text:
    GLASSELL PRODUCING COMPANY, INC., et al. v. Junius A. NAQUIN, et al.
    NUMBER 2016 CA 0549
    Court of Appeal of Louisiana, First Circuit.
    JULY 05, 2017

      Daniel A. Cavell, Thibodaux, Louisiana, Attorney for Appellants, Defendants—Anita Gonzales, et al.
    Raymond A. Beyt, Aaron D. Beyt, Lafayette, Louisiana, Attorneys for Appel-lees, Plaintiffs—Glassell Producing Company, et al.
    Woody Falgoust, Cassie Rodrigue Braud, Thibodaux, Louisiana, Attorneys for Appellee, Defendant—Carol Naquin Boudreaux
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   WELCH, J.

|/The defendants/appellants, Shelia Richard Breaux, Angela Richard White, Ernie Richard, Jr., Travis Richard, Rene J. Durocher, Leo Durocher, Anita Maxwell Gonzales, and Laurie M. Bergeron, appeal a trial court judgment granting summary judgment in favor of the plaintiffs, Glassell Producing Company, Inc., Clare Attwell Glassell, widow of Alfred C. Glassell, Jr., Alfred C. Glassell, III, as trustee under the last will and testament of Alfred C. Glassell, Jr., and Woodrow A. Holland and John M. Robb, as co-trustees of the Alfred C. Glassell, Jr. Children’s Trust for Jean Curry Glassell under the Last Will and Testament of Alfred C. Glassell, Jr. For reasons that follow, we reverse the judgment of the trial court and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The instant appeal arises out of a con-cursus action involving a dispute over royalty payments due under a mineral lease. Junius A. Naquin, Carol Naquin Bou-dreaux, and Dolores Naquin Richard Durocher, were siblings, and each inherited an undivided one-third (1/3) interest ⅛ their father’s one-sixteenth (1/16) interest in and to the following property:

That certain tract or parcel of land containing thirty-one (31) acres, more or' less, being situated in the West Half of the East Half of the Southeast Quarter (W/2 of E/2 of SE/4) of Section 57, Township 15 South, Range 15 East, La-fourche Parish, Louisiana, being bounded Rnow or formerly as follows: North by Dewey Adams, East by the heirs of Joseph A. Adams, South by Lyric Realty & Parking Company and West by Joseph V. Roger, et al, and being the same lands acquired by virtue of that deed dated March 18, 1902, recorded under the COB 37, Page 694, Records of La-fourche Parish, Louisiana, executed by Cletus Adam in favor of Garciena Adam Naquin, wife of Octave Naquin. (“property”)

The history of the property reveals that in 1947, the siblings’ ancestor-in-title granted a mineral lease covering the one-sixteenth (1/16) property interest to S.P. Benckenstein (“1947 - lease”). The 1947 lease ■ provided for a one-eighth (1/8) reserved landowner’s royalty. Production under the 1947 lease commenced shortly thereafter from the ROB 2 RE SUA; C.J. Caulori No, 6 Well. '

The 1947 lease was in effect when Carol, Junius, and Dolores inherited their interests in the property. Thus, they each acquired titie to the property subject to the mineral lease that granted each sibling a orie-third (1/3) interest in one-sixteenth (1/16) of the property subject to a one-eighth (1/8) royalty under the 1947 lease. Expressed in decimal form, • each party acquired a one-third '(1/3) interest in a .00781255 royalty interest under the 1947 lease.

In August and October of 1993, while the 1947 lease was still in effect, Junius and Dolores each entered into an act of cash sale (“deed”) with Carol wherein each conveyed to Carol a royalty interest. Both deeds contain identical descriptions of the object being conveyed, to wit:

ALL OF SELLER’S right, title and interest consisting, of an undivided one third in a .00781255.mineral royalty interest in and to the following described property
A certain tract or parcel of land containing 26.34 acres, being in the W/2 of the E/2 of Section 57, T 15 S, R 15 E; being bounded as | .(follows: North by land of Dewey Adams now or formerly, East by Heirs of Joseph Adams now or formerly, South by Lyric Realty and Parking Company now or formerly, West by Roger heirs now or formerly, (“the deed”)

The 1947 lease remained in production until 1998; however, in April of 1998 the holders of the 1947 lease filed a release and surrender of the lease in the conveyance records. On May 15, 1998, Carol entered into a new mineral lease with Alfred C. Glassell, Jr. affecting a portion of the subject property (“1998 lease”). Under the terms of the 1998 lease, Carol received a one-sixth (1/6) royalty interest as part of the consideration for the lease. Alfred J. Glassell, Jr. did not seek or obtain a lease from Dolores or Junius. Production under the 1998 lease commenced in 1999 from the Mire RD SUA; J.V. Rogers, et al, No. 2 Well, said well remains in production to date.

On February 5, 2015, a petition for con-cursus was filed by .the then-holder of the 1998 lease, Legacy Trust Company, N.A. and the operator of the well, Glassell Producing Company, Inc. (collectively referred to herein as “plaintiffs”). The petition named as defendants:' Junius, Carol, and the heirs of Dolores, who are the appellants herein. The plaintiffs asserted that the defendants had conflicting claims to sums accruing from production under the 1998 lease. The petition asserted that Carol took the position that the 1993 deeds conveyed all of Junius and Dolores’ undivided right, title, and interest in the property. As to Junius and heirs of Dolores, the petition claimed that they asserted an undivided two-thirds (2/3) interest in and to the undivided interest in production, less any mineral royalties that may have been conveyed by the 1993 deeds. The plaintiffs sought to deposit the following sums in the court registry pending resolution of the matter:

[A]ll sums accruing to the interest in production of oil and gas from the Subject Lands as claimed by Junius A. Na-quin and...[the] heirs of Dolores Na-quin Richard Durocher, which have now accrued, less the cost of drilling, completing and operating the...unit well, and those net sums which will accrue from time to time in the future...

Un February of 2015, the defendants deposited $397,059.29 into the court registry.

Carol answered the plaintiffs’ petition and asserted that Junius and Dolores intended to sell and did sell all of their mineral royalty interest in the property by virtue of the October 1993 deeds and, further, that the “reference to a ‘.00781255’ mineral royalty interest was merely a typographical error” made by the notary who drafted the deeds between her and her siblings.

On April 27, 2015, the plaintiffs filed a motion to limit the time to file an answer under La. C.C.P. art. 4657. On May 6, 2015, the trial court ordered all defendants to file an answer ten days from publication of notice of the order. The heirs of Dolores timely filed their answer; however, Junius failed to file his answer within the delays set forth by the trial court. Following a contradictory hearing, the trial court issued a judgment dated October 26, 2015, setting aside and striking the answer of Junius and finding that Junius was precluded from asserting a claim in this matter against the plaintiffs. Junius did not seek appellate review of this ruling.

On November 24, 2015, the plaintiffs filed a motion for summary judgment against the heirs of Dolores. The plaintiffs asserted that Dolores transferred to Carol all of her right, title, and interest in and to the royalties under the property by the 1998 deed, thus, her heirs had no claim to the production proceeds deposited into the registry of the court. According to the plaintiffs, because Dolores placed no limitation on the royalty interest conveyed, the 1993 deed had the effect of creating a mineral royalty interest under La. R.S. 31:80, which is a real right subject to ten years prescription from the date of last production. See La. R.S. | fi31:85. Thus, the plaintiffs maintain that Carol has the right to all of Dolores’ royalty interest as long as the subject land remains under production without a lapse of ten years.

The plaintiffs supported their motion for summary judgment with copies of the 1947 lease, the 1998 lease, the 1993 deeds from Junius and Dolores to Carol, the affidavit of landman, David Deville, and the affidavit of Carol. In her affidavit, Carol attested that Junius and Dolores intended to transfer to her all of their right, title, and, interest in and to all royalties then due and thereafter due in an effort to divest themselves of income so as to qualify for governmental assistance. Carol filed a separate motion for summary judgment and adopted the plaintiffs’ arguments.

The heirs of Dolores countered the motion for summary judgment asserting that the deed only transferred Dolores’ one-eighth (1/8) retained royalty interest in the 1947 lease. The heirs of Dolores noted that the language is limited to the royalty percentage contained in the 1947 lease of one-eighth (1/8) and does not purport to convey any future royalty interests.

The heirs of Dolores also attached affidavits of two of Dolores’ daughters and Junius to counter the assertions contained in Carol’s affidavit. The daughters’ affidavits attested that their mother only intended to transfer her interest in the small royalty payments she was receiving at that time from the 1947 lease. Similarly, Junius attested that it was not his intention to transfer anything to Carol other than his royalty interests he was receiving from 1947 lease. Junius also attested that the deeds were drafted by an attorney hired by Carol.

Finally, the heirs of Dolores stressed that Carol had no authority to lease their interests in the property. Carol was never conveyed any type of mineral interest by Junius or Dolores; thus, Junius and the heirs of Dolores remain un-leased owners of the minerals.

|7Following a hearing, in a judgment signed on March 3, 2016, the trial court granted the plaintiffs’ motion for summary judgment and dismissed “any claim of said Defendants as to the proceeds of production from the Mire RD SUA; J.V. Rogers, et al, No. 2 Well deposited in the registry of the court or which may accrue hereafter.” In its oral reasons for judgment, the trial court explained why it found no factual or legal issues precluding judgment in favor of the plaintiffs:

Glassell Producing and Carol Naquin Boudreaux assert that the interests— the entire mineral interest that was owned by Dolores and Richard Durocher and Junius Naquin II were transferred by acts of the conveyance entitled “Cash Sale”.. .wherein they each—according to the movers—transferred their entire one-third (1/3) interest of what they had in mineral royalties at the time.
There’s no reference to the Bencken-stein lease [1947 lease] in the sale. There’s no reference any other lease in this sale. Prior to the acts of the cash sale, they were receiving their one-third (1/3) interests. After the sale, they ceased receiving their interests. The sales accomplished what they intended to do, which was to relieve themselves of the financial royalties, so that they could qualify for whatever governmental qualification they were trying to attain. None of that is in dispute.
The argument now, is that the terminology used in the acts of the cash sale where the- seller conveyed all of their right, title, and interest was really—I guess the argument is, “Well, they only intended to sell one-third (1/3) of the .0078 and they intended to keep two-thirds (2/3) of the .0078.” That flies in the face of the facts that occurred at the time of the sale and the facts that occurred after the sale, which resulted in zero apportionment.
I don’t think that there’s any dispute that these acts of sale transferred their interests—the interest of Junius II or the interest of Dolores Naquin to Carol. They’re not—those transfers of the interests were not somehow revived just because the Beckenstein lease went out of existence. Those • interest were already sold. They’re not revived. The fact that they moved on to a new provider or payor, Glassell, doesn’t bring them back into this mineral interests.

The heirs of Dolores have appealed and assert two assignments of error. First, they contend that the trial court erred in failing to find that the 1993 deed conveyed only Dolores’ royalty interest under the 1947 lease. Second, the heirs of Dolores assert that in awarding Carol all future production revenues from the Mire RD SUA; J.V. Rogers, et al, No. 2 Well, the trial court’s judgment went beyond |sthe relief requested by the plaintiffs, and fails to recognize the existence of their mineral rights as un-leased mineral owners.

LAW AND DISCUSSION

Summary Judgment

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. In re Succession of Beard, 2013-1717 (La. App. 1st Cir. 6/6/14), 147 So.3d 753, 759-760. The determination of whether a contract is clear or ambiguous is a question of law. Sims v. Mulhearn Funeral Home, Inc., 2007-0054 (La. 5/22/07), 956 So.2d 583, 590. Moreover, when a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law and summary judgment is appropriate. Id. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material for purposes of summary judgment can be seen only in light of the substantive law applicable to the case. Gaspard v. Graves, 2005-1042 (La. App. 1st Cir. 3/29/06), 934 So.2d 158, 160, writs denied, 2006-0882, 20060958 (La. 6/16/06), 929 So.2d 1286, 1289.

Mineral Royalty

Louisiana Revised Statutes 31:16 provides as follows regarding the creation mineral rights by a landowner:

The basic mineral rights that may be created by a landowner are the mineral servitude, the mineral royalty, and the mineral lease. This enumeration does not exclude the creation of other mineral rights by a landowner. Mineral rights are real rights and are subject either to. the prescription of nonuse for ten years or to special rules of law governing the term of their existence.

Mineral rights are incorporeal immovable property. La. R.S. 31:18. A mineral servitude is the right of enjoyment of land belonging to another for the 1 ^purpose of exploring for and producing minerals and reducing them to possession and ownership. La. R.S. 31:21. A mineral lease is a contract by which the lessee is granted the right to explore for and produce minerals. La. R.S. 31:114. A mineral royalty is “the right to participate in production of minerals from land owned by another or land subject to a mineral servitude owned by another.” La. R.S. 31:80; see also La. R.S. 31:213(5). A landowner owns all of these rights and may dismember them in any manner that is not contrary to law. See La. C.C. arts. 476 and 477; Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 2010-2267 (La. 10/25/11), 79 So.3d 246, 258.

The owner of a royalty has no executive rights, nor any rights to explore for or produce minerals. La. R.S. 31:81. A mineral royalty may be created either by a landowner who owns mineral rights or by the owner of a mineral servitude. La. R.S. 31:82. In the seminal case, Vincent v. Bullock, 192 La. 1, 16, 187 So. 35, 40 (1939), the supreme court recognized that “the legal nature of the royalty must be grounded upon the contract in which it appears.” In other words, “[t]he royalty depends upon the continued existence of the right to which it is an appendage.” Id. at 39. In further explaining the nature of royalty, the supreme court quoted with favor the following:

Royalty in itself cannot be used to designate the fundamental right which is being dealt with but only to indicate the percentage, the price, the rent, the consideration attached to or proceeding out of the right or that may proceed from it during its existence. The royalty depends upon the continued existence of the right to which it is an appendage. It cannot have a life of its own any more than- could interest exist apart from the note or debt to which it is attached. If a party to a contract sells royalty under an existent lease, he is selling a part or the whole of his rent due from the lease upon which his royalty depends. If he sells royalty under an existing servitude, he is selling a part of the proceeds to issue from the use of that servitude and the royalty sale is dependent upon the life and use of the servitude. If a landowner sells royalty he is selling the proceeds that may issue from his right to explore for minerals on his own land, which is an inherent part of his ownership of the land. If a landowner sells his land and the right to explore inherent in the la/nd and reserves royalty, he is 1 mreserving a share in the anticipated production to ■■ result if and when successful exploration ensues upon the land sold in fall ownership;’
Vincent v. Bullock, 187 So. at 39-40, citing. H. Daggett, Mineral Rights in Louisiana § 61 (1949). [Italics emphasis in original.]

Taking these principles into consideration, the supreme court in Vincent found that the reservation of a general future royalty interest by a vendor of immovable property created a real right burdening the property. Id. at 40. However, the supreme court’s analysis turned on the vendor’s right to dismember some property rights, while retaining others, and concluded, based on the language in the transfer document, that the vendor had retained the disputed royalty interest. Id. Thus, the royalty right there was an appendage of the vendor’s property rights and the sale thereof. Nevertheless, in analyzing the nature of royalty interests, the court in Vincent recognized that not all royalty interests create real rights in the property. Notably, the court recognized that “[i]f a party to a contract sells royalty under an existent lease, he is selling a part or the whole of his rent due from the lease .upon which his royalty depends.” Id. at 39-40. Subsequent cases have recognized that a royalty that is an appendage of a lease falls away or ceases to burden the property when the lease terminates. See Wier v. Glassell, 216 La. 828, 836, 44 So.2d 882, 885, 887-888 (1950); Humble Oil & Refining Co. v. Guillory, 212 La. 646, 651, 33 So.2d 182, 184 (1946); Calcasieu Oil Co., Inc., v. Yount-Lee Oil Co. et al., 174 La. 547, 141 So. 55, 56-57. The different ways in which a mineral royalty are extinguished has been codified in La. R.S. 31:85.

Ininterpretation of October 1993 Act of Cash Sale

At issue in the instant matter is whether the royalty interest conveyed by Dolores to Carol created a real right in the property or was an appendage to the 1947 lease that ceased to burden the property once the 1947 lease was terminated. Therefore, the issue herein is one of contract interpretation. The principle of freedom of contract is expressly recognized by the Mineral Code. See La. R.S. 31:3; Prey v. Amoco Production Co., 603 So.2d 166, 172 (La. 1992). In the context of mineral rights, just as in other contexts, contracts are interpreted to determine the intent of the parties. La. C.C. art. 2045; Quality Environmental Processes, Inc. v. I.P. Petroleum Company, Inc., 2013-1582 (La. 5/7/14), 144 So.3d 1011, 1020. Provisions susceptible of different’ meanings must be interpreted with a meaning that renders the provision effective and not ineffective. See-La. C.C. art. 2049. Each provision in • a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

In their first assignment of error, the heirs of Dolores maintain that the trial court erred in failing to find that the 1993 deed conveyed only Dolores’ royalty interest in the 1947 lease. According to the heirs of Dolores, the language of the 1998 deed unambiguously limited the royalty interest sold to the 1947 lease. In support of their position, the heirs of Dolores note that no future royalties are conveyed, the limitation of the language describing what is being conveyed, and the use of the singular when referring to “a .00781255 mineral royalty” versus the term “all royalties,” and the percentage conveyed under the deed is that contained in the 1947 lease.

| iaCiting affidavits of Carol, Junius, and Dolores’ daughters, the heirs of Dolores make the alternative argument that if the October 1993 deed is found to be ambiguous, then the conflicting accounts by Carol, Junius, and Dolores’ daughters regarding the parties’ intent is sufficient to create an issue of material fact precluding a motion for summary judgment. Additionally, they contend that any ambiguity should be construed against Carol, because her attorney drafted the deed.

In contrast, the plaintiffs argue that there is no language in the deed that can be found to support the position that the deed only transferred Dolores’ royalty interests in the 1947 lease, as there is no reference to that lease or any lease in the deed. The plaintiffs maintain that the reference in the 1993 deed indicating that Dolores was conveying her one-third (1/3) interest of “a .00781255” royalty interest does not limit the royalty interest transferred to that decimal equivalent, but merely defines the royalty participation on the date of the deed. Instead, the plaintiffs focus on the phrase “ALL OF SELLER’S right title and interest” as evidence that the parties intended to transfer all of Dolores’ royalty interest in the property. The plaintiffs contend that this situation is governed by La. C.C. art. 2052, which provides that “[w]hen the parties intend a contract of general scope but, to eliminate doubt, include a provision that describes a specific situation, interpretation must not restrict the scope of the contract to that situation alone.”

Mindful that “[t]he legal nature of the royalty must be grounded upon the contract in which it appears,” we find the deed to be a limited conveyance of Dolores’ royalty interest in the 1947 lease. See Vincent v. Bullock, 187 So. at 40. Despite the assertions of the plaintiffs that the deed conveys a general royalty interest in Dolores’ interest in the property, the deed is devoid of language evidencing a general transfer of all of Dolores’ royalty interest that she held in the property. The phrase “ALL OF SELLER’S right title and interest,” simply 11smodifies the phrase “consisting of an undivided one third in a .00781255 royalty in a royalty interest.” The reference to “all” indicates that Dolores conveyed “all” of her entire interest of the one-eighth (1/8) royalty interest in the 1947 lease affecting the property, instead of retaining a fractional percentage of the royalty interest being conveyed. As noted above, owners are free to dismember their royalty interests in any legal fashion, including by transfer of a fractional interest.

Moreover, there is no language conveying “any and all royalty interest” that Dolores was entitled to in the property. Rather, the deed is discreet in its conveyance of “a .00781255 royalty in a royalty interest.” [Emphasis added.] This cannot be interpreted to be a general transfer of all of Dolores’ royalty interest the property, as argued by the plaintiffs, nor can it be interpreted as a conveyance of all of Dolores’ ownership interest in the property, as argued by Carol.

The plaintiffs suggest that the failure to reference the 1947 lease, or any lease, in the deed renders it a general conveyance of Dolores’ royalty interest in the property. Carol suggests in her answer that the specific reference to the royalty interest in the 1947 lease was a typographical error. We find no merit in either argument. As set forth above, the deeds were clearly contracts of sale for a specific royalty interest in the 1947 lease.

“The royalty depends upon the continued existence of the right to which it is an appendage.” Vincent v. Bullock, 187 So. at 39. Here, Dolores sold her royalty under an existent lease; thus she sold all of her rents due from the 1947 lease upon which the royalty conveyed in the deed is based. See Id. at 39-40. Here, we find that the particular royalty interest conveyed by Dolores was an appendage to the 1947 lease; therefore, when the 1947 lease was terminated, royalty interest associated therewith ceased to burden her interest.

Based on the above, we find that the trial court erred as a matter of law in finding that the 1993 deed conveyed a general royalty interest in the defendants’ | uproperty, amounting to a real right. Thus, we reverse the trial court’s grant of the plaintiffs’ summary judgment and remand this matter for further proceedings in keeping with the views expressed in this opinion.

Our reversal of the trial court’s judgment granting the motion for summary judgment and remanding the matter to the trial court pretermits our consideration of the appellants’ second assignment of error, wherein they contend.that the judgment of trial court goes beyond the relief requested by the plaintiffs in their motion.

CONCLUSION

For the above reasons, we reverse the trial court’s judgment signed March 3, 2016 dismissing the claims of the defendants/appellants, Shelia Richard Breaux, Angela Richard White, Ernie Richard, Jr., Travis Richard, Rene J. Durocher, and Leo Durocher, Anita Maxwell Gonzales, and Laurie M. Bergeron, and remand this matter to the district court for further proceedings. All costs of this appeal are to be divided between the plaintiffs/appellees, Glassell Producing Company, Inc., Clare Attwell Glassell, widow of Alfred C. Glas-sell, Jr., Alfred C. Glassell, III, as trustee under the last will and testament of Alfred C. Glassell, Jr., and Woodrow A. Holland and John M. Robb, as co-trustees of the Alfred C. Glassell, Jr. Children’s Trust for Jean Curry Glassell under the Last Will and Testament of Alfred C. Glassell, Jr.

REVERSED AND REMANDED.

      . The petition and motion for summary judgment at issue herein was originally filed by Glassell Producing Company, Inc. and Legacy Trust Company, N.A. However, following the signing of the judgment on March 3, 2016 granting the plaintiffs' motion for summary judgment at issue herein, a judgment of possession was entered in the matter entitled Succession of Alfred C. Glassell, Jr., Probate Docket No. 21084, 17th Judicial District Court, Lafourche Parish, The judgment of possession removed Legacy Trust Company, N.A. as the provisional administrator of the succession and placed the following parties in possession'of the oil, gas, and mineral lease at issue in the current matter; Clare Attwell Glassell, widow of Alfred C. Glassell, Jr„ Alfred C, Glassell, III, as trustee under the last will and testament of Alfred C. Glassell, Jr,, and Woodrow A. Holland and John M. Robb, as co-trustées of the Alfred C. Glassell, Jr. Children’s Trust for Jean Curry Glassell under the Last Will and Testament of Alfred C. Glassell, Jr. As a result of the judgment of possession in tire succession matter, a "Motion to Substitute Party Plaintiffs" was filed in the trial court and this court. In an order dated September 22,.2016, this court remanded this matter to the trial court for the limited purpose of ruling on the motion to substitute and supplement the record. In a judgment signed October 4, 2016, the trial court granted the motion to substitute.

      . This legal description of tire property is taken from the plaintiffs’ petition for concursus, We note that different documents in the record contain a different accounting of the amount of acreage contained in the tract;however, the boundary owner descriptions in all of the documents are.the same. It is well, settled in our jurisprudence that the identification of land by acreage or quantity is the lowest ranking of all enumerated standards in describing property. See Blevins v. Manufacturers Record Publishing Co., 235 La. 708, 105 So.2d 392 (1957), Further, we note that the parties do not contest the property boundary descriptions, or that the property description is otherwise inaccurate.

      . See footnote 2.

      . Louisiana Code of Civil Procedure article 966 was amended by 2015 La. Acts, No. 422, § 1, effective January 1, 2016. Section 2 of 2015 La. Acts, No. 422, provides that: "[t]he provisions of this Act shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date of this Act.” Here, the pendency of the motion on the effective date of 2015 La. Acts, No. 422 results in the application of the prior version of La. C.C.P. art. 966 to the instant matter.

      . Louisiana -Revised Statutes 31:85 provides . as follows:
      A mineral royalty is extinguished by:
      (1) prescription resulting from nonuse for ten years;
      (2). confusion with the title out of which it was created;
      (3) renunciation of the royalty right on the part of him to whom it is due, or the express remission of his right;
      (4) expiration of the time for which the royalty right was granted or happening of the dissolving condition attached to the mineral royalty; or . .
      (5)extinction of the right of him who established the mineral royalty, except that the' extinction of a mineral servitude by inheritance or by any act of the servitude owner does not extinguish a royalty burdening the servitude unless the royalty owner is a party to the act or otherwise consents expressly and in'writing to become bound by it,


source: Caselaw Access Project

author: WALLER, CHIEF JUSTICE, KING, JUSTICE,

license: Public Domain

text:
    Ceasar JOHNSON, III a/k/a Cee Cee v. STATE of Mississippi
    NO. 2015-KA-00853-SCT
    Supreme Court of Mississippi.
    12/15/2016
    Rehearing Denied April 27, 2017

      ATTORNEY FOR APPELLANT: OFFICE OF INDIGENT APPEALS BY: JUSTIN T. COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
   WALLER, CHIEF JUSTICE,

FOR THE COURT:

¶ 1. Ceasar Johnson was convicted in the Bolivar County Circuit Court for being a felon in possession of a firearm and for the murder of Gregory Johnson. He was sentenced to life in prison. He now appeals the conviction,’ which we affirm,

FACTS AND PROCEDURAL HISTORY

¶2. On November 1, 2012, Gregory Johnson (Greg) was shot and killed while in his vehicle in the parking lot- of J.Y. Trice Apartments in Rosedale, Mississippi. Ceasar Johnson (Ceasar) was indicted for Greg’s murder on August 26, 2013, On April 9, 2015, a jury convicted Ceasar Johnson of being a felon in possession of a firearm and of murdering Greg. The circuit judge sentenced Ceasar to life in prison for the murder charge and to ten years for the felon-in-possession-of-a-firearm charge, with the two sentences to run consecutively. Ceasar filed a Motion for a New Trial on April 20, 2015. The trial court denied the motion on May 4, 2015. Ceasar timely filed his notice of appeal with this Court on June 3, 2015.

¶ 3. Ceasar Johnson asserted two issues on appeal: (1) Because the State’s case rests solely on conjecture and supposition, and because Ceasar presented a reasonable hypothesis consistent with his innocence, the State presented insufficient evidence to convict Ceasar of first-degree murder and being a felon in possession of a firearm; and (2) because the State’s case against Ceasar amounts to nothing more than a hunch, and because Ceasar presented compelling corroborated evidence of a reasonable hypothesis consistent with his innocence, the overwhelming weight of the evidence requires a new trial.

DISCUSSION

A. Sufficiency of the Evidence

¶ 4. When reviewing a challenge to the sufficiency of the evidence, this Court will reverse and render only if the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could- not have found beyond a reasonable doubt that the defendant was guilty.” Brown v. State, 965 So.2d 1023, 1030 (Miss. 2007) (quoting Bush v. State, 895 So.2d 836, 843 (Miss. 2005)). The evidence will be deemed sufficient if “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Brown, 965 So.2d at 1030 (quoting Bush, 895 So.2d at 843). This Court also considers the evidence in the light most favorable to the State. Bush, 895 So.2d at 843. The State receives the benefit of all favorable inferences that reasonably may be drawn from the evidence. Wilson v. State, 936 So.2d 357, 363 (Miss. 2006).

¶ 5. The instant case was based on circumstantial evidence since Ceasar did not confess and there were no eyewitnesses to the crime. As a result, the State had the burden to prove Ceasar’s guilt “not only beyond a reasonable doubt, but to the exclusion of every reasonable hypothesis consistent with innocence.” Beasley v. State, 136 So.3d 393, 402 (Miss. 2014) (quoting Leflore v. State, 535 So.2d 68, 70 (Miss. 1988)). However, this Court repeatedly has held that “direct evidence is unnecessary to support a conviction so long as sufficient circumstantial -evidence exists to establish guilt beyond a reasonable doubt.” Underwood v. State, 708 So.2d 18, 35 (Miss. 1998) (quoting Conner v. State, 632 So.2d 1239, 1252 (Miss. 1993)).

¶ 6. Ceasar was convicted pursuant to Mississippi Code Section 97-3-19(l)(a), which defines murder as: “The killing of a human being without the authority of law by any means or in any manner ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being .... ” Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2014). Therefore, the prosecution is required to prove beyond a reasonable doubt that: “(1) the defendant killed the victim; (2) without authority of law; and (3) with deliberate design to effect his death.” Brown v. State, 965 So.2d 1023, 1030 (Miss. 2007).

¶ 7. Ceasar claims that the State failed to exclude every reasonable hypothesis consistent with his innocence, as someone else could have killed Greg. After a review of the State’s evidence, we find that the State presented sufficient evidence to show that Ceasar murdered Greg and that the other hypotheses were not reasonable.

¶8. At trial, the State presented" evidence that Ceasar had planned to rob Greg. Christopher McKenzie, an admitted cocaine addict, testified that, maybe one or two weeks before Greg was murdered, he heard Ceasar speaking with two other men abut robbing Greg. Because Ceasar sold drugs for Greg, the State argued that Cea-sar was looking to move up the supply chain. No evidence was presented to contradict McKenzie’s testimony.

¶9. Devenje Edwards, Ceasar’s girlfriend at that time, testified that Ceasar had sold marijuana. Edwards stated that at the time of the murder, Ceasar was living in Rosewood Apartments with his sister. Rosewood Apartments were approximately two miles from J.Y. Trice Apartments and about half of a mile from the Double Quick. She testified that she was with Ceasar, his father, and his sister the night of November 1, 2012, at the laundromat until she left to go to her grandmother’s house. Ceasar did not tell her where he was going afterward that night.

¶ 10. Kiadric Scott testified that he had seen Greg and Ceasar together at J.Y. Trice apartments. He stated that Greg and Ceasar regularly parked at the J.Y. Trice Apartments. Initially, in his official statement to investigators, he claimed that this was later in the evening, closer to the time of the murder, but at trial, he testified that it was “way before it got dark.” He also claimed that Ceasar was his “homeboy.”

¶ 11. The State’s evidence puts Greg and Ceasar together immediately before the shooting occurred. A Double Quick security videotape placed Ceasar in Greg’s vehicle immediately before the shooting occurred. The video recorded substantial movement between Greg and Ceasar in the vehicle, but no reason for the movement was apparent. Counsel at trial made no issue of: the identity* of Greg or Cea-sar; the fact they were in Greg’s car, in which Greg was later found murdered; or the date and time stamp of the video. The security video showed Greg with Ceasar in the passenger seat of his vehicle, pulling out of a Double Quick parking lot at 10:18 p.m. At 10:26 p.m., or eight minutes later, police informed dispatch that they were responding to a call reporting a murder at the J.Y. Trice Apartments. J.Y. Trice Apartments are approximately one mile from the Double Quick.

¶ 12. Larita Love and her boyfriend Jonathon Smith were the first on the scene of the murder. Smith had arrived at Love’s apartment at the J.Y. Trice Apartments at about 9:40 p.m. Love and Smith had a long-term relationship, and he was the father of her children. From her daughter’s bedroom window, Love saw Greg sitting in his car in the parking lot. She did not see anyone else in the vehicle. Shortly thereafter, she testified that she heard the car spinning off and two to three gunshots, followed by a crash. Greg’s vehicle crashed partially through the exterior wall of their daughter’s bedroom, hitting the bed. Smith retrieved their daughter, who was the only one in the room at the time, from her bed. Panicked, Smith and Love then went outside to investigate. Smith found that the engine was running, the tires were spinning, and Greg was slumped over the wheel. Smith cut off the car’s engine. Love got the children and drove to find some help and located Officer Honorable on the highway a short distance away. Smith went first to the apartment manager’s office, then to a neighbor, Brontavious Cooper, whom hé asked to call 911 and go get help. As Smith was returning to the scene of the accident, Officer Honorable arrived on the scene. Both Love and Smith testified that they did not use their cell phones because they “panicked” and were “scared.”

¶ 13. Though Love testified that Greg was alone in the vehicle, Dr. Erin Barn-hart, the pathologist who performed the autopsy, testified that Greg was shot twice, in the face and head, from the passenger side or from right to left. The first shot was fired from an intermediate range, not directly against the skin but from' a distance of less than three feet. The range of the second shot could not be determined because the victim’s hair surrounded the wound and obscured the pathologist’s view of the skin.

¶ 14. Following the incident, Smith was tested for the presence of gunshot residue on his hands. The right hand was completely clear of any residue, while the back of the left hand was positive. However, the ■laboratory technician testified at trial that the “indicative particle [did] not possess the combination of morphological characteristics and elemental composition necessary to identify it as gunshot residue to the exclusion of all other environmental sources.” Smith and Love both complied with the police investigation and were questioned. Smith testified that'he had not changed his clothes between the time of the incident and his going to the police station for questioning.

¶ 15. Cooper testified that almost a month after Greg’s murder, Ceasar had approached him while he was working at the Double Quick gas station. He testified that Ceasar had questioned him about whether the Drug Enforcement Administration (DEA) had spoken to him and whether he had told the DEA that Ceasar “pulled the trigger,” speaking of Grég’s murder. He also testified that the conversation concerned him and that he felt “kind of shaken up” after the exchange.

¶16. The defense did not present an alternative theory as to how Greg was murdered. Instead, the defense presented testimony from several friends and relatives of the defendant that attempting to show that Ceasar was dropped off at another apartment complex before the murder occurred. Alfreada Hudson, Ceasar’s sister, testified that at 10:00 or 10:18 p.m., Ceasar was at the Rosewood Apartments with ;Greg. She also testified that after Greg dropped off Ceasar, the group, including her, Ceasar, her sister, and her father, headed toward Greenville to go to a casino. However, after they received news about the shooting, they decided to go to Walmart and Wendy’s. Camelisha Thomas, Hudson’s and Ceasar’s sister, corroborated this account. However, no receipts were ever presented in support of this alibi. Lasheba Matthews, a friend of Ceasar’s family, also testified that she had seen Ceasar get out of Greg’s car at Rosewood Apartments. Matthews came forward as a witness thirty-seven days before the trial began." '

¶ 17. The time sequence creates an objective factor to test the reliability and credibility of the witnesses’ various accounts. Viewing the evidence in the light most favorable to the State and the jury’s verdict, the short time lapse renders the alleged intervening stop at Rosewood Apartments implausible. “A mere fanciful or farfetched or unreasonable hypothesis is not sufficient to require an acquittal .... ” Cotton v. State, 144 So.3d 137, 140 (Miss. 2014) (quoting Montgomery v. State, 515 So.2d 845, 848 (Miss. 1987)). Additionally, the burden of determining witness credibility is placed on the jury. Jones v. State, 920 So.2d 465, 472 (Miss. 2006). Sufficient evidence existed on which a jury reasonably could have relied to find, beyond a reasonable doubt, that Ceasar murdered Greg. Because: (1) the jury reached this conclusion, (2) Ceasar was an undisputed felon, and (3) Greg died; of gunshot wounds, it is clear that sufficient evidence existed on which a jury could have found that Ceasar was a felon in possession of a firearm. Ceasar’s argument here is without merit.

B. Weight of the Evidence

¶18. This Court will reverse only if the lower court abused its discretion in denying a motion for new trial. Howell v. State, 860 So.2d 704, 764 (Miss. 2003) (citing Edwards v. State, 800 So.2d 454, 464 (Miss. 2001); Sheffield v. State, 749 So.2d 123, 127 (Miss. 1999)). A new trial should be granted on the basis of the weight of the evidence “only in exceptional circumstances, when the evidence weighs heavily against the jury’s verdict.” Wilson v. State, 936 So.2d 357, 363 (Miss. 2006) (citing Bush, 896 So.2d at 846).

¶ 19. Except for Matthews, all Ceasar’s witnesses to the Rosewood stop were family members. Matthews-was a neighbor of one of Ceasar’s sisters and obviously was acquainted with the family. Based on the uncontroverted time stamp from the Double Quick of 10:18 p.m., Hudson’s testimony that she, her sister Thomas, and Cehsar gathered at 10:00 p.m. or 10:18 p.m. prior to leaving for the casino is sequentially impossible. While Love did not see a passenger in Greg’s car when she looked out the window, the testimony of the pathologist would be consistent with the shooter firing the fatal shots while standing outside the front-seat passenger window of the vehicle or sitting in the passenger seat. This fact, the alleged intimidation of Cooper by Ceasar, and the other evidence offered by the State, supports Ceasar’s conviction, and we cannot say that the evidence preponderates heavily against the jury’s decision to convict Ceasar of being a felon in possession of a firearm and of murdering Gregory Johnson. The trial court therefore did not abuse its discretion in denying a new trial.

CONCLUSION

¶20. After a thorough review of the record in. this case, we find that sufficient evidence existed to convict Ceasar Johnson and that the verdict was not against the overwhelming weight of the evidence. Therefore, we affirm the trial court’s judgment.

¶ 21. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL RUN CONSECUTIVELY TO ANY -AND ALL SENTENCES PREVIOUSLY IMPOSED. COUNT II: CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I.

RANDOLPH, P.J., LAMAR, MAXWELL AND BEAM, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KITCHENS AND COLEMAN, JJ.

KING, JUSTICE,

DISSENTING:

¶ 22. Because I believe the State proved only the possibility of Ceasar Johnson’s guilt and failed to exclude all reasonable hypotheses consistent with his innocence, I dissent.

¶ 23. The critical inquiry when considering whether the evidence is sufficient to sustain a conviction is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (Miss. 2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss. 1968)). “The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct 2781, 61 L.Ed.2d 560 (1979)). If the facts and inferences “ ‘point in the favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,’ the proper remedy is for the appellate court to reverse and render.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss. 1985)).

¶ 24. Because this case does not involve a confession and because no physical evidence or eyewitness testimony was presented linking Ceasar to Greg Johnson’s murder, this case is entirely one of circumstantial evidence. Circumstantial evidence is evidence “which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.” McInnis v. State, 61 So.3d 872, 875 (Miss. 2011) (quoting Keys v. State, 478 So.2d 266, 268 (Miss.1985)). “The State could rely on circumstantial evidence, but where a case is based wholly on circumstantial evidence, the [S]tate must prove [the defendant’s] guilt beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence.” Murphy v. State, 566 So.2d 1201, 1204 (Miss. 1990) (emphasis in original). The burden in a purely circumstantial-evidence case is heavier than the burden in a direct-evidence case. Id. The trial court gave a circumstantial-evidence jury instruction and a two-theory instruction.

¶ 25. Put differently, because the State presented no direct evidence, the State must have proven Ceasar’s guilt to the exclusion of all reasonable hypotheses consistent with his innocence. Previously, in Murphy, this Court reversed the defendant’s burglary conviction after determining that the State’s evidence established, nothing more than a probability of guilt. Murphy, 566 So.2d at 1206. Although the State had proven that two stolen chainsaws had been in the defendant’s possession, the defendant argued that he had not stolen the chainsaws but had found them in plastic bags behind a dumpster. Id. at 1208. This Court found that the State had failed to exclude the reasonable hypothesis that someone else had broken into the shed and stolen the chainsaws. Id. at 1206. •

¶ 26. Similarly, in Steele, the defendant’s capital-murder conviction was reversed after this Court determined that the evidence did not link the defendant with the victim’s injury. Steele v. State, 544 So.2d 802, 808 (Miss. 1989). The State had proven that the defendant likely had burned with a hair dryer a young girl he was babysitting and that the young girl probably had not sustained her head injury by falling off her bed. Id. at 809. However, the State failed to prove that the burns were not inflicted by someone else or that the girl did not fall while jumping on her bed. Id. This Court stated, “[t]he problem in this case is that the evidence ‘merely establishes some finite probability in favor of the state’s hypothesis.” Id.

¶ 27. The Hester Court also reversed the defendant’s capital-murder conviction, finding that the State had failed to exclude the reasonable hypothesis that a third party had been the victim’s assailant. Hester v. State, 463 So.2d 1087 (Miss. 1985). The victim was stabbed to death in a wooded area that had been covered with leaves-after leaving the bar with the defendant, and the defendant had returned to the bar alone in an upset and disheveled condition. Id. at 1092. However, because the State presented no evidence linking the defendant with a knife found at the defendant’s house and failed to overcome the reasonable hypothesis that someone else had robbed and stabbed the victim, the defendant’s presumption of innocence prevailed. Id. at 1093-94. And in the Sanders case, a sixteen-month-old girl was found starved to death in a room to which the defendant had. the only key. Sanders v. State, 286 So.2d 825 (Miss. 1973). Yet this Court reversed the defendant’s conviction after the State failed to rebut the reasonable hypothesis that someone else had locked the girl in the room. Id. at 829.

¶ 28. Similarly here, I believe the State failed to rebut the reasonable hypothesis that someone else killed Greg. While the State presented evidence showing that Ceasar could have murdered Greg, as this Court previously has emphasized, “[i]t is fundamental that convictions of crime-cannot be sustained on pioof which amounts to no more than a possibility or even when it amounts to a probability.” Murphy, 566 So.2d at 1204 (emphasis in original) (citations omitted). For conviction, evidence of Ceasar’s guilt “must rise to the height which will exclude every reasonable doubt; that when in any essential respect the state relies on circumstantial evidence, it must be such as to exclude every other reasonable■ hypothesis than that the contention of the state is true, and -that throughout the burden of proof is on the state.” Id. (emphasis in original). As testimony indicates, a reasonable hypothesis consistent with Ceasar’s innocence is that Ceasar was not at J.Y. Trice Apartments when Greg was murdered and that someone else murdered Greg.

¶ 29. The majority first states that the State presented evidence that Ceasar had planned to rob Greg. Christopher McKenzie, an admitted cocaine addict, testified that he was not friends with Ceasar at all. McKenzie testified that, in reference to Ceasar, “Like I say I may—I know him, but I don’t—didn’t know him know him. ... I know him, but I didn’t know him very' well at the time.” He testified that one night, probably a week or two before Greg was murdered, he heard Ceasar talking to two other men about robbing Greg. McKenzie had not been in the same room as the three men when he overheard the conversation and stated that' there had been a wall between him and the others. He testified that all three men had been talking about robbing different people. At' the time he testified that he had overheard Ceasar, McKenzie had just bought cocaine and he stated that he was “fixing to get high.” His statement to the police said that' he had been in the laundry room “getting high” when he overheard the. conversation. At trial, McKenzie admitted that he had been smoking crack when he stated he heard Ceasar say this. Even if McKenzie’s testimony was accurate, his statement does not link Ceasar to Greg’s murder, Ceasar was not charged with robbery and no evidence was presented that Greg had been robbed that night.

¶ 30. The majority also states that Cea-sar had been with Devenje Edwards, his girlfriend at the time, previously that night at the laundromat and that “Ceasar did not tell her where he was going afterwards that night.” Yet the failure to inform one’s girlfriend of what one intends to do is not evidence supporting murder.

¶ 31. Kiadric Scott testified that on November 1, 2012, he had been at J.Y. Trice Apartments “way before it got dark” and that he had seen Greg and Ceasar there together. He stated that Greg had been “backed up there all the time, just chilling.-” Although Scott testified that it was earlier in the day when he had seen the two together, Scott had given a statement to investigators that he had just gotten his hair fixed at J.Y. Trice Apartments when he saw Greg and Ceasar parked in thé same parking spot where Greg was murdered at “nine going on ten” o’clock that night. Whether Scott had seen Ceasar and Greg-around “nine going on ten” or earlier in the day, either time was before. Ceasar and Greg went to the Double Quick. Therefore, Scott’s testimony did not constitute evidence that Ceasar had been present at J.Y. Trice Apartments after 10:00 p.m.

¶ 32. The evidence presented also did not refute the testimony of three witnesses that Greg had dropped off Ceasar at Rosewood Apartments before he was .murdered. See Bankhead v. State, 626 So.2d 115, 119 (Miss. 1993) (“Nowhere in the record does there appear any testimony which effectively, refutes Bankhead’s version of the events that night.”). Hudson testified that Greg had, dropped off Ceasar at the Rosewood Apartments around 10:00 or 10:18 that night and that Greg had left Rosewood Apartments alone. She stated that Ceasar had received a call while on the way to Greenville that Greg had been killed and that, the family had been so upset that they had canceled their plans and turned around to get something to eat instead. Thomas corroborated Hudson’s testimony, stating- that she was with Hudson when they picked up Ceasar from Rosewood Apartments at 10:18 that night and that Greg had dropped off Ceasar and had left the apartments alone. Matthews, who was not related to Ceasar or his family, testified that she lived at Rosewood Apartments and saw Ceasar get out of Greg’s car that night in .the Rosewood Apartments parking lot, Matthews stated that when she got into her car, Greg had been driving out of the apartment complex and that Ceasar had been walking to his sister’s car.

¶ 33. In contrast, the State presented no testimony or evidence that Ceasar was present at J.Y. Trice Apartments after Ceasar and Greg left the Double Quick; In fact, even taking all of the evidence presented as true, I believe the State failed to disprove the reasonable hypothesis that someone else shot Greg. See Wooldridge v. State, 274 So.2d 131, 133 (Miss. 1973).(“Assuming that everything testified to by the state witnesses is absolutely true, there still remains a reasonable hypothesis other than that Woolridge burglarized the bank ....”). Even testimony from the State’s witnesses fails to merit an inference that Ceasar was at J.Y. Trice Apartments after leaving the Double Quick. Love testified that when she looked out of the window to see whose car was parked outside her apartment, she did not see anybody in the passenger seat of Greg’s car. Moreover, although Smith and Love were the first to discover that Greg had been shot, neither of them called 911 despite both having cell phones on their persons. And Smith had tested positive for a particle indicative of gunshot residue on the back of his left hand in a gunshot-residue test, despite stating that he had not held or shot a gun that day.

¶34. The majority states that “the defense did not present an alternative theory as to how Greg was murdered.” However, the defense is in no way required to present an alternative theory to how Greg was murdered. In all likelihood, the defense did not know, and could not have known, how Greg was murdered. Anybody could have shot Greg' that night between the time Ceasar and Greg left the Double Quick and the time Love flagged down Officer Honorable. The majority additionally uses the alleged intimidation of Cooper to support Ceasar’s conviction. I believe this is improper, as the witness-intimidation charges were severed and were not proven at trial. “In a criminal case the accused is protected, at every stage of the trial, with a presumption of innocence and until he is proven guilty beyond a reasonable doubt by proper and competent evidence.” White v. State, 532 So.2d 1207, 1226 (Miss. 1988) (quoting Moore v. U.S., 271 F.2d 564 (4th Cir. 1959)). An allegation should not be considered evidence, especially not evidence in support of a murder conviction.

¶ 35. Clearly, a reasonable hypothesis consistent with Ceasar’s innocence is that Ceasar was miles away from the J.Y. Trice Apartment complex, on the way to Green-ville with his family, when Greg was murdered and that someone else murdered Greg. I believe that the State proved only the possibility of Ceasar’s guilt in this case. The concept of justice would become-markedly smaller indeed if life and liberty hinged on mere possibilities. Because I believe the State failed to exclude all reasonable hypotheses consistent with Cea-sar’s innocence and that the State failed to rebut the presumption of Ceasar’s innocence, I respectfully dissent and submit that his deliberate-design-murder conviction must be overturned.

DICKINSON, P.J., KITCHENS AND COLEMAN, JJ., JOIN THIS OPINION.

      . Ceasar also was indicted on three other counts: 1) possession of a firearm by a convicted felon; 2) witness intimidation' concerning Brontavious Cooper; and 3) witness intimidation concerning Darren Conway. Because neither Cooper nor Conway was present the first day of trial, the court severed the witness-intimidation charges.

      . Both Officer Michael Honorable and Investigator Michael Williams testified that they were dispatched at 10:26 p.m. However, after further questioning, Investigator Williams conceded that it could have been 10:31 p.m. The dispatch record conflicts as to whether the call was placed at 10:26 or 10:31 p.m.

      . Love testified the shots and crash occurred three to four minutes after she looked out the window. Smith testified it was shortly thereafter.

      . Originally the State brought two witness-intimidation charges against Ceasar but each was severed when both witnesses failed to show up on the first day of trial. Cooper eventually did show up at trial and testified, but the witness-intimidation charge already had been severed at that point. '

      . Instruction C-fIA stated: "A Defendant in a criminal case has no burden of proof whatsoever. The State of Mississippi, on the other hand, must prove beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence that the Defendant committed the acts as alleged in the indictment.” Jury instruction C-26 stated: "The Court instructs the jury that if there are two reasonable theories arising out of the evidence in this case; one tending to prove that the defendant did commit the crime as alleged in the indictment and the other tending to show that the defendant did not commit the aforesaid crime, and you are unable to determine from the evidence which of the two theories is true, the jury must accept that the theory most favorable to Caesar [sic] Johnson, III and find him not guilty.”

      , In response to a question asking how long before the mur.der the conversation occurred, McKenzie stated, "I think it was like a week or two." McKenzie testified that it was at night but he did not know what time.

      . The record is unclear as to how McKenzie knew that Ceasar was the one who -had talked about robbing Greg. His statement to the police does not specifically, identify Ceasar but states that "him and some of his friends" were talking and that "he’s selling drugs for ‘Little Greg,’ " McKenzie testified at trial that he was referring to Ceasar,

      . The State asked Love, "Did you see anyone inside the car?” Love responded, "Yes. I saw •somebody in the driver's side.” The State asked, "Could you see the passenger side of the vehicle?” Love replied, “Yes, but I didn’t see anybody.”


author: MAXWELL, JUSTICE,

text:
    A. Randall HARRIS v. STATE of Mississippi
    NO. 2015-CA-01193-SCT
    Supreme Court of Mississippi.
    01/05/2017
    Rehearing Denied April 20, 2017

      DAVID NEIL McCARTY, SAGE EG-GER HARLESS, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, JACKSON, ATTORNEY FOR APPEL-LEE
   MAXWELL, JUSTICE,

FOR THE COURT:

¶ 1. On the morning of his client’s trial, defense attorney Randall Harris tried to withdraw as counsel. When the judge declined his request, Harris told the judge he was “wrong” for doing so, and he “was not going to participate” in the trial. Harris’s refusal to abide by the court’s order forced a continuance. And the judge held him in direct criminal contempt.

¶2. “Direct criminal contempt includes words or actions before the court that tend to embarrass the court or prevent the orderly administration of justice.” We find Harris’s actions clearly fell within this category. Thus, we affirm the judgment finding Harris guilty of direct criminal contempt and ordering Harris to pay a $100 fine and $1,200 for the cost of the jury venire.

Background Facts and Procedural History

I. This Court’s En Banc Order

¶ 3. In early 2015, Hinds County Circuit Court Judge Jeff Weill, Sr., ordered the cases of more than fifty indigent criminal defendants be reassigned from Alison Kelly with the Hinds County Public Defenders Office (HCPDO) to appointed counsel. One of those cases was Cameron Travelsted’s. Randall Harris was appointed to take over his defense.

¶4. The HCPDO sought this Court’s intervention. And on May 21, 2015, we entered an En Banc Order lifting Judge Weill’s blanket ban against Kelly. In re: Office of the Hinds Cty. Pub. Defender, 2015-M-00303-SCT, En Banc Order (May 21, 2015). But this Court denied the HCPDO’s request to automatically reassign all fifty-five cases back to Kelly because those “cases [were] in various stages of development, and the best interest of justice may be served by leaving them as they are.” Id. Instead, we permitted the HCPDO “to inform each of its previous clients in the fifty-five cases ... that they may choose to continue with private counsel Judge Weill has appointed to represent them, or they may choose to have the HCPDO reassume their representation.” Id.

¶ 5. Soon after the En Banc Order, the HCPDO met with Travelsted, who elected to stay with his appointed counsel, Harris. In June, the HCPDO informed Judge Weill about Travelsted’s decision. And Harris assured Judge Weill he was prepared to go forward with Travelsted’s trial set for Monday, July 13, 2015.

II. Harris’s Motion to Withdraw

¶ 6, But the Friday before trial, on July 10, Harris filed a motion to withdraw. In his motion, Harris asserted that the Hinds County Board of Supervisors (Board) would not pay for private counsel in cases in which the criminal defendant had elected to stay with appointed counsel instead of going back to the HCPDO. So if he was not permitted to withdraw, he would be put in the difficult position of having to sue the Board for payment.

¶7. Judge Weill heard Harris’s motion Monday morning, before the trial began. Public defender Alison Kelly also was present. On July 2, she had filed a motion to appear in Travelsted’s case.

¶ 8. When asked to present his motion, Harris told the court:

I am here today to ask the Court to allow me to withdraw from this case, because it’s become clear to me that the board of supervisors—who pays the court-appointed attorney’s fees—they have made clear that they’re not going to pay me for services that I have rendered and will continue to be compelled to render in the event that you don’t allow me to withdraw.

Harris also told Judge Weill that Travelst-ed “has now opted to go back to the public defender’s officer.” And “[t]he public defender has accepted that responsibility” and “is desirous of representing him.” So as Harris saw it, “by allowing [him] to withdraw, that settles the whole compensation issue with the board of supervisors.”

¶ 9. Judge Weill then asked Harris about the email the HCPDO had sent the month before saying it had met with Tra-velsted and Harris, and that Harris would represent Travelsted at trial. Harris acknowledged he too had received that email and had been prepared at that time to go to trial on July 13. “But that was before it was made known to me I wasn’t going to get paid.”

¶ 10. Judge Weill denied Harris’s motion from the bench, stating:

After considering the argument of the parties, the Court finds the motion to withdraw is not well-taken [and] should be denied; It’s my belief that the order appointing Mr. Harris to represent Mr. Travelsted is valid pursuant to the Mississippi Supreme Court’s May 21, 2015 En Banc Order. Mr. Travelsted notified this Court on June 5, 2015, that he elected for Mr. Harris to represent him going forward. Accordingly, this'Court then set forth deadlines and specially scheduled the trial on this matter. The Court also put the defendant on notice that a last-minute change in counsel would not warrant a continuance in this matter. It appears as though Mr.' Tra-velsted’s attempt to now have Ms. Kelly represent him is an attempt to secure continuance of this trial; Accordingly, I will deny the motion to withdraw,’ and this matter will proceed to trial as scheduled at 1:00 pm today.

¶ 11. At this point, with Harris still Tra-velsted’s attorney of record, Kelly asked to be excused. She explained the ore tenus motion to continue she had planned to make was now moot.

III. Trial Court’s Finding of Direct Criminal Contempt

¶ 12. After Kelly left, Judge Weill asked Harris if he had any more motions before trial. Harris responded:

Judge, I’m not participating in this trial. You know, I’m glad that the [Supreme] Court believes your ruling is correct. The Supreme Court never said that in the event that his case comes up like this, if he opts to do this, the Board’s going to pay. It just gave him the option of doing that. The Board has told you they’re not paying. The Board may or may not, you know, tell the Supreme Court. I mean, until the Supreme Court mandates him to pay, I don’t see it happening.
So I’m not participating . here. Even though you believe you’re right, I believe that you’re urrongt And I’m just not going to participate.

(Emphasis added.) Judge Weill then asked, “So you’re refusing to participate in the trial?” And Harris replied, “I’m refusing to participate under these circumstances. Yes, sir.”

¶ 13. Based on Harris’s defiance of his order, Judge Weill found him in direct criminal contempt. With Travelsted’s trial unable to proceed that afternoon as scheduled, Judge Weill set a status conference for the next week. He directed Harris to appear at that hearing “because one of the other matters will be sentencing on the contempt issue.” At' Harris’s: request,. 'Judge Weill said he would also hear any arguments Harris may have for why his criminal-contempt conviction should be set aside.

¶ Í4. At the status conference—after giving Harris an opportunity to plead his case—Judge Weill entered an order, confirming Harris had been guilty of direct criminal contempt. The order also directed Harris to pay a $100 fine and a $1,200 assessment for the cost of the jury that had shown up for voir dire on July 13. See URCCC 3.13.

IV. Harris’s Petition for Extraordinary Writ

¶ 15. In response to the order, Harris filed a Petition for Writ of Extraordinary Relief, which we deemed a notice of appeal. On appeal, Harris raises three issues:

I. The trial court violated his right to due process.
II. He lacked the legal capacity to represent Travelsted at trial.
III. The $1,200 sanction is void because the civil settlement rule can never apply to criminal matters, and because the venire was not wasted.

Discussion

I. The record supports finding Harris guilty of direct criminal contempt beyond a reasonable doubt.

¶ 16. Before addressing Harris’s specific claims on appeal, we must first determine if the record supports finding Harris guilty of contempt beyond a reasonable doubt. “Generally speaking, contempt matters are committed to the substantial discretion of the trial court” and are reviewed only for manifest error. Mingo v. State, 944 So.2d 18, 32 (Miss. 2006) (quoting In re Williamson, 838 So.2d 226, 237 (Miss. 2002)). But when the contempt is criminal, we “proceed[s] ab initio and will determine on the record whether the person in contempt is guilty of contempt beyond a reasonable doubt.” Id.

¶ 17. Whether the contempt is civil or criminal hinges on the purpose of the contempt finding. “If the primary purpose of the contempt order is to enforce the rights of private party litigants or enforce compliance with a court order, then the contempt is civil.” Id. But if the purpose is “to punish the contemnor for disobedience of a court order,” then the contempt is criminal. Id. Here, the purpose of the contempt finding was to punish Harris for disobeying the trial court’s order to continue representing Travelsted. It was not to enforce compliance, because Harris already had announced he would not comply. So the contempt was clearly criminal, prompting this Court’s heightened review.

¶ 18. The criminal contempt was also direct. Direct contempt occurs right in front of the court. Neely v. State, 98 Miss. 816, 54 So. 315 (1911). “It may consist of an open insult, in the presence of the court, to the person of the presiding judge, or a resistance to or defiance of the power and authority of the court.” Id. And. it “includes words or actions before the court that tend to embarrass the court or prevent the orderly administration of justice.” Mingo, 944 So.2d at 32 (citing Jordan v. State, 216 Miss. 542, 62 So.2d 886, 888 (1953)).

¶ 19. In Mingo, a criminal defense attorney acted similarly to Harris. One afternoon before trial was to recommence, he announced to the judge that he was unwilling to continue to represent his client and intended to withdraw. Id. The trial judge found the attorney’s motion to withdraw was not well-taken. Still, the attorney refuse to proceed. Id. at 33. On appeal, this Court found “[d]efense counsel’s refusal to continue with trial clearly constituted an action tending to prevent the orderly administration of justice.” Id. So “[t]he trial judge’s decision to hold counsel in direct criminal contempt, while serious, was within his discretion.” Id.

¶ 20. We hold the same here. Like the attorney in Mingo, Harris defied the trial court’s authority when he refused to represent Travelsted at his trial scheduled that day, despite not being granted permission to withdraw. And his actions “prevented] the orderly administration of justice” as it delayed Travelsted’s trial. Thus, we find the record supports finding Harris guilty of direct criminal contempt beyond a reasonable doubt.

II. Harris’s appellate arguments are either procedurally barred or fail on the merits.

A. Harris’s due-process rights were not violated.

¶ 21. On appeal, Harris argues the trial court violated his due-process rights by not providing him notice of the charges against him and potential sentence and by not recusing himself. “In the case of constructive criminal contempt, we have held that defendants must be provided with procedural due process safeguards, including a specification of charges, notice, and a hearing.” In re Smith, 926 So.2d 878, 888 (Miss. 2006) (emphasis added). We also have found that “in cases of indirect or constructive criminal contempt, where the trial judge has substantial personal involvement in the prosecution, the accused contemptor must be tried by another judge.” Corr v. State, 97 So.3d 1211, 1214 (Miss. 2012) (quoting Graves v. State, 66 So.3d 148, 154 (Miss. 2011)). So “[i]f [Har ris’s] actions actually constituted constructive criminal contempt, [his] due process rights would guarantee [him] more than the immediate sentence [he] received, including a different judge to hear the contempt proceedings.” In re Smith, 926 So.2d at 888.

¶22. But contrary to Harris’s assertion on appeal, “this is not remotely close to being a case of constructive contempt.” Id. “[Constructive contempt involves actions which are committed outside the presence of the court.” Corr, 97 So.3d at 1214 (emphasis in original). By contrast, “direct criminal contempt involves words spoken or actions committed in the presence of the court[.]” Id. Here, the words Harris spoke and the actions he committed in the presence of the court led to his punishment. So Harris’s actions amounted to direct criminal contempt, not constructive.

¶ 23. “Punishment for direct contempt may be meted out instantly by the judge in whose presence the offensive conduct was committed.” Id. (emphasis in original). This is because “[a] direct criminal contempt ... takes place in the very presence of the judge making all the elements of the offense personal knowledge.” Id. So like the attorney in In re Smith, because the conduct at issue occurred in front of the trial judge, Harris “was not due more than the hearing [he] received.” In re Smith, 926 So.2d at 888. So he was “not denied any due process protections.” Id.

B. Harris did not lack the “legal capacity” to represent Travelsted.

¶ 24. Harris also argues he lacked the “legal capacity” to represent Travelst-ed. Consequently, he asserts, he should not have been found in contempt for refusing to continue with the representation. But Harris waived this argument by not arguing it before the trial court. Gale v. Thomas, 759 So.2d 1150, 1159 (Miss. 1999) (citing Davis v. State, 684 So.2d 643, 658 (Miss. 1996); Cole v. State, 525 So.2d 365, 369 (Miss. 1987)) (“As this Court has stated, time and again, an issue not raised before the lower court is deemed waived and is procedurally barred.”). Harris never asserted, when arguing his motion to withdraw, he could not represent Travelsted due to lack of “legal capacity.” Instead, Harris’s sole argument was that he should not have to represent Travelsted, given the Board’s stance on paying for his services.

¶25. But even had he preserved this claim, Harris cannot support his argument that the law somehow mandated he cease representing Travelsted, despite not being granted the court’s permission to do so. Harris leans heavily on the Mississippi Rules of Professional Conduct to assert that—as soon as Travelsted, less than two weeks before trial, reversed his decision to stick with Harris as his attorney-—Harris “no longer had any legal or factual authority to represent Mr. Travelsted at trial.” Harris partially quotes Rule 1.16(a)(3)—“a lawyer shall not represent a client, or where representation has commenced, shall withdraw from the representation of a client if ... the lawyer is discharged.” Miss. R. Profl Conduct 1.16(a)(3). But Harris leaves out an important part of that rule. Rule 1.13(a)(3) begins with an important qualification—“Except as stated in paragraph (c) ,...” And paragraph (c) clearly states, “When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” Miss. R. Profl Conduct 1.16(c) (emphasis added). So the Rules of Professional Conduct did not authorize Harris to withdraw despité being ordered not to. They actually required him to continue the representation.

¶26. Harris also relies on this Court’s En Banc Order. Because the En Banc Order gave Travelsted the option of keeping Harris as his counsel or returning to the HCPDO,' Harris contends that he would be in violation of the En Banc Order if he continued to represent Travelsted once Travelsted said he wanted to switch back to the HCPDO. But as part of his ruling on the motion to withdraw, Judge-Weill expressly found Harris’s continued representation complied with the En Banc Order. And Harris could not ignore this ruling simply because, in his own words, “Even though you believe you’re right, I believe that you’re wrong.”

¶ 27. Under Uniform Rule of Circuit and County Court Practice 1.13, “When an attorney makes an appearance for any party in a case, that attorney will not be allowed to withdraw as attorney for the' party without the permission of the court,” (Emphasis added.) And without the court’s permission, an attorney must continue the representation “notwithstanding good cause for terminating the representation” Miss, R. Profl Conduct 1.16(c) (emphasis added). So even if Harris believed he had good cause to termináte his representation of Travelsted based on the circumstances,' he still had to obtain the court’s permission in order to withdraw. And once denied permission, he could not simply ignore the judge’s order because he believed the judge was wrong. See Mingo, 944 So.2d at 33 (affirming direct criminal-conteihpt conviction of an attorney who had told the trial court its denial of counsel’s motion to withdraw was a mistake and that, ethically, counsel could not continue the representation); Miss. R, Rrof 1 Conduct 1.16(c).

C. The assessment of $1,200 for cost of the jury venire is valid.

¶ 28. Finally, Harris challenges the trial court’s reliance on Uniform Rule of Circuit and County Court Practice 3.13 to assess Harris $1,200—the cost of the jury.

¶ 29. Under Rule 3.13, “The court .may assess all costs, including fees and mileage of jurors who have been required to be present for the trial, against whichever party litigant or attorney it deems appropriate, for failure of an attorney to try the case[,]” URCCC 3.13. Harris argues this rule applies only to attorneys who fail to try civil cases, not criminal ones. But nothing in the rule itself or this Court’s interpretation precludes its application to criminal trials. In fact, in Crosby v. State, this Court relied on Rule 3.13 when it affirmed the trial judge’s assessment of the cost of the jury against a criminal defense attorney who “deliberately set out to delay [his client’s criminal] trial after his motions for continuance had been denied.” Crosby v. State, 760 So.2d 725, 728 (Miss. 2000). Because-“[Rule] 3.13 provides the court-with authority to assess an attorney , costs, including fees and mileage of jurors, for failure of an attorney to- try the case,” this Court found “that the trial judge did not abuse his discretion ..in assessing the eost of the jurors’ pay for the day of jury duty.” Id. Likewise, Rule 3.13 likewise provided the trial court authority to ■ assess Harris the- cost of the jury, based on his finding that, because of “Harris’s refusal to. comply with the rulings of this Court, the ... cause of action [against Travelst-ed] could not proceed to trial as scheduled[;]” ■

¶ 30, Alternatively, Harris argues the $1,200 assessment “was wrong because the venire was actually used in other jury trials.” But the only evidence Harris provides to support this contention is an affidavit attached to his Notice of Piling, which he filed after his notice of appeal. Harris never presented this affidavit to the trial court during the July 22 hearing, during which—as Harris had been notified—evidence related to his sentence was to be presented. Neither did Harris attached this affidavit to a motion to alter the contempt order. See M.R.C.P. 59(e). Instead, Harris asks this Court on appeal to make an evidentiary finding that the jury venire that showed up on July 13, 2015, “was not wasted.” Because Harris asks us to hold the trial court in error based on an argument and evidence not presented below, we find this argument to be proeedurally barred. See Hardy v. Brock, 826 So.2d 71, 76 (Miss. 2002) (“Mississippi appellate courts may not consider information that is outside of the record.”); Gale, 759 So.2d at 1159 (deeming arguments not raised before the- trial court to be waived and proeedurally barred).

Conclusion

¶ 31. Because the record supports finding beyond-a reasonable doubt that Harris was in direct criminal contempt when he refused to represent Travelsted at trial after his motion to withdraw was denied, and because Rule 3.13 authorized the trial court to assess Harris the cost of the jury that had shown up for the Travelsted’s trial, we affirm the conviction of direct criminal contempt and $100 fine, as well as the $1,200 assessment for the cost of the jury.

¶ 32. AFFIRMED.

DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN AND BEAM, JJ., CONCUR. WALLER, C.J., AND CHAMBERLIN, J., NOT PARTICIPATING.

      . Mingo v. State, 944 So.2d 18, 32 (Miss. 2006) (citing Jordan v. State, 216 Miss. 542, 62 So.2d 886, 888 (1953)).

      . The State also was asked if it wanted to weigh in. The State said nothing, except.that it was prepared'to go forward that morning ^vith Travelsted's trial.

      . Rule 3.13 also gives the court discretionary authority to assess costs “for failure to notify the-court of settlement of a case before 5:00 P.M. on the day before the trial.” URCCC 3.13.


author: BEAM, JUSTICE,

text:
    Michael DRANKUS a/k/a Michael F. Drankus v. MISSISSIPPI PAROLE BOARD
    NO. 2015-CP-01049-SCT
    Supreme Court of Mississippi.
    02/02/2017
    Rehearing Denied April 27, 2017

      MICHAEL DRANKUS (PRO SE), ATTORNEY FOR APPELLANT
    ANTHONY LOUIS SCHMIDT, JR., JAMES M. NORRIS, OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN, ATTORNEYS FOR APPELLEE
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   BEAM, JUSTICE,

FOR THE COURT:

¶ 1. Michael Drankus, an inmate in the custody of the Mississippi Department of Corrections, appeals the Sunflower County Circuit Court’s order dismissing his complaint and request for declaratory judgment for failure to state a claim upon which relief may be granted. Drankus requested a declaratory judgment from the circuit court that newly amended Mississippi Code Section 47-7-18 creates a liberty interest in parole, and the parole board’s 2015 decision to deny Drankus parole and to “setoff’ his next parole hearing for three years, violated Drankus’s constitutional and statutory rights. We affirm the circuit court’s order.

FACTS AND PROCEEDINGS BELOW

¶ 2. Drankus was convicted in 1987 of capital murder, robbery, and residential burglary. He was sentenced to life imprisonment. Drankus’s parole-eligibility date was July 11, 1997. Drankus was first released on parole on January 5, 2001. His parole was revoked on March 21, 2006, for a number of violations including operating a motor vehicle while intoxicated and resisting law enforcement. Drankus was released on parole a second time on May 31, 2007. His parole was revoked on June 6, 2012, for violating numerous parole conditions including assault on a law-enforcement officer, felony battery, and public intoxication. The parole board granted Drankus another parole hearing on April 29, 2015, and thereafter denied Drankus parole. The parole board setoff Drankus’s next parole hearing date for three years.

¶ 3. On May 18, 2015, Drankus filed a complaint for declaratory judgment, in which he claimed he is entitled to a parole case plan and is eligible for “presumptive parole.” Drankus asserted that he has a liberty interest in presumptive parole and the parole board arbitrarily setoff his next hearing for three years.

¶4. The circuit court dismissed Dran-kus’s complaint for failure to state a claim upon which relief may be granted. This appeal followed.

DISCUSSION

¶ 5. This Court addressed a similar claim in Cotton v. Mississippi Parole Board, 863 So.2d 917 (Miss. 2003). There, inmates filed a complaint in the Sunflower County Circuit Court alleging that the parole board and its members had abused their discretion in denying parole to these inmates. Id. at 919. The complaint alleged that each plaintiff had been denied equal protection and was subjected to cruel and unusual punishment by the parole board’s repeated denial of parole. Id. The circuit court dismissed the complaint with prejudice, finding that the parole board has exclusive authority to grant or deny parole under Mississippi Code Section 47-7-5. Id. at 920. The circuit court found that each parole-eligible plaintiff had received all that is constitutionally mandated, that being a hearing. Id. All plaintiffs were given a chance to present their reasons for parole, and the parole board, using statutory factors, determined all to be unentitled to parole at the time. Id.

¶6. On appeal, this Court found two justifications for the circuit court’s dismissal. Id. at 920. First, the circuit court had no authority to adjudicate the matters presented because there was no statutory mandate granting circuit courts jurisdiction over appeals concerning the denial of parole. Id. at 920-21. Thus, the circuit court correctly dismissed the petition due to lack of jurisdiction. Id. at 921. Second, this Court found that, while a constitutional challenge can justify the assertion of jurisdiction, the plaintiffs failed to state a constitutional claim sufficient for the circuit court to assert jurisdiction. Id. at 921.

¶ 7. As in Cotton, the circuit court here has no jurisdiction to hear an appeal of the parole board’s decision to setoff Drankus’s next parole hearing for three years. As to Drankus’s argument that the recent amendments to Mississippi’s parole statutes create a constitutionally protected interest, we need not speak to it. Recently, we decided in Drankus v. Fisher, that those amendments do not apply to prisoners like Drankus who were admitted prior to the amendments’ effective date. Fisher v. Drankus, 204 So.3d 1232 (Miss. 2016).

¶ 8. Accordingly, we find the circuit court correctly dismissed Drankus’s complaint.

CONCLUSION

¶ 9. The Sunflower County Circuit Court’s order of dismissal is affirmed.

¶ 10. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, MAXWELL AND CHAMBERLIN, JJ., CONCUR.