author: WALLER, Chief Justice,

text:
    ELI INVESTMENTS, LLC, A Mississippi Limited Liability Company v. SILVER SLIPPER CASINO VENTURE, LLC, A Delaware Limited Liability Company; Silver Slipper Gaming, LLC, A Limited Liability Company; and Broadwater Development, LLP.
    No. 2011-CA-00819-SCT.
    Supreme Court of Mississippi.
    July 25, 2013.

      Robert T. Schwartz, Jeffrey W. Bertuc-ci, Biloxi, Laurence E. Best, attorneys for appellant.
    Joel J. Henderson, Edward D. Lamar, attorneys for appellees.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Eli Investments, LLC, sued Silver Slipper Casino Venture, LLC, and Silver Slipper Gambling, LLC (collectively “Silver Slipper”), and Broadwater Development, LLC, to recover for damages sustained to Eli’s Biloxi hotel when Silver Slipper’s casino allided with it during Hurricane Katrina. The trial court granted Silver Slipper’s and Broadwater’s motions for summary judgment. Eli now appeals the trial court’s grant of summary judgment to Silver Slipper. Finding that Eli has presented a genuine dispute of material fact regarding Silver Slipper’s negligence, we reverse the trial court’s grant of summary judgment to Silver Slipper and remand for further proceedings.

FACTS & PROCEDURAL HISTORY

¶ 2. In April of 2005, Silver Slipper purchased the President Casino, a casino barge, and entered into a lease of the tidelands and fast lands making up the Broadwater Beach Marina area in Biloxi, Mississippi, from Broadwater Development, LLC. The President Casino was not employed as a mobile vessel, but was secured to the marina by a mooring system of six four-legged mooring “dolphins” and permanent couplings. This system was designed to allow the casino to rise securely with the tide to a height of between fifteen and twenty feet above normal tide levels.

¶ 3. On August 28, 2005, the Mississippi Gaming Commission ordered Silver Slipper to close the President Casino to prepare for the imminent landfall of Hurricane Katrina. At that time, operations at the President Casino were discontinued, patrons were escorted from the casino, all utilities were disconnected, and the barge’s access ramp was raised.

¶ 4. Hurricane Katrina made landfall on the Mississippi Gulf Coast in the morning hours of August 29, 2005. The hurricane’s peak storm surge and peak wind gusts occurred nearly simultaneously around the time of landfall. The storm surge in Biloxi reportedly reached a height of twenty-five feet above mean sea level, but was higher in some areas. During the storm surge, the President Casino barge floated free of its moorings and traveled roughly one mile in a west-northwesterly direction, finally alliding with and coming to rest on top of the Biloxi Beachfront Hotel, which was owned by Eli. Eli claims the allision destroyed the hotel’s main building and caused extensive damage to other parts of the hotel.

¶ 5. In 2007, Eli filed suit against Silver Slipper and Broadwater for negligence and gross negligent conduct. Eli claimed Silver Slipper had failed to maintain the casino barge properly prior to and during Hurricane Katrina. Eli also claimed that Broadwater had failed to properly maintain the dock site and mooring system that it leased to Silver Slipper.

¶ 6. In 2010, Silver Slipper and Broad-water moved for summary judgment. In support of its motion, Silver Slipper claimed that any duty it owed to Eli was set by Gaming Commission regulations. Because the President Casino met these mooring requirements, Silver Slipper contended it had met its duty to Eli. Silver Slipper also asserted the “Act of God” defense, arguing that it could not have prevented through any reasonable measures the damage caused by Hurricane Katrina’s unprecedented storm surge and wind gusts.

¶ 7. The trial court granted summary judgment to Silver Slipper, finding that Silver Slipper had taken reasonable precautions to prevent foreseeable injuries to nearby property owners by complying with the Gaming Commission’s licensing regulations. In addition, the court found that Katrina was an “ ‘Act of God,’ unforeseeable in its fury and the destruction it caused.” The trial court also granted summary judgment to Broadwater. Eli did not appeal the grant of summary judgment in favor of Broadwater.

¶ 8. Eli timely appealed to this Court the trial court’s grant of summary judgment to Silver Slipper. Eli raises the following issues:

I. Whether the circuit court erred in holding that no genuine issues of material fact existed regarding Silver Slipper’s breach of its duty to take reasonable precautions to protect those in close proximity of the President Casino.
II. Whether the circuit court erred by applying the Act of God Defense to Silver Slipper, given the questions of fact raised by Eli regarding Silver Slipper’s negligence.

STANDARD OF REVIEW

¶ 9. A trial court’s grant of summary judgment is reviewed de novo. Davis v. Hoss, 869 So.2d 397, 401 (Miss.2004). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). The evidence must be viewed in the light most favorable to the party opposing the motion. Davis, 869 So.2d at 401.

DISCUSSION

¶ 10. To prove negligence, the plaintiff has the burden to establish (1) the existence of a duty owed to it by the defendant; (2) a breach of that duty; (3) a causal connection between the breach of duty and the alleged injury to the plaintiff; and (4) injury and damages. Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1143-44 (Miss.2004). If a triable issue of fact regarding each of these elements exists, then summary judgment must be reversed. Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991).

¶ 11. The existence vel non of a legal duty is a question of law to be decided by the court. Rein, 865 So.2d at 1143. Here, the trial court correctly found that Silver Slipper “owed a duty to owners in close proximity to take reasonable measures to prevent foreseeable injuries in the event of a hurricane.” It is also clear from the record that the President Casino’s unmooring caused damage to Eli’s property. The question, then, is whether Eli offered sufficient evidence to create a dispute of fact as to whether Silver Slipper breached that duty to take reasonable measures to prevent foreseeable harm to Eli.

I. Whether the circuit court erred in holding that no genuine issues of fact existed regarding Silver Slipper’s breach of its duty to take reasonable precautions to protect those in close proximity to the President Casino.

¶ 12. Whether the defendant breached its duty to the plaintiff is a question of fact. Lyle, 584 So.2d at 400. The standard of care applicable to negligence cases is whether the defendant “acted as a reasonable and prudent person would have under the same or similar circumstances.” Donald v. Amoco Prod. Co., 735 So.2d 161, 175 (Miss.1999) (citations omitted). The defendant must take reasonable measures to remove or protect against “foreseeable hazards” that he knows about or should know about in the exercise of due care. Millers of Jackson, Meadowbrook Road, Inc. v. Newell, 341 So.2d 101, 103 (Miss.1976).

¶ 13. Viewing the evidence in the light most favorable to Eli, as this Court must do when reviewing a grant of summary judgment, we find that Eli has offered sufficient proof to create a genuine dispute of material fact regarding Silver Slipper’s breach of its duty to take reasonable precautions to protect those in close proximity to the President Casino during Hurricane Katrina. Eli provided the trial court with the affidavit of Greg S. Perkin, P.E., who inspected the President Casino’s mooring system after Hurricane Katrina. Perkin opined that the storm surge caused by Hurricane Katrina was foreseeable to Silver Slipper in light of prior storm history in the Gulf of Mexico, and that Silver Slipper failed to consider what would happen if the casino barge encountered a significant storm surge. Perkin’s opinion was supported by statistics from the National Oceanic and Atmospheric Administration citing at least three hurricanes with storm surges of greater than fifteen feet in the Mississippi Gulf Coast prior to Hurricane Katrina. Second, Perkin opined that the moorings typically used to restrain a vessel in position along a dock in a marina were not sufficient to restrain the President Casino if it encountered a significant storm surge, as experienced along the Mississippi Gulf Coast during prior hurricanes.

¶ 14. In response, Silver Slipper provided the court with the affidavit of Henry R. Seawell, III, P.E, who inspected the President Casino and its mooring system in 2005. Seawell opined that the President Casino was adequately moored to comply with Mississippi Gaming Commission Regulation II(B)(10). The regulation requires that all floating casino barges be moored “to withstand a Category 4 hurricane with 155 mile per hour winds and 15 foot tidal surge” as a condition of licensure. Miss. Admin. Code 13-1-3:II-B, § 10. Next, Seawell opined that it would not have been feasible to attempt to move the casino to a safe harbor, due to the minimal amount of time between the first hurricane warning and Hurricane Katrina’s landfall. Finally, Seawell opined that the President Casino did not float free from its moorings until some time after Hurricane Katrina’s storm surge reached higher than fifteen feet, which was higher than the Gaming Commission regulations protected against. Nothing in Seawell’s affidavit contradicts Perkin’s assertion that the meteorological effects of Hurricane Katrina were foreseeable to Silver Slipper.

¶ 15. We find that Seawell’s and Per-kin’s differing opinions established a “battle of the experts” on the issue of whether Silver Slipper took reasonable steps to secure the President Casino to prevent foreseeable harm to nearby property owners. This Court has held that the winner in a battle of the experts is to be decided by the jury. Hill v. Mills, 26 So.3d 322, 330 (Miss.2010). Moreover, Silver Slipper’s alleged compliance with Gaming Commission regulations does not automatically shield it from liability. “[Sjtate boards and commissions are creatures of statute and have no powers other than those delegated to [them] by the Legislature.” Howard v. Estate of Harper, 947 So.2d 854, 859 (Miss.2006) (citing Masonite Corp. v. State Oil & Gas Bd., 240 So.2d 446, 449 (Miss.1970)). It is clear that Regulation II(B)(10) was enacted merely as a condition of licensure, not as a conclusive standard of care for all casinos in all circumstances.

¶ 16. Silver Slipper has offered evidence that it acted reasonably under the circumstances. Eli has offered competing evidence that Silver Slipper failed to moor the President Casino adequately to withstand Hurricane Katrina. “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Mantachie Natural Gas Dist. v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992) (quoting Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760, 762 (Miss.1989) (internal citations omitted)). Because Eli has shown a genuine dispute of material fact concerning a breach of Silver Slipper’s duty, we hold that the trial court erred in granting summary judgment to Silver Slipper.

II. Whether the circuit court erred by applying the Act of God defense to Silver Slipper, given the questions of fact raised by Eli regarding Silver Slipper’s negligence.

¶ 17. The trial court found that Silver Slipper was excused from liability for damages to Eli’s property because Hurricane Katrina was an “Act of God,” unforeseeable in the destruction it caused. Eli argues that the Act of God defense is not available to Silver Slipper because Silver Slipper’s negligence served as the intervening cause of Eli’s damages.

¶ 18. The Act of God defense is an affirmative defense to the element of causation. “No one is hable for an injury proximately caused by an act of God[.]” City of Jackson v. Brummett, 224 Miss. 501, 80 So.2d 827, 829 (1955). An Act of God is an injury due exclusively to forces of nature, without human intervention, which could not have been prevented by the use of due care and reasonable foresight. Brummett, 80 So.2d at 829. The Act of God defense applies to “events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them.” McFarland v. Entergy Mississippi, Inc., 919 So.2d 894, 904 (Miss.2006). However, an injury which could have been prevented through the use of ordinary care is not an Act of God which would remove the tortfeasor from liability. City of Hattiesburg v. Hillman, 222 Miss. 443, 76 So.2d 368, 370 (1954).

¶ 19. We have found that there exists a genuine dispute of material fact as to whether Silver Slipper was negligent in mooring the President Casino adequately to withstand Hurricane Katrina. If a jury finds that Silver Slipper, through the exercise of reasonable care, could have prevented the damage to Eli’s property, the Act of God defense will not apply. See Biloxi Yacht Club, Inc. v. Grand Casinos of Mississippi, Inc.-Biloxi (denying defendant’s motion for summary judgment based on Act of God defense when a dispute of fact existed as to whether defendant was negligent in designing its casino barge’s moorings.) Accordingly, we find that Silver Slipper is not entitled to summary judgment based on the Act of God defense.

CONCLUSION

¶ 20. The trial court erred in granting summary judgment in favor of Silver Slipper because Eli presented sufficient evidence to create a genuine dispute of material fact as to whether Silver Slipper breached its duty to take reasonable measures to prevent foreseeable harm to nearby property owners. Accordingly, this Court reverses the trial court’s grant of summary judgment and remands this case to the Harrison County Circuit Court for further proceedings.

¶ 21. REVERSED AND REMANDED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . An ''allision'' refers to contact between a vessel and a stationary object, such as a pier. This is compared to "collision,” which refers to contact between two moving vessels. Black's Law Dictionary 83 (8th ed.2004). "Al-lide” is the verb form of "allision.”

      . "Tidelands” refers to land between the high-water and low-water tide lines that is uncovered by the natural ebb and flow of tidal waters. Black’s Law Dictionary 893 (8th ed.2004).

      . "Fast lands” refers to the land above the high-water tide line and that, when flooded by a government project, is subjected to a governmental taking. Black's Law Dictionary 1520 (8th ed.2004).

      .Silver Slipper Casino Venture, LLC, maintained the casino property, including the moorings that secured the casino's barge. Silver Slipper Gaming, LLC, operated the casino to ensure compliance with Gaming Commission regulations.


source: Caselaw Access Project

author: RANDOLPH, Presiding Justice,

license: Public Domain

text:
    Jermaine REED v. STATE of Mississippi.
    No. 2011-KA-01744-SCT.
    Supreme Court of Mississippi.
    July 25, 2013.

      Office of State Public Defender by Mollie Marie McMillin, attorney for appellant.
    Jermaine Reed, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Following a jury trial in the Circuit Court of Hinds County on July 18-20, 2011, Jermaine Reed was convicted of aggravated assault of his ex-girlfriend, Andrea Taylor. As Reed was adjudicated a violent habitual offender pursuant to Mississippi Code Section 99-19-83, upon application of that sentence enhancement, he was sentenced to life without the possibility of parole. On appeal, Reed challenges his conviction and sentence. Appellate counsel filed a Lindsey brief certifying to this Court that, after a diligent review, there were no appealable issues in the record. Reed has filed a pro se brief assigning error to both the trial court and his trial counsel.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jermaine Reed is no stranger to the criminal justice system. In 2000, Reed pleaded guilty to motor vehicle theft in the Circuit Court of Hinds County (Cause Number 99-1-410-00). He was sentenced to one year in the custody of the Mississippi Department of Corrections (MDOC), but his sentence was suspended, and he was placed on supervised probation. However, on June 28, 2002, an order of revocation was entered by the circuit court, and Reed was ordered to serve five months. In 2003, Reed pleaded guilty to possession of cocaine in the Circuit Court of Hinds County (Cause Number 03-0-545-OOBBD). He was sentenced to eight years, with six years suspended and two years to serve.

¶ 3. On May 26, 2008, the day giving rise to Reed’s current run-in with the law, Andrea Taylor and her aunt were walking to their home on Brown Street, in Jackson, when Taylor’s aunt noticed Reed walking behind them. Upon realizing that Reed was carrying a weapon, Taylor fled to a nearby house. She was unable to gain entry to the house and was rendered helpless on the porch. Reed pursued Taylor onto the porch, and, in her efforts to avoid him, Taylor fell off the porch to the ground. While she was in a defenseless position, Reed repeatedly struck Taylor with what she described as a “long knife, a machete.” A neighbor observed the horrific attack and went after Reed with a stick. In response to the intervention, Reed stopped his assault and fled the scene. After police arrived, Taylor was transported to University Medical Center where she was treated for severe injuries, some of which resulted in exposed bone on several areas of her body. Taylor spent approximately three weeks in the hospital and underwent multiple surgeries.

¶ 4. Nine days later, on June 4, 2008, Reed robbed a bank in north Mississippi. The history of that conviction overlaps with the case sub judice and will be discussed infra.

¶ 5. On June 27, 2008, Reed was indicted for “unlawfully and purposely or knowingly causing] serious bodily injury to ... Andrea Taylor, by then and there cutting her about the body with a machete, causing bodily injury.” See Miss.Code Ann. § 97-8-7(2) (Rev.2006). At his arraignment on July 28, 2008, Reed pleaded “not guilty,” and a trial date was set for November 17, 2008. On July 31, 2008, the State filed a “Motion to Amend Indictment to Enhance Punishment,” which sought to “charge [Reed] as an habitual offender pursuant to Section 99-19-81_”

¶ 6. Although set for November 17, 2008, the trial did not proceed. The record reveals that the case was continued on December 8, 2008. Reed’s trial counsel stated in a subsequent hearing that the case was continued on the “basis of ... crowded docket.”

¶ 7. Following the continuance, on December 8, 2008, Reed’s first trial counsel filed a “Motion for Mental Examination and/or Treatment.” The case had been reset for trial on February 2, 2009. However, this motion was never pursued, and, on February 18, 2009, the circuit court entered a “Scheduling Order” which set a plea deadline of March 30, 2009.

¶ 8. In the interim, Reed was taken into federal custody on the bank-robbery charge. He pleaded guilty to bank robbery and, on July 23, 2009, was sentenced to fifty-seven months. He remained in federal custody until early July 2011, when he was transferred back to the custody of Hinds County to face trial for the aggravated assault of Taylor.

¶ 9. On July 15, 2011, the State filed a second “Motion to Amend Indictment to Enhance Punishment,” which sought “to charge [Reed] as an habitual offender pursuant to ... [Section] 99-19-83,” on the grounds that “[Reed was previously] convicted of the felony crime of [possession of [c]ocaine in Cause Number [20]03 — 0—545 ... [and] the violent felony crime of [b]ank [r]obbery in Case Number 2:08CR00125-001.[]” The circuit court deferred ruling on the motion until sentencing.

¶ 10. On July 18, 2011, the trial commenced, without assertions of incompetency to stand trial. Reed was convicted by the jury of aggravated assault. Subsequently, the circuit court granted the State’s second motion to amend, and, after hearing, Reed was sentenced as an habitual offender to life without parole.

ISSUES

¶ 11. Reed raises the following issues:

(1) Ineffective assistance of counsel through pretrial, trial, and sentencing
(2) Denial of a mental health examination before his trial
(3) The State sought to amend Reed’s indictment due to prosecutorial vindictiveness.

ANALYSIS

I. Ineffective assistance of counsel through pretrial, trial, and sentencing

¶ 12. This Court has stated that “[o]rdinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings .... ” Blanchard v. State, 55 So.3d 1074, 1078-79 (Miss.2011) (quoting Archer v. State, 986 So.2d 951, 955 (Miss.2008)). Reed maintains that “counsel was ineffective ... [because] he ... [ (1) ] [did] not advis[e] [Reed] of the legal rule under ... Miss.Code Ann. 97-3-7(2)(b)[,] ... [ (2) ] did[ ][not] investigate ... [Reed’s] claims nor consult with [Reed] to come up with a defense or strategyU ... [ (3) ] ineffective concerning ... [Reed’s] speedy trial violation[,] ... and [ (4) ] fail[ed] to object to the amendments of the indictment.” Both parties stipulate that the record does not contain sufficient evidence to evaluate these claims. As such, Reed’s ineffective-assistance-of-counsel claims are dismissed without prejudice to raise later in a post-conviction-relief claim. See Parker v. State, 30 So.3d 1222, 1232 (Miss.2010) (citing Archer, 986 So.2d at 955).

II. Denial of a mental health examination before Reed’s trial

¶ 13. Reed contends that the “[t]he [trial] court erred in not granting ... a mental examination.” After his first trial date was continued, Reed’s first trial counsel filed a “Motion for Mental Examination and/or Treatment” on December 8, 2008. As previously mentioned, the case was reset for trial on February 3, 2009, but Reed did not pursue the motion before that date. More than two years later, Reed’s second trial counsel did not renew, pursue, or file a new motion prior to trial. This Court has stated, “[i]t is the responsibility of the movant to obtain a ruling from the court on motions filed by him and failure to do so constitutes a waiver of the same.” Berry v. State, 728 So.2d 568, 570 (Miss.1999) (quoting Martin v. State, 354 So.2d 1114, 1119 (Miss.1978)); see also URCCC 2.04 (“Failure to pursue a pretrial motion to hearing and decision before trial is deemed an abandonment of that motion.”) Reed’s failure to pursue his motion bars this issue from consideration.

¶ 14. Notwithstanding the procedural bar, we address whether the circuit court erred by not, sua sponte, ordering a mental-competency examination. Uniform Circuit and County Court Rule 9.06 provides, in pertinent part, “[i]f before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination....” URCCC 9.06. The rule specifically provides that a trial court must order a competency hearing only if it “has reasonable ground” for doing so. This Court has stated,

[t]he determination of whether there are reasonable grounds for a competency test is discretionary with the court. The test for competency to stand trial and thereby whether reasonable grounds exist is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him.

Parker, 30 So.3d at 1230 (internal citations omitted).

¶ 15. Reed conflates competency to stand trial with a defense related to mental incapacity at the time of the crime, e.g., defense of insanity. See URCCC 9.07. Reed contends that “the facts of the case clearly show that [he] was suffering from some kind of mental illness[ ] at the time of the aggravated assault ...This argument .is flawed, as it raises an issue of Reed’s competence at the time of the offense, not at the time of the trial as required by the rule. See URCCC 9.06; Parker, 30 So.3d at 1230-31 (“Since Parker avers ... that he was allegedly incompetent at the time of the crime, an insanity defense would have been more appropriate.”). Neither Reed nor the record provides any support that, at the time of the 2011 trial, “reasonable ground” existed for the circuit court to order a mental-competency examination. Therefore, this issue is without merit.

III. The State sought to amend Reed’s indictment due to prose-cutorial vindictiveness.

¶ 16. Reed asserts that the State sought to amend his indictment to enhance punishment as a result of prosecu-torial vindictiveness and claims the circuit court erred in granting the amendment. This assertion is made for the first time in this appeal. Reed never pleaded nor argued prosecutorial vindictiveness before the trial court. Because this issue was not raised before the trial court, it is waived. Parker v. Miss. Game & Fish Comm’n, 555 So.2d 725, 730 (Miss.1989) (“A trial judge will not be put in error on a matter which was not presented to him for his decision.”)

¶ 17. Notwithstanding the procedural bar, we will address Reed’s claim as assigned. “The doctrine of prosecutorial vindictiveness ‘precludes action by a prosecutor that is designed to penalize a defendant for invoking any legally protected right available to a defendant during a criminal prosecution.’” Russell v. State, 79 So.3d 529, 539 (Miss.Ct.App.2011) (quoting Garlotte v. State, 915 So.2d 460, 467 (Miss.Ct.App.2005)). “Where there is a ‘reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority,’ there is a presumption of prosecu-torial vindictiveness.” Russell, 79 So.3d at 539 (quoting Moore v. State, 938 So.2d 1254, 1264 (Miss.Ct.App.2006)). “However, when no such likelihood exists, it is the defendant’s burden to prove actual vindictiveness.” Id. (quoting Moore, 938 So.2d at 1264).

¶ 18. Reed’s claim is a bare allegation that the “State [sought] harsher penalties ... because [he] invoke[d] his right to a speedy trial.” Reed has provided no support for this claim. See Busick v. State, 906 So.2d 846, 861 (Miss.Ct.App.2005) (“For the presumption to arise, the evidence must establish a reasonable likelihood of vindictiveness.”). Standing alone, the fact that the State sought a harsher penalty does not prove a claim of prosecu-torial vindictiveness. See U.S. v. Goodwin, 457 U.S. 368, 372-73, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (“The imposition of punishment is the very purpose of virtually all criminal proceedings.”).

CONCLUSION

¶ 19. Based on this analysis, we affirm Reed’s conviction and sentence.

¶ 20. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF LIFE IMPRISONMENT, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL NOT BE REDUCED OR SUSPENDED; NOR SHALL APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION.

WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ„ CONCUR.

      . Lindsey v. State, 939 So.2d 743, 748 (Miss.2005) (implementing procedures governing cases where appellate counsel represents an indigent defendant and does not believe the client’s case presents any issues on appeal).

      . According to Taylor, she and Reed recently had broken up. Following their break-up, Reed had sent Taylor threatening voice and text messages. The messages had become so threatening that Taylor reported Reed to the police the weekend prior to the assault.

      . See supra ¶ 2 for a detailed discussion of Reed’s prior felonies.

      . The "Scheduling Order” stated that the case had not been tried on February 2, 2009, "as numerous cases were set for trial [that day], and this case being one that was not called.”

      . A review of the docket in that case reveals no motions regarding Reed’s competency to stand trial or to enter a guilty plea. See Docket for No. 2:08CR00125-001, http://www. pacer.gov/(last visited July 19, 2013).

      .As previously mentioned, Reed pleaded guilty to possession of cocaine in the Circuit Court of Hinds County. See supra ¶ 2. Reed was sentenced to eight years in the custody of the Mississippi Department of Corrections, with six years suspended, and two years to serve. Reed’s pen pack reveals that he accordingly served the statutory period.
      On July 23, 2009, a criminal judgment was entered against Reed after he pleaded guilty to bank robbery in the United States District Court for the Northern District of Mississippi (Case Number 2:08CR00125-001). Bank robbery is a violent crime. 18 U.S.C. § 2113(a) (2006). Reed was sentenced to fifty-seven months in the custody of the United States Bureau of Prisons. He was released to the custody of Hinds County just days before his trial in July 2011.


author: FAIR, J.,

text:
    Jessie BEAL, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01842-COA.
    Court of Appeals of Mississippi.
    Nov. 27, 2012.
    Rehearing Denied April 30, 2013.
    Certiorari Denied July 25, 2013.

      Jessie Beal, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Jessie Beal was convicted of statutory rape- in the Madison County Circuit Court and sentenced to serve twenty-three years in the Mississippi Department of Corrections. The dismissal of Beal’s first motion for post-conviction relief was affirmed by this Court last year. Beal now appeals the dismissal of his second motion for post-conviction relief asserting that his guilty plea was not knowingly and intelligently entered and that the State’s pre-indictment delay violated his due-process rights. Finding that Beal’s motion was barred as a successive writ, we affirm.

STANDARD OF REVIEW

¶ 2. We review the dismissal of a motion for post-conviction relief for abuse of discretion. Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss.2009) (citing Billiot v. State, 655 So.2d 1, 12 (Miss.1995)). The circuit court may summarily dismiss a motion for post-conviction relief “if 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.” Id. (quoting Miss.Code Ann. § 99-39-11(2) (Rev.2007)).

DISCUSSION

¶ 3. Under section 99-39-23(6) of the Mississippi Code Annotated (Supp.2012), an order dismissing a motion for relief is a final judgment and “shall be a bar to a second or successive motion under this article.” However, the Mississippi Supreme Court has held that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010).

¶ 4. But merely asserting a the violation of a constitutional right is insufficient to overcome the procedural bars. Means v. State, 43 So.3d 438, 442 (¶ 12) (Miss.2010). “There must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived.” Id. (quoting Crosby v. State, 16 So.3d 74, 79 (¶ 10) (Miss.Ct.App.2009)). We must review the record to determine whether there is any arguable basis for Beal’s claim that his constitutional rights were violated.

1. Guilty Plea

¶ 5. Beal argues that because the trial court failed to inform him that entering a guilty plea would waive his constitutional right against self-incrimination, his plea was not knowingly and intelligently entered.

¶ 6. We observe that the voluntariness of Beal’s guilty plea was raised and adjudged in his prior motion for post-conviction relief. This Court has already determined that the trial court advised Beal of his constitutional rights and thoroughly questioned him regarding his desire to plead guilty. Further, the plea colloquy clearly demonstrates that the trial judge did inform Beal of his right against self incrimination:

Q: You would also have the right to remain silent, and the court would instruct the jury that no adverse inference could be drawn from your decision not to testify. Do you understand those rights?
A: Yes.
Q: Do you understand that by pleading guilty, you will be waving those constitutional rights?
A: Yes.

¶ 7. As Beal’s claim is not supported by the record evidence, it cannot be excepted from the procedural bar.

2. Pre-Indictment Delay

¶ 8. Beal next asserts that the State’s pre-indictment delay prejudiced his defense and violated his right to due process.

¶ 9. In Hooker v. State, 516 So.2d 1349, 1351 (Miss.1987), the Mississippi Supreme Court stated: “The various statutes of limitations constitute the principal device protecting against delay in the indictment or arrest.” But a criminal defendant’s Fifth and Sixth Amendment rights before trial are not fully defined by the applicable statute of limitations. Id. “The Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to [the defendant’s] rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). To determine if actual prejudice has occurred, three factors should be considered: “the length of the delay, the reason for the delay, and the prejudice which the delay may have caused the accused.” United States v. Shaw, 555 F.2d 1295, 1299 (5th Cir.1977).

¶ 10. Here, the investigation was delayed because the victim was pregnant, and the State waited to indict until the baby was delivered and DNA tests could be performed to determine paternity. Beal asserts that this delay prejudiced his defense because the DNA results could prove his guilt. He does not provide any proof that the delay was an intentional device to gain a tactical advantage.

¶ 11. “[Pjrosecutors do not deviate from fundamental conceptions of justice when they defer seeking indictments until they have probable cause to believe an accused is guilty....” United States v. Lovasco, 431 U.S. 783, 790-91, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). The United States Supreme Court has held “to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by lapse of time.” Id. at 796, 97 S.Ct. 2044.

¶ 12. We find that Beal has failed to demonstrate any arguable basis for his claim. Therefore, nothing in his motion excepted it from the successive-writ procedural bar. We find no abuse of discretion in the trial court’s dismissal of Beal’s motion for post-conviction relief.

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

LEE, C.J., IRVING AND GRIFFIS, PJJ, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.

      . See Beal v. State, 58 So.3d 709, 711 (¶ 8) (Miss.Ct.App.2011).


author: ROBERTS, J., for the Court:

text:
    PAIR A DICE FARMS, INC., James G. Pollock Jr. and Wife, Debra White Pollock, and Walter B. Pollock and Wife, Debra Pollock, Appellants v. InSOUTH BANK OF COVINGTON, Appellee. James G. Pollock Jr. and Wife, Debra White Pollock, Walter B. Pollock and Wife, Debra Pollock, Appellants v. InSouth Bank of Covington, Appellee.
    Nos. 2011-CA-01719-COA, 2011-CA-01721-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied April 30, 2013.
    Certiorari Denied July, 25, 2013.

      W. Dean Belk Jr., Indianola, Iva Kuyk-endall Horne-Murry, attorneys for appellants.
    Harold H. Mitchell Jr., Greenville, Alexandra Hutton Oglesby, attorneys for ap-pellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J., for the Court:

¶ 1. In these two consolidated cases, the lessors of farm land failed to perfect their security interests in government payments to the lessee. However, a bank perfected its own security interest in those government payments after the lessee borrowed money. Following the lessee’s declaration of bankruptcy, the bank applied the government payments to the unpaid portion of the lessee’s loan.

¶2. The lessors sued the bank and claimed that it should have tendered the government payments to them because the lessee failed to satisfy his rent obligations. According to the lessors, regardless of the fact that they failed to perfect their security interests, the bank held the government payments under a constructive trust. The lessors also claimed that the bank was unjustly enriched when it applied the government payments to the lessee’s loan. However, the bank successfully moved for summary judgment. The lessors appeal. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. These two consolidated cases stem from two leases of farm land in Sunflower County, Mississippi, during the 2006 crop year. G & H Farms leased 1,100 acres from Pair A Dice Farms Inc. That lease provided that G & H was obligated to pay Pair A Dice $55,550 in March 2006 and $83,325 in December 2006. Additionally, G & H leased approximately 400 acres from two brothers and their wives; specifically, James G. Pollock Jr., Debra White Pollock, Walter B. Pollock, and Debra Pollock. G & H was obligated to pay the Pollocks $15,600 in March 2006 and an additional $15,600 in December 2006. Neither Pair A Dice nor the Pollocks (collectively “Lessors”) filed a Uniform Commercial Code (UCC) financing statement with the Mississippi Secretary of State.

¶ 4. G & H then borrowed $505,000 from InSouth Bank of Covington and executed an agricultural security agreement. As a condition of the loan, InSouth required a ninety percent guarantee by the United States Department of Agriculture (USDA). G & H also gave InSouth an interest in any payments G & H might later receive under governmental agricultural assistance programs. Additionally, InSouth received G & H’s assignment of any payments it was to receive from the USDA. InSouth perfected its security interest by filing a UCC financing statement with the Mississippi Secretary of State. Later, the USDA sent the government payments to InSouth, which then applied those payments to G & H’s loan.

¶ 5. G & H paid Pair A Dice $55,550 in May 2006 and approximately $37,000 in May 2007. As for the Pollocks, G & H paid them approximately $15,500. G & H declared bankruptcy before it paid either the Pollocks or Pair A Dice in full. G & H had also defaulted on its loan with In-South. Even after receiving payment of the USDA’s guarantee, InSouth was left with an uncollected balance of approximately $47,000.

¶ 6. In October 2008, the Lessors filed separate lawsuits against InSouth in the Sunflower County Chancery Court. In both lawsuits, the Lessors claimed they had superior liens to InSouth’s and, therefore, InSouth should have tendered the government payments to them. The Lessors also claimed that a constructive trust arose based on InSouth’s knowledge of the leases and that InSouth had been unjustly enriched by not tendering the government payments to them.

¶ 7. InSouth successfully moved for summary judgment. The chancellor found that there was no genuine issue of material fact regarding whether InSouth’s perfected lien was paramount to the Lessors’ unperfected liens. The chancellor also found no genuine issue of material fact regarding whether there was a constructive trust or whether InSouth had been unjustly enriched by not tendering the government payments to the Lessors. The chancellor resolved both issues against the Lessors and later entered separate judgments dismissing the Lessors’ complaints with prejudice. We have consolidated the Lessors’ separate appeals.

STANDARD OF REVIEW

¶ 8. The Mississippi Supreme Court has held:

This Court reviews a trial court’s grant of summary judgment de novo. When deciding whether to grant or deny summary judgment, a court must review the record before it and take all the evidence in the light most favorable to the nonmoving party. The trial court’s decision to grant summary judgment will be affirmed if the record before the Court shows that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law.

Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 546-47 (¶ 5) (Miss.2009) (citations omitted).

ANALYSIS

¶ 9. The Lessors raise four separate issues, but we have combined them because they all rely on the same argument: that summary judgment was inappropriate because InSouth had actual notice of the leases before it loaned money to G & H. The Lessors further argue that Mississippi Code Annotated section 75-9-104 states that the Uniform Commercial Code, as codified in Mississippi Code Annotated section 75-9-101 et seq., does not apply to a landlord’s lien. However, the Lessors’ argument is based on an outdated version of section 75-9-104. Since January 1, 2002, Mississippi Code Annotated section 75-9-109(a)(2) (Rev.2002) has provided that “this article applies to ... [a]n agricultural lien[.]” Furthermore, Mississippi Code Annotated section 89-7-51(1) (Rev.2011) provides:

Every lessor of land shall have a lien on the agricultural products of the leased premises, however and by whomsoever produced, to secure the payment of the rent.... This lien shall be paramount to all other liens, claims, or demands upon such products when perfected in accordance with Uniform Commercial Code Article 9 — Secured Transactions ([section 75-9-101, et seq.).

(Emphasis added). Consequently, there is no genuine issue of material fact that the Lessors were obligated to perfect their liens via proper UCC filing statements.

¶ 10. However, the Lessors also claim that summary judgment was inappropriate based on the presence of a genuine issue of material fact regarding whether InSouth should have transferred the government payments to them under a constructive-trust theory. The Mississippi Supreme Court has explained:

A constructive trust is one that arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.

Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1034 (Miss.1990) (citation omitted). <cWhen property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.” Id. “[I]t is the confidential relationship plus the abuse of confidence imposed that authorizes a court of equity to construct a trust for the benefit of the party whose confidence has been abused.” McNeil v. Hester, 753 So.2d 1057, 1064 (¶ 25) (Miss.2000). “[Cjlear and convincing proof is necessary to establish a constructive trust.” Wright v. O’Daniel, 58 So.3d 694, 699 (¶ 21) (Miss.Ct.App.2011).

¶ 11. There is no evidence that there was a confidential relationship between InSouth and the Lessors. Nor is there any evidence that InSouth abused the Lessors’ confidence. Accordingly, there is no genuine issue of material fact whether InSouth should have tendered the government payments to the Lessors by virtue of a constructive trust.

¶ 12. Finally, the Lessors argue that the doctrine of unjust enrichment precludes InSouth from applying the government payments to G & H’s loan, rather than tendering them to the Lessors. Under Mississippi law:

The doctrine of unjust enrichment or recovery in quasi contract applies to situations where there is no legal contract but where the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another, the courts imposing a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.

Kersey v. Fernald, 911 So.2d 994, 997 (¶ 13) (Miss.Ct.App.2005) (citations omitted). “The best way to determine [whether a litigant should recover damages for unjust enrichment] is to view the obvious and see whether a resulting or constructive trust may be implied under the facts of [a] case.” Hans v. Hans, 482 So.2d 1117, 1122 (Miss.1986).

¶ 13. According to the Lessors, In-South “has pocketed monies paid by the government that should have been used as rent payments.” The Lessors conclude that InSouth has, therefore, been unjustly enriched. We have already determined that there was no genuine issue of material fact regarding whether there was a constructive trust. Furthermore, InSouth presented evidence that it was entitled to apply the government payments to G & H’s unpaid loans. G & H assigned those payments to InSouth. There was no evidence to the contrary. Consequently, there was no genuine issue of material fact regarding whether InSouth was unjustly enriched when it did not tender the government payments to the Lessors. We find no merit to this issue.

¶ 14. THE JUDGMENT OF THE SUNFLOWER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: ROBERTS, J.,

text:
    Charles L. SAMPSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01281-COA.
    Court of Appeals of Mississippi.
    Feb. 12, 2013.
    Rehearing Denied July 23, 2013.
    Charles L. Sampson, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.

      Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. On May 12, 2003, Charles L. Sampson, represented by counsel, pled guilty to one count of sexual battery. Feeling aggrieved by the sentence he received, he filed a motion for post-conviction relief (PCR) in the Bolivar County Circuit Court on July 22, 2011, claiming that he was serving an illegal sentence. The circuit court dismissed Sampson’s PCR motion on August 8, 2011, and Sampson executed the current appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. In December 2002, Sampson raped his nine-year-old cousin on at least one occasion after picking her up from school. The State ultimately reduced the rape charge to sexual battery, and, on May 12, 2003, Sampson entered a plea of guilty to one count of sexual battery. The circuit court accepted Sampson’s guilty plea after determining that his plea was knowingly, voluntarily, and intelligently given. A judgment of conviction was entered on May 12, 2003. The circuit court informed Sampson that it would be making the decision as to his sentence, that the maximum penalty for the crime of sexual battery was thirty years in the custody of the Mississippi Department of Corrections (MDOC), and the minimum sentence was zero years in the custody of the MDOC. The State recommended “five years in the custody— under the supervision and control of the [MDOC].”

¶ 3. After accepting Sampson’s guilty plea and advising him of the maximum and minimum sentences available, the circuit court recessed on sentencing Sampson until May 27, 2003. At Sampson’s sentencing hearing, his attorney requested the circuit court accept the State’s recommendation of five years in the custody of the MDOC; however, the circuit court sentenced Sampson to “fifteen years in an institution under the direction and control of the [MDOC].” Sampson was ordered to serve ten years in the custody of the MDOC, and the remaining five years were suspended subject to the “standard terms of probation.”

¶ 4. Over eight years later, on July 22, 2011, Sampson filed a PCR motion requesting his sentence be vacated because he was serving an illegal sentence. In its order entered on August 8, 2011, the circuit court acknowledged that in addition to the July 22, 2011 PCR motion, Sampson had filed numerous other motions with the circuit court and the Mississippi Supreme Court. The circuit court summarily dismissed Sampson’s PCR motion because it found that Sampson presented no new evidence in his current PCR motion; “[tjherefore, this motion [was] duplicative and successive and [was] barred by [Mississippi Code Annotated section] 99-39-23(6).”

¶ 5. Based on the dismissal of his PCR motion, Sampson executed the current appeal. On appeal, his sole issue is that he is “presently serving an illegal sentence which implicates a violation of his due process of law.”

ANALYSIS

¶ 6. “When reviewing a circuit court’s denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are ‘clearly erroneous’; however, we review the circuit court’s legal conclusions under a de novo standard of review.” Boyd v. State, 65 So.3d 358, 360 (¶ 10) (Miss.Ct.App.2011) (quoting Council v. Miss. Dep’t of Corr., 51 So.3d 256, 258 (¶ 7) (Miss.Ct.App.2011)).

¶ 7. In his brief, Sampson asserts that the circuit court originally sentenced him to the State’s recommended five-year sentence at his guilty-plea hearing, but on May 27, 2003, the circuit court changed the sentence to fifteen years in the custody of the MDOC. He further submits that his claim that his sentence is illegal is not subject to the procedural bars of the Uniform Post-Conviction Collateral Relief Act because he raises a fundamental constitutional right. It also appears to us that Sampson is attempting to avoid procedural bars by arguing that his sentence is illegal when, in essence, he is arguing that his plea was not knowingly and voluntarily given because he was under the impression that he would receive the State’s recommended sentence of five years.

¶ 8. Sampson is correct in his assertion that the right to be free from an illegal sentence is a fundamental right and is not subject to procedural bars. See Ivy v. State, 731 So.2d 601, 603 (¶ 13) (Miss.1999); Brown v. State, 923 So.2d 258, 259-260 (¶¶ 3-4) (Miss.Ct.App.2006). However, Sampson is incorrect in his argument that his sentence is illegal. In Brown v. State, 923 So.2d 258, 260 (¶ 4) (Miss.Ct.App.2006) (citing House v. State, 754 So.2d 1147, 1150 (¶ 8) (Miss.1999), this Court held:

[Pjast precedent regarding the fundamental right to be free from an illegal sentence does not provide a “back door” method for raising an untimely post-conviction[-]relief claim based on a claim of involuntariness of a guilty plea. An illegal sentence in this context is one which exceeds the statutory maximum.

Thus, Sampson’s argument that his fifteen-year sentence is illegal is not a valid argument because a fifteen-year sentence is clearly within the statutory maximum of thirty years. We will not address whether Sampson’s guilty plea was voluntarily and knowingly given because the issue is subject to procedural bars.

¶ 9. Further, a review of the record indicates that the circuit court did not impose a sentence on Sampson at his guilty-plea hearing on May 12, 2003. Instead, the circuit court stated that it was “going to take a recess on the sentence.” The State did present its plea recommendation of five years in the custody of the MDOC at Sampson’s guilty plea-hearing; however, the circuit court explained to Sampson that it would be the circuit court that ultimately decided what sentence Sampson would receive. At his guilty-plea hearing, Sampson acknowledged that he understood that the circuit court would be making the final decision as to his sentence. The record unambiguously shows that the circuit court did not impose a sentence at Sampson’s guilty-plea hearing, but it waited until the sentencing hearing on May 27, 2003, to reject the State’s recommendation and impose on Sampson a fifteen-year sentence, with ten years to serve and five years suspended.

¶ 10. The circuit court summarily dismissed Sampson’s PCR motion because it failed to present new evidence and was successive according to Mississippi Code Annotated section 99-39-23(6) (Supp. 2012). Sampson’s claim that his sentence is illegal is not a valid claim because his sentence is clearly within the statutory minimum and maximum for the crime. Because his claim of an illegal sentence is not valid, Sampson is subject to the Uniform Post-Conviction Collateral Relief Act’s procedural bars, including the successive-writ bar, which the circuit court based its decision on, and the time-bar under Mississippi Code Annotated section 99-39-5(2) (Supp.2012). Sampson’s PCR motion was not filed within three years from the date of the entry of his guilty plea and judgment of conviction; thus, it was time-barred, and no exceptions to the time-bar are applicable.

¶ 11. Therefore, Sampson’s claim that his sentence is illegal because the circuit court originally sentenced him to five years in the custody of the MDOC is without merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.


text:
    Tashfeen A. SOLANGI, Appellant v. Kacey CRONEY, Appellee.
    No. 2010-CA-01943-COA.
    Court of Appeals of Mississippi.
    March 12, 2013.
    Rehearing Denied July 23, 2013.

      Renee M. Porter, attorney for appellant.
    Nancy E. Steen, Hattiesburg, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Tashfeen (Tash) Solangi brought suit against Kacey Croney to establish paternity and secure custody of Caleb Aaron Croney, a child born out of wedlock. After a trial, the chancellor awarded custody and attorney’s fees to Kacey. Tash contests these decisions on appeal. We reverse and render the award of attorney’s fees, but we find that the chancellor otherwise acted within his discretion.

FACTS

¶ 2. Tash and Kacey worked together at the Stennis Space Center and became involved in an intimate relationship. Kacey gave birth to Caleb on October 22, 2004. She has another child, Kaitlin, who is about seven years older than Caleb. Tash recognized Caleb as his child, and although Tash had some difficulty coming forward as an unwed father, he quickly became very involved in Caleb’s life. Tash and Kacey entered into an informal agreement for support and visitation, which Tash exercised extensively. Child care for Caleb was largely provided by Tricia Stockstill, Kacey’s mother. As Caleb approached school age, Tash filed this suit to seek custody.

¶ 3. After a lengthy trial, the chancellor found that it was in Caleb’s best interest to remain in Kacey’s physical custody, with legal custody to be shared by both parents. Tash was ordered to pay Kacey’s attorney’s fees, and Caleb’s name was changed from “Caleb Aaron Croney” to “Caleb Aaron Croney Solangi.” Child support was ordered, but it has not been contested on appeal.

STANDARD OF REVIEW

¶4. Questions of law are reviewed de novo. Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss.2011). A chancellor’s factual findings, on the other hand, will not be disturbed unless he was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Carambat v. Carambat, 72 So.3d 505, 510-11 (¶ 24) (Miss.2011). As long as substantial evidence supports the chancellor’s findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel, 43 So.3d 424, 429 (¶ 14) (Miss.2010). Additionally, if the chancellor has made no specific findings, we generally proceed on the assumption that he resolved fact issues in favor of the appellee. Ferrara v. Walters, 919 So.2d 876, 881 (¶ 8) (Miss.2005).

DISCUSSION

1. Custody of Caleb; Albright Factors

¶ 5. Tash devotes the majority of his brief to the argument that the chancellor should have awarded custody of Caleb to him.

¶ 6. In Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the Mississippi Supreme Court held that the best interest of the child must control in all custody decisions, and this principle has been adopted by the Legislature in Mississippi Code Annotated section 93-5-24 (Rev.2004). In determining the best interest of the child in custody disputes, it is the court’s duty to consider that the relationship of parent and child is for the benefit of the child, not the parent. See Reno v. Reno, 253 Miss. 465, 475, 176 So.2d 58, 62 (1965) (citing J.W. Bunkley, Jr. & W.E. Morse, Bunkley and Morse’s Amis on Divorce and Separation in Mississippi § 8.01 (2d ed.1957)).

¶ 7. To determine where the child’s best interest lies, chancellors must consider the following factors when evaluating the fitness of each parent: (1) age, health, and sex of the children; (2) continuity of care; (3) parenting skills and the willingness and capacity to provide primary child care; (4) employment responsibilities of the parents; (5) physical and mental health and age of the parents; (6) moral fitness of the parents; (7) emotional ties of the parents and children; (8) home, school, and community records of the children; (9) preference of children twelve years of age or older; (10) stability of the home environment and employment of each parent; and (11) other relevant factors in the parent-child relationship. Albright, 437 So.2d at 1005.

¶ 8. The chancellor is required to address each of the Albright factors that is applicable to the case before him. See Powell v. Ayars, 792 So.2d 240, 244 (¶ 10) (Miss.2001). However, the chancellor need not decide that every factor favors one parent over the other. See Weeks v. Weeks, 989 So.2d 408, 411 (¶ 12) (Miss.Ct.App.2008). Nor is Albright a mathematical formula where custody must be awarded to the parent who “wins” the most factors. Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001). Instead, the Albright factors exist to ensure the chancellor considers all the relevant facts relating to the child’s best interest. “All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss.2003).

¶ 9. The chancellor issued a written opinion containing a discussion of each Al-bright factor, as well as an overall analysis regarding Caleb’s best interest. From this, it is apparent that the chancellor held both Tash and Kacey in high regard and found little fault in either’s willingness or ability to care for Caleb. The chancellor found the decisive factor to be Kacey’s continuity of care. On appeal, Tash challenges the chancellor’s findings on most of the individual Albright factors, contending that the chancellor failed to consider or properly weigh various facts that support his claim for custody. Although the chancellor discussed each factor separately, we have combined those with a common factual nexus for our analysis on appeal.

A. Age, health, and sex of the child

¶ 10. At the time of trial, Caleb was five years of age. His health was generally good, but there was some testimony that he was overweight and suffered from frequent sinus and ear infections. Tash attributed Caleb’s health issues to secondhand smoke he experienced while in the care of Trida Stockstill, Kacey’s mother. However, the causal link was never established during the trial except by lay attribution. There was also testimony that Stockstill did not smoke inside and that she had carefully avoided smoking when she was in an enclosed area with Caleb. Stockstill testified that she washed her hands after smoking and used air purifiers in her home. Additionally, Tash acknowledged that he smoked, though he averred that he did not do it in Caleb’s presence. In conclusion, there was simply no competent evidence that Caleb’s health would be better served in Tash’s custody.

¶ 11. Tash also contends the chancellor ignored Caleb’s sex. However, it is obvious from the record that this is not the case. The chancellor acknowledged Caleb’s gender in his opinion and explained from the bench that he did not find it decisive because of Caleb’s young age. “What weight to assign to [the child’s sex] is entrusted to the chancellor’s sound discretion; a chancellor may find that it does or does not weigh in favor of the parent of the same sex ... depending on the specific facts of the case.” Jackson v. Jackson, 82 So.3d 644, 646 (¶ 8) (Miss.Ct.App.2011). It is clear the chancellor gave due consideration to Caleb’s sex, and we cannot say that his decision as to how to weigh that fact is manifestly in error.

B. Continuity of care

¶ 12. The chancellor found that this factor favored Kacey. The proof at trial showed that Kacey had cared for Caleb for most of his early life, while Tash had gradually taken a more active role. It was undisputed that immediately before the trial Tash had Caleb for twelve days each month, but the history and extent of Tash’s pretrial custody was disputed. The chancellor was entitled to favor the characterization offered by Kacey, which was that Tash exercised extensive visitation rather than custody. It was undisputed that Tash often did “fun” things with Caleb during his time, but Kacey testified she had always been responsible for the business end of child rearing — doctor and dentist’s visits, prescriptions, haircuts, and so forth. Even Tash acknowledges that Caleb spent more time with Kacey. We cannot say that the chancellor erred in his findings under this factor.

C. Parenting skills; moral fitness

¶ 13. The chancellor found that both parents had excellent parenting skills. On appeal, Tash contends that the lack of “independent” testimony regarding Ka-cey’s parenting ability required the chancellor to find this factor in his favor. We disagree: “Where there is conflicting testimony, the chancellor, as the trier of fact, is the judge of the credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation.” Bowen v. Bowen, 982 So.2d 385, 395 (¶ 42) (Miss.2008) (quotations omitted).

¶ 14. On the issue of moral fitness, the chancellor found some fault with both parties. Both had exposed Caleb to unmarried sexual partners. The best that Tash can say is that he never spent the night with a girlfriend while Caleb was present-other than Kacey, that is. However, there was no evidence Caleb was even aware of Kacey’s indiscretions, much less that they had negatively impacted him. Tash contended he was setting a better example for Caleb by concealing his own immoral behavior and bad habits, but the chancellor was concerned that Tash’s hypocrisy would eventually catch up with him.

¶ 15. Tash also points to several incidents that the chancellor found nearly irrelevant — on two occasions Kacey took her daughter along to the New Orleans area to pick up her boyfriend when he was too drunk to drive. Kacey also drove for several months while her driver’s license was suspended for failing to pay a speeding ticket from Louisiana. We agree with the chancellor that these facts have little bearing on Kacey’s moral fitness or parenting skills.

¶ 16. The chancellor found these factors neutral. We find that conclusion supported by the record.

D. Willingness and capacity to provide care; employment responsibilities

¶ 17. Both Tash and Kacey demonstrated that they were willing and able to care for Caleb. Both had good paying jobs with some flexibility in their working hours, could count on support from their families, had residences with enough space for the child, and so on. Tash contends that he had some marginal advantages, but we find the chancellor well within his discretion in concluding that these factors did not favor one parent over the other.

E. Age and health of the parents

¶ 18. Both Tash and Kacey were in their early thirties, active, and generally healthy. Tash smoked, and Kacey admitted she had felt “depressed” as a result of the custody dispute; but the record strongly supports the chancellor’s conclusion that this factor was neutral.

F. Emotional ties

¶ 19. There is an abundance of evidence in the record that Caleb had a close emotional bond with both of his parents. Tash focuses on testimony that Caleb had been manifesting anxiety when Tash returned him to Kacey’s custody in recent months. Both parents blamed the other for this, and our review of the record gives us no reason to credit Tash’s testimony when the chancellor did not.

G. Home, school, and community record of the child; stability of the home environment

¶20. The evidence at trial indicated that Caleb had a home with both parents— activities, preschool, family, friends, and so forth. A few years after Caleb was born, Tash purchased a house in Long Beach. Kacey lived in an apartment in Picayune and had recently moved into a larger, three-bedroom apartment. She testified that she had not purchased a house because of inflated real estate prices after Katrina. Both parties had manifested stable employment and a clear intent to remain in their present communities. We agree with the chancellor that these factors did not strongly favor either party.

H.Other factors

¶21. The chancellor expressed some concern regarding the Solangi family’s poor relationship with Kacey. Also relevant is the preference for keeping siblings together, which favors Kacey. See Kimbrough v. Kimbrough, 76 So.3d 715, 726 (¶ 54) (Miss.Ct.App.2011).

Conclusion

¶22. Tash argues that continuity of care is just one factor and, in his words, should receive only 8.33% of the weight in deciding custody. Thus Tash contends that whatever slight advantages he has eked out of the other factors should require him to prevail.

¶ 23. There is certainly merit to Tash’s contention that this was a close case, and we recognize the difficulty that close cases present, particularly when both parents are able to provide the child with a good home. See Buchanan v. Buchanan, 587 So.2d 892, 897 (Miss.1991). However, we have consistently rejected attempts to reduce the best interest of the child to a mathematical formula. See, e.g., Lee v. Lee, 798 So.2d 1284, 1288 (¶ 15) (Miss.2001). Instead, the chancellor decides how to weigh the Albright factors. See Johnson v. Gray, 859 So.2d 1006, 1013-14 (¶ 36) (Miss.2003). Even if we disagreed with the chancellor on some of the individual factors, we would not substitute our judgment for his as to the child’s best interest, absent a showing of a manifest abuse of discretion. That burden is nearly insurmountable in close cases. We can find no basis to reverse the chancellor’s decision on Caleb’s custody.

2. Visitation

¶ 24. Tash contends, in the alternative, that the chancellor erred in awarding him only slightly more than “standard” visitation, considering his extensive visitation prior to this lawsuit.

¶ 25. “Visitation is a matter within the chancellor’s sound discretion.” Gilliland v. Gilliland, 969 So.2d 56, 72 (¶ 59) (Miss.Ct.App.2007). “The chancellor is charged with fashioning a visitation schedule that is in the best interests of the children, and the chancellor’s visitation decision is afforded great deference by this Court.” Id.

¶26. The chancellor recognized Tash’s close relationship with Caleb, but the prior visitation schedule was possible only because Caleb had not yet started school. Given the distances involved, transportation would be burdensome and disruptive to a school-age child. The chancellor’s visitation award was clearly based on the best interests of the child, and we cannot say it was an abuse of discretion.

3. Caleb’s Middle Name

¶ 27. The chancellor ordered Caleb’s surname changed to Solangi. Neither parent complains of this, but Tash takes issue with the decision to retain Cro-ney as one of Caleb’s middle names. However, all of the authority presented concerns the changing of a child’s surname pursuant to the paternity statute; Tash has cited nothing addressing the circumstances under which a chancellor can change a child’s middle name. “It is the duty of the appellant to provide authority in support of an assignment of error.” Jones v. Howell, 827 So.2d 691, 702 (¶ 40) (Miss.2002). This issue is procedurally barred.

4.Attorney’s Fees

¶ 28. The chancellor awarded Ka-cey approximately $14,000 in attorney’s fees and costs. The award was based on Mississippi Code Annotated section 93-9-45 (Rev.2004), which provides that the defendant in successful paternity actions shall pay costs and attorney’s fees. There are two problems with this award. The first is that the trial from which the award largely derives was for custody rather than paternity, with paternity being admitted by the parties in their initial pleadings. The second problem is more fundamental: the statute states that costs and fees shall be assessed against the defendant. Given that Kacey was the defendant, section 93-9-45 does not authorize an award of costs and fees against Tash.

¶29. We recognize that the issue of attorney’s fees in domestic cases is largely entrusted to the sound discretion of the chancellor. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). Therefore we must also consider the possibility that the award can be justified under the McKee factors. However, that would require that Kacey be unable to pay her own fees. See Dunaway v. Dunaway, 749 So.2d 1112, 1120 (¶ 20) (Miss.Ct.App.1999). No such finding was made by the chancellor, nor would the record support it given that Kacey and Tash were of similar means, with Kacey earning approximately $72,000 per year.

¶ 30. We conclude that the award of fees and costs to Kacey is unsupported by the record and must be reversed and rendered.

5. Remaining Issues

¶ 31. In what he styles his fourth issue, Tash complains of various evidentiary rulings. The argument is cursory at best, and no authority is presented. These issues are proeedurally barred. Jones, 827 So.2d at 702 (¶ 40).

6. Tash’s Brief

¶ 32. Mississippi Rule of Appellate Procedure 32(a) requires that briefs employ “double spacing between each line of text, excluding quotations and footnotes.” It has not escaped this Court’s notice that the line spacing in Tash’s principal brief on appeal is approximately halfway between single and double spaced. This places roughly 25% more lines of text on each page than the rules permit, which appears calculated to circumvent the fifty-page limit allowed by Rule 28(h). We take this opportunity to point out 5 Am.Jur.2d Appellate Review § 526 (2007) (footnotes omitted), which states:

Violation of page limitation may result in the court’s dismissing the appeal, striking the entire brief, treating the case as if no brief were filed, striking the portion of the brief exceeding the page limits, or imposing monetary sanctions, such as denying the prevailing party its costs on appeal.

CONCLUSION

¶ 33. We reverse and render the award of costs and attorney’s fees to Kacey. The judgment of the chancery court is otherwise affirmed.

¶ 34. THE JUDGMENT OF THE CHANCERY COURT OF PEARL RIVER COUNTY IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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


author: MAXWELL, J.,

text:
    Donald E. SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01891-COA.
    Court of Appeals of Mississippi.
    March 12, 2013.
    Rehearing Denied July 23, 2013.

      Donald E. Smith, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Donald E. Smith appeals the dismissal of his fifth motion for post-conviction relief. He argues the circuit court erroneously found his PCR motion was both time-barred and successive-writ barred. Finding no applicable statutory or fundamental-rights exceptions to these procedural bars, we affirm.

Facts and Procedural History

¶2. On July 11, 1973, Smith pleaded guilty to murder, armed robbery, and kidnapping in the Forrest County Circuit Court. He was sentenced to life for murder, forty-five years for armed robbery, and forty-five years for kidnapping, with the sentences to run consecutively. In 1985, Smith filed a petition for a writ of habeas corpus, which the circuit court denied. The Mississippi Supreme Court affirmed the denial but found Smith’s kidnapping sentence had exceeded the statutory maximum. Smith v. State, 477 So.2d 259, 260 (Miss.1985). On remand, the circuit court resentenced Smith to thirty years on that count.

¶ 3. Smith apparently filed another PCR motion, which the supreme court denied in an unpublished opinion. Smith v. Roberts, 726 So.2d 593, 593 (Miss.1998). He filed a third similar PCR motion in 1997, attacking the circuit court’s discretion to sentence him to life imprisonment for murder. The circuit court dismissed this motion as “preposterous and frivolous.” And on appeal, the supreme court affirmed this dismissal, finding Smith’s motion time-barred, successive-writ barred, and without merit. Smith v. State, 730 So.2d 567, 568 (¶ 4) (Miss.1998). Smith’s fourth PCR motion met a similar fate at the hands of this court. Smith v. State, 822 So.2d 298, 299 (¶ 2) (Miss.Ct.App.2001) (finding Smith’s motion was procedurally barred from our review).

¶4. On April 12, 2011, Smith filed yet another PCR motion, primarily asserting that his (1) life sentence had somehow expired, (2) his guilty plea was involuntary, and (3) his attorney was ineffective for allowing him to plead guilty to a murder charge, resulting in him serving an illegal life sentence. The circuit court summarily dismissed his claims as time-barred and successive-writ barred.

¶ 5. On appeal Smith raises a host of different claims, most of which are unclear. While his brief contains a multitude of vague mentions of constitutional breaches, our rules of appellate procedure require that each issue be separately numbered in a statement of the issues. M.R.A.P. 28(a)(3). Failure to present an allegation in this fashion bars our consideration of the issue. Reed v. State, 987 So.2d 1054, 1056-57 (¶¶ 6-8) (Miss.Ct.App.2008); see also M.R.A.P. 28(a)(6) (stating the argument section of an appellate brief “shall contain the contentions of the appellant with respect to the issues presented”). To the extent Smith has obscured certain allegations by not separately identifying them, we are under no duty to address the claims. Still, we have attempted to respond to those we can decipher.

Standard of Review

¶ 6. When reviewing a circuit court’s decision to deny a PCR motion, we review questions of law de novo and will not disturb the circuit court’s factual findings unless they are clearly erroneous. Holloway v. State, 31 So.3d 656, 657 (¶ 5) (Miss.Ct.App.2010). A circuit court may summarily dismiss a motion for post-conviction relief “if 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.” Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss.2009) (quoting Miss.Code Ann. § 99-39-11(2) (Rev.2007)).

Discussion

¶ 7. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), a motion for relief following a guilty plea is untimely unless filed within three years after entry of the judgment of conviction. Watts v. State, 97 So.3d 722, 725 (¶ 7) (Miss.Ct.App.2012) (citing Miss.Code Ann. § 99-39-5(2) (Supp.2012)). The UPCCRA also bars PCR motions from our review if the movant has filed a previous PCR motion. Miss.Code Ann. § 99-39-23(6) (Supp.2012); see also White v. State, 59 So.3d 633, 635 (¶ 6) (Miss.Ct.App.2011). Smith filed his latest PCR motion over twenty-five years beyond the applicable three-year limitations period. This is also his fifth attempt for post-conviction relief. So his motion is obviously both time-barred and successive-writ barred unless he can show an exception to these procedural bars. See Bell v. State, 95 So.3d 760, 763 (¶ 10) (Miss.Ct.App.2012) (citing White, 59 So.3d at 635 (¶ 8)). Because we find he fails to show any exceptions, we affirm.

I. No Statutory Exceptions Apply

¶ 8. There are three statutory exceptions to the three-year limitations period and successive-writ bar. To be exempted from these codified 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).

¶ 9. While Smith was obviously still alive at the time of his filing and briefing, he argues that the third exception applies because his life sentence has already “expired.” We find this assertion baseless and merits little discussion. We point out that had Smith been sentenced to less than a life term, it would have been proper for the circuit court to consider the merits of his expired-sentence claim. But the supreme court has already held that Smith was properly sentenced to life imprisonment for murder. See Smith v. State, 730 So.2d at 568 (¶ 14). And by definition, a life sentence does not “expire.” Rather, the only ways to “terminate” a life sentence are through vacatur of the sentence, pardon, death, or the parole process. The first three possibilities are not in play here, and as the State correctly points out, the fourth — the denial of parole — is not a valid ground for post-conviction relief. See Miss.Code Ann. § 99-39-5(1).

¶ 10. We also find Smith’s reliance on Mississippi Code Annotated section 99-19-21 (Rev.2007) is misplaced. Section 99-19-21(1) deals with a circuit judge’s discretion to order sentences for separate criminal offenses to run either consecutively or concurrently with one another. And section 99-19-21(2) applies only to persons “sentenced to imprisonment for a felony committed while ... on parole, probation, earned-release supervision, post-release supervision or suspended sentence.” Neither section lends credence to Smith’s claim that his life sentence has expired. So we find no error in the circuit declining to review Smith’s PCR motion under the expired-sentence exception.

II. No Fundamental-Rights Exception Applies

¶ 11. Though Smith meets none of the statutory exceptions to the procedural bars, the Mississippi Supreme Court has held that “errors affecting fundamental constitutional rights are excepted from the procedural bars.” Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010)). But the mere suggestion of a constitutional-right violation is not itself sufficient to surmount the time-bar. “There must at least appear to be some basis for the truth of the claim before the limitation period will be waived.” Ross v. State, 87 So.3d 1080, 1082 (¶ 8) (Miss.Ct.App.2012) (quoting Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss.Ct.App.2010)).

A. Involuntary Guilty Plea

¶ 12. While Smith argues his involuntary-guilty-plea claim is excepted from procedural bars under the fundamental-rights exception, this court has held otherwise. See Trotter v. State, 907 So.2d 397, 402 (¶¶ 14-15) (Miss.Ct.App.2005) (rejecting argument that involuntary-guilty plea claim should be considered a claim of a violation of a fundamental right); see also Cole v. State, 608 So.2d 1313, 1319 (Miss.1992) (“It is a well-settled principle that a state may attach reasonable time limits to the assertion of federal constitutional rights.”). Further, and most importantly, our supreme court in a previous PCR appeal found Smith’s “pleas of guilty were voluntary.” Smith, 477 So.2d at 260 (emphasis added). Thus, we find his challenge to his guilty plea on the murder charge is time-barred and successive-writ barred.

B. Ineffective Assistance of Counsel

¶ 13. Smith’s final claim, though difficult to decipher, is apparently based on his insistence that his attorney’s deficient performance resulted in him pleading guilty to a murder charge to which another individual had also pleaded guilty, rendering his life sentence illegal. Having reviewed this claim, we find it, too, should remain time-barred and successive-writ barred.

¶ 14. An ineffective-assistance claim requires a showing that: (1) counsel’s performance was deficient and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the timeliness of Smith’s particular challenge to the effectiveness of his attorney’s representation, “the Mississippi Supreme Court has consistently held that the time-bar of Mississippi Code Annotated section 97-39-5(2) applies to post-conviction relief claims based on ineffective assistance of counsel.” Crosby v. State, 16 So.3d 74, 78 (¶ 8) (Miss.Ct.App.2009). While “[i]t is conceivable that under the facts of a particular case, ... a lawyer’s performance was so deficient!]] and so prejudicial to the defendant]],] that the defendant’s fundamental constitutional rights were violated,” the supreme court “has never held that merely raising a claim of ineffective assistance of counsel is sufficient to surmount the procedural bar.” Smith v. State, 922 So.2d 43, 47 (¶ 9) (Miss.Ct.App.2006) (quoting Bevill v. State, 669 So.2d 14, 17 (Miss.1996)). So Smith’s mere attack on his attorney, without more, is not sufficient to circumvent the procedural time-bar or successive-writ bar. Nor may Smith contest his life sentence under the guise of a challenge to his attorney’s effectiveness since the supreme court has already reviewed and rejected his previous post-conviction challenge to the legality of his life sentence. Smith, 730 So.2d at 568 (¶ 4).

¶ 15. We are also mindful that a PCR movant has the burden to show both prongs of Strickland are met. Moody v. State, 644 So.2d 451, 456 (Miss.1994) (citation omitted). And a movant’s allegations under both prongs must be pled with specific detail. Jenkins v. State, 986 So.2d 1031, 1035 (¶ 14) (Miss.Ct.App.2008) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)). But here, Smith offers no specific, comprehensible details from which we could find he sufficiently pled, much less proved, deficient performance on his attorney’s part that prejudiced him. Accordingly, we find no viable fundamental-rights exception. Instead, we yield, as we must, to the supreme court’s previous findings that Smith’s “pleas of guilty were voluntary” and that he was represented during his guilty pleas by “competent counsel.” Smith, 477 So.2d at 259-60.

¶ 16. Because Smith’s claims are time-barred and successive-writ barred, we find no error in the circuit court’s dismissal of his most recent PCR motion.

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

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


author: STUART, Justice.

text:
    Bob J. HARDEN v. Bennie C. LANEY and Georgia Farm Bureau Mutual Insurance Company.
    1111130.
    Supreme Court of Alabama.
    Jan. 4, 2013.
    Joseph N. Harden and Eleanor R. Harden of Harden Law Firm, P.C., Carrollton, Georgia, for appellant.
    William H. Webster and T. Randall Lyons of Webster, Henry, Lyons, White, Bradwell & Black, P.C., Montgomery, for appellee Georgia Farm Bureau Mutual Insurance Company.
   STUART, Justice.

Bob J. Harden appeals the trial court’s order striking his notice of appeal. Because we hold that the trial court lacked jurisdiction to enter that order, the order will not support an appeal, and we must dismiss Harden’s appeal.

On June 26, 2007, Harden sued Bennie C. Laney, alleging that Laney’s negligence and wantonness resulted in an automobile accident in which Harden was injured. Georgia Farm Bureau Mutual Insurance Company (“GFB”) intervened in the action to protect its rights as an uninsured- or underinsured-motorist insurance carrier or subrogee and moved for a summary judgment. On February 16, 2012, the trial court entered a summary judgment for GFB and dismissed the case with prejudice. On March 29, 2012, Harden filed a notice of appeal in the trial court. On April 9, 2012, GFB moved the trial court to strike the notice of appeal, arguing that, because Harden’s notice of appeal was filed by an attorney who, at the time the notice of appeal was filed, did not possess an active license to practice law in the State of Alabama, Harden’s notice of appeal was a nullity. In its motion, GFB acknowledged that Harden’s notice of appeal was filed on “the forty-second day following this Court’s entry of its final order — the deadline to file such a notice pursuant to Rule 4 of the Alabama Rules of Appellate Procedure.” The trial court entered an order striking Harden’s notice of appeal on the basis that Harden’s attorney “was in an ‘Inactive’ status with the Alabama State Bar Association.” Harden appeals the trial court’s order striking his notice of appeal.

“[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). The timely filing of a notice of appeal invokes the jurisdiction of an appellate court and divests the trial court of jurisdiction to act except in matters entirely collateral to the appeal. Altmayer v. Stremmel, 891 So.2d 305, 309 (Ala.2004); Osborn v. Riley, 331 So.2d 268 (Ala.1976). See also Committee Comments to Rule 3, Ala. R.App. P. (“Timely filing of the notice of appeal is a jurisdictional act. It is the only step in the appellate process which is jurisdictional.”).

In this case, the trial court did not have jurisdiction to entertain GFB’s motion to strike Harden’s notice of appeal. Harden states, and GFB admits, that Harden’s notice of appeal was timely filed in the trial court. The timely filing of Harden’s notice of appeal divested the trial court of jurisdiction to act in this case and invoked this Court’s jurisdiction to act as to matters concerning Harden’s appeal. See Ex parte P & H Constr. Co., 723 So.2d 45, 48 (Ala.1998) (“‘Failure of an appellant to take any step other than the timely filing of a notice of appeal with the clerk of the trial court does not affect the validity of the appeal, but is ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal.’” (quoting Committee Comments to Rule 3, Ala. R.App. P.)). Because jurisdiction over Harden’s appeal rested in this Court when the trial court entered its order purporting to strike Harden’s notice of appeal, the trial court’s order is a nullity and will not support an appeal; therefore, Harden’s appeal from that order is dismissed.

APPEAL DISMISSED.

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

      . Earlier in the proceedings, the trial court had entered a summary judgment for Laney.