. Surveillance video from the store shows McKenzie and Hatten met in the parking lot and walked towards the north side of the store. Bullock’s van exited a few minutes later. McKenzie told police that the three men went back to Bullock’s home to get the pills. They then returned to the store approximately thirty minutes later, and Bullock went inside to buy cigars. According to McKenzie, Hatten fought with Bullock right before the accident occurred, and the incident was a “robbery gone bad.” In his statement, McKenzie did not admit shooting Bullock.

5. McKenzie, along with Hatten, was indicted on January 14, 2011, for capital murder while in the commission of a robbery. At trial, McKenzie testified on his own behalf and admitted he shot Bullock. He claimed that Bullock wanted sexual favors in exchange for the drugs and that he was merely defending himself. McKenzie said that due to his liver disease, any force applied to that area of his body could be fatal.

¶ 6. McKenzie was convicted of capital murder and sentenced to life imprisonment in the custody of the MDOC, without eligibility for parole. He filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied, and McKenzie now appeals, alleging several errors involving the admission of evidence and the giving of jury instructions. Finding no error, we affirm.

I. Whether the circuit court erred in refusing to admit evidence of the victim’s prior history of selling drugs and homosexual propensities.

¶ 7. James Muldoon, an employee of Bullock, told police that Bullock had homosexual tendencies and had previously traded drugs for sex. When defense counsel questioned Detective Darren Versiga regarding Muldoon’s statements, however, the circuit court sustained the State’s objection as to relevance. McKenzie argues that “evidence of Bullock’s propensities towards homosexual conduct and his purported habit of trading pills for such acts are relevant under [Mississippi Rule of Evidence] 401, as they lend credence and support to [McKenzie’s] story of the events.” Specifically, McKenzie contends that he should have been afforded the opportunity to present this evidence to the jury as his theory of defense was that he was merely defending himself from Bullock’s advances.

¶ 8. The determination of whether evidence is relevant and admissible is “largely within the discretion of the [circuit] court, and reversal may be had only where that discretion has been abused.” Bennett v. State, 76 So.3d 736, 741 (¶ 14) (Miss.Ct.App.2011) (quoting White v. State, 742 So.2d 1126, 1134 (¶ 29) (Miss.1999)). “[This] discretion must be exercised within the scope of the Mississippi Rules of Evidence, and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs.” Id.

¶ 9. McKenzie failed to include a proffer of Detective Versiga’s testimony on this issue. “When testimony is not allowed at trial, a record of the proffered testimony must be made in order to preserve the point for appeal.” Green v. State, 89 So.3d 543, 554 (¶ 28) (Miss.2012) (quoting Metcalf v. State, 629 So.2d 558, 567 (Miss.1993)). Therefore, this issue has not been properly preserved for appeal, and it is procedurally barred.

¶ 10. We find no abuse of discretion in the circuit court’s refusal to admit evidence of Bullock’s alleged propensity towards homosexual conduct. Evidence of a victim’s character is ordinarily “irrelevant” and inadmissible. M.R.E. 404(a) & cmt. “[H]owever, the character of a victim may be relevant ... in instances where the defendant claims that the victim was the initial aggressor and that the defendant’s actions were in the nature of self-defense.” M.R.E. 404 cmt. Before this evidence may be offered, however, the accused must provide “evidence of an overt act of aggression perpetrated against him by the victim.” Id. At trial, McKenzie testified that Bullock wanted to trade pills for sex, which caused a “little confrontation” between Bullock and Hatten. However, we find nothing to suggest that Bullock committed an overt act of aggression against McKenzie, who merely claimed that Bullock “started acting like he wanted to turn around and come back there, in the backseat.” He testified: “And when he ran into the pole, everybody kind of jerked and they stopped fighting. And I seen him look in the back window and like he started like acting like he wanted to turn around or whatever, so I pulled my gun out and I shot him.” Whatever McKenzie believed Bullock “wanted to [do],” the physical evidence confirms that Bullock was facing forward with his shoulder-harness seat belt on when he was killed. Therefore, we find no abuse of discretion in the circuit court’s ruling that the victim’s character evidence was inadmissible. The testimony was also inadmissible as hearsay; the defense improperly attempted to have Detective Versiga relate what had been told to him by Muldoon, who did not testify at trial.

¶ 11. Furthermore, this evidence was presented to the jury through Detective Sepulveda’s deposition testimony.

Q. Did [Muldoon] tell you anything about Mr. Bullock’s involvement with drugs?
[State objected to questioning on basis of hearsay. Witness allowed to proceed.]
A. Yes, he did.
Q. And what was that?
A. He said that he used [drugs] and he traded them.
Q. Traded them for what?
A. He liked men and he would trade them for sex sometimes.

Thus, while we find no merit to McKenzie’s assignment of error, even if there were error, it was harmless, as the substance of Muldoon’s statement to police was before the jury.

II. Whether the videotaped deposition of a witness may be admitted in a criminal case in lieu of in-court testimony.

¶ 12. Concerned that Detective Se-pulveda might not be able to attend the trial because he was in poor health and scheduled for surgery, the State filed a “Motion to Preserve Testimony by Deposition” on January 30, 2012. The motion requested that a videotaped deposition be conducted in the presence of the defense “to ensure Defendants will be afforded an opportunity to exercise their Sixth Amendment right to confront the witness at the deposition.” The motion was granted, over objection by defense counsel. The recorded deposition was held February 9, 2012, with McKenzie and his counsel present.

¶ 13. As feared, Detective Sepulveda was ill on March 1, 2012, the day he was scheduled to testify at the trial. Both parties agreed to wait and see if he could testify in person the next day; however, he was unable to do so. Therefore, the circuit court allowed the admission of Detective Sepulveda’s videotaped deposition testimony.

¶ 14. McKenzie argues that it is not “appropriate” to allow deposition testimony to be admitted in a criminal case “in lieu of in-court testimony.” Although he suggests this is an area of first impression for this Court, we have previously addressed this issue, finding that testimonial statements may be admitted in certain circumstances. “[T]he testimonial statements of a witness who does not testify at trial are inadmissible unless the witness is unavailable and the defendant had a prior opportunity for cross-examination.” Conners v. State, 92 So.3d 676, 683 (¶ 16) (Miss.2012) (emphasis added) (citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). In Wilson v. State, 923 So.2d 1039, 1041 (¶¶ 7-8) (Miss.Ct.App.2005), this Court up held a circuit court’s decision to allow the videotaped deposition testimony of an expert witness. The circuit court had declared the witness “unavailable,” observing that the case had already been postponed for two years and that there was “no reasonable way to obtain [the witness’s] presence in the state during that week [of trial, and t]he only alternative would be to postpone the trial[.]” Id. at (¶ 7). The circuit judge, therefore, allowed the testimony to be taken by deposition with the defendant present and the videotaped testimony to be admitted at trial.

¶ 15. Likewise, in the present case, we find that both elements were satisfied, allowing for the admission of Detective Sepulveda’s deposition testimony. As we will discuss in further detail in the next issue, Detective Sepulveda had serious health complications and was considered by the circuit judge to be “unavailable” at the trial. Defense counsel had the opportunity to cross-examine Detective Sepulve-da during the deposition, with McKenzie present. Therefore, there was no violation of McKenzie’s right to confront the witness. Accordingly, we find the admission of Detective Sepulveda’s deposition testimony into evidence was not an abuse of discretion.

III. Whether the circuit court erred in finding that Detective Se-pulveda was an unavailable witness.

¶ 16. As discussed, the circuit court allowed the taping of Detective Se-pulveda’s testimony by deposition in the event he might not be available at trial. During the motions hearing held on February 2, 2012, Detective Sepulveda testified he had congestive heart failure, which had resulted in serious medical complications, including high blood pressure, and that he had been hospitalized once a month since April 2011. He told the court that he was “lucky to be alive right now” and that his “heart was about four times the size of normal heart, so there’s a lot of damage inside.” Detective Sepulveda also stated that he was scheduled for laparo-scopic surgery on February 15, 2012, to remove a tumor and his adrenal gland.

¶ 17. The circuit judge noted at the motion hearing that the detective’s surgery was scheduled “almost into the trial or right before” and stated: “I also made a point of noticing the officer’s demeanor throughout. He’s certainly short of breath, and struggled based on his health problems, had to have a water break, soft spoken.” Later, at trial, it was determined that Detective Sepulveda’s medical condition had rendered him too weak to testify in person, making him an “unavailable” witness and allowing for the introduction of his deposition testimony, over the defense’s objection.

¶ 18. McKenzie argues that there was “no adequate on[-]the[-]reeord determination of [Detective Sepulveda’s] unavailability.” Mississippi Rule of Evidence 804(a)(4) states that a witness may be declared “unavailable” if he “[i]s unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity[.]” This argument by McKenzie is without merit. There was extensive discussion at the motions hearing regarding the detective’s serious medical condition. Detective Sepulveda was scheduled for surgery two weeks prior to trial, although it is unclear from the record whether the surgery to remove his adrenal gland tumor had been performed by the time of the trial. Regardless, while the detective was not in the hospital on March 1 (the date he had been originally scheduled to testify), his numerous physical infirmities were well documented to the circuit court and determined to be of such severity that testifying in person could have been detrimental to his health. The next morning, the State notified the circuit judge that Detective Sepulveda was “in extreme pain” and could not get up from a chair.

¶ 19. Accordingly, we find no error in the circuit judge’s decision to declare the witness unavailable and to admit his deposition testimony.

IV. Whether the circuit court erred in giving Jury Instruction S-13A.

¶ 20. Jury Instruction S-18A reads:

The Court instructs the jury that, under Mississippi law, self-defense cannot be a defense to the crime of capital murder committed during the course of a robbery. If you find the defendant not guilty of capital murder, and consider a lesser[-]included offense, such as deliberate design murder, then you may consider self-defense, as to the charge of deliberate design murder as defined in other instructions.

Defense counsel did not object to this instruction at trial; therefore, this issue is waived for consideration on appeal. “It is well established that failure to object timely to a jury instruction at trial waives the issue on appeal.” Buchanan v. State, 84 So.3d 812, 814 (¶ 7) (Miss.Ct.App.2011) (citing Peterson v. State, 37 So.3d 669, 675 (¶ 29) (Miss.Ct.App.2010)).

¶ 21. Notwithstanding the procedural bar, we find no merit to McKenzie’s argument. The supreme court considered this same issue in Layne v. State, 542 So.2d 237 (Miss.1989). Robert Layne stabbed and killed a man during the commission of a robbery, after the victim attempted to stop him from escape. Id. at 238. One of Layne’s arguments on appeal was that a jury instruction given by the circuit court “strip[ped] him of the defense which he relied on at trial — self-defense.” Id. at 242. Like McKenzie, Layne tried to claim that the victim, who was drunk, “made homosexual advances” and that the killing was in self-defense. Id. at 244. The supreme court found no error, observing: “Mississippi adheres to the common law rule that an aggressor is precluded from pleading self-defense.” Id.

A person who commits an armed robbery forfeits his right to claim[,] as a defense[,] the necessity to protect himself against the use of excessive force by either the intended victim of the robbery or by any other person’ intervening to prevent the crime or to apprehend the criminal, absent a factual showing that at the time the violence occurred, the dangerous situation created by the armed robbery no longer existed.

Id. at 243 (quoting Gray v. State, 463 P.2d 897, 909 (Alaska 1970)).

¶ 22. In the present case, McKenzie was the aggressor; he admitted to police that he was trying to rob Bullock. McKenzie also testified at trial that he was seated in the back of the van, behind Bullock. Bullock’s body was found facing forward, his seat belt was still on, and he had been shot in the back of his neck. The medical examiner, Dr. Paul McGarry, testified that the wound was a “contact gunshot wound,” which is typically made “when the end of the barrel of the gun is pressed against the neck and the trigger is pulled.” Dr. McGarry also stated that there was no evidence to indicate Bullock had hit anyone; rather, Bullock had “defensive[ ]-type” injuries on the “back of his wrist.” Accordingly, we find no error in the giving of this instruction.

V. Whether the circuit court erred in giving Jury Instruction S-3.

¶ 23. Jury Instruction S-3 stated: “The Court instructs the jury that the term ‘engaged in the commission of the felony crime of robbery’ includes actions of Rodney Phillip McKenzie, Jr. leading up to the robbery, the actual robbery and/or the flight from the scene of the robbery.” At trial, defense counsel objected to the instruction, claiming that the instruction does not follow Mississippi law.

¶ 24. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” McDowell v. State, 813 So.2d 694, 697 (¶ 7) (Miss.2002) (quoting Coleman v. State, 697 So.2d 777, 782 (Miss.1997)).

¶ 25. The Mississippi Supreme Court has stated:

Mississippi recognizes the “one continuous transaction rationale” in capital cases. West v. State, 553 So.2d 8, 13 (Miss.1989). We have construed our capital murder statute and held that “the underlying crime begins where an indictable attempt is reached.” Pickle v. State, 345 So.2d 623, 626 (Miss.1977). “An indictment charging a killing occurring “while engaged in the commission of one of the enumerated felonies includes the actions of the defendant leading up to the felony, the attempted felony, and flight from the scene of the felony.” Turner v. State, 732 So.2d 937, 950 [ (¶ 47) ] (Miss.1999) (quoting West, 553 So.2d at 13).

Goff v. State, 14 So.3d 625, 650 (¶ 93) (Miss.2009). McKenzie argues that he only formed an intent to rob after he shot Bullock in self-defense and that Jury Instruction S-3 was given in error as it “presupposes that a robbery occurred.” However, we find there was sufficient evidence presented to support the giving of this instruction.

¶ 26. A trial witness, Nicole Harvey, testified that McKenzie contacted her a few hours prior to the murder and asked her where he could “hit a lick,” a slang term for setting up someone for robbery. On her way home early that morning, Harvey saw the crime scene where Bullock’s van had crashed. When she reached her home a few minutes later, McKenzie called Harvey and “asked [her] did [she] know anybody that wanted to buy any Lortab, 7.5.”

¶ 27. Moreover, when McKenzie was interviewed by Detective Sepulveda, he said: “I never should have even took that sh*t, man.” He also admitted: “For real, honest[l]y. [I]t’s a robbery gone bad.... Man, .... we were tryin’ to rob and then ... [he] ran into the pole.” He stated: “We robbed the n* ⅜ ⅜ *. By the end of it[,] he was dead.”

¶ 28. Based on this evidence, we find a reasonable jury could have determined that McKenzie intended to rob Bullock prior to shooting him and did, in fact, rob Bullock by taking the pills. Accordingly, we find no error in the giving of this jury instruction.

VI. Whether the errors alleged above could be considered harmless or, alternatively, whether the cumulative effect of the errors mandates a reversal of McKenzie’s conviction.

¶ 29. McKenzie contends that there were multiple violations of his fundamental right to a fair trial, which could not be considered harmless errors. Alternatively, he also claims that even if the alleged individual errors are found to be harmless, the cumulative effect of such errors warrants a reversal of his conviction. However, as we have found no errors exist in the above issues and that McKenzie has suffered no violation of any fundamental right to a fair trial, these claims are without merit.

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

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

      . An "Agreed Order of Severance” was entered on February 1, 2012, and McKenzie and Hatten were tried separately.

      . See Jenkins v. State, 102 So.3d 1063, 1066 (¶ 9) (Miss.2012) (A criminal defendant has a guaranteed constitutional “right to confront and cross-examine the witnesses against him.") (citing U.S. Const, amend. VI, Miss. Const, art. 3, § 26).