author: MYERS, P.J.,

text:
    Thomas Glen GARNER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CP-00600-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2008.
    Rehearing Denied April 7, 2009.
    Certiorari Granted June 25, 2009.
    Certiorari Dismissed as Improvidently Granted Nov. 19, 2009.

      Thomas Glen Garner (Pro Se), attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Thomas Glen Garner pleaded guilty in the Circuit Court of Forrest County to the charge of aggravated assault. Garner was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections and ordered to pay a fíne of $1,500, a $100 assessment to the Mississippi Crime Victims’ Compensation Program, restitution to the victim in the amount of $1,263, and all costs of court. The execution of the sentence was suspended for a three-year period of post-release supervision pursuant to Mississippi Code Annotated section 47-7-34 (Rev. 2004). On December 20, 2005, the circuit court determined that Garner violated the terms of his post-release supervision by testing positive for crystal methamphetamine. The post-release supervision was revoked, and Garner was ordered to serve the full ten-year sentence.

¶ 2. Garner then filed a motion for post-conviction relief, seeking clarification of his sentence. Garner argued that the sentence was improper and illegal because it did not contain a valid term for post-release supervision. Garner also contended that he was denied effective assistance of counsel. The circuit court summarily dismissed Garner’s motion, and this appeal followed.

STANDARD OF REVIEW

¶ 3. A trial court’s dismissal of a post-conviction relief petition will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶2) (Miss.Ct.App.2004). We “employ[ ] the clearly erroneous standard in determining whether an appellant’s plea was voluntarily given.” Wilcher v. State, 921 So.2d 400, 401(¶ 3) (Miss.Ct.App.2006) (citing Stevenson v. State, 798 So.2d 599, 602(¶ 7) (Miss. Ct.App.2001)). “The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence.” Id. (quoting Stevenson, 798 So.2d at 602(¶ 7)).

DISCUSSION

I. WHETHER GARNER’S SENTENCE WAS IMPROPER OR ILLEGAL.

¶ 4. First, Garner contends that his sentence was improper because it did not contain a valid term of post-release supervision. Garner argues that he was not eligible for a suspended sentence under Mississippi Code Annotated section 47-7-33 (Rev.2004) because he was a previously convicted felon. Garner also alleges that he was improperly sentenced to both probation and post-release supervision simultaneously.

¶ 5. The State cites to Jefferson v. State, 958 So.2d 1276, 1279(¶11) (Miss.Ct.App. 2007), arguing that “because [Garner] benefitted from the allegedly illegal sentence imposed by the trial court ... any error committed by the trial court in imposing such illegal sentence [was] harmless.” The State argues that because Garner benefitted from this alleged error, he cannot now complain of prejudice on appeal.

¶ 6. In this case, Garner pleaded guilty to the charge of aggravated assault and received his ten-year sentence. The circuit court suspended the execution of the sentence for a period of three years on post-release supervision. Garner received the post-release supervision based upon meeting and maintaining a set of conditions, which Garner violated. As a result, the circuit court revoked the suspension and ordered him to serve the ten-year sentence. Garner’s sentence was suspended pursuant to Mississippi Code Annotated section 47-7-34 (Rev.2004), under the post-release supervision program, not pursuant to Mississippi Code Annotated section 47-7-33.

¶ 7. The Mississippi Supreme Court noted the difference between section 47-7-33 and section 47-7-34, stating:

Miss.Code Ann. § 47-7-33 provides for supervised probation, while Miss.Code Ann. § 47-7-34 provides for post-release supervision. At least two major differences in these two statutes are (1) supervised probation may not be imposed on a convicted felon while post-release supervision may be imposed on a convicted felon; and, (2) supervised probation is limited to five years while post-release supervision is not.

Johnson v. State, 925 So.2d 86, 101(¶ 27) (Miss.2006) (quoting Miller v. State, 875 So.2d 194, 199(¶ 10) (Miss.2004)). The supreme court further explained the differences between probation and suspension of a sentence, stating:

[Wjhile both probation and the suspension of sentence involve the trial court’s discretionary and conditional release of a convict from the service of a sentence within the penal system, a probationary sentence is served under the supervision of probation officers, whereas a suspended sentence is served without such supervision, but on such legal terms and conditions as are required by the sentencing judge.

Id. at 92(¶ 12).

¶ 8. “By definition, a ‘suspended sentence’ is a unique mechanism by which the court may postpone the imposition of a sentence altogether or delay the execution of a sentence once it has been pronounced.” Id. at (¶ 10) (citing 21A Am. Jur.2d, Criminal Law § 895). “Simply stated, ‘suspension’ is the restriction placed upon the power of the State to act during that (the suspended portion of a sentence) period.” Id. (quoting Wilson v. State, 735 So.2d 290, 292(¶ 5) (Miss.1999)). However, the circuit court still retains authority to revoke the suspended sentence if the terms are violated. Id. at (¶ 12).

¶ 9. This Court addressed a similar issue in Johnson v. State, 883 So.2d 607, 608(¶ 2) (Miss.Ct.App.2004), where Johnson was sentenced to two consecutive ten-year prison sentences, with five years’ post-release supervision. Johnson filed a motion for post-conviction relief, claiming that his sentence was illegal because, in light of his prior felonies, he was legally unable to receive probation. Id. at 608(¶ 4). However, this Court held:

What Johnson received was a period of post-release supervision under Mississippi Code Annotated Section 47-7-34 (Supp.2003). The fact that Johnson had prior convictions is not relevant in considering this type of sentence. Johnson will not serve probation, rather he will undergo post-release supervision, an alternative to probation designed specifically for felons. Accordingly, Mississippi Code Annotated Section 47-7-33 (Rev.2000) does not govern his sentence; rather, his sentence falls under Mississippi Code Annotated Section 47-7-34 (Supp.2003) and comports fully with that statute. There was no error on the part of the court in its sentencing.

Id. at 609(¶ 8) (internal citations omitted). In Sweat v. State, 912 So.2d 458, 461(¶ 9) (Miss.2005), the Mississippi Supreme Court stated:

The Court of Appeals has recently held that there is no prejudice suffered when a defendant receives an illegally lenient sentence. Edwards v. State, 839 So.2d 578, 580-81 (Miss.Ct.App.2003). Further, when the error benefits the defendant in the form of a more lenient sentence, it is harmless error. Chancellor v. State, 809 So.2d 700, 702 (Miss.Ct. App.2001). The law which relieves defendants from the burden of an illegal sentence applies to situations where the defendant is forced to suffer a greater sentence rather than the luxury of a lesser sentence. Id.

¶ 10. From our review of the record, this Court finds no error in the circuit court’s dismissal of Garner’s motion for post-conviction relief. Garner’s sentence was suspended under Mississippi Code Annotated section 47-7-34, and he was given post-release supervision for a three-year period. Garner was required to meet certain terms under the post-release-supervision agreement, but subsequently failed two drug tests and failed to pay his fine, assessment, restitution, and court costs during the supervision period. As a result, his post-release supervision was revoked, and the suspended sentence of ten years was imposed on Garner for his guilty plea to aggravated assault under Mississippi Code Annotated section 97-3-7 (Rev. 2004). We cannot find that the circuit court’s dismissal of the post-conviction relief motion was clearly erroneous. This issue is without merit.

II. WHETHER GARNER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND WHETHER HIS GUILTY PLEA WAS VOLUNTARY.

¶ 11. Garner argues that he received ineffective assistance of counsel when his attorney failed to object to the terms of his sentence. Garner alleges that the recommendation should have been for three years’ imprisonment suspended for three years’ post-release supervision. Garner argues that his plea was not knowingly, voluntarily, and intelligently made because it was based on the incorrect information provided by his defense counsel-that his sentence would be only three years suspended for time served, and that he would be placed on three years of post-release supervision. Garner argues that the transcript of the plea proceedings demonstrates that his attorney failed to object to the sentence and failed to ensure that he was afforded a speedy trial.

¶ 12. The State argues that the challenge to Garner’s counsel is only supported by an affidavit from Garner. Further, the State notes that Garner’s sworn testimony during his plea colloquy contradicts his present assertions. Therefore, the State contends that the post-conviction relief motion was without merit and was properly dismissed.

¶ 13. In order to establish an ineffective assistance of counsel claim, Garner must show “that his counsel’s performance was deficient and that this deficiency prejudiced [Garner’s] defense.” Thornhill v. State, 919 So.2d 238, 240(¶ 4) (Miss.Ct.App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Garner carries the burden of proof to demonstrate ineffective assistance of counsel, and an appellate court “will measure the alleged deficiency within the totality of circumstances.” Id. (citing Hiter v. State, 660 So.2d 961, 965 (Miss.1995)). “However, a presumption exists that the attorney’s conduct was adequate.” Id. (citing Bums v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001)).

¶ 14. From a review of the record before us, this Court cannot find that Garner’s counsel was deficient and that this deficiency prejudiced Garner’s defense. Garner has simply failed to meet his burden of proof in demonstrating that his counsel’s performance was deficient. Further, this Court cannot say that the circuit court’s determination on the record that Garner’s plea was voluntarily, intelligently, and knowingly given was clearly erroneous from the record before us. Therefore, this issue is without merit.

III. WHETHER GARNER PROPERLY RAISED ADDITIONAL ERRORS ALLEGED FOR THE FIRST TIME ON APPEAL.

¶ 15. In addition, the State points out that in Garner’s original motion for post-conviction relief filed in the circuit court, he only raised two basic errors: (1) that the suspension of his sentence was illegal because of his prior-felony conviction and (2) that he received ineffective assistance of counsel. Therefore, the State argues that these are the only issues that are appealable, citing Rivers v. State, 807 So.2d 1280, 1281(¶ 5) (Miss.Ct.App.2001) (holding in part that “[i]f a prisoner fails to raise all of his claims in his original petition for post-conviction relief, those claims will be procedurally barred if the petitioner seeks to bring them for the first time on appeal to this Court.” (citing Williams v. State, 752 So.2d 477, 479(117) (Miss.Ct.App. 1999))).

¶ 16. This Court previously held in Haley v. State, 864 So.2d 1022, 1024(¶8) (Miss.Ct.App.2004), that:

[A]n appellate court will not consider or review issues that were not raised in the trial court. Crenshaw v. State, 520 So.2d 131,134 (Miss.1988). A defendant is procedurally barred from raising an objection on appeal that is different than that raised at trial. Jones v. State, 606 So.2d 1051, 1058 (Miss.1992). A trial judge cannot be put in error on a matter which was not presented to him for decision. Logan v. State, 773 So.2d 338, 346(¶ 29) (Miss.2000).

As such, we decline to address Garner’s additional issues raised for the first time on appeal.

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

KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Richard MITCHELL a/k/a Rick Mitchell, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-01202-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2008.
    Rehearing Denied Sept. 1, 2009.
    Certiorari Denied Nov. 19, 2009.

      William R. Labarre, Virginia Lynn Watkins, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. On March 27, 2003, Willie Barnes was murdered while working at his barbershop in Jackson, Mississippi. Richard Mitchell was subsequently arrested for the crime. During his trial, the testimony revealed that: (1) Mitchell needed money to pay his probation fees; (2) he planned to rob Barnes to get the money; (3) he possessed the pistol that was later identified as the murder weapon; (4) he was seen heading in the direction of the barbershop prior to the murder; (5) he had blood on his shirt when he returned; and (6) he admitted that he had robbed someone. The jury found him guilty of capital murder, and he was sentenced to life without the possibility of parole in the custody of the Mississippi Department of Corrections.

¶ 2. Mitchell filed a motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial; however, the trial court denied his motion. Mitchell now appeals and argues that: (1) the trial court erred in refusing two defense instructions; (2) the jury’s verdict was against the weight and sufficiency of the evidence; and (3) the State made improper comments during closing argument.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Officer Slade Moore with the Jackson Police Department (JPD) testified that on March 27, 2003, at approximately 6:00 p.m., he was traveling north on Dr. Martin Luther King, Jr. Drive and saw an individual run across Dr. Martin Luther King, Jr. Drive in the area around the Deluxe Barbershop. Once he was in front of the barbershop, he was flagged down and told that someone had been shot in the barbershop. When he entered the barbershop, he discovered the body of Barnes and secured the crime scene.

¶ 5. Cleotha Warren testified that at the time of the murder, he lived on Crawford Street, which is west of Dr. Martin Luther King, Jr. Drive. He stated that he saw a man, who was acting nervous and excited, take a pathway between two houses on Crawford Street. Warren stated that fifteen or twenty minutes later he saw the same man return and walk behind the barbershop. Warren identified Mitchell in a photo lineup as the man he saw that day. However, he could not identify Mitchell in court.

¶ 6. Darwin Traylor, one of the State’s main witnesses, testified that he lived at 829 Powell Rhodes Drive, which is next door to Robert Buford. According to Traylor, prior to the murder, Mitchell stated that he was concerned that he would not have the money he needed to pay his probation officer. Later that day, he saw Buford and Mitchell leaving an apartment, and Mitchell had a gun. The pair went down a path that led to Crawford Street, which is one block north of Powell Rhodes Drive. Buford returned first, followed by Mitchell shortly thereafter. Once Mitchell returned, he ran to the pathway beside Traylor’s house and called to Buford, who was further down the street. Traylor testified that Buford went over to Mitchell, and as Buford and Mitchell were walking, Mitchell dropped what could have been a wallet. Once the pair arrived behind Buford’s house, Mitchell asked Buford for a shirt because his was covered in blood. Traylor testified that Buford complied and gave Mitchell a black shirt with an orange and gray stripe, although he could not identify the shirt at trial. According to Traylor, Mitchell put the bloody shirt in a bag and threw it in the garbage. Traylor testified that he neither saw an exchange of money between Buford and Mitchell, nor heard any conversation about money.

¶ 7. On cross-examination, defense counsel brought to light some inconsistencies between Traylor’s testimony and a statement he gave to the police. According to his statement after the murder, Traylor saw Mitchell pull money out of his pocket, not a wallet. Additionally, in his statement to police he told them that he saw Buford with the gun, not Mitchell. Finally, he also told the police that he did not see Mitchell throw away his shirt and did not see him with a gun. However, Traylor stated that he made the statement to the police when he was fourteen years old, and at the time, he was scared. He stated that his testimony at trial was a more accurate recollection of what he witnessed.

¶ 8. Buford, who was fifteen at the time of the murder, was the next person to testify for the State. Similar to Traylor, Buford stated that sometime prior to the murder, Mitchell was concerned about a fee he owed to his probation officer. He told Buford that he was going to “hit a lick” in order to obtain enough money to pay the fee. He stated that he was returning from the Mary C. Jones Community Center on Dr. Martin Luther King, Jr. Drive with his cousin, Michael Deshaun Gibson, around 6:00 p.m. on the day of the murder. Buford testified that he saw Mitchell running out of a pathway behind Buford’s house, and Mitchell called him over. Buford did as directed and saw that Mitchell had a 9mm pistol in his pocket. Buford said Mitchell seemed frustrated and scared, and he asked Buford for a new shirt because his had blood on it. Buford gave him a “gray, orange [shirt] with stripes” in exchange for ten dollars, and Buford testified Mitchell put it on over his bloody shirt. At trial, Buford identified a shirt that was retrieved from Mitchell’s house as the shirt he gave Mitchell. During trial, Buford testified that Mitchell did not say anything about the gun or the blood on his shirt. However, at the time of the murder, Buford gave a statement to the police in which he stated that he asked Mitchell how he got the blood on his shirt, and he responded that he had just shot someone.

¶ 9. During cross-examination, Buford stated that he pled guilty to accessory after the fact to the murder and was sentenced to three years’ imprisonment. As part of his plea bargain, Buford agreed to testify against Mitchell. However, he made it clear that he was not present when the victim was shot, and did not know who did it.

¶ 10. Gibson testified that at the time of trial he was serving a four-year term of incarceration in connection with his plea of guilty to accessory after the fact to the murder. He testified that sometime in March 2003, Mitchell told him he was being assaulted by other individuals in the neighborhood. In response, Gibson gave Mitchell a 9mm pistol so that he could defend himself. As was the case with Traylor and Buford, Mitchell also told Gibson he was having trouble paying his probation officer. Mitchell told him that he had some money, but that if he could not get more money soon, he was going to “hit the barbershop man up.” Gibson testified that he saw Mitchell again on March 27, 2003, walking on a pathway on Crawford Street wearing a bloody white t-shirt and blue jeans. Mitchell told him he “hit a lick,” but did not give anymore details. Gibson told Mitchell that he wanted a “piece of the lick” because Mitchell used his gun, and Mitchell gave Gibson ten dollars. During trial, Gibson was asked if he could identify the pistol that was found during the investigation and matched to the projectiles discovered at the scene of the murder. He stated, “I think that’s it, ma’am.... I think so, yes, ma’am. 9mm. It’s a Beretta, ain’t it?.... Yes, ma’am, it look [sic] like it.”

¶ 11. Investigator Charles Taylor, a crime scene investigator with the JPD, testified that during his survey of the crime scene, he found, among other items, three spent 9mm cartridges and two projectiles. He also discovered that the victim had a revolver in his pocket. Additionally, two shoe impressions were made from foot prints found in the backyard of a Crawford Street home. During his investigation, Taylor tested the 9mm pistol, which was later discovered, for fingerprints. He was able to lift one print from the pistol’s magazine; he delivered the print to the district attorney’s office, but did not discover any fingerprints on the pistol itself.

¶ 12. Detective James Cornelius with the JPD testified that during the early stages of his investigation, he was told that Gibson and Buford may have information pertaining to the murder, and he interviewed both men the day after the murder. Mitchell surfaced as a suspect as a result of those interviews. An arrest warrant was issued for Mitchell, and a search warrant was issued for his residence. Detective Cornelius executed the search warrant and found three pairs of tennis shoes, a white T-shirt, and a gray shirt with blue and orange stripes in Mitchell’s room. No firearm was found during this search. However, several days later Katherine Ledbetter, who is Buford’s aunt and Gibson’s grandmother, contacted investigators and told them that she found the 9mm pistol in a wooded area behind her house. Ledbetter testified that the police did not search the area in which she found the pistol. She testified that she took it upon herself to search for the weapon, and she specifically testified that Buford did not tell her where it was. The clothing found at Mitchell’s house was later tested for blood; however, none was found. Additionally, the projectiles found at the crime scene were tested, and it was determined that they were fired from the 9mm pistol found by Ledbetter. Detective Cornelius was later recalled by the defense. He testified that at the time Ledbetter notified the JPD that she found the pistol, she told him Buford told her where the gun was.

¶ 13. No fingerprints were found on the pistol itself; however, Melvin Jones, a criminologist with the JPD, testified that a fingerprint was found on the pistol’s magazine. He testified that he was asked to check the print only against Mitchell. He stated that the fingerprint on the magazine did not match Mitchell’s.

¶ 14. As to the victim’s cause of death, Dr. Stephen Hayne performed the autopsy and discovered that the victim was shot three times, two of which were fatal. Dr. Hayne testified that in addition to the three gunshot wounds, the victim also had several non-lethal abrasions. Specifically, the victim had an abrasion on his upper left back, on his left knee, and two larger cuts on the right side of his forehead.

PROCEDURAL HISTORY

¶ 15. Mitchell was indicted for murdering Barnes while in the commission of a robbery. Following his October 2006 trial in the Circuit Court of Hinds County, Mitchell was found guilty by a jury of his peers and sentenced to life in the custody of the Mississippi Department of Corrections without the possibility of parole. After the trial court denied his motions requesting a JNOV or a new trial, Mitchell timely appealed his conviction to this Court.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN REFUSING JURY INSTRUCTIONS D-10 AND D-ll.

¶ 16. At the conclusion of Mitchell’s trial, the trial court conducted a hearing on the proposed jury instructions from the State and Mitchell. Over the objections of Mitchell’s trial counsel, the trial court granted the State’s instructions S-3 and S-4, which covered the issue of accomplice testimony. Additionally, the trial court denied defense instructions D-10 and D-ll, which covered the same topic, stating that instructions S-3 and S-4 sufficiently instructed the jury on accomplice testimony. Mitchell argues that the trial court erroneously refused instruction D-10 and D-ll and deprived him of his right to a properly instructed jury.

¶ 17. Our standard of review when faced with a trial court’s denial of a proposed jury instruction is clear. The supreme court has stated that:

The Court does not single out any instruction or take instructions out of context; rather, the instructions are to be read together as a whole. A defendant is entitled to have jury instructions given which present his theory of the case. This entitlement is limited, however, in that the [Cjourt is allowed to refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Spicer v. State, 921 So.2d 292, 313(¶43) (Miss.2006). Mitchell claims that the evidence presented against him at trial warranted “stronger words of caution” against the testimony of an accomplice than those that were included in the State’s instruction. In support of his position, Mitchell cites Wheeler v. State, 560 So.2d 171 (Miss. 1990). However, Wheeler does not help Mitchell’s cause.

¶ 18. In Wheeler, Wheeler argued that the trial court erred in refusing to grant defense instruction D-2, which stated:

The Court instructs the Jury that the law looks with suspicion and distrust on the testimony of an alleged accomplice, and requires the jury to weigh same with great care and caution and suspicion. You should weigh the testimony from alleged accomplices, and passing on what weight, if any, you should give the testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion.

Id. at 172 (emphasis added). The jury was alternatively instructed as follows: “Neal Woodard and Franklin Holmes are accomplices in this case, and the testimony of an accomplice is to be considered and weighed with great care and caution. You may give it such weight and credit as to which you deem it to be entitled.” Id. (emphasis added). The supreme court found that the trial court erred “in deleting the requirement to view accomplices’ testimony with suspicion” and held that the facts of the “case warranted a stronger warning to the jury” than that expressed in the instruction given. Id. at 174. Such is not the situation we face in the present case.

¶ 19. State instruction S-3 stated as follows:

The Court instructs the jury that Michael Gipson [sic] is an accomplice in this case and the uncorroborated testimony of an accomplice is to be considered and weighed with great care[] caution!J and suspicion. You may give it such weight and credit as you deem it is entitled.

(Emphasis added). State instruction S^l mirrored S-3, but it replaced “Michael Gibson” with “Robert Buford.” Defense instruction D-10 read as follows:

The Court instructs the jury that the law looks with suspicion and distrust on the testimony of an alleged participant and requires the jury to weigh same with great care and suspicion. You should weigh the testimony of Robert Buford and Michael Gibson and passing on what weight, if any, you should give this testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion.

Defense instruction D-ll stated:

The Court instructs the jury that witnesses, Robert Buford and Michael Gibson, were convicted of [ajccessory after the [fjact in this case. You should weigh these witnesses’ testimony with great care, caution, and suspicion. You must consider the extent the witnesses!”] testimony is either supported or contradicted by other evidence[,][t]he relationship the witnesses may have with either side and to each other[,] and how the witnesses might be affected by the verdict.
In weighing a discrepancy by a witness or between witnesses, you should consider whether it resulted from an innocent mistake or deliberate falsehood, and whether [it] pertains to a matter of importance or [is an] unimportant detail.
You may reject or accept all or any part of the witness’s testimony and you may reject part and accept other parts of the witness’s testimony.
After making your own judgment, you will give the testimony of each witness the weight and credibility, if any, as you may think it deserve[s].

¶20. It is clear that instructions S-3 and S-4 contained the necessary language instructing the jury to view the uncorroborated testimony of an accomplice with “great care, caution, and suspicion,” thus satisfying the requirements of Wheeler. See Smith v. State, 907 So.2d 292, 297(¶ 27) (Miss.2005) (holding that Wheeler stands for the proposition that the term “suspicion” must be included in an accomplice instruction). Furthermore, proposed instruction D-10 was a misstatement of the law as it implied that the testimony of an accomplice should always be viewed with great caution and suspicion. A jury should only view that portion of an accomplice’s testimony that is uncorroborated under such a mistrustful lens. Smith, 907 So.2d at 298(1128). Therefore, we find that the trial court did not err in refusing proposed instructions D-10 or D-ll, as D-10 was an incorrect statement of the law and the previously accepted instruction S-3 and S-4 accurately instructed the jury on accomplice testimony. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN DENYING MITCHELL’S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, A NEW TRIAL.

¶ 21. It is unclear from Mitchell’s brief whether he raises the issue of weight of the evidence or sufficiency of the evidence as he combines indications of both arguments within his second issue. Because these issues are distinct and must be viewed under differing standards of review, we will address each separately.

A. Sufficiency of the evidence.

¶ 22. The standard of review we must employ for sufficiency of the evidence has been stated often as follows:

A motion for a directed verdict and a motion for a judgment notwithstanding the verdict challenge the sufficiency of the evidence. When reviewing a case for sufficiency of the evidence, 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. The evidence must show beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. If, keeping in mind the reasonable-doubt standard, reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient.

Boone v. State, 973 So.2d 237, 242(¶ 18) (Miss.2008) (internal citations and quotations omitted) (quoting Brown, v. State, 970 So.2d 710, 712-13(¶ 7) (Miss.2007)).

¶ 23. Mitchell was convicted of capital murder in violation of Mississippi Code Annotated section 97-3-19(2)(e) (Rev. 2006), which makes it a crime to kill a “human being without the authority of law by any means or in any manner ... (e) [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of ... robbery ... or in any attempt to commit such [felony][.]” The underlying crime in Mitchell’s case was robbery. In order to prove robbery the State was required to demonstrate the following elements: “(1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property of another from his person or in his presence.” Walker v. State, 913 So.2d 198, 223(¶ 78) (Miss.2005) (citation omitted).

¶ 24. Mitchell argues that the evidence against him was not sufficient to warrant a guilty verdict as a result of the numerous inconsistencies of the State’s witnesses’ testimony and lack of investigation by law enforcement. While the evidence against Mitchell was certainly not overwhelming, we find that there was sufficient evidence to establish Mitchell’s guilt. There was undisputed testimony from several witnesses that Mitchell needed money in order to pay his probation officer. Additionally, Gibson testified that Mitchell told him that if he did not get the money he needed he was going to “hit the barbershop man up.” Gibson also stated that the day of the murder he saw Mitchell in a bloody shirt, and Mitchell told him that he had just “hit a lick.” Buford also testified that Mitchell told him he was going to “hit a lick” in order to come up with the money needed to pay his probation officer. Further, Gibson testified that he gave Mitchell the pistol used in the commission of the murder. Additionally, although Warren could not identify Mitchell during the 2006 trial, he did identify Mitchell in 2003 from a photo lineup as the individual he saw go behind the barbershop shortly before the victim’s body was discovered.

¶ 25. Traylor testified that he saw Mitchell walking toward a pathway that led in the direction of the barbershop with a gun prior to the murder. Additionally, Traylor stated that when Mitchell returned he saw him drop what looked like a wallet. Further, Traylor testified that Mitchell’s shirt was bloody, and he overheard Mitchell ask Buford for another shirt. Finally, Buford testified that Mitchell asked him for a shirt because his was covered in blood, and he identified the shirt retrieved from Mitchell’s room as the shirt he gave him.

¶ 26. It is clear that there were inconsistencies between the live testimony of the witnesses, as well as particular witnesses’ testimonies at trial and statements they gave to the police. However, it has been consistently held that “when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony.” Ford v. State, 975 So.2d 859, 869(¶ 36) (Miss.2008) (quoting Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980)). Unfortunately for Mitchell, the jury weighed the evidence presented at trial against him and returned a verdict of guilty. Viewing the evidence in the light most favorable to the prosecution, we find that the evidence was not such that reasonable jurors could have only returned a verdict of not guilty. Therefore, we find that this issue is without merit.

B. Weight of the evidence.

¶ 27. We have stated the standard of review when determining if a verdict is supported by the weight of the evidence as follows:

The appellate court must accept as true all evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. The State is given the benefit of all favorable inferences that may reasonably be drawn from the evidence. The appellate court should not reverse a guilty verdict unless failure to do so would sanction an unconscionable injustice. This Court does not have the task of re-weighing the facts in each ease to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.

Hodges v. State, 906 So.2d 23, 26(¶ 11) (Miss.Ct.App.2004) (internal citations and quotations omitted).

¶ 28. Accepting all the evidence detailed above as true, and giving the State the benefit of all favorable inferences, we cannot say the trial court erred in failing to grant Mitchell a new trial. Accordingly, this issue is without merit.

III. WHETHER THE STATE’S CLOSING ARGUMENT WAS IMPROPER.

¶ 29. During its closing arguments, the State made several references to the testimony of its witnesses. Specifically, throughout the State’s closing argument the following statements were made:

... none of [Gibson’s] testimony was disputed. There were no questions asked. So everything that Michael Gibson says has to be taken as truth by the jury.
So Michael Gibson who is a street kid, you know, you used my gun. You got a lick off my piece. He wants a piece of the blood money, so he takes ten dollars. Uncontested testimony.
[Gibson] admitted to [taking the ten dollars from Mitchell]. He admitted that’s what Richard Mitchell did and what he told him. Uncontested testimony.
Darwin Traylor could not recognize the shirt but we have two witnesses who do recognize the shirt. Obviously, Richard Mitchell was given a shirt to wear over his bloody t-shirt. Corroborated testimony by two witnesses. Uncontested testimony from Michael Gibson. It has to be taken as truth.
Once again, just to reiterate, Michael Gibson’s testimony is unrefuted.

¶ 30. For the first time on appeal, Mitchell argues that the State’s comments were improper and requests this Court reverse his conviction based upon the doctrine of plain error. Specifically, Mitchell argues that the State impermissibly commented on his right not to testify and attempted to instruct the jury on how to weigh certain evidence. The State counters that Mitchell waived his right to raise this issue when he failed to voice an objection to the State’s comments during its closing argument. Alternatively, the State contends that if this Court reaches the merits of Mitchell’s claim, we should, nonetheless, affirm Mitchell’s conviction as the closing argument merely highlighted Mitchell’s lack of a defense and did not comment on his failure to testify.

¶31. Typically, the failure to voice a contemporaneous objection to the State’s closing argument constitutes a procedural bar to raising the issue on appeal. Dam,pier v. State, 973 So.2d 221, 236(¶ 40) (Miss.2008) (citing Ross v. State, 954 So.2d 968, 1001(¶71) (Miss.2007)). However, if the statement is found to violate the defendant’s constitutional rights, no waiver of the defendant’s right to raise the issue will be found, and the defendant may do so for the first time on appeal under the doctrine of plain error. Id. As applied to closing arguments, plain error may only be found “when the substance of the statement is ‘out of bounds for closing arguments.’ ” Boyd v. State, 977 So.2d 329, 337(¶ 34) (Miss.2008) (quoting Minor v. State, 831 So.2d 1116, 1123(¶ 23) (Miss.2002)). Notwithstanding the possible procedural bar in the instant case, we note that the supreme court has alluded to what is “out of bounds” as follows:

Attorneys are alloiued a wide latitude in arguing their cases to the jury. However, prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice axjainst the accused so as to result in a decision influenced by the prejudice so created.

Dampier, 973 So.2d at 235(¶ 39) (internal citations omitted) quoting Sheppard v. State, 777 So.2d 659, 661(¶ 7) (Miss.2000).

¶ 32. In order to overcome the procedural bar, Mitchell must demonstrate that a constitutional right was violated as a result of the State’s comments. It is a criminal defendant’s constitutional right to choose whether to take the witness stand in his own defense. U.S. Const, amend. V; Miss. Const., Art. 3, § 26. Consequently, “any reference to the defendant’s failure to testify implying that such failure is improper, or that it indicates the defendant’s guilt” is prohibited. Wright v. State, 958 So.2d 158, 161(¶ 8) (Miss.2007). However, there is a difference between a comment on a defendant’s choice not to testify in his own defense and a comment on the lack of a credible defense. Id. at 164(¶ 14). Therefore, “[w]hen the statement is not an outright violation, [the appellate court] will review the facts on a case-by-case basis.” Id. at 166(¶ 24).

¶ 33. The facts of the instant ease are similar to those in Dora v. State. In Dora, the State made the following comment during its rebuttal closing argument:

You also heard the fact that it is undisputed, ladies and gentlemen, that this defendant^ Terry Dora,] told Rebecca Dora, I will give you $5,000; I’m sorry I got you into this trouble, but I will give you $5,000 to go in there and take the rap for me. That is also undisputed. Nobody came forward and said that didn’t happen. I submit to you, [l]adies and [gjentlemen, that is strong evidence that—

Dora v. State, 986 So.2d 965, 970(¶ 10) (Miss.Ct.App.2007), rev’d, 986 So.2d 917 (Miss.2008). At the time of the alleged statement, Dora, Rebecca, and Rebecca’s daughter were the only individuals present, and both Rebecca and her daughter testified that Dora made the statement. Dora, 986 So.2d at 970(¶ 11).

Additionally, the prosecutor commented that two other pieces of evidence were “undisputed.” First, he claimed it was undisputed that Dora placed the cocaine in the trash can. As Dora, Rebecca[,] and her daughter were the only occupants in the house at the time, he was the only one who could have said differently. Second, the prosecutor told the jury that Officer Lewis’s testimony that Dora was exiting the bathroom was undisputed. As Dora and [Officer] Lewis were the only people present at the time, Dora was the only person who could have come forward and denied it.

Id. at (¶ 12).

¶ 34. In reversing this Court’s holding that the State’s comments were impermissible, the supreme court stated that considering the State’s comments made during closing argument “in context with Dora’s theory of the case, this Court finds that the prosecutor’s statement was a permissible comment on the absence of evidence to support Dora’s defense. The prosecutor’s statement neither referred to Dora’s failure to testify, nor by masked implication suggested Dora’s silence was evidence of guilt.” Dora, 986 So.2d at 923(¶ 13). In the instant case, the defense’s theory of the case was never so explicitly stated as in Dora; however, it is clear from the transcript of the trial as a whole that the defense’s theory of the case was that Mitchell was innocent and Buford was the guilty party. As in Dora, the State’s comments during its closing argument brought attention to the lack of evidence supporting Mitchell’s theory of the case. Accordingly, we are unable to find that the statements made in the State’s closing argument created a prejudicial effect, were “out of bounds,” or that they violated Mitchell’s constitutional right against compulsory self-incrimination. Thus, we find this issue does not rise to the level of plain error and is without merit.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ, CONCUR.

      . Buford testified that “hitting a lick” meant to rob someone or otherwise get money "the easy way.”

      . The footnote accompanying the preceding quote stated that "[i]n closing argument, counsel for Dora stated 'our theory of the case ... is that [Rebecca] stood to go to prison, and that they did not want to see Rebecca go to prison. So they put it on my innocent client, [Dora], who has the presumption of innocence before you, the jury.' " Dora, 986 So.2d at 923 n. 12.

      . Examples of instances during the trial indicating Mitchell's theory of the case include the following: (1) when defense counsel was cross-examining Traylor, she highlighted the fact that Traylor initially told police that he saw Buford with the gun; (2) when referring to the fact that Buford and Ledbetter went to view the barbershop while police were investigating the scene, defense counsel asked Buford during cross-examination whether he had heard of the saying that "the guilty party always returns to the scene of the crime”; (3) defense counsel asked Buford during cross-examination whether he knew that Mitchell implicated him as the guilty party in Mitchell's statement to the police; (4) defense counsel asked Buford during cross-examination whether he ever had the murder weapon in his hand; and (5) during the defense's casein-chief, defense counsel asked Detective Cornelius if Ledbetter had told him that Buford told her where the murder weapon was.


author: ISHEE, J.,

text:
    Will D. MASSEY and Jackie M. Massey, Appellants v. Joe S. LEWIS, Appellee.
    No. 2007-CA-01870-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2008.
    Rehearing Denied Sept. 1, 2009.
    Certiorari Denied Nov. 19, 2009.

      Don 0. Rogers, attorney for appellants.
    Mark A. Scarborough, attorney for ap-pellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. This case arises from a property line dispute among Will D. (Will) and Jackie Massey (collectively, Masseys) and their neighbor, Joe S. Lewis, in which the chancellor found that a 1996 quitclaim deed vested title to the “hatched area” of certain property in Lewis’s predecessor, and subsequently passed title to Lewis. The Masseys contended that they acquired the hatched area by adverse possession and that it was never their intention nor Lewis’s predecessor’s intention to relinquish title to that parcel. Aggrieved, the Mas-seys appeal, asserting:

I. The chancellor erred in holding that the 1996 quitclaim deed from the Masseys to Lewis’s predecessor was without limitations or restrictions and, therefore, passed title to the entire parcel of property as described by the land description in the deed.
II. The chancellor erred in not reforming the 1996 quitclaim deed description to exclude the hatched area, because it was not Lewis’s predecessor nor Masseys’ intention to convey the hatched area.

Finding that the original parties never intended to convey the hatched area, and that the chancellor erred by failing to reform the 1996 quitclaim deed between the Masseys and Lewis’s predecessor, we reverse the decision of the chancellor and render judgment reforming the deed to exclude the hatched area and confirming title to the hatched area in favor of the Masseys.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Masseys were neighbors of William and Mildred Washington for more than fifty years. Each owned adjoining property in Lauderdale County. The Mas-seys’ property was aligned along the eastern and southern border of the Washing-tons’ property. The legal descriptions that described their respective properties did not overlap but instead shared a common dividing line. From the 1950s to the trial date, the dividing line was represented by an old fence line that ran between the two properties. The old fence line was always considered to be the property line, even though no survey had ever been conducted on either the Masseys’ or the Washing-tons’ parcel of land.

¶ 3. In 1992, the Washingtons’ property was sold at a tax sale. The highest bidder was Hot Properties, Inc. After the Wash-ingtons failed to redeem the property within the statutory redemption period, the chancery clerk issued a tax deed to Hot Properties. The tax deed was recorded in the land records office of the Chancery Clerk of Lauderdale County and described the property as follows:

# 9 — B; N ½ S ⅜ SW NW 1/4 LESS 1 A IN NWC & LESS THAT PT S & W RD SECTION 1 TOWNSHIP 7 RANGE 15

¶ 4. Subsequently, the Masseys noticed a “for sale” sign on the Washingtons’ property and agreed to purchase the property from Hot Properties for $10,000. A quitclaim deed was executed by Hot Properties in favor of the Masseys on December 26, 1994, and recorded with the chancery clerk. The quitclaim deed described the property conveyed to the Masseys as follows:

# 9-B; N ½ S ⅛ SW NW 1/4 LESS 1 A IN NWC & LESS THAT PT S & W RD SECTION 1 TOWNSHIP 7 RANGE 15, LAUDERDALE COUNTY, MISSISSIPPI. PARCEL # 121010000000015, together with all improvements situated thereon and all appurtenances thereunto belonging, being the same interest acquired by Hot Properties, Inc.

Approximately three weeks after the deed was delivered to them, the Masseys filed a suit to confirm title. The Washingtons objected and asked for the tax sale and tax deed to be held void on the grounds that they did not receive proper notification. In 1996, the parties reached a settlement in which the Masseys agreed to dismiss the suit and execute a quitclaim deed in favor of the Washingtons in exchange for $7,600. The deed used the same legal description to describe the property as used in the quitclaim deed conveyed to the Masseys by Hot Properties. The validity of the tax sale was not adjudicated by the court. After the settlement, the Washing-tons and the Masseys continued to occupy the same parcels of land as they did prior to the tax sale. During this time, the Masseys constructed a barn and an equipment shed that were located on their side of the old fence line but partially on the hatched area.

¶ 5. On August 13, 2002, the Washing-tons conveyed their property to Lewis. Two years later, Lewis employed a survey- or to survey the property. This was the first time that the Washingtons’ property had ever been surveyed. Unbeknownst to the Washingtons and the Masseys, Lewis discovered that the old fence was not located on the dividing line described in the deed. Instead, the fence encroached onto Lewis’s property by 1.33 acres. Lewis and Will attempted to reach a compromise by which Will would agree to move the fence. However, the negotiations fell apart after the surveyor staked off the actual property line, and Will realized that the stakes came a great deal further onto his property than he originally anticipated. Will was specifically concerned about the location of three of his buildings that were partially located in the hatched area, as well as access to a creek located on the north side of the property.

¶ 6. As a result of the failed negotiations, Lewis filed a complaint for declaratory judgment and other relief in the Chancery Court of Lauderdale County naming the Masseys as defendants. In response, the Masseys requested that the chancellor reform the 1996 quitclaim deed description limiting the area of property conveyed to the Washingtons to the old fence line. After hearing the evidence, the chancellor held that, though the Masseys had originally acquired title to the hatched area by adverse possession, they relinquished that title when they reconveyed the property back to the Washingtons by way of the 1996 quitclaim deed. The chancellor also held that the Masseys failed to prove beyond a reasonable doubt that the execution and delivery of the deed resulted from mutual mistake between themselves and the Washingtons. Finding that the deed was unambiguous, the chancellor held that the deed vested title to the hatched area in the Washingtons as of that date; therefore, title passed to Lewis when the Wash-ingtons’ property was conveyed to him. Further, because only eight years had passed between the reconveyance and Lewis’s complaint, the Masseys had failed to reestablish their title by adverse possession under Mississippi’s ten-year adverse possession statute. Therefore, the chancellor confirmed the title to Lewis’s property to include the hatched area. The validity of the 1994 tax deed was not submitted before the chancellor; therefore, he could not find that the deed was void.

STANDARD OF REVIEW

¶ 7. This Court adheres to a limited standard of review of the decisions of a chancellor. Nichols v. Funderburk, 883 So.2d 554, 556(117) (Miss.2004). We will reverse only when the chancellor’s determinations were manifestly wrong or clearly erroneous, or when the chancellor applied an incorrect legal standard. Id. If substantial evidence supports the chancellor’s fact-findings, this Court must affirm. Id.

ANALYSIS

I. Whether the chancellor erred in holding that the Masseys’ legal interest in the hatched area passed by virtue of the 1992 tax sale and conveyance of the 1996 quitclaim deed.

¶ 8. It is undisputed that the Mas-seys acquired title to the hatched area by adverse possession prior to the 1992 tax sale. The issue on appeal is whether the Masseys relinquished their title to the hatched area by purchasing the Washing-tons’ property after the tax sale and subsequently reconveying the property back to the Washingtons in 1996. Lewis argues that the tax sale interrupted the Masseys’ adverse possession claim, and their subsequent conveyance by way of the 1996 quitclaim deed relinquished title to the hatched area. The Masseys argue that the tax sale was void due to improper notice; therefore, no legal interest in the hatched area was conveyed by virtue of the sale. Further, the Masseys contend that it was never their intent to convey the hatched area. Therefore, their adverse possession claim remained ripe, and the Washingtons had no interest in the hatched area to convey to Lewis.

¶ 9. The Masseys assertion that the tax sale was void is based solely on the Wash-ingtons’ claim in the 1995 confirmation suit that they failed to receive proper notice of the sale. However, because the Masseys and Washingtons subsequently settled the suit, the validity of the tax sale was never adjudicated by the court. The chancellor noted this in his opinion, stating that because the validity of the tax sale was not submitted to him, he could not find that the tax sale was void. The Masseys have offered no other evidence sufficient to suggest that the tax sale was void. Therefore, the chancellor was correct in his presumption that the tax sale was valid.

¶ 10. Having found that Hot Properties did possess a legal interest in the Wash-ingtons’ property that they then could convey to the Masseys, we must determine whether the Masseys relinquished their adverse possession claim to the hatched area. The Masseys contend that it was never their intent to relinquish title to the hatched area through the 1996 quitclaim deed. They argue that even if the tax sale was valid, it did not serve as an interruption to the Masseys’ adverse possession claim to the property.

¶ 11. The Masseys’ intent is largely irrelevant with regard to the effect that the tax sale had on adverse possession. Mississippi Code Annotated section 27-45-23 (Rev.2006) states that when a property is sold for taxes and after the redemption period has expired, the chancery clerk shall execute a deed of conveyance to the purchaser at the tax sale, and that “conveyance shall vest in the purchaser a perfect title with the immediate right of possession to the land sold for taxes.” Further, our supreme court has held that adverse possession cannot operate to vest title while a municipality holds the tax title to the land in question. Grayson v. Robinson, 240 Miss. 59, 63, 126 So.2d 247, 249 (1961). The supreme court expanded on this point in Cotten v. Cotton, 203 Miss. 316, 321, 35 So.2d 61, 63 (1948), stating that even if at the time of a tax sale a defendant had acquired perfect title to a disputed strip of land by adverse possession, he could lose that title by permitting the land to be sold for taxes as part of an adjoining tract of land not owned by him.

¶ 12. As previously stated, it is undisputed that the Masseys had a matured and ripened adverse possession claim to the hatched area prior to the 1992 tax sale, as they had openly maintained ownership of the property for more than fifty years. However, regardless of the extent and quality of the Masseys’ adverse possession, they relinquished their claim when they allowed the hatched area to be sold at the tax sale as part of the Washingtons’ property. Winstead v. Winstead, 204 Miss. 787, 789-90, 38 So.2d 118, 119 (1948). This effectively tolled the adverse possession period. Id. Further, the execution and delivery of the deed from the chancery clerk to Hot Properties, and its subsequent recording, had the effect of removing record title from the Washingtons and vesting it in Hot Properties. Over the next two years, record title was conveyed to the Masseys, who subsequently reconveyed title back to the Washingtons. Therefore, the Masseys had to reestablish their adverse possession claim of the hatched area at the point the property reverted back to the Washingtons. Given that only eight years had passed between the reconveyance and Lewis’s filing of this action, the Masseys’ title to the hatched area had not ripened by adverse possession.

¶ 13. Under these circumstances, we find that the chancellor did not err in holding that legal interest passed from the Masseys to Lewis by virtue of the 1992 tax sale and 1996 quitclaim deed.

II. Whether the chancellor erred in not reforming the 1996 quitclaim deed description to exclude the hatched area.

¶ 14. The Masseys contend that the 1996 quitclaim deed should have been reformed to reflect the intentions and expectations of the parties. Specifically, they allege that the deed was conveyed as part of a settlement of them 1995 confirmation suit against the Washingtons, and the deed must be read in conjunction and in light of that settlement. The Masseys claim that the purpose of the settlement was to return to the Washingtons what they lost at the tax sale. They contend that because the Washingtons did not believe that they owned the hatched area before the tax sale, they did not expect to acquire it by the reconveyance after the tax sale. Instead, their conveyance of the hatched area to the Washingtons was the result of a mutual mistake as to the land description used in the deed.

¶ 15. It is a well-settled principle that “[w]hen the language of the deed or contract is clear, definite, explicit, harmonious in all its provisions and free from ambiguity throughout, the court looks solely to the language used in the instrument itself, and will give effect to each and all its parts as written.” Estate of DeLoach v. DeLoach, 873 So.2d 146, 150(¶ 14) (Miss. Ct.App.2004). However, this is not to say that this principle is absolute in all cases. This Court has stated that:

[w]hen, however, the language falls short of the qualities above mentioned and resort must be had to extrinsic aid, the court will look to the subject matter embraced therein, to the particular situation of the parties who made the instrument, and to the general situation touching the subject matter, that is to say, to all conditions surrounding the parties at the time of the execution of the instrument, and to, what as may fairly assumed, they had in contemplation in respect to all such said surrounding conditions, giving weight also to the future developments therein about which were reasonably to be anticipated or expected by them; and when the parties have for some time proceeded with or under the deed or contract, a large measure, and sometimes, a controlling measure, of regard will be given to the practical construction which the parties themselves have given it, this is on the common sense proposition that actions generally speak louder than words.

Id.

¶ 16. Our supreme court has previously held that its purpose in construing deeds is to reflect the intentions of the parties, stating that it is not always the description of the property that the parties intend to write but rather the property the parties intended to include in the description that controls. Webb v. Brown, 404 So.2d 1029, 1031-32 (Miss.1981). In Webb, Peggy Wiggins and Durwood McGuffie had negotiated a purchase of property from Annie Varnado, who was the original owner of the property. Id. at 1031. That conveyance had included three different buildings, but unbeknownst to the parties, the deed included part of a fourth building. Id. According to all testimony, Varnado specifically refused to convey title to the fourth building. Id. McGuffie later purchased Wiggins’s interest and later sold the identical property to one of the buildings’ tenants, Elizabeth Brown. Id. The deed to Brown used the same description as the prior conveyance from Varnado to Wiggins and McGuffie, but it was not intended to include the fourth building. Id. Varnado’s heir, McGuffie, and Wiggins sought reformation of the deed to exclude all of the fourth building. Id. at 1030. However, the chancellor entered judgment in favor of the Brown. Id. On appeal, the supreme court stated that the evidence unmistakably demonstrated that it was the clear intention of Varnado not to convey the fourth building. Id. at 1032. The supreme court also found that Brown, who had been a tenant of one of the buildings, was cognizant of the fact that the fourth building was owned by Varnado and not McGuffie. Id. Even though the deed description after the survey included part of the fourth building, it was not the description they intended to write that controlled but the property the parties intended to include in the description used. Id. Therefore, the supreme court concluded that the evidence demonstrated beyond a reasonable doubt a mutual mistake on the part of the seller and the purchaser. Id.

¶ 17. The facts of this case are very-similar to those in Webb. Although the Masseys technically conveyed their interest in the hatched area by way of the 1996 quitclaim deed, that conveyance was clearly based on a mutual mistake between the Masseys and the Washingtons. The mistake was not in the deed description, having used the same legal description that had always been used to describe the Washingtons’ property. Instead, the mistake was in what the deed description included. It is clear from the record that both the Masseys and the Washingtons believed that the deed description set the old fence line as the dividing line between their properties. For fifty years, both the Masseys and the Washingtons recognized the old fence line as the property line. There is no evidence that the Masseys or the Washingtons ever disputed this belief. In fact, the record reflects just the opposite. Both Will and Washington testified that prior to 2004, no survey had ever been conducted on the property. Instead, they operated under the mistaken assumption that the old fence was the proper boundary line.

¶ 18. It is also clear from the record that based on their mistaken belief as to the property line, the Masseys and the Washingtons believed the hatched area was part of the Masseys’ property; therefore, they never intended to include it in the deed description. In recognizing that the old fence line was the property line, they recognized that everything to the east and south of the old fence was Masseys’ property. This is reflected by the fact that during the fifty-year period that the Masseys adversely possessed the property, the Masseys had constructed and operated a barn, shop, and an equipment shed on the hatched area without an objection from the Washingtons.

¶ 19. This mutual mistake is also evident in several factual findings made by the chancellor during the confirmation suit. First, the chancellor noted, “[the Masseys] in 1996 were not aware that any real property south and east of the fence was not included within the real property previously conveyed to them.” Second, “Mrs. Washington did not recall any dispute between her family and the Massey family as to the location of the common boundary lines.... ” Third, the location of the property line was not even discussed during the settlement negotiation. In fact, the Washingtons admitted that they were not aware that any real property located south and east of the old fence was conveyed to them as a result of the settlement. Finally, Will testified that it was never his intent to “give away anything except what [he] got from Hot Properties .... ” Will believed that he had always owned the hatched area and did not receive it as part of the conveyance from Hot Properties. Of even greater significance is the fact that after the deed was conveyed, both the Masseys and the Washingtons went back to occupying their respective properties as they had done before the tax sale. In fact, the Masseys’ possession and ownership of the hatched area was not challenged until Lewis’s survey was conducted eight years later.

¶ 20. Accordingly, the evidence demonstrates beyond a reasonable doubt that the Masseys’ conveyance of the hatched area to the Washingtons was based on a mutual mistake in the deed description. Moreover, we are of the opinion that had the Masseys known that the deed description included the hatched area, they would have never conveyed it to the Washingtons. As the court held in Webb, “[i]t is not what description the parties intended to write but what property the parties intended to have embraced in the description they used.” Id. (quoting Britmn v. McGee, 119 Miss. 52, 57, 80 So. 379, 381 (1918)). Therefore, the mistake in description in the deed should be reformed to coincide with the description of the property intended to be conveyed. The chancellor erred by not reforming the deed to reflect the Masseys’ and the Washing-tons’ intentions.

¶21. Finally, we turn to Lewis’s assertion that he was a bona fide purchaser for value without notice, which he briefly mentions in his appellate brief. The evidence does not support Lewis’s argument. Instead it supports a finding that Lewis, who was Washington’s brother-in-law, was cognizant of the fact that he was not purchasing the area south and east of the old fence. The Washington property had been in the family for many years, so we find it reasonable to infer that Lewis knew the location of the old fence line and that it served as the Washingtons’ property line. Lewis also did not conduct a survey of the property before it was conveyed to him. It was not until two years after the conveyance that Lewis conducted a survey and found that the old fence was not located on the deed lines. Furthermore, based on this evidence, the chancellor noted that: (1) “Lewis was surprised at the various distances from the surveyed property line to the fence ... ”; and (2) “[t]hese litigants did not realize the difference in the actual property line and the fence line until the plaintiff employed a surveyor to survey the real property conveyed to him pursuant to the deed.... ”

¶ 22. The chancellor’s findings indicate that he believed that Lewis was under the impression that the fence line was the actual property line and that the Masseys claimed the hatched area. Such a finding would preclude Lewis from claiming the status of a bona fide purchaser. Under the facts set out above, we cannot agree, based solely on Lewis’s blanket assertion that he was a bona fide purchaser, that he had no notice of the Masseys’ claim to the hatched area. Therefore, a reformation of the deed would be equitable as to all parties. The chancellor’s finding is supported by substantial evidence in the record; therefore, we see no merit to Lewis’s claim that he was a bona fide purchaser.

CONCLUSION

¶23. Although the Masseys arguably relinquished their adverse possession claim to the hatched area, the evidence clearly shows that they had no knowledge that the hatched area was actually part of the Washingtons’ property. Further, the evidence shows that had they known this, the Masseys would not have conveyed the hatched area to the Washingtons after they acquired record title. Accordingly, we believe that no title vested in Lewis to the hatched area; therefore, he had no interest in the title to such property.

¶24. Therefore, we reverse the judgment of the chancery court. We render judgment reforming the 1996 quitclaim deed to exclude the hatched area from the deed description and confirming title to the hatched area in favor of the Masseys.

¶ 25. THE JUDGMENT OF THE CHANCERY COURT OF LAUDER-DALE COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR.

      . The "hatched area,” which is the focus of this dispute, is described in the record as the area of property located between the old fence line and the actual dividing line separating the Massey and Washington properties as described in their respective deeds. Though the Masseys did not truly own this parcel of land, they had openly possessed and occupied it for fifty years without objection from the Washingtons.


author: CHANDLER, J.,

text:
    Leon STUART, Individually, and as Wrongful Death Beneficiary and on Behalf of all other Wrongful Death Beneficiaries of Shirley Stuart, Deceased, Appellant v. The UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, Appellee.
    No. 2007-CA-00864-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2008.
    William B. Raiford, John H. Cocke, Clarksdale, attorneys for appellant.
    Senith C. Tipton, Melanie H. Morano, Jackson, attorneys for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

CHANDLER, J.,

for the Court.

¶ 1. The motion for rehearing filed by Leon Stuart (Stuart) is denied. The original opinion issued in this case is withdrawn, and the following opinion is substituted therefor.

¶ 2. Stuart filed a medical malpractice lawsuit under the Mississippi Tort Claims Act (MTCA) against the University of Mississippi Medical Center (UMMC) for the wrongful death of Shirley Stuart. UMMC filed a motion for summary judgment based upon Stuart’s undisputed failure to comply with the ninety-day notice requirement imposed by the MTCA. The Circuit Court of Hinds County granted summary judgment to UMMC based upon University of Mississippi Medical Center v. Easterling, 928 So.2d 815, 819-20(¶22) (Miss. 2006), in which the supreme court adopted a strict compliance standard for the ninety-day notice requirement.

¶ 3. Stuart appeals, arguing that summary judgment was improper because: (1) UMMC waived any objection it had to Stuart’s failure to comply with the notice requirement, and (2) the holding of Easter-ling should not have been applied retroactively. We find that Easterling applied retroactively and that, under the dictates of Easterling, summary judgment was appropriate. Therefore, we affirm.

FACTS

¶4. On December 4, 2003, Stuart hand delivered a notice of claim to the chief executive officer of UMMC. The notice of claim alleged that Shirley arrived at the hospital on December 10, 2002, and was diagnosed with congestive heart failure, but she died of a pulmonary embolism the next day. The notice alleged that UMMC’s staff negligently failed to detect and treat Shirley’s pulmonary embolism, proximately causing her death.

¶ 5. Stuart filed his wrongful death complaint on January 14, 2004, forty-one days after filing the notice of claim. UMMC filed an answer and its defenses. UMMC’s second defense stated that: “UMMC reserves all rights and defenses accorded to it pursuant to Miss.Code Ann. § 11-46-1 et seq., including but not limited to bar of limitations.... ” The case proceeded through some discovery. The supreme court handed down Easterling on April 6, 2006, and issued its mandate on July 6, 2006. In Easterling, the supreme court affirmed the dismissal of a suit under the MTCA due to the plaintiffs failure to comply with the MTCA’s requirement that a plaintiff file a notice of claim with the chief executive officer of a governmental entity ninety days prior to maintaining an action thereon. Easterling, 928 So.2d at 820(¶ 24); see Miss.Code Ann. § 11^46-11(1) (Rev.2002). On July 14, 2006, UMMC filed a motion for summary judgment on the basis of Easterling’s holding that “[t]he ninety-day notice requirement under section 11-46-11(1) is a ‘hard-edged, mandatory rule which the Court strictly enforces.’ ” Easterling, 928 So.2d at 820(¶ 23) (quoting Ivy v. Gen. Motors Acceptance Corp., 612 So.2d 1108, 1116 (Miss. 1992)). Easterling relied upon two prior cases, Davis v. Hoss, 869 So.2d 397 (Miss. 2004) and Wright v. Quesnel, 876 So.2d 362 (Miss.2004). Easterling, 928 So.2d at 816(¶ 2). In each of these cases, the supreme court affirmed the dismissal of a MTCA claim in part because the plaintiff had not waited ninety days before filing the complaint. Davis, 869 So.2d at 401-02(¶ 13); Wright, 876 So.2d at 366(¶9). UMMC argued that because Stuart did not strictly comply with section 11-46-11(1) by filing his complaint after only forty-one days of filing the notice of claim, his case was subject to dismissal pursuant to East-erling.

¶ 6. Stuart filed a response to UMMC’s motion for summary judgment. Stuart admitted that under the current law, summary judgment was appropriate. He argued that his complaint could not be dismissed because it was not governed by the current law, but rather by the law as it existed at the time the complaint was filed. Under that prior law, the remedy for a failure to comply with the ninety-day waiting period was an order staying the lawsuit until the governmental entity obtained the benefit of the waiting period. Williams v. Clay County, 861 So.2d 953, 977 (¶ 100) (Miss.2003); Jackson v. City of Wiggins, 760 So.2d 694, 696(¶3) (Miss. 2000); Jones ex tel. Jones v. Miss. Sch. for the Blind, 758 So.2d 428, 429(¶ 4) (Miss. 2000); Jackson v. City of Booneville, 738 So.2d 1241, 1246(¶ 21) (Miss.1999); City of Pascagoula v. Tomlinson, 741 So.2d 224, 228(¶ 11) (Miss.1999). However, if the governmental entity failed to request a stay, the issue was waived. Leflore County v. Givens, 754 So.2d 1223, 1232(¶25) (Miss.2000); Tomlinson, 741 So.2d at 229(¶ 11). Relying on this case law, Stuart contended that UMMC’s failure to request a stay waived the issue of the plaintiffs noncompliance with the ninety-day notice requirement. He alternatively contended that Easterling should not be applied retroactively.

¶ 7. The circuit court noted that under the law as it formerly stood, UMMC’s sole remedy for Stuart’s noncompliance with the ninety-day notice requirement was a stay, and its failure to request a stay waived the issue. However, the circuit court recognized that the cases so holding had been specifically overruled by Easter-ling, which mandated the dismissal of Stuart’s complaint because he had failed to strictly comply with the ninety-day notice requirement. Accordingly, the circuit court granted UMMC’s motion for summary judgment.

STANDARD OF REVIEW

¶ 8. Under Mississippi Rule of Civil Procedure 56(c), summary judgment is appropriate “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 that the moving party is entitled to a judgment as a matter of law.” The evidence is considered in the light most favorable to the non-moving party. Russell v. Orr, 700 So.2d 619, 622(¶ 8) (Miss.1997). This Court reviews the grant or denial of summary judgment de novo. Lejfler v. Sharp, 891 So.2d 152, 156(¶ 9) (Miss.2004).

LAW AND ANALYSIS

I. WHETHER UMMC WAIVED THE DEFENSE OF STUART’S NONCOMPLIANCE WITH THE NINETY-DAY NOTICE REQUIREMENT.

¶ 9. Stuart advances several arguments supporting the proposition that pri- or to the supreme court’s Easterling decision, UMMC waived its defense of Stuart’s noncomplianee with the ninety-day notice period. First, Stuart argues that, under the law then in effect, UMMC’s failure to request a stay of the proceedings caused its waiver of the defense of Stuart’s noncompliance with the ninety-day notice period. See Tomlinson, 741 So.2d at 228-29(¶ 11). Stuart contends that the defense, once waived, could not have been “unwaived” by the Easterling decision. Second, Stuart argues that UMMC waived the defense pursuant to Mississippi Rule of Civil Procedure 8(c) by failing to raise the defense in its answer. Thud, Stuart contends that even if UMMC properly raised the defense, it waived the defense by failing to request a stay and then actively participating in the litigation for over two years as discussed in MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 179-81 (¶¶ 39-46) (Miss.2006). Horton concerned the defendant’s waiver of the right to compel arbitration, not notice under the MTCA. Id. at 179(¶ 39). In Horton, the supreme court held that: “A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” Id. at 180(¶ 44). Absent extreme and unusual circumstances, “an eight month unjustified delay in the assertion and pursuit of any affirmative defense,” along with active participation in the litigation, will result in a waiver. Id. at 181(¶ 45).

¶ 10. UMMC effectively asserted the affirmative defense of Stuart’s failure to comply with MTCA time limits by stating in its answer that it “reserves all rights and defenses accorded to it pursuant to Miss.Code Ann. § 11-46-1 et seq., including but not limited to bar of limitations....” M.R.C.P. 8(c). Stuart’s other waiver arguments are rendered moot by the fact that Easterling had a retroactive effect, as will be further discussed in Issue II. Unless otherwise specified, decisions of the Mississippi Supreme Court are presumed to have a retroactive effect. Miss. Transp. Comm’n v. Ronald Adams Contractor, Inc., 753 So.2d 1077, 1093(¶54) (Miss.2000). “When this Court has held a ruling to apply only to cases subsequent to the opinion, it has specifically stated that the ruling is prospective in nature.” Id. A ruling with a retroactive effect is applied to all cases pending when the change in the law occurs. Thompson v. City of Vicksburg, 813 So.2d 717, 721(¶ 15) (Miss. 2002). This case was pending at the time the Easterling decision imposed a strict compliance standard for the ninety-day notice requirement. The Easterling court did not specifically state that its holding applied prospectively only. Therefore, this Court must apply Easterling’s rule of strict compliance, not pre-Easterling precedent, to the facts of this case. UMMC’s motion for summary judgment was promptly filed after the Easterling decision became final. Stuart’s waiver arguments are without merit.

II. WHETHER EASTERLING SHOULD HAVE BEEN APPLIED RETROACTIVELY.

¶ 11. Stuart contends that Easterling should not be applied retroactively because to do so would be inequitable. In support of this proposition, Stuart cites Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), which our supreme court relied upon to determine a question concerning decisional retroactivity in Presley v. Mississippi State Highway Commission, 608 So.2d 1288, 1299-1301 (Miss. 1992). Chevron articulated a three-factor test for determining questions of whether a decision should be prospectively applied:

In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonret-roactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see, e.g., Hanover Shoe v. United, Shoe Machinery Corp., supra, [392 U.S. 481] at 496[, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968)], or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v. State Board of Elections, supra, [393 U.S. 544] at 572[, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969)]. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Linkletter v. Walker, supra, [381 U.S. 618] at 629[, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)]. Finally, we have weighed the inequity imposed by retroactive application, for “where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our eases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Cipriano v. City of Houma, supra, [395 U.S. 701] at 706[, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969)].

Chevron, 404 U.S. at 106-07, 92 S.Ct. 349.

¶ 12. Stuart contends that under Chevron, prospective application of Easterling is appropriate in this case. He argues that Easterling clearly overruled past precedent on which he and other litigants relied. Stuart argues that Easterling’s decision was not clearly foreshadowed because Davis and Wright, on which Easterling relied, were decided after he filed the complaint. Stuart also contends that retrospective application of Easterling would be inequitable because he filed the complaint in reliance upon pre-Easterling precedent.

¶ 13. Stuart’s argument fails to acknowledge that Chevron was significantly limited by James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), as recognized by our supreme court in Ronald Adams Contractor. Ronald Adams Contractor, 753 So.2d at 1093(¶ 56). James B. Beam held that, “where a court applies the new rule of law in the case in which it is pronounced, the Chevron rationale does not apply to allow the court to return to the old rule with respect to all other cases arising on facts predating the pronouncement.” Id. at 1094(¶ 56) (citing James B. Beam, 501 U.S. at 538, 111 S.Ct. 2439). The supreme court analyzed the holding, stating:

The Court explained that because it had, in Bacchus [Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984)], applied the new rule of law to the parties before the Court, principles of equity and stare decisis mandate that it must apply the new rule of law to all others. James B. Beam, 501 U.S. at 540, 111 S.Ct. at 2446. The Court stated that similarly situated litigants should be treated the same both in the criminal context and in the civil context, and that substantive law will not “shift and spring” on the particular equities of a particular case. James B. Beam, 501 U.S. at 540, 543, 111 S.Ct. at 2446-47. The Court stated, “Once retroactive application is chosen for any assertedly new rule, it is chosen for all others who might seek its prospective application .... ” James B. Beam, 501 U.S. at 543, 111 S.Ct. at 2448.

Id.

¶ 14. Easterling applied its holding establishing strict compliance with the ninety-day waiting period to the litigants before the court. Easterling, 928 So.2d at 820(¶ 24). Therefore, this Court “may not now selectively apply that holding.” Ronald Adams Contractor, 753 So.2d at 1094(¶ 57). Notwithstanding Stuart’s reliance upon extant case law at the time he filed the complaint, we are bound to retroactively apply the rule of strict compliance to his case. To do otherwise would be to afford Stuart more favorable treatment than that received by the similarly situated Easterling. This issue is without merit.

III. WHETHER THE COMPLAINT WAS PROPERLY DISMISSED WITH PREJUDICE.

¶ 15. Stuart next argues that instead of granting summary judgment, the circuit court should have dismissed his complaint without prejudice. Stuart recognizes that Easterling affirmed the grant of summary judgment where the plaintiff did not strictly comply with the MTCA’s ninety-day notice requirement. He argues that under Arceo v. Tolliver, 949 So.2d 691 (Miss. 2006), and Nelson v. Baptist Memorial Hospital-North Mississippi, Inc., 972 So.2d 667 (Miss.Ct.App.2007), both decided subsequent to Easterling, this Court should reverse the grant of summary judgment and render a dismissal of his complaint without prejudice.

¶ 16. We are compelled to reject Stuart’s argument because the cases upon which he relies were not governed by the MTCA. Both Arceo and Nelson involved the dismissal of medical malpractice actions for the failure to comply with the sixty-day notice provision of Mississippi Code Annotated section 15-1-36(15) (Rev. 2003). Arceo, 949 So.2d at 692(¶2); Nelson, 972 So.2d at 670(¶ 3). In Arceo, the supreme court rendered a dismissal without prejudice as the remedy for the plaintiffs failure to abide by the sixty-day notice requirement under section 15-1-36(15). Arceo, 949 So.2d at 697-98(¶ 16). In Nelson, this Court, relying on Arceo, explained that:

Dismissal without prejudice prevents the plaintiff from being barred from filing a new suit on the same cause of action. Williams v. Mid-South Paving Co., 200 Miss. 103,121, 25 So.2d 792, 798 (1946). On the other hand, dismissal with prejudice, which prevents the plaintiff from bringing a new suit based on the same cause of action, is extreme and harsh, and only the most egregious cases warrant such dismissals. Miss. Dep’t of Human Servs. v. Guidry, 830 So.2d 628, 632(¶13) (Miss.2002). As previously stated, the supreme court has recently ruled that dismissal without prejudice was proper when a plaintiff failed to serve notice upon medical provider defendants at least sixty days before initiating an action. Arceo, 949 [So.2d] at [697-98](¶ 16).
The statute at issue in this case had only been in effect a few months when this case was filed, and the Nelsons tried to remedy their failure to comply with those statutes. Their failure to attach the attorney certificate and to file sixty[-]days[’] notice do not rise to the level of egregiousness sufficient to warrant dismissal with prejudice. This is so especially in light of the fact that they attempted to correct those errors before they ever served process. We find, therefore, that the original complaint filed by the Nelsons should be dismissed without prejudice for failing to attach an attorney’s certificate and for failing to give prior sixty[-]days[’] notice.

Nelson, 972 So.2d at 673-74 (¶¶ 22-23).

¶ 17. Stuart argues that there were no egregious circumstances apparent in this case that should warrant the harsh sanction of the dismissal of his complaint with prejudice. We agree that if this case were not subject to the provisions of the MTCA, then dismissal without prejudice would be warranted. However, this case is governed by the MTCA, and this Court is bound to adhere to the supreme court’s precedent interpreting the MTCA. 1704 21st Ave., Ltd. v. City of Gulfport, 988 So.2d 412, 417 n. 3 (Miss.Ct.App.2008) (citing Carr v. State, 942 So.2d 816, 817(¶ 4) (Miss.Ct.App.2006)). This Court is not “empowered to reverse the precedent surrounding the issue presented.” Id. The supreme court’s most recent pronouncement on the remedy for violation of the MTCA’s ninety-day notice requirement is Easterling, which affirmed the grant of summary judgment. We have already determined that Stuart’s case is governed by the retroactive ruling of Easterling and as discussed in Issue II, we may not selectively apply Easterling’s holding. Therefore, we hold that summary judgment was appropriate.

¶ 18. THE MOTION FOR REHEARING IS DENIED. THE ORIGINAL OPINION ISSUED IN THIS CASE IS WITHDRAWN, AND THIS OPINION IS SUBSTITUTED THEREFOR. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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