author: McDonald, j.

text:
    AMERICAN BANK AND TRUST v. E. Lynn SINGLETON and Singleton Farm, Inc.
    2017 CA 0480
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: November 01, 2017

      Hansel M. Harlan Baton Rouge, Louisiana Scott H. Sledge Hammond, Louisiana, Attorneys for Plaintiff/Appellant American Bank and Trust
    Lisa Brener New Orleans, Louisiana, Attorney for Defendant/Appellee Singleton Farm, Inc.
    BEFORE: WHIPPLE, C.J., MCDONALD, and CHUTZ, JJ.
   McDonald, j.

bln this appeal, a bank, as mortgagee, challenges a judgment ordering cancel-ation of a mortgage on a corporation’s immovable property and also ordering the bank to pay attorney fees and costs to the corporation for the bank’s failure to timely dismiss one of its claims against the corporation. We reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

Singleton Farm, Inc. (SFI) is a Louisiana corporation in Greensburg, Louisiana. SFI was incorporated in 1992 by Ernest and Evelyn Singleton, the original two directors. At some point, Mr. and Mrs. Singleton transferred ownership of their farm to SFI, which included about 157 acres of land containing a farm house, a dairy barn, three ponds, and some patches of timber (Singleton Farm). Records on file with the Louisiana Secretary of State show that Mr. and Mrs. Singleton were the only two SFI directors until their respective deaths in November and December 2001.

Mr. and Mrs. Singleton had one son, Ernest “Lynn” Singleton, an attorney whose practice was also in Greensburg. After his parents died, Lynn Singleton did not institute succession proceedings to deal with their estates. In 2001, however, he filed SFI’s 2001 domestic corporation annual report with the Secretary of State, listing his deceased father and his surviving mother as directors, and signing the form designating himself as SFI’s “President].” In 2004, he again filed SFI’s 2004 annual report, marking through his father’s name as a director, and writing in his own name, address, and identifying himself as SFI’s “President.” Similar annual reports, identifying Lynn Singleton as SFI’s president, were filed for later years, including 2007, 2008, 2009, and 2011.

In August 2010, Lynn Singleton personally obtained a $225,550 loan from American Bank and Trust (ÁB & T) with the stated purpose of “improvements to farm.” The proceeds of this first loan were deposited into SFI’s bank account. In July 2012, Lynn Singleton renewed the loan and borrowed additional money, for “business expenses,” totaling $240,747.65. And, in November 2012, he obtained a third loan for $13,650 for “business expenses.” All three loans to Lynn Singleton were secured by a | ¡¡multiple indebtedness mortgage on Singleton Farm (the Mortgage), executed by him as SFI’s purported president. At trial, Lynn Singleton testified that he used the loan proceeds to pay bills, to carry on his dozer business, and for his law practice.

In 2013, Lynn Singleton had developed Parkinson’s disease, had had a long-term alcohol abuse problem, and was committed to a mental institution. In June 2013, his daughter, Stacy Head, was helping to clean out her father’s office in preparation to close his law practice. She discovered her deceased grandparents’ executed but unprobated wills, in which Mr. and Mrs. Singleton had left all of their property to each other, and if one predeceased the other, then each spouse left all of his/her property to Lynn’s children, Ms. Head and her brother, Michael Singleton (grandchil-. dren), to share. This property included all SFI stock. Ms. Head also discovered documents showing that her father had previously obtained the three loans from AB & T and, as SFI’s purported president, had granted AB & T the Mortgage to secure the loans. Before June 2013, the grandchildren did not know their grandparents had left wills naming them as legatees.

In July 2013, the grandchildren filed a petition, alleging the discovery of their grandparents’, attached wills; that Mrs. Singleton had become Mr'. Singleton’s universal legatee in accordance with his will when he died in November 2001; that the grandchildren had become Mrs. Singleton’s universal legatees- in accordance with her will when she died in December 2001; and requesting that they be put into possession, without administration, of her property. On July 29, 2013, a district court signed a judgment of possession, recognizing the grandchildren as Mrs. Singleton’s universal legatees, and giving them- possession of enumerated property, including “[a]ll -right, title and interest in and to 100% of corporate stock of [SFI].” Two days later, the grandchildren’s attorney wrote a letter to AB & T, claiming that the Mortgage was invalid and asking that it be released. Also, about that time, SFI filed updated records with the Secretary of Státe listing Ms.' Head as SFI’s president and registered agent.

AB & T then filed a petition for executo-ry process against Lynn Singleton and SFI, alleging that Lynn Singleton had defaulted on the three loans and seeking seizure and Usale of Singleton Farm to satisfy his outstanding debt. SFI responded with an application for preliminary injunction to stop the seizure and sale of its property. After a hearing, the district court signed a judgment temporarily enjoining AB & T from proceeding with the sale, after finding that AB & T had not done “enough to protect [its] interest” before making the loans to Lynn Singleton.

AB & T later filed an amended petition, converting the matter to an ordinary proceeding and adding a claim for damages against SFI (in addition to the in • rem claim against Singleton Farm), in the event the Mortgage against Singleton Farm was found unenforceable. According to AB & T, Lynn Singleton transferred part of the loan proceeds to SFI, and AB <& T was entitled to recover those funds from SFI. SFI answered the amended petition, discovery was conducted, motions were filed, and the matter ultimately proceeded to a bench trial before a different judge than had issued the preliminary injunction.

On November 4, 2016, the district court signed a judgment: (1) in favor of AB & T against Lynn Singleton on the two promissory notes representing the three loans, in principal amounts of almost $251,600, plus late charges, interest, attorney fees, and collection costs; (2) declaring the Mortgage “null, void, and without legal effect”; (3) ordering Lynn Singleton to pay AB & T’s court costs; (4) dismissing all of AB- & T’s claims against SFI; (5) ordering AB & T to pay SFI’s court costs; and, (6) ordering AB & T to pay SFI $900 for attorney fees/costs incurred because of AB & T’s failure to timely dismiss its money judgment claim against SFI.

AB & T appeals from the adverse judgment, claiming the district court erred as a matter of law: (1) in finding that an SFI Resolution did not authorize Lynn Singleton to enter into the Mortgage with AB & T on SFI’s behalf; (2) in finding that Lynn Singleton did not have apparent authority to enter into the Mortgage with AB & T on SFI’s behalf; (3) in excluding evidence that SFI authorized Lynn Singleton to take action on its behalf with regard to real property; and, (4) in rendering judgment against AB & T and to SFI for attorney fees/costs.

JjTHE SFI RESOLUTION

In its first assignment of error, AB & T argues the district court erred in concluding that an August 5, 2010 “Corporate Resolution to Grant Collateral” did not authorize Lynn Singleton to mortgage SETs property. Even if the resolution did allow an authorized, person to mortgage SFI’s corporate property for a personal debt, an issue we do not decide, Lynn Singleton was not an authorized person, because he was not a SFI officer, director, or shareholder. Immediately upon Mrs. Singleton’s death, the grandchildren, as her universal successors under her will, acquired ownership of her estate, including all SFI shares. See LSA-C.C. arts. 934 and 935. Prior to the qualification of a succession representative, only universal successors may represent the decedent with respect to the heritable rights and obligations of the decedent. LSA-C.C. art. 935. And, the rights - of a ■ successor are transmitted upon the decedent’s death, whether or not the successor -knows that the rights accrued to him. See LSA-C.C. arts. 935 and 937. Thus, until a succession representative was qualified, which did not occur before July 2013, the grandchildren were the only ones who could represent Mrs. Singleton regarding SFI’s rights and obligations. Lynn Singleton, who was not Mrs. Singleton’s successor, did not have authority to appoint himself as an officer of SFI or to, act on its behalf. Thus, the district court’s conclusion that the August 5, 2010 resolution was invalid, and did not authorize Lynn Singleton to mortgage SFI’s property, is correct. This assignment of error is meritless.

APPARENT AUTHORITY/PUTATIVE MANDATE ,

Although Lynn Singleton did not have actual authority to act as SFI’s representative, we now address AB & T’s second assignment of error—that the district court erred in finding that Lynn Singleton did not have apparent authority to enter into the Mortgage with AB & T on SFI’s behalf.

In the past, Louisiana courts have jurisprudentially recognized the common law doctrine of apparent authority. Walton Constr. Co., L.L.C. v. G.M. Horne & Co., Inc., 07-0145 (La. App. 1 Cir. 2/20/08), 984 So.2d 827, 835. Apparent authority is a doctrine by which an agent may bind his principal in a transaction with a third person when the principal has made a manifestation to the third person, or to the 'community of which the Rthird person is a member, that the agent is authorized to engage in the particular transaction, although the principal has not actually delegated this authority to the agent. Tedesco v. Gentry Dev., Inc., 540 So.2d 960, 963 (La. 1989). Apparent authority operates only when it is reasonable for the third person to believe the agent is authorized and the third person actually believes this. Id.) Walton Constr. Co., 984 So.2d at 835.

Effective January 1, 1998, the Louisiana legislature enacted LSA-C.C. art. 3021 to specifically address the liability of a principal that arises when he causes a third party to believe another person is his agent. See Morris, G. & Holmes, W., 8 La. Civ. Law Treatise, Business Organizations § 33.08 (2016 ed.) In civilian terms, the common law “agent” is known as a “mandatary.” See LSA-C.C. arts. 2989, et seq. Under LSA-C.C. art. 3021, one who causes a third person to believe that another person is his mandatary is bound to the third person who, in good faith, contracts with the putative mandatary. In interpreting LSA-C.C. art. 3021, this court has concluded that the pre-Article 3021 judicial understanding of apparent authority appears to be analogous to the concept of putative mandate in LSA-C.C. art. 3021. Tresch v. Kilgore, 03-0035 (La. App. 1 Cir. 11/7/03), 868 So.2d 91, 94-95; also see Walton Constr. Co., 984 So.2d at 836. As such, for a third person to prove a putative mandatary relationship, he still must show that the principal has made a manifestation to a third person, or to the community of which the third person is a member, that the putative mandatary is authorized to engage in the particular transaction. See Amitech U.S.A., Ltd. v. Nottingham Const. Co., 09-2048 (La. App. 1 Cir. 10/29/10), 57 So.3d 1043, 1050, writs denied, 11-0866, 110953 (La. 6/17/11), 63 So.3d 1036, 1043. Then, the third person must show that he reasonably relied on the mandatary’s manifested authority. See McLin v. Hi Ho, Inc., 12-1702 (La. App. 1 Cir. 6/7/13), 118 So.3d 462, 468; Walton Constr. Co., 984 So.2d at 836; see also Morris G. & Holmes, W., 8 La. Civ. Law Treatise, Business Organizations § 33.08 at n.13 (2016 ed.) Thus, the third party may not blindly rely on the mandatary’s assertions but has a duty to inquire into the nature and extent of the mandatary’s power. God’s Glory & Grace, Inc. v. Quik Int'l, Inc., 05-1414 (La. App. 1 Cir. 6/9/06), 938 So.2d 730, 735, writ denied, 06-1739 (La. 10/6/06), 938 So.2d 86.

A district court’s determination as to whether a putative mandate exists is a factual determination that will not be reversed absent manifest error. Tresch, 868 So.2d at 95; Fluid Disposal, 186 So.3d at 219. If there is a reasonable factual basis for the district court’s findings, the reviewing court cannot reverse. Fluid Disposal, 186 So.3d at 219. In written reasons for judgment issued after the bench trial, the district court made the following findings:

From the testimony and evidence presented at trial, the Court finds that [Lynn] Singleton did not have any authority, either actual or apparent, to act on behalf of SFI. He was never the President of SFI. He was never on the Board of Directors of SFI. He was never a member of SFI. He was never an agent of SFI. The only parties who could have granted him any authority to act on behalf of SFI in 2010 and 2012 were Stacy [Head] and Michael Singleton. However, Stacy [Head] and Michael Singleton did not know they were the sole owners of SFI stock until 2013.
Apparent authority is a doctrine created by the courts to protect persons dealing in good faith with corporate officials where the corporation has taken such action or inaction as to justify a belief that the official has acted with authority. The doctrine has two requirements: (1) the principal must make some form of manifestation to an innocent third party; and (2) the third party must rely reasonably on the purported authority of the agent as a result of the principal’s manifestations.... From the testimony received at trial, it is dear that no one from SFI ever represented to any one that [Lynn] Singleton had authority to act on behalf of SFI. Accordingly, the [mortgage] at issue [is] null and void and SFI is not indebted to [AB & T] for the money borrowed by [Lynn] Singleton. [Citation omitted; emphasis added.]
[I]t is abundantly clear to the Court that [Lynn] Singleton did not borrow the money for farm improvements. Rather, [Lynn] Singleton used the bulk of the loan proceeds to pay personal and business debts and expenses. None of the money borrowed by [Lynn] Singleton benefitted Singleton Farm and therefore SFI. Accordingly, SFI is not liable to. [AB & T] for the debt incurred by [Lynn] Singleton.

After reviewing the entire record, with particular emphasis on the trial testimony and documentary evidence, we conclude that there is a reasonable factual basis for the district court’s conclusions that Lynn Singleton’s loans were personal and that he did not have a putative mandate (apparent authority) to mortgage SFI’s property to secure his personal loans. AB & T goes to great lengths to show that Lynn Singleton “took over” and [shad “exclusive control” of Singleton Farm after his parents’ deaths in 2001 and “held himself out to the community as the rightful owner of Singleton Farm” for 12 years. However, when the putative mandatary alone has contact with the third party, and leads the third party to believe that he has the principal’s authority to conduct business on the principal’s behalf, but the principal itself has never made such manifestations, then the principal is not bound by the putative mandatary’s acts. See Fluid Disposal, 186 So.3d at 219; also see McLin, 118 So.3d at 469 (finding that reliance on the purported agent’s actions alone, without manifestations by the principal, is insufficient to bind a corporation under the doctrine of apparent authority). Accord Nine-O-Five Royal Apt. Hotel, Inc. v. Atkins, 14-0325 (La. App. 4 Cir. 10/8/14), 151 So.3d 739, 748 (finding that corporate officers did not represent or manifest to a bank that the purported mandate was authorized to execute a mortgage binding the corporation’s single asset).

To establish a putative mandatary relationship (apparent authority) here, AB & T was required to prove that SFI, not Lynn Singleton himself, manifested to AB & T, or to the community to which AB & T belonged, that Lynn Singldton was authorized to mortgage SFI’s property. Between 2001 (when their grandparents died) and 2013 (when they discovered their grandparents’ wills), SFI’s owners, Ms. Head and Michael Singleton, did not know they were the owners of Singleton Farm. As such, neither of them could have manifested to AB & T, or to its community, that Lynn Singleton was authorized to mortgage SFI’s property. As the district court pointed out, “it is clear that no one from SFI ever represented to any - one that [Lynn] Singleton had authority to act on behalf of SFI.” We find no manifest error in the district’s court’s determination that AB & T failed to prove that SFI, the principal, made manifestations ■ of Lynn Singleton’s putative mandate. As such, we need not address whether AB & T reasonably relied on Lynn Singleton’s manifestations that he was authorized to mortgage Singleton Farm for his personal loans. His manifestations do not equate to SFI manifestations. See McLin, 118 So.3d at 468; Walton Constr. Co., 984 So.2d at 836. This assignment of error is meritless.

EXCLUSION OF EVIDENCE

In its third assignment of error, AB & T claims the district court erred in excluding evidence of a “Quitclaim and Mutual Cancellation of Act of Cash Sale” signed by Lynn ^Singleton on June 2, 2013, purportedly on SFI’s behalf. AB & T' argues this evidence was admissible to: (1). impeach Lynn Singleton’s trial testimony that SFI .owned two undeveloped lots, when the evidence shows SFI, through Lynn Singleton, transferred these lots to Lynn Singleton’s wife, Kathryn Singleton, and (2) show that SFI allowed Lynn Singleton to act on its behalf.

Evidence contradicting a witness’ testimony is admissible to attack his credibility, unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice. See LSA-C.E. art. 607D(2). Generally, the district court has broad discretion when making its eviden-tiary rulings, and this Court will not disturb such a ruling absent a clear- abuse of that discretion. In re Succession of Cannata, 14-1546 (La. App. 1 Cir. 7/10/15), 180 So.3d 355, 375, writ denied, 15-1686 (La. 10/30/15), 180 So.3d 303. Further, error may not be predicated upon a ruling that excludes evidence unless a substantial right of the party is affected. See LSA-C.E. art. 103A(2); Maddox v. Bailey, 13-0564 (La. App. 1 Cir. 5/19/14), 146 So.3d 590, 594.

We have reviewed the proffered evidence and conclude that no substantial right of AB & T was affected by its exclusion. Although Lynn Singleton’s credibility may have been an issue in this case, we do not find that the proffered evidence would have had significant bearing on the district court’s assessment of his credibility or on the court’s view of the evidence. Further, Lynn Singleton’s execution of a cash sale in 2013 is not relevant to whether he was SFI’s putative mandate years before when he mortgaged SFI’s property for his personal loans. This assignment of error is meritless.

ATTORNEY FEES/COSTS

In its last assignment of error, AB & T contends the district court erred in awarding SFI $900 in attorney fees/costs for AB & T’s failure to timely dismiss its claim for a money judgment against SFI.

As earlier mentioned, after AB & T filed its original petition ■ seeking an in rem judgment against Singleton Farm, AB & T then amended its petition to seek damages against SFI to recover any loan proceeds Lynn Singleton .allegedly transferred to SFI. On the morning of the trial, AB &• T’s attorney told the district court that AB & T would not be |inpursuing its damages claim against SFI, and the parties’ attorneys then stipulated to dismissal of that claim on the record. In response to the district court’s question as to whether-there were any costs or attorney fees associated with the stipulation, SFI’s attorney reserved SFI’s right to “consider the impact of this dismissal at this time.” In its appellate brief, SFI contends the attorneys later had a “telephone hearing” with the district court, after which the district court purportedly determined AB & T’s late dismissal of the damages claim caused SFI unnecessary trial preparation, including the cost of exhibits and preparation of witness questions, and accordingly, awarded SFI $900. And, at argument before this court, SFI’s counsel maintained that the district court’s award was a sanction under LSA-C.C.P. art. 863.

First, we note that this Court cannot accept factual assertions made in brief or in argument that are’ not in the appellate record. Niemann v. Crosby Dev. Co., L.L.C., 11-1337 (La. App. 1 Cir. 5/3/12), 92 So.3d 1039, 1045. Thus, we do not accept SFI’s assertions purportedly explaining the circumstances leading to the $900 award. Further, the judgment does not specify that the district court made the $900 award under LSA-C.C.P. art. 863; there is no evidence in the record that the district court held the purported “telephone hearing,” or, if it did, that the hearing complied with LSA-C.C.P. art. 863E’s requirement that the parties or their counsel be allowed to present evidence or argument regarding the sanctions issue. See Lee v. Woodley, 615 So.2d 349, 352 (La. App. 1 Cir.), writ denied, 618 So.2d 411 (La. 1993) (noting that, under LSA-C.C.P. art. 863, a hearing' must be held before sanctions are imposed). Nor is there evidence that the district court expressly determined that AB & T’s conduct constituted a violation of Article 863 as is required by Section G of the article. Without the above required record proof, we cannot conclude that the district court’s $900 award was proper as an Article 863 sanction. Attorney fees are recoverable only where specifically authorized by statute or contract. Campbell v. Melton, 01-2578 (La. 5/14/02), 817 So.2d 69, 80. Because there is inadequate proof to discern the basis of the $900 award under LSA-C.C.P. art. 863, any other statute, or under any contract, we .reverse the district court’s $900 attorney fee/cost award to SF-L.

I nWe also note that, in its appellate brief, SFI contends AB & T’s appeal is frivolous and requests additional attorney fees under LSA-C.C.P. art. 2164. An ap-pellee who wishes to have a judgment modified must file an appeal or an answer to the appeal as provided in LSA-G.C.P. art. 2133. Thus, because SFI neither appealed nor answered the appeal, we do not address SFI’s request for additional attorney fees. See Price v. Kids World, 08-1815 (La. App. 1 Cir. 3/27/09), 9 So.3d 992, 997, writ not considered, 09-1340 (La. 9/25/09), 18 So.3d 94; Robinson v. P.M.I., 01-0926 (La. App. 1 Cir. 5/10/02), 818 So.2d 937, 940-41.

CONCLUSION

For the reasons stated herein, the November 14, 2016 judgment is reversed insofar as it ordered American Bank and Trust to pay $900 attorney fees/costs to Singleton Farms, Inc. In all other respects, the judgment is affirmed. Appeal costs are assessed to American Bank and Trust.

REVERSED IN PART, AFFIRMED IN PART.

      . The record is unclear whether Singleton Farm, Inc. became Singleton Farm, LLC, at some point during this litigation. Because the November 24, 2016 judgment at issue here was rendered in favor of "Singleton Farm, Inc.,” we use that designation.

      . In codicils to their wills, Ernest and Evelyn both stated, “in the event there is any forced portion due my son, Lynn, from my estate, ... that forced portion is to be credited toward any and all indebtedness that .Lynn owes me or my estate.”

      . Other appellate courts have also applied pre-LSA-C.C. art. 3021 jurisprudence to analyze the existence of a putative mandate. For example, see Fluid Disposal Specialties, Inc. v. UniFirst Corp., 50,356 (La. App. 2 Cir. 1/13/16), 186 So.3d 210, 218; Lifetime Const., L.L.C. v. Lake Marina Tower Condo. Ass’n, Inc., 12-0487 (La. App. 4 Cir. 3/27/13), 117 So.3d 109, 114-15; Color Stone Intern., Inc. v. Last Chance CDP, LLC, 08-35 (La. App. 5 Cir. 5/27/08), 986 So.2d 707, 713; Eakin v. Eakin, 07-693 (La. App. 3 Cir. 12/19/07), 973 So.2d 873, 875-77.

      . The district court’s written reasons for judgment were filed with the district court's clerk of court as shown by a “St. Helena Clerk of Court” date/time stamp; but, the reasons are not included in the appellate record. At argument before this Court, the parties orally stipulated to our consideration of the written reasons. See LSA-C.C.P. art. 2132.


source: Caselaw Access Project

author: CHAMBERLIN, JUSTICE,

license: Public Domain

text:
    Drake L. LEWIS v. Tonia D. Lewis PAGEL
    NO. 2016-CA-00192-SCT
    Supreme Court of Mississippi.
    06/01/2017

      ATTORNEY FOR APPELLANT: THOMAS W. TEEL, BILOXI
    ATTORNEY FOR APPELLEE: DEAN HOLLEMAN, GULFPORT
    BEFORE RANDOLPH, P.J., KITCHENS AND CHAMBERLIN, JJ.
   CHAMBERLIN, JUSTICE,

FOR THE COURT:

¶ 1. Toni'a (Lewis) Pagel (“Tonia”) filed for divorce against Drake Lewis (“Drake”) in the Harrison County Chancery Court, Second Judicial District. An order of divorce was entered in 2008. This case is now on its third appeal to this Court;

¶ 2. Drake filed his first appeal from the order of divorce. Lewis v. Lewis, 54 So.3d 233, 239 (Miss. Ct. App. 2009) (Lewis I) (remanding with instructions for valuing the marital estate)'. ■ On certiorari, this Court affirmed in part and reversed in part, remanding the case to the chancery court. Lewis v. Lewis, 54 So.3d 216, 218 (Miss. 2011) (Lewis II) (finding that “the chancellor should value Legacyl[, a marital business,] without considering goodwill”). After remand, the chancellor issued his judgment and an order on modification and contempt. Drake filed his second appeal from the judgment and the order. Lewis v. Pagel, 172 So.3d 162, 177 (Miss. 2015) (Lewis III) (remanding on issue of child support).

¶ 3. Now, Drake appeals two issues. First, Drake argues that the order of divorce should be voided due to a lack of jurisdiction and that the chancellor erred in finding that he resided in Harrison County. Drake claims that he never resided in Harrison County and that it was an improper venue for the suit. Second, Drake argues that the chancellor erred in entering an order of contempt against him. Finding no error, we affirm the judgment of the chancellor on both issues.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶4. Drake and Tonia were married in 1991. Tonia filed for divorce in August 2006 in Harrison County Chancery Court, Second Judicial District; an order of divorce was entered on January 11, 2008.

Jurisdiction Facts

¶ 5. On September 22, 2014, at a hearing on a contempt motion filed by Tonia, while the second appeal was pending before this Court, Drake filed a motion for a continuance and argued for the first time in the litigation that the divorce action was void for lack of jurisdiction due to improper venue under Mississippi Code Section 93-5-11. The chancellor granted the motion for continuance, and Drake filed a Motion to Declare Prior Orders Void■ and to Dismiss Actions. Drake’s counsel claimed that he first became aware of the lack of jurisdiction on September 22, 2014, when he and Drake were discussing the facts related to the contempt motion.

¶ 6. In his filing, Drake arguéd that he and Tonia both resided in Jackson County at the time of their separation and when Tonia filed for divorce in Harrison County. He also noted that he was served in Jackson County. In an affidavit, Drake recognized that Tonia’s complaint for divorce allegéd that he resided at “Gulf Shores Villa, Atkinson Road, in Biloxi, Mississippi.” He argued, though, that this was the address of his aunt’s condominium and that he had never.resided there. Further, he argued, after his separation from Tonia, he resided at his business address, in Jackson County. While he conceded that he “spent some nights away from Jackson County,” he claimed that he was a resident of the county from the time of separation through the entry of the divorce order in 2008 until he moved to Louisiana in 2009.

¶ 7. As evidence of his residence in Jackson County, Drake noted that his Mississippi driver’s license was issued in Jackson County from 2004 until 2008. He also pointed out that his business office—which he argued he used as a primary residence—was in Jackson County. Further, according to Drake, he was registered to vote in Jackson County from 1996 to 2011. Lastly, he claimed that his mail, during this time period, was delivered either to his marital residence or his business—both in Jackson County.

¶ 8. In her response to Drake’s motion, Tonia argued that Drake left the marital residence on June 12, 2006, and moved to Biloxi, Mississippi, in Harrison County after their separation. She noted that Drake did not answer her complaint that alleged that he resided in Harrison County. Tonia also claimed that Draké, on his Rule 8.05 financial disclosure statement, filed on September 29, 2006, represented to the chancery court—in his own handwriting— that his address was in Biloxi, Mississippi. See Miss. Unif. Chancery Court R. 8.05. In response, Drake noted that he spent ten to fourteen nights at the Biloxi address and put the address there “probably because he had stayed there when he drafted it.” Further, Tonia noted that Drake admitted in a 2007 deposition that he lived in Biloxi:

Q. And where did' you live prior to January of’07?
A. I lived in Biloxi at an apartment.
Q, And when is the last time you lived at Marina Road or Marina Drive, where the home is?
A. June of ’06.

In her affidavit, Tonia claimed that “[d]ur-irig his scheduled visitations, I brought the children to him at th[e Harrison County] residence where they remained with him for the weekend.” Tonia also .cited her unrefuted trial testimony:

Q. And at the time—so the record will be clear, at the time you filed your complaint for divorce in the Second Judicial District, that is where Drake was living, correct? ‘
A. Yes.

¶ 9. At the hearing, on October 6, 2014, Drake explained his living situation:

Immediately after the separation, I spent my time divided betweén my aunt’s. My aunt had a one-bedroom apartment in Biloxi, and I spent some nights there and some nights at my office in Gautier [in Jackson ¡County], and then some of the time at Stephanie’s home in Jackson County in Ocean Springs.

Drake also claimed that his residence remained the marital home since he paid the mortgage on the property, and he claimed, “I spent, as I 'said before, about equal times, probably more in Gautier at my office than anywhere else.” Drake testified that since 2005 he had never had any voting privileges, homestead rights, or residences in Harrison County. Tonia testified that she never- delivered the children to the office for any weekend visitation. She also claimed that Drake had told her that he was going- to “stay” at his aunt’s apartment; when asked again, Tonia claimed that Drake had said he “was going to live there.”

¶ 10. After the hearing, the chancellor denied the motion. The chancellor found that Drake “left the marital home in June of 2006, ... moved to Biloxi, Mississippi, Second Judicial District of Harrison County, Mississippi [and] ... took up residence in his aunt’s condominium.” Further, the chancellor noted that Drake’s Rule 8.05 disclosure listed his mortgage on the marital home'as his “previous household.” The Chancellor'wrote,

This Court is well aware that this is a factual determination that it made based upon the evidence presentéd to it, under oath, at the initial trial of this matter. Propriety of venue was established by the testimony at the first trial. No objection to venue was made at the trial. No ■objection to venue was raised in the first appeal.- No objection to venue was made at the retrial of this matter. No issue of venue was raised in the second appeal.
Again, there is the question of credibility. For Drake Lewis to now claim after having affirmatively led this Court to find that it had proper venue because he never resided in Biloxi is unbelievable. He left Tonia Lewis and Jackson County in June of 2006 and moved to Biloxi, and remained there until he moved in with his paramour in Ocean Springs, Jackson County, Mississippi in January 2007.

The chancellor found that Drake’s motion was frivolous and awarded attorney’s fees to Tonia.

¶ 11. In response, Drake filed a petition for interlocutory appeal with this Court. This Court denied Drake’s petition on December 10, 2014. On February 18, 2016, Drake entered into three agreed orders that the Harrison County Chancery Court had subject-matter jurisdiction over the divorce action.

Contempt Facts

¶ 12. On May 19, 2015, the chancellor granted Tonia’s motion for contempt and entered a judgment of contempt against Drake. The chancellor found that it had jurisdiction to enter the judgment of contempt as Drake was not entitled to a stay of the proceedings while he awaited resolution of his petition for interlocutory appeal. The chancellor recognized the implications of lacking jurisdiction and stayed entry of the judgment until the resolution of the jurisdictional issue in the petition for interlocutory appeal.

¶ 13. Tonia sought a total contempt award of $306,176.82. Of that award, $132,812 was due to Tonia as a portion of the equitable distribution of assets in the divorce decree entered in 2008. See Lewis III, 172 So.3d at 173-74. Tonia sought $5,000 in attorney’s fees and $60,000 in lump-sum alimony that the chancellor had awarded her on February 15, 2013. See id. at 175-76. She also sought $2,353.50 for one of the children’s orthodontic expenses.

¶ 14. In analyzing Drake’s ability to pay, the chancellor recognized that Drake and his current wife’s totaled income for 2013 was $89,970. The chancellor noted that Drake’s wife’s income “was not to be considered in establishing any obligation for [Drake]” but realized that the “combined income demonstrated] what the current household income” was. Addressing Drake’s “true financial means,” the chancellor noted that if Drake chose to do so he could sell his collector Chevrolet Corvette, various properties and an interest in an apartment complex. In addition, the chancellor recognized that Drake had sold a property approximately one week before the contempt hearing and paid his father the proceeds of $45,000.

¶ 15. Throughout the order, the chancellor emphasized the role of Drake’s father in Drake’s finances. He recognizee] that the debts Drake claimed to owe his father were “not truly debts owed by [Drake] to his father,” as his father was willing to forgive the debts in offers of settlement to Tonia. The chancellor also found that Drake “attempted to shield his assets and dodge obligations by moving properties into his father’s name.”

¶ 16. As evidence of the father’s involvement in Drake’s finances, the chancellor noted that the father paid for Drake’s legal education, the note on the house that Drake lived in after obtaining his law degree and several notes on Drake’s other properties. Meanwhile, the chancellor recognized that Drake’s income had not increased despite his graduation from law school; eight years after the filing of divorce Drake still earned the same approximate salary of $55,000 from his father’s business. Further, the chancellor found two mortgages that Drake alleged to owe to his father to be “a sham.” The chancellor noted that the mortgages lacked accompanying promissory notes. This is despite the fact that the chancellor left the hearing record open for a day to allow Drake to enter into evidence the promissory notes for the mortgages. In addition, the chancellor noted that the mortgages were entered into between Drake and his father thirty-five days after the chancellor had denied Drake’s motion for reconsideration of the chancellor’s judgment after remand.

¶ 17. In light of his findings, the chancellor found that Drake’s “actions constitute[d] willful and contumacious contempt.” He found that Drake had the present ability to pay and simply refused to pay the judgment of contempt. In addition to Drake’s present ability to pay, the chancellor also observed that Drake had the $132,812 in his possession when the distribution originally was ordered in the 2008 divorce decree. Further, the chancellor recognized that Drake’s offers of settlement “included no offer to pay [Tonia] any cash ... only ... real property, some of which carried mortgages.”

¶ 18. The chancellor entered the judgment of contempt against Drake in the amount of $197,812 with interest on the judgment set at 2.5 percent. As part of the judgment, the chancellor awarded Tonia attorney’s fees but specifically excluded any recovery for the time Tonia’s counsel spent defending Drake’s venue objection. He also set the purge amount at $25,000. After the ruling, Tonia filed a motion under Mississippi Rule of Civil Procedure 59, arguing that the chancellor’s stay of the May 2015 judgment was in error as Drake’s interlocutory petition had been denied by this Court in 2014. Tonia requested that the chancellor reconsider the contempt judgment and incarcerate Drake “until he purge[d] himself of the full amount owed to Tonia.”

¶ 19. On January 5, 2016, the chancellor held a hearing on Tonia’s Rule 59 motion. On January 11, 2016, the chancellor recognized that this Court had denied Drake’s interlocutory petition on December 10, 2014. The chancellor further ordered the parties to set a date to hear the child-support issue that this Court had remanded in August 2015 in its resolution of the second appeal. See Lewis III, 172 So.3d at 177. The chancellor also ordered Drake to pay the purge amount of $25,000 pursuant to the May 2015 judgment on the date of the hearing on child support. Also, the chancellor ordered Drake to'pay Tonia an additional $2,000 in attorney’s fees.

¶ 20. The hearing on child support was set for February 18, 2016. On February 1, 2016, Tonia filed for contempt for support due to her since the May 2015 judgment. Drake filed his notice of appeal on February 4, 2016. According to the notice, Drake appeals from the judgment on January 11, 2016.

¶21. After the filing of the notice of appeal, the parties entered three agreed orders on February 18, 2016. The first order recognized that Drake had tendered a check for $35,509.48 tip the chancery court clerk and directed the clerk to disburse the funds to Tonia. The order also noted that Drake was paying Tonia the purge amount and attorney’s fee judgment of January 11, 2016, with the remaining amount to be credited toward the May 19, 2015, contempt judgment. The second order entered judgment against Drake for $30,000 for the lump-sum alimony owed between March 2015 and February 2016 and for $1,564.32 for attorney’s fees that were ordered as a result pf Drake’s 2014 venue objection. This second order reserved ruling on the issue of contempt in relation to these amounts owed by Drake. The third order merely recognized that Drake had tendered payment of $35,509.48 to the chancery court clerk to be disbursed to Tonia.

STANDARD OP REVIEW

¶ 22. “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” White v. White, 26 So.3d 342, 346 (Miss. 2010) (quoting R.K. v. J.K. 946 So.2d 764, 772 (Miss. 2007)). Further, we “will not reverse a Chancery Court’s findings. ... where there is substantial evidence supporting those findings.”’ Madden v. Rhodes, 626 So.2d 608, 616 (Miss. 1993). We also recognize that the chancellor “being the only one to hear the testimony of witnesses and observe their demeanor, is to judge their credibility. He is best able to determine the veracity of their testimony, and this Court will not undermine the chancellor’s authority by replacing his judgment with its own.” Id. “For questions of law, we employ a de novo standard of review and will only reverse for an erroneous interpretation or ■ application of the law.” Boyd v. Tishomingo Cty. Democratic Exec. Comm., 912 So.2d 124, 128 (Miss. 2005) (citing In re Mun. Boundaries of City of Southaven, 864 So.2d 912, 917 (Miss. 2003)).

ANALYSIS

I. Jurisdiction Findings

¶23. The chancellor found that Harrison County was the proper venue for the divorce, as Drake resided in Harrison County at the time Tonia filed the divorce petition. Substantial evidence from the record supports this, finding.

¶ 24, Venue over a contested divorce proceeding is governed by Mississippi Code Section 93-5-11, which provides in relevant part:

... If the defendant be a resident of this state, the complaint shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the plaintiff be still a resident of such county when the suit is instituted.

Miss. Code Ann. § 93-5-11 (Rev. 2013). We recognize that “that the word ‘residence’ as used in divorce statutes is synonymous with ‘domicile.’” Dunn v. Dunn, 577 So.2d 378, 380 (Miss. 1991) (citing Bilbo v. Bilbo, 180 Miss. 536, 546, 177 So. 772, 775 (1938)). Domicile requires (1) an actual residence and (2) “the bona fide intention of remaining there, if not permanently, at least • indefinitely.” Smith v. Smith, 194 Miss. 431, 12 So.2d 428, 429 (1943). “The foundation of domicile is intent.” Stubbs v. Stubbs, 211 So.2d 821, 825 (Miss. 1968). “‘[A]s a domicile may be acquired by a longer or shorter residence, depending, upon the circumstances of the case, its true basis and foundation must be the intention, ’ the quo animo of evidence.’ ” Hale v. State Democratic Exec. Comm., 168 So.3d 946, 952 (Miss. 2015) (quoting Hairston v. Hairston, 27 Miss. 704, 719 (1854)) (emphasis in original).

¶25. Here, Drake listed his address on his initial 8.05 statement as Harrison County. He also listed his mortgage payment on the marital home as his “previous household.” Also, Drake testified in an 2007 deposition that he lived in Harrison County before January of 2007. Further, Drake’s residence was established at trial by Tonia’s unrefuted testimony. In addition, Tonia testified that.when Drake left the marital home in . Jackson County, he packed his truck with his belongings and left to live at his aunt’s condominium in Harrison County. Drake also often would keep the children on weekend visitations at the condominium.

¶ 26.' It is clear throughout the divorce proceedings that the chancellor did not find Drake to be a credible witness. In his order denying Drake’s motion to dismiss, the chancellor wrote, “Again, there is the question of credibility. For Drake Lewis to now claim after having affirmatively led this Gourt to find that it had proper venue because he never resided in Biloxi is unbelievable.” See also Lewis I, 54 So.3d at 235 (“[T]he chancery court noted that it had ‘the opportunity to observe the demeanor of the witnesses, and to judge their credibility!, and] that [Drake] is not a credible witness. He made efforts to hide assets and income.’”). All of this evidence supports the chancellor’s finding that Drake was domiciled in Harrison County,

¶ 27. Although Drake disagrees with the chancellor’s finding and interpretation of the evidence, we give deference to a chancellor’s finding that is supported by substantial evidence. The chancellor is in the best position to judge the credibility of the witnesses, and here the chancellor found Drake not credible. Also, while Drake did not update his Jackson County driver’s license or voter’s registration during the time he resided in Harrison County, a finding of domicile depends on the facts and circumstances of each case. Here, substantial evidence supports the chancellor’s finding that Drake resided in Harrison County with the intention to remain there when the divorce was filed.

II. Waiver

¶ 28. In addition to residing in Harrison County, Drake waived his objection to improper venue by not timely raising it. Under Mississippi law, it is a “basic premise that venue may be waived.” Belk v. State Dep’t of Pub. Welfare, 473 So.2d 447, 451 (Miss. 1985).

¶ 29. Section 159 of the Mississippi Constitution vests subject-matter jurisdiction in the chancery courts over divorce proceedings. Miss. Const, art. 6, § 159. Personal jurisdiction in a divorce proceeding, though, is governed by Mississippi Code Section 93-5-11. Section 93-5-11 was amended, by the Legislature in 2005 to include new language on the transfer of venue: “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.” Miss. Code Ann. § 93-5-11; see also 2005 Miss. Laws 448, Rule 82(d) of the Mississippi Rules of Civil Procedure provides:

(d) Improper Venue. When an action is filed laying venue , in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein. The expenses of the transfer shall be borne by the plaintiff. The plaintiff shall have the right to select the court to which the action shall be transferred in the event the action might properly have been filed in more than one court.

M.R.C.P. 82 (emphasis in original). Further, the Rules provide the procedure for contesting improper venue. M.R.C.P. 12(b). We have not applied the language of Section- 93-5-11 directly after its 2005 amendment.

¶ 30. We recognize that before the 2005 amendment this Court consistently found that Section 93-5-11 could not be waived as it vested subject-matter jurisdiction over divorce actions in the chancery courts. See Cruse v. Cruse, 202 Miss. 497, 499, 32 So.2d 355, 355 (1947) (applying Section 2738); Price v. Price, 202 Miss. 268, 272, 32 So.2d 124, 125 (1947) (applying Section 2738); Carter v. Carter, 278 So.2d 394, 396 (Miss. 1973) (applying Section 2738); Miller v. Miller, 323 So.2d 533, 534 (Miss. 1975); Stark v. Stark, 755 So.2d 31, 33 (Miss. Ct. App. 1999); Slaughter v. Slaughter, 869 So.2d 386, 395 (Miss. 2004); see also Bush v. Bush, 903 So.2d 700, 701 (Miss. 2005) (order granting and deciding merits of petition for interlocutory appeal).

¶ 31. Today, we overrule these past cases to the extent that they hold that Section 93-5-11 confers subject-matter jurisdiction on chancery courts. Subject-matter jurisdiction is conveyed by the Mississippi Constitution. Section 93-5-11 governs the venue of a divorce action and limits the chancery court’s exercise of personal jurisdiction over the defendant. The Mississippi Rules of Civil Procedure control the procedure to be utilized when venue is improper.

¶ 32. Additionally, even if the venue argument was correct, the appropriate remedy would have been transfer of the matter to Jackson County. M.R.C.P. 82(d). Rule 82(d), explicitly incorporated by Section 93-5-11’s amendment, allows the court to transfer an action only “on timely motion.” Id.

¶ 33. Drake’s motion challenging venue—eight years after the initial complaint—was untimely. Tonia filed her complaint for divorce in 2006; the chancery court entered an order of divorce in 2008. Drake first raised the issue of venue in 2014—six years after the entry of the judgment of divorce.

¶ 34. It is uncontested in the record that Drake did not answer Tonia’s complaint for divorce. While Drake was not required to do so, he was permitted to do so under Mississippi Rule of Civil Procedure 81. M.R.C.P 81(d)(4); see also M.R.C.P. 12. Drake certainly could have responded to Tonia’s complaint and challenged venue. Instead, Drake chose to litigate the entire divorce and several ancillary matters, including several appeals, before raising his venue objection once a contempt judgment appeared imminent.

¶ 35. Our finding of waiver is reinforced by Drake’s actions after filing this appeal. After Drake noticed this appeal—in which he raises the issue of a lack of subject-matter jurisdiction before this Court—he entered three agreed orders that were approved as to form by his counsel. Each order recognizes that the Harrison County Chancery Court has jurisdiction over both the subject matter of the dispute and the parties involved in the dispute. Therefore, we find that Drake has waived his objection to venue by litigating in Harrison County.

III. Contempt

¶36. We will not reverse the chancellor’s finding of contempt unless the decision was manifestly wrong. Lewis III, 172 So.3d at 178 (citing Gutierrez v. Gutierrez, 153 So.3d 703, 713 (Miss. 2014)). “Contempt matters are committed to the substantial discretion of the trial court.” Gutierrez, 153 So.3d at 713.

¶ 37. Civil contempt is meant to compel parties to obey orders of the court. Jones v. Hargrove, 516 So.2d 1354, 1357 (Miss. 1987).

¶38. Civil contempt is meant to compel parties to obey orders of the court. Jones v. Hargrove A number of defenses are available to a party contesting contempt:

[A] party can argue that his or her violation of the court’s order was not willful or deliberate as to be labeled “contumacious.” Another defense to civil contempt is the party’s honest inability to perform according to the dictates of the order or decree. But the defendant has a duty to prove his inability with particularity and not in general terms.

Gutierrez, 153 So.3d at 713 (internal citations omitted).

¶39. Here, the evidence supports the chancellor’s decision to hold Drake in contempt. Throughout the divorce proceedings and subsequent hearings, the chancellor found several times that Drake was not a credible witness. There is certainly the same implication within the order of contempt. The chancellor found that it appeared that Drake had attempted to shield his assets and dodge obligations. Further, the chancellor found it necessary to analyze Drake’s “true financial means.” The chancellor specifically found that Drake had the present ability to pay and had chosen not to do so. Drake owns a Chevrolet Corvette that has substantial value, several properties, and a one-fifth interest in an apartment complex that is valued at $135,000. He did not liquidate any of these assets in order to pay Tonia. He did, however, sell one of his properties a week before the contempt hearing and gave his father $45,000 of the proceeds. As further evidence of both Drake’s current ability to pay the contempt and the chancellor’s assessment of his credibility, Drake, facing incarceration, won the “jailhouse lottery” and tendered $35,509.48 to Tonia.

¶40. The chancellor also emphasized that Drake’s father was heavily involved in Drake’s finances. Drake’s father paid for Drake’s legal education, the mortgages on several of Drake’s properties, and the mortgage on the house where Drake lived. Drake’s father also employed Drake at the same salary despite Drake’s advanced degree and collected rental management fees on several of Drake’s properties. In addition, the chancellor also determined that two of the debts that Drake purportedly owed his father were not genuine debts.

¶ 41. Beyond these findings, the chancellor also recognized that Drake had the $132,000 when he was ordered to pay it to Tonia in 2008. Further, given the chancellor’s determination that Drake had the present ability to pay, this finding is not necessary to affirm the chancellor’s overall finding of contempt.

¶ 42. We also hold that Drake’s offers of judgment to Tonia were ineffective to negate the judgment of contempt. Drake was ordered to pay Tonia cash. He never offered her cash, only a combination of real and personal property with much of the real property encumbered by mortgages. It was Drake’s duty to convert enough assets into cash to pay Tonia; Tonia is not obligated under Mississippi law to accept an offer of judgment comprised of real property.

¶ 43. While we do not discourage future settlement negotiations between parties, an offer to settle a prior, eourt-ordered duty is by its very nature an offer to do something other than what the court ordered. As such, an adverse party is under no duty or obligation to accept the settlement.

¶ 44. Drake also argues that he does not have enough monthly income to pay the contempt judgment against him. As support, Drake notes that he was unable to make his monthly payments of $1,460 .in child support or his lump-sum alimony payments of $2,500 to Tonia, which total $3,960. Drake notes that his monthly income, according to his Rule 8.05 financial statement, is $3,727.56.

¶45. Drake cites Davis v. Davis, 268 So.2d 913, 915-16 (Miss. 1972), arguing that he should not be found in contempt, as he does not have enough income to meet the ordered obligations that comprise the. contempt judgment. We find that Drake’s reliance on Davis is misplaced. In Davis, this Court found that “[t]he proof that the husband only earned $550.00 per month was not contradicted” and that, after monthly support, the husband only had $85 of income left for his own expenses. Id. ¿t 916.

■ ¶46. Here, there is evidence that Drake’s income is not limited to only his monthly salary. It is undisputed that Drake’s father pays the mortgage on the house where Drake lives. Further, the chancellor found it necessary to analyze Drake’s “true financial means” and questioned the extent of Drake’s father’s involvement in Drake’s finances. Drake made no attempt to satisfy his obligations and has not liquidated any of his assets to pay Tonia. Also, while Drake’s spouse has no duty to help Drake satisfy his obligations, his spouse does have a separate income with which she may contribute to the couple’s joint domestic expenses. Lastly, this Court already has remanded this case on the issue of adjusting Drake’s child-support obligations. See Lewis III, 172 So.3d at 177-78. A hearing on reducing Drake’s child support had not yet taken place as of Drake’s appeal,

¶ 47. After a review, of the record, we affirm the chancellor’s judgment of contempt. The record contains sufficient evidence to support the chancellor’s findings that Drake has the present ability to pay what he owes to Tonia and willfully chose not to do so.

CONCLUSION

¶ 48. We affirm the chancellor’s finding that Drake resided in Harrison County at the time of the filing of the divorce and find that Drake waived any objection to improper venue by litigating the divorce in Harrison County. We also affirm the judgment of contempt.

¶ 49. AFFIRMED.

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

      . The entire city of Biloxi, Mississippi, rests within the Second Judicial District of Harrison County.

      . Section 2738 of the Mississippi Code of 1942 is the statutory predecessor of Section 93-5-11.

      . In 2006—after Section 93-5-11 was amended—this Court, in dicta, found that Section 93-5-1 l’s venue requirement conferred subject-matter jurisdiction on the chancery courts. National Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238, 248-49 (Miss. 2006) (applying Miss. Code Ann. § 91-7-63(1)). We decline to follow this interpretation of Section 93-5-11 post-amendment. It appears the Boles Court did not take the amendment into account.

      .It is noted that the approval of the orders is only as to "form.” However, the orders are agreed (as opposed to contested) orders.

      . Drake’s appeal is procedurally proper. Tonia's argument that Drake should have appealed the May 2015 judgment of contempt instead of the January 2016 judgment is without merit since the January 2016 judgment was entered in response to Tonia’s Rule 59 motion to amend the May 2015 judgment. See M.R.C.P. 59(e).


author: CHAMBERLIN, JUSTICE, KITCHENS, JUSTICE,

text:
    Byron PERRY a/k/a Byron Levar Perry a/k/a Byron L. Perry v. STATE of Mississippi
    NO. 2015-KA-01205-SCT
    Supreme Court of Mississippi.
    06/01/2017

      ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: JUSTIN T. COOK GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR .APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA H. TEDDER, JACKSON
   CHAMBERLIN, JUSTICE,

FOR THE COURT:

¶ 1. In the Circuit Court of Clay County, a jury convicted Byron Perry of aggravated assault and possession of a weapon by a previously convicted felon. The circuit court sentenced him as a habitual offender to twenty years for the aggravated-assault conviction and ten years for the weapon conviction, to run consecutively. Perry appeals, arguing that his constitutional and statutory rights to a speedy trial were violated and that the evidence was insufficient to support the trial court’s finding that he was a habitual offender.

¶ 2. We hold that Perry’s constitutional and statutory rights to a speedy trial were not violated. Further, we find no merit in Perry’s argument that one of the two sentencing orders submitted by the State was insufficient to support a finding beyond a reasonable doubt that Perry was sentenced to one year or more and qualified as a habitual offender under Mississippi Code Section 99-19-81. Therefore, this Court affirms Perry’s convictions and sentences.

FACTS

¶ 3. In the fall of 2009, Shetamarah “Ta-mie” Willis met Perry, a sometime construction worker and gravedigger, at a nightclub in Columbus, Mississippi. The two embarked on a relationship that was physically intimate but not exclusive. Willis also was involved romantically with James Henry. In April 2010, Willis told Perry that she did not want to take their relationship any further because she was getting serious with Henry. Nonetheless, at around 8:00 p.m. on May 23, 2010, Perry and his cousin, Alvin Franklin, visited Willis’s home in West Point and the three watched a movie. After the movie, Perry and Franklin left, but Perry shortly returned alone. At this point, Perry and Willis were alone in the house, because Willis’s daughter, who resided there, was spending the night with her aunt. During the visit, Perry noticed that Willis’s bags had been packed and placed in the living room. Willis explained that she and Henry were about to leave together for the Black Bike Week motorcycle rally in Myrtle Beach, South Carolina.

¶-4, According to Willis, she and Perry then watched another movie, after which they fell asleep. When Willis awoke, she thought Perry had left. The aunt dropped off Willis’s daughter, and Willis left home briefly to take her daughter to her mother’s house for the day. Willis then got ready for work. She was in the kitchen making a sandwich to take to work when she looked up and saw Perry standing in the living room. He was staring at Willis with a “funny look” on his face, and she asked him if he was going crazy. Abruptly, he raised a handgun and fired a shot at her. The shot missed Willis, whereupon Perry grabbed her and the two began tussling in the kitchen.- During the struggle, Willis’s shoulder was burned by the hot muzzle of the gun. At some point, Perry tried to cock the gun, but the clip fell out, spilling cartridges across the kitchen floor. Willis managed to escape Perry’s grasp and bolted from her home. Panicked, she ran directly into the home of her neighbor.

¶ 5. Willis testified that she ran inside her neighbor’s home with full knowledge that the neighbor, Heather McClure, kept a blue nose pit bull guard dog inside the. home, and that this dog “probably would get” her. Indeed, as soon as Willis closed the door, the dog attacked and bit her leg. As Willis testified, her thinking was “I didn’t want to get killed. I would rather get bit.” McClure heard Willis screaming, called off the dog, then called the police. When the police arrived a few minutes later, Willis, still panicked, informed them that Perry had shot at her. She testified that, before the shooting, Perry always had seemed like a nice fellow and that she never had felt threatened by him. Photographs of Willis’s -injuries from both gun and dog were admitted into evidence. ■

¶ 6. Perry next was spotted on the doorstep of Classie Hatchett, who lived about a mile from Willis. About 10:00 o’clock that morning, a man matching Perry’s description knocked on Hatchett’s door and said that someone in a black car was after him with a gun. He asked her to call the police and also for a glass of water. Hatchett closed and locked the door and called the police. When she returned, the mah was gone. She testified that the man was hot and sweaty and out of breath, as if he had been running. At trial, Hatchett identified Perry as the hot and sweaty man.

¶ 7. Perry turned himself in .the next day. The police recovered one -.380 spent shell casing from just inside Willis’s living room and' three .380 unfired rounds from the- kitchen floor. A photograph of a bullet hole in the kitchen wall was admitted into evidence. The gun never was recovered. The parties stipulated that Perry was a prior convicted felon on the date of the alleged crime, and the jury found Perry guilty of aggravated assault and possession of a weapon by a previously convicted , felon. After reviewing the State’s evidence of Perry’s prior convictions, the trial court determined that Perry was a habitual offender and sentenced him to the maximum penalty for each erime, to be served consecutively and without eligibility for parole or probation.

DISCUSSION

I. WHETHER THE APPROXIMATELY . FIVE-YEAR DELAY BETWEEN INDICTMENT AND TRIAL VIOLATED PERRY’S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.

¶ 8. A criminal defendant is guaranteed “the right to a speedy and public trial” by the Sixth Amendment to- the United States Constitution. U.S. Const, amend. VI; U.S. Const, amend. XIV. Additionally, the Mississippi Constitution guarantees the defendant “a speedy and public trial by.an impartial jury of the county where the offense was committed.” Miss. Const, art 3, § 26. This Court applies the four-part balancing test from Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to constitutional speedy-trial claims. That test requires balancing four factors to determine whether the right to a speedy trial was violated: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the speedy-trial right; and (4) prejudice to the defendant. Id. at 530, 92 S.Ct. 2182. Under Barker, each case must be considered on an ad hoc basis, and no single factor is outcome-determinative. Id. at 530, 533, 92 S.Ct. 2182. Instead, “they are related factors and must be considered together with such other circumstances as may be relevant.” Id. at 533, 92 S.Ct. 2182. Because the factors are not talismanic, “courts must still engage in a difficult and sensitive balancing process.” Id.

¶ 9. “The state bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion.” DeLoach v. State, 722 So.2d 512, 516 (Miss. 1998). On review of the trial court’s ruling on a speedy-trial claim, this Court “will uphold a decision based on substantial, credible evidence.” Id. We will reverse if no probative evidence supports the trial court’s good-cause finding. Id. In this case, Perry filed three motions for a speedy trial, but he never secured from the trial court a ruling on the motions. This Court has held that, when the defendant has asserted his speedy-trial right but the trial court did not hold an adequate hearing, we have two alternatives: “(1) decide the case based on a de novo review of the record before us, if good cause for the delay is apparent, or (2) remand the case to the circuit court to allow the State to present evidence explaining the delay and to conduct a proper Barker analysis.” Rowsey v. State, 188 So.3d 486, 493 (Miss. 2015). Because, in this case, good cause for the delay is apparent from the record, remand is unnecessary.

A. Length of Delay

¶ 10. The constitutional right to a speedy trial attaches at the time of formal indictment or information, or when- the defendant is arrested. Smith v. State, 550 So.2d 406, 408 (Miss. 1989). We have held that a delay of eight months or longer is presumptively prejudicial and triggers the need for balancing the other three Barker factors. Id. Perry was arrested on May 25, 2010. He was not indicted until October 11, 2010. The next day, Perry waived arraignment, and his trial was set for January 11, 2011. But due to a series of continuances, he was not tried until July 21, 2015, a delay of approximately five years and two months. This period of delay, far exceeding eight months, was presumptively prejudicial.

B. Reason for the Delay

¶ 11. “Different reasons for delay are assigned different weights.” Hurst v. State, 195 So.3d 736 (Miss. 2016) (quoting Bateman v. State, 125 So.3d 616, 629 (Miss. 2013)). If the State deliberately attempts to thwart the defense by delaying the trial, that delay is weighed heavily against the State. Barker, 407 U.S. at 531, 92 S.Ct. 2182. But delay due to negligence or docket congestion is given less weight against the State. Id. An appropriate delay caused by a missing witness would be considered a justified delay. Id. Importantly, “[a] delay caused by the actions of the defendant, such as a continuance, tolls the running of the time period for that length of time, and is subtracted from the total amount of the delay.” Taylor v. State, 672 So.2d 1246, 1259 (Miss. 1996); see Barker, 407 U.S. at 529, 92 S.Ct. 2182.

¶ 12. The record reflects a delay of 140 days between Perry’s arrest on May 25, 2010, and his indictment on October 11, 2010. The next day, his trial was set for January 11, 2011. If Perry’s trial had occurred as scheduled, he would have received a presumptively speedy trial. But on January 11, 2011, defense counsel moved for additional time to investigate, and the trial court granted a continuance. The trial court continued the case twice more due to defense requests for time to investigate. On November 18, 2011, Perry-moved for a speedy trial. But on January 9, 2012, he moved for a continuance because he was awaiting a mental evaluation on a separate Oktibbeha County charge. On April 11, 2012, the trial court granted another defense request for a continuance because of counsel’s responsibilities in another trial. On July 20, 2012, defense counsel George Thad Buck moved for a continuance due to his major surgery. The trial court granted the motion and set the trial for October 8, 2012. On July 24, 2012, Buck filed a notice of his resignation as public defender. With new defense counsel, Perry requested a continuance on October 9, 2012, because new counsel had a trial the same day and needed additional time to prepare for Perry’s trial. On April 8, 2013, the defense sought and was granted another continuance because “another trial had begun,” and the trial was set for October 16, 2013.

¶ 13. On October 15, 2013, the trial court granted a motion for a mental evaluation of Perry, filed by his former counsel. The trial court also granted Perry’s motion for a continuance to procure the mental evaluation and for new counsel to have additional time to prepare. While awaiting completion of the mental evaluation, the trial court continued the case three times. On September 9, 2014, .the report of the mental evaluation was filed with the trial court. At a competency hearing on October 13, 2014, the trial court determined that Perry' was mentally competent to stand trial. At that hearing, defense counsel requested that the trial be set for the next available date, and the trial court entered an order setting the ease for trial on April 6, 2015. On March 30, 2015, Perry moved for a speedy trial, or in the alternative, to dismiss for lack of a speedy trial. The trial court’s docket reflects that the trial court entered an order of continuance on April 7, 2015, setting the trial for July 20, 2015: No reason for this continuance appears in the record. On June 10, 2015, Perry again demanded a speedy trial or, in the alternative, to dismiss the case for lack of a speedy trial. His trial occurred on July 21-22, 2015. Before the trial began, defense counsel requested a continuance to locate a missing witness. The trial court refused to continue the case, but the witness, Alvin Franklin, was found and testified in Perry’s defense.

¶ 14. It is manifest that the vast majority of the delay in this case was attributable to continuances generated by the defense. After the initial continuance, defense counsel requested further continuances to obtain additional time to prepare for trial, or due to responsibilities in-other cases. Defense counsel’s resignation from the case due to major surgery caused further delay. Then, the trial court ordered a mental evaluation, resulting in an additional year of delay while Perry awaited completion of the report and the competency hearing. When the competency hearing occurred on October 13, 2014, defense counsel requested additional time to prepare for trial, and the trial court granted another continuance until the next available trial date, which was April 6, 2015. On April 7, 2015, another continuance was granted, for unknown reasons.

¶ 15. Delay attributable to the defense tolls the running of the speedy-trial clock. Taylor, 672 So.2d at 1259. Therefore, delay attributable to Perry’s numerous requests for continuances is not weighed against the State. And this Court has held that delay attributable to obtaining a mental evaluation requested by the defense is not counted against the State. Rowsey v. State, 188 So.3d 486, 495 (Miss. 2015). As the State points out, Clay County, which is in the Sixteenth Circuit Court District, has only four ten-day terms of court per year: the second Monday of January, ten days; the first Monday of April, ten days; the second Monday of July, ten days; and the first Monday of October, .ten days. Due to the limited number of days available to try cases, every defense request for a continuance caused Perry’s trial to be continued to the next quarterly term of court or later* if trials already had been set for the next term of court.

¶ 16. A minimal amount of the total delay was attributable to the State. The grand jury issued the indictment against Perry 140 days after his arrest. Another 93 days elapsed between the indictment and Perry’s first'trial setting. And another 106 days passed between the unexplained April 7, 2015, continuance and Perry’s trial on July 21, 2015. Delays that are unexplained are weighed against the State. Vickery v. State, 535 So.2d 1371, 1377 (Miss. 1988). The record reflects that, of the approximately five-year delay between Perry’s arrest and his trial, 339 days were attributable to the State, and 1,548 days were attributable to Perry. Because the vast bulk' of the delay was caused by continuances requested by Perry, the' reason for the delay weighs against him.

= C. Defendant’s Assertion .of the Right to a Speedy Trial

¶ 17. The defendant’s assertion of the right to a speedy trial is counted in his favor. Rowsey, 188 So.3d at 495. But “a defendant’s assertion of his speedy trial rights should manifest ‘his desire to be tried promptly.’ ” Id. (quoting Franklin v. State, 136 So.3d 1021, 1035 (Miss. 2014)). When a defendant moves for a speedy trial but simultaneously requests a continuance, the defendant’s speedy-trial request cannot be viewed as a request to be tried promptly. Rowsey, 188 So.3d at 495. Perry, already having requested several continuances, first asserted his right to a speedy trial on November 18, 2011. On that date, his trial was set for January 9, 2012. On January 9, 2012, he moved for another continuance, then requested and obtained five more continuances before the trial court ordered the mental evaluation on October 15, 2013, which led to another year of delay. After the mental-evaluation report was filed and the competency hearing occurred, defense counsel requested yet another continuance to prepare for trial. Thus, although Perry had demanded a speedy trial, his November 18, 2011, demand did not “manifest a desire to be tried promptly.”

¶ 18. Perry also filed speedy-trial demands on March 30,. 2015, and June 10, 2015. He was tried on July 21, 2015. This Court has held that assertion of the speedy-trial right two months prior to trial does not cause this factor to weigh against the State. Wall v. State, 718 So.2d 1107, 1113 (Miss. 1998). Perry’s second and third speedy-trial demands were made after more than four years’ worth of delay caused by defense' continuances. The trial court continued the trial for an unknown reason between his .second and third demand. We find that, due to the timing of Perry’s second and thud speedy-trial demands, this factor weighs only slightly in favor of Perry.

D. Actual Prejudice

¶ 19. Barker held that the denial of a speedy trial may result in prejudice when the interests protected by the speedy-trial right are impacted by the delay. Barker, 407 U.S. at 532, 92, S.Ct. 2182. Barker identified three interests protected by the denial of speedy trial: (1) the prevention of oppressive pretrial incarceration; (2) minimization of the defendant’s anxiety and concern; and (3) the possibility of an impaired defense. Id. “Of these, the most serious is the last, because the inability of -a defendant adequately to prepare his case skews’, the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious.” Id. Additionally, the stress and anxiety of awaiting trial and restraints on liberty can cause prejudice, even if the defendant is not incarcerated. Id. at 532-33, 92 S.Ct. 2182.

¶20. Perry argues that he was prejudiced because, three years after he was indicted, the State moved to amend his indictment to charge him as an habitual offender. The trial court granted the State’s motion to amend. He contends that, but for the delay, his indictment would not have been amended. He also argues that actual prejudice resulted from the stress and anxiety of waiting, for trial.

¶ 21. The record reflects that, after Perry’s arrest, he was released on bail but, on January 31, 2011, his bail was . revoked because he had been charged with committing an armed robbeiy in.Oktibbeha County during his release. Perry remained incarcerated until the trial in this case; the disposition of the armed-robbery charge is unknown. However, that charge did not result in one of the- convictions used to enhance Perry’s sentence. Instead, .the State relied on two convictions that occurred before Perry’s arrest in this case. In Smith v. State, 550 So.2d 406, 406-07, 409 (Miss. 1989), this Court found that the deferidant had been prejudiced when he was reindicted as a habitual offender using a conviction that had arisen during the delay before, trial. Because Perry already had the two prior convictions the State used to enhance his sentence, the State could have used those convictions to seek his indictment as a habitual offender at its presentment of the case to, the grand jury. Therefore, Perry has not shown prejudice regarding the habitual-offender amendment. Further, the record reveals no missing witnesses, faded memories, or other detriment to the defense caused by the .delay. And Perry himself requested the continuances that caused the majority of the delay to prepare his case and to procure a mental evaluation. Any anxiety or stress that Perry experienced due to the delay was outweighed by the fact that his defense was assisted, not hindered, by the delay. See Rowsey, 188 So.3d at 496. We find that this factor weighs against Perry.

¶ 22. We find that, despite the approximately five-year delay in this case, a de novo review of the record under the Barker factors indicates good cause for the delay, and that Perry’s constitutional right to a speedy trial was not violated.

II. WHETHER THE DELAY IN BRINGING PERRY TO TRIAL VIOLATED HIS' STATUTORY ■ SPEEDY-TRIAL RIGHT.

¶23. Under 'Mississippi Code Section 99-17-1, “[ujnless good cause be shown, and a continuance duly granted by the court, all. offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the .accused has been arraigned.” Miss. Code Ann. ■§ 99-17-1 (Rev. 2015). We have held that “continuances for ‘good cause’ toll the running of the 270-day .period, unless- ‘the record is silent regarding the reason for the.delay,’ and then ‘the clock ticks against the State because the State bears the risk of non-persuasion on the good cause issue.’ ” Reynolds v. State, 784 So.2d 929, 933 (Miss. 2001) (quoting Herring v. State, 691 So.2d 948, 953 (Miss. 1997)). “A'written order stating that a motion for continuance is well taken and should be granted is the equivalent of a judicial determination that good cause exists.” Reynolds, 784 So.2d at 933. When such continuances are granted to the State, the statutory speedy-trial clock is tolled, and the time is deducted from the total number of days before trial for the purposes of the statutory time calculation. Id.

¶24. Perry contends that his statutory speedy-trial right was violated because he waived arraignment on October 12, 2010, and he was not tried in 270 days. However, Perry requested numerous continuances, and the trial court found that these requests were well-taken. Thus, good cause existed for the 1,548 days that were attributable to the continuances granted to the defense, and that number of days must be deducted from the statutory time calculation. After the deduction, 198 days remained between Perry’s arraignment and his trial. There was no statutory speedy-trial violation.

III. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE TRIAL COURT’S FINDING THAT PERRY WAS A HABITUAL OFFENDER.

¶ 25. Next, Perry- argues that the State failed to show his habitual-offender status beyond a reasonable doubt. The State counters that this argument is procedurally barred because Perry failed to object to habitual-offender sentencing. A defendant’s failure to object to habitual-offender sentencing operates as a procedural bar to the issue on appeal. Cummings v. State, 465 So.2d 993, 995 (Miss. 1985). However, when a defendant’s substantive or fundamental rights are affected, this Court will review an issue for plain error, that is, an error that is plain, clear, or obvious and prejudiced the outcome. Grayer v. State, 120 So.3d 964, 969 (Miss. 2013). A defendant has a fundamental right to be free from an illegal sentence, which “is one that ‘does not “conform to the applicable penalty statute.’ ” Id. (quoting Foreman v. State, 51 So.3d 957, 962 n.22 (Miss. 2011)). Still, we fínd no plain error here.

¶ 26. On October 15, 2013, the trial court granted the State’s motion to amend the indictment to charge Perry as a habitual offender. The amended indictment charged that Perry had two prior felony convictions for which he had been sentenced to serve one year or more: a Cobb County, Georgia, conviction on November 3, 2003, for theft by receiving stolen property; and a Lowndes County, Mississippi, conviction on December 4, 2003, for the unlawful taking of a motor vehicle.

¶ 27. At Perry’s sentencing hearing, the State introduced documentation of the two prior convictions to show that he was a habitual offender under Mississippi Code Section 99-19-81. That section provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss. Code Ann. § 99-19-81 (Rev. 2015) (emphasis added). Under Section 99-19-81, the length of time served by the convicted is irrelevant so long as he or she was sentenced to one year or more. See id.; see also Jackson v. State, 381 So.2d 1040, 1042 (Miss. 1980). The State bears the burden of proving a defendant’s habitual-offender status beyond a reasonable doubt. See Conner v. State, 138 So.3d 143, 151 (Miss. 2014).

¶ 28. The record clearly shows that Perry was sentenced to one year, one month, and twenty-seven days for his prior felony conviction in Georgia. Therefore, the only issue is whether Perry was sentenced to one year or more for his prior, Lowndes County conviction. For this conviction, the State submitted a certified copy of the sentencing order, which provided:

Thereupon, the defendant was sentenced by the Court to serve a term of three (S) years in the custody of the Mississippi Department of Corrections under the terms and conditions of Section ¿7-7-47 M.C.A. (1972), including the Regimented Inmate Discipline Program (RID) .... Further, if the defendant successfully completes the RID Program, the defendant is to be transported from the RID program to the Lowndes County jail to await re-sentencing.

(Emphasis added.) The trial court sentenced Perry as a habitual offender.

¶ 29. We discern no error, much less plain eiTor, from the trial judge’s sentencing of Perry as a habitual offender. The face of this Lowndes County sentencing order plainly and unambiguously shows that Perry was sentenced to three years in the custody of the Mississippi Department of Corrections for this conviction.

¶30. Based on the latter half of this order, Perry, as well as the dissent, conclude that his three-year sentence was contingent upon Perry’s failure to complete the RID program, and therefore indeterminate. Continuing from this logic, they then find that the State must provide evidence that a defendant, who is given the opportunity to complete a RID or similar program, did not complete the program in order to show the defendant’s habitual-offender status.

¶ 31. First, Perry’s sentence was not contingent upon anything. Rather, Perry’s opportunity to be resentenced was contingent upon his successful completion of the RID program. Second, the State is not required to show that a defendant failed to fulfill the requirements of a RID or similar program in order to prove habitual-offender status. To be clear, we recognize that the State bears the burden of proving a defendant’s habitual-offerider status beyond a reasonable doubt. See Conner v. State, 138 So.3d 143, 151 (Miss. 2014). Such burden, however, does not require the State to prove a negativp (i.e, that the defendant did not fulfill a prior contingency offered to him). By this same logic, the State would be required to prove that a defendant has not filed a successful petition for post-conviction relief, has not been pardoned, or has not successfully had his conviction reversed in order to show habitual-offender status. We find, instead, that the proper time for the introduction of such evidence is when the defendant is “afforded a reasonable opportunity to challenge the State’s proof.” Id.

¶ 32. As an aside, the record also suggests that Perry did not complete the RID program. At Perry’s sentencing hearing in the case at hand, the prosecutor noted that “[Perry] was convicted [in Lowndes County] of taking a motor vehicle, and he was sentenced to three years. Although he was recommended for the RID program, he was still—received a three-year sentence. And I believe even later, though, he was revoked on that order, also, Your Honor.” Even more, Perry’s brief to this Court never claimed that he had completed the RID program and was resentenced to less than one year.

CONCLUSION

¶ 33. Perry’s constitutional and statutory rights to a speedy trial were not violated, and no plain error occurred from his sentencing as a habitual offender. We affirm Perry’s convictions and sentence.

¶ 34. COUNT I: CONVICTION OF POSSESSION OF A WEAPON BY A CONVICTED FELON- AND SENTENCE OF TEN (10) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT Of CORRECTIONS, AFFIRMED. APPELLANT SHALL PAY COURT COSTS AND A FINE IN THE AMOUNT OF $1,200. COUNT II: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT I SHALL RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II. SAID SENTENCES SHALL NOT BE REDUCED OR SUSPENDED, NOR SHALL APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., COLEMAN, MAXWELL AND BEAM, JJ., CONCUR. KITCHENS, J.,' CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

KITCHENS, JUSTICE,

CONCURRING IN PART AND DISSENTING IN PART:

¶ 35. I respectfully concur in part and dissent in part. I agree that, because no speedy trial violation occurred, Perry’s convictions of aggravated assault and the weapon charge must be affirmed. But I disagree that Perry’s Lowndes County sentencing order was sufficient to support the trial court’s finding beyond a reason-' able doubt that he had been sentenced to one year or more for that conviction. Because the State failed to meet its burden to prove Perry’s habitual offender status beyond a reasonable doubt, I would vacate, the habitual offender enhancement and remand for resentencing without the enhancement. . ■

¶ 36. In Conner v. State, 138 So.3d 143, 151 (Miss. 2014), this Court thoroughly explained the habitual offender sentencing process. “When the defendant is indicted as a habitual offender, ‘[a] jury is to decide the question of guilt and subsequently the circuit judge is to serve as the finder of fact in determining whether the habitual offender part of the indictment is established by the requisite degree of proof.’ ” Id. (quoting Seely v. State, 451 So.2d 213, 215 (Miss. 1984)). At a separate habitual offender sentencing hearing, the State must prove each element in the habitual offender statute beyond a reasonable doubt, and the defendant must be afforded, a reasonable chance to challenge ■ the State’s proof. Id. Conner noted that “there appears to be some tendency to routinely allow the state to produce some documentation of prior offenses and for the trial court to perfunctorily find the defendant an habitual offender, then routinely pass out the sentence mandated .... ” Id. (quoting Young v. State, 507 So.2d 48, 50 (Miss. 1987)). The 'Court stressed that “a bifurcated trial means a full two-phase trial prior to any finding that the defendant is an habitual offender and subject to enhanced punishment.” Id. (quoting Young, 507 So.2d at 50).

¶ 37, At Perry’s.sentencing hearing, the trial court found from two sentencing orders submitted by the State that Perry was a nonviolent habitual offender pursuant to Mississippi Code Section 99-19-81. That statute provides:

Every person convicted in-this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss. Code Ann. § 99-19-81 ■ (Rev. 2015) (emphasis added). As the majority notes, the State proved that' Perry received a sentence of more than one year for a conviction of a theft by receiving stolen property in Georgia. The State also produced a sentencing order for a Lowndes County conviction for unlawful taking of a motor vehicle, and Perry argues that this sentencing order, standing alone, was insufficient to have enabled the trial court to find him an habitual offender beyond a reasonable doubt. The Lowndes County sentencing order provided:

Thereupon, the defendant was sentenced by the Court to serve a term of three (3) years in the custody of the Mississippi Department, of Corrections under the terms and conditions of Section 47-7-47 M.C.A. (1972), including the Regimented Inmate Discipline Program (RID) .... Further, if the defendant successfully completes the RID Program, the defendant is to be transported from the RID program to the Lowndes County jail to await resentencing. The Sheriff of said County or his designee is to promptly notify the County Probation Office of the defendant’s return and the Probation Office is directed to contact the Court Administrator as soon as possible to schedule the re-sentencing.
If the defendant fails to' successfully complete the RID Program, then he shall be transferred to the general population to begin serving his sentence as originally imposed without further order of this Court.

(Emphasis added.)

¶ 38. I would find that Perry’s Lowndes County sentencing order, on its face,, failed to establish the statutory requirement that he was sentenced to a term of one year or more. Contrary to the majority’s contention, the order made the sentence that Perry serve three years contingent upon his failure to complete the RID program. The sentence “includ[ed]” the RID program and provided that, if Perry completed that program, then he was to be resen-tenced. Because the sentence included the RID program, Perry’s participation in that program was not optional, and Perry either would have completed the program and been resentenced, or he would have failed to complete the program and served what remained of the three years. The sentencing order does not, nor could it, foresee which .of these two possibilities would occur. Thus, on the face of the sentencing order, the sentenced imposed was indeterminate. More evidence was required to establish what sentence Perry ultimately received. The State provided no evidence that Perry either did not com-píete the RID program, or that he completed the RID program and then was resentenced to one year or more. The majority relies on the prosecutor’s statement at the sentencing hearing that “I believe even later, though, he was revoked on that order also, Your Honor.” But the prosecutor’s unsupported statement of his own belief was not competent evidence to support' a finding beyond a reasonable doubt that Perry had failed to complete the RID program. Ultimately, this Court, like the trial court, is unable to know what sentence Perry actually received for the crime.

¶ 39. I recognize that the question of whether Perry actually served a sentence of one year or more is irrelevant under Section 99-19-81. To prove habitual offender status under Section 99-19-81, the State was required to prove, beyond a reasonable doubt, that Perry was given a sentence of one year or more. As discussed above, the problem with the State’s use of Perry’s sentencing order is that, on its face, the order did not impose an absolute sentence of one year or more “in any state and/or federal penal institution.” Miss. Code Ann. § 99-19-81. Perry’s sentence was indeterminate. Notably, the sentencing order provided for resentencing if Perry completed the RID program, not suspension of the sentence. This Court has held that a sentence of one year or more may be used for habitual offender enhancement under Section 99-19-81, even if the sentence later is suspended. Jackson v. State, 381 So.2d 1040, 1042 (Miss. 1980). But here, because the question of whether Perry received a three-year sentence could be answered only by proof of his completion or noncompletion of the RID program, nothing before the trial court constituted proof beyond a reasonable doubt that Perry had been sentenced to one year or more.

¶40. The Lowndes County sentencing order, standing alone, does not establish that Perry was sentenced to a term of one year or more. Therefore, the State failed to prove Perry’s habitual offender status beyond a reasonable doubt. This error is obvious from the face of the sentencing order. I would find that this was a plain, clear, and obvious error that prejudiced Perry and violated his fundamental right of freedom from an illegal sentence. Since the State failed to prove beyond a reasonable doubt that Perry had been sentenced to one year or more, his sentence did not conform to the applicable penalty statute. See Coleman v. State, 947 So.2d 878 (Miss. 2006) (holding that “criminal statutes are to be strictly construed against the State and liberally in favor of the accused”). Accordingly, I would vacate the habitual offender enhancement and remand for re-sentencing without the enhancement. See Grayer v. State, 120 So.3d 964, 969-70 (Miss. 2013) (“the State rs not entitled to a second chance to prove a defendant’s habitual-offender status on remand, because that would violate the prohibition against double jeopardy under the Mississippi Constitution”).

KING, J., JOINS THIS OPINION.

      . Miss. Secretary of State, Miss. Judiciary Directory and Court Calendar (2016). According to Mississippi Code Section 9-7-3, "[n]otice of the dates upon which the terms of court shall commence and the number of days for which the terms shall continue in each of the counties within a circuit court district shall be posted in the office of the circuit clerk of each county within the district and mailed to the office of the Secretary of State for publication and distribution to all Mississippi Bar members.” Miss. Code Ann. § 9-7-3 (Supp. 2016).

      . Our opinion is not intended to address the merits of a claim by a defendant who has completed the RID program and been resen-tenced to less than one year.

      . Nor did the State provide any evidence of the duration of the RID program.

      . That question is relevant under Section 99-19-83, in which the State must prove that the defendant was sentenced to and actually served one year or more. Miss. Code Ann. § 99-19-83 (Rev. 2015); Bogard v. State, 624 So.2d 1313, 1320 (Miss. 1993).