author: WALLER, Chief Justice,

text:
    Margie BROWN v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY.
    No. 2008-CC-02142-SCT.
    Supreme Court of Mississippi.
    March 11, 2010.

      Ray Charles Evans, Forest, attorney for appellant.
    Leanne F. Brady, attorney for appellee.
    Before WALLER, C.J., DICKINSON and KITCHENS, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Margie Brown appeals the decision of the Newton County Circuit Court, affirming the denial of unemployment benefits by the Mississippi Department of Employment Security. Because we find Brown’s claim to be procedurally barred on appeal, we affirm the circuit court’s decision.

FACTS AND PROCEDURAL HISTORY

¶ 2. Margie Brown was employed for four years as an overnight stocker with Wal-Mart Associates, Inc., working in the store in Newton, Mississippi. She was discharged on May 9, 2008, according to Wal-Mart, for violating company policy regarding the length of breaks. Wal-Mart stated that all employees had received repeated training and notification that they were allowed only fifteen minutes of break time. However, Brown took breaks of at least twenty-five minutes on at least two occasions, the last one on May 5, 2008. According to Wal-Mart, Brown’s discharge resulted from this last violation.

¶ 3. Brown filed for unemployment benefits with the Mississippi Department of Employment Security (MDES), which conducted an investigation to determine Brown’s eligibility. In his “Notice to Employer of Claims Determination Decision,” the claims examiner determined that Wal-Mart had not “shown that [Brown] was discharged for misconduct connected with work.” Thus, the claims examiner found that “[Brown] is eligible for benefits based on this separation” and that “[e]ffective 05/11/2008, [Wal-Mart’s] experience rating record will be charged for Unemployment Insurance benefits paid to the claimant....” The notice included a section with instructions for appealing the initial determination, which stated that:

If you disagree with this decision, an appeal or reconsideration must be filed no later than 06/20/2008, which is 14 calendar days from the Date Mailed. Holidays and weekends will not extend the time for filing an appeal. If an appeal is filed after the 14 day period, a hearing will be held to determine whether good cause exists for the delay. Contact MDES for more appeal information. Appeals should be submitted using one of the following methods:
In Person: WIN Job Center
Phone: 1-866-633-7041
FAX: 1-877-994-6329
Mail: MDES Appeals Department, PO Box 1699, Jackson MS 39215-1699.

The notice stated that the “Date Mailed” was June 6, 2008 (“06/06/2008”).

¶ 4. By letter dated June 20, 2008, Wal-Mart appealed the claims examiner’s initial determination. In the letter, Wal-Mart based its appeal on its assertion that “[Brown] was observed taking excessive breaks on 5/5/08.” The letter stated that “[w]e request that [Brown] be disqualified from receiving benefits and the employer’s account be relieved of charges.” The envelope in which the letter was mailed to the MDES was postmarked “06/20/2008.” The appeal letter was stamped “Received” by the MDES on June 25,2008.

¶ 5. A telephonic hearing was held before the administrative law judge (“ALJ”), Cindy C. Gill, on July 21, 2008. On July 23, 2008, the ALJ issued her decision, stating first that “[Wal-Mart] timely appealed a determination of the [MDES] which concluded that the claimant was eligible for benefits.... ” The ALJ found that Brown was witnessed taking a twenty-five-minute break in December 2007, and a twenty-three-minute break and a twenty-eight-minute break on May 5, 2008. Thus, the ALJ reversed the claims examiner’s decision and denied Brown’s claim for unemployment benefits, finding that Brown had committed disqualifying conduct for violating Wal-Mart’s break and meal policy. Brown appealed the ALJ’s decision to the MDES Board of Review on July 24, 2008, stating simply that her “Reason for Appeal” was “I DISAGREE WITH THE DECISION.” The Board of Review affirmed the ALJ’s decision on August 28, 2008.

¶ 6. Sometime prior to September 4, 2008, Brown appealed to the Circuit Court of Newton County. In a document entitled “My Brief employment for my appeal,” Brown asserted to the circuit court that:

I was employed at Walmart Store # 1069. I was wrongfully discharged. The write[-]up was misconducts and productivity. I did not quit my job and I was available for work on the dates. I think I should have received my unemployment until I find another job. Enclosed is a copy of the dates of my absentees.

The Newton County Circuit Court affirmed the Board of Review’s decision on November 24, 2008. Brown filed her notice of appeal on December 24, 2008, arguing only that the circuit court’s judgment “is in error as a matter of law.”

STANDARD OF REVIEW

¶ 7. The scope of review in an unemployment-compensation case is limited. Absent fraud, the findings of fact of the Board of Review are conclusive if supported by substantial evidence. Johnson v. Miss. Employment Sec. Comm’n, 761 So.2d 861, 863 (Miss.2000). Thus, judicial review is limited to questions of law, which this Court reviews de novo. Id.

DISCUSSION

¶ 8. On appeal, Brown does not argue that MDES’s findings of fact (ie., that she was discharged for misconduct) are not supported by substantial evidence. Instead, Brown argues, for the first time, that Wal-Mart’s appeal to the ALJ from the claims examiner’s initial determination was untimely filed. Thus, Brown argues that the ALJ, the Board of Review, and the circuit court committed reversible error in denying her unemployment benefits. Although there is arguable merit to Brown’s assertion, we find this issue to be procedurally barred because Brown failed to raise it in any of the proceedings below.

I. Whether Wal-Mart’s appeal to the ALJ was timely filed.

¶ 9. Mississippi Code Section 71-5-517 provides fourteen days in which to file an appeal from a claims examiner’s initial determination to the ALJ. Miss. Code Ann. § 71-5-517 (Rev.2000). This fourteen-day period is to be strictly construed. Wilkerson v. Miss. Employment Sec. Comm’n, 630 So.2d 1000, 1002 (Miss.1994).

¶ 10. Here, the fourteen-day period started running on June 6, 2008, the date the notice of the claims examiner’s initial determination was mailed to Brown and Wal-Mart. Id.; Miss. Employment Sec. Comm’n v. Parker, 903 So.2d 42, 44 (Miss.2005). Thus, the appeal deadline was June 20, 2008, fourteen calendar days later. Miss.Code Ann. § 71-5-517. Wal-Mart’s appeal letter was postmarked and mailed on June 20, 2008, but it was not stamped “Received” by the MDES appeals department until June 25, 2008. Brown asserts that, for the purposes of “filing an appeal” under Section 71-5-517, the operative date is the date the appeal is “received,” and thus, Wal-Mart’s appeal to the ALJ was untimely filed.

¶ 11. MDES asserts that, after this Court decided Wilkerson and Parker, it “instituted a policy that it would consider an appeal timely filed if it was postmarked by the fourteenth (14th) day.” In Wilkerson, we struck down an unpublished, internal policy of the Mississippi Employment Security Commission (MESC), which allowed an additional three days in which to file an appeal. Wilkerson, 630 So.2d at 1002. This Court found that the “statutory scheme does not contain a provision which gives the Commission the power to modify the statute by arbitrarily or capriciously adding three days to the time for appeal.” Id. In Parker, we held that, because MESC is not a circuit, chancery, or county court, “the Mississippi Rules of Civil Procedure are not applicable to its administrative hearings or appeals[.]” Parker, 903 So.2d at 44-45. Thus, we held that the claimant was not afforded an additional three days, pursuant to Mississippi Rule of Civil Procedure 6(e), in which to file an appeal. Id. MDES argues that the “postmark policy” is “a reasonable policy created to ensure that all interested parties’ rights are preserved when they file an appeal to the ALJ or Board of Review via the mail.”

¶ 12. Nevertheless, MDES’s new “postmark policy” is an internal policy, the likes of which this Court overruled in Wilkerson. In fact, this Court specifically instructed in Wilkerson that MDES should modify the appeal-filing procedures only “bjr published rule and not by an unwritten practice subject to ad hoc and sporadic application.” Wilkerson, 630 So.2d at 1002. In fact, the statutory scheme governing MDES expressly provides that appeals should be governed by prescribed regula-lions. Specifically, Section 71-5-525 provides that:

The manner in which appealed claims shall be presented and the conduct of hearings and appeals shall be in accordance with regulations prescribed by the board of review for determining the rights of the parties, whether or not such regulations conform to common law or statutory rules of evidence and other technical rules of procedure.

Miss.Code Ann. § 71-5-525 (Rev.2000). Hence, if MDES wishes to define the date an appeal is “filed” as the date it is postmarked, we think it should, at a minimum, do so by published rule. Id.; Wilkerson, 630 So.2d at 1002.

¶ 13. It appears to this Court that MDES’s current published rules define the date of “filing” an appeal as the date of “delivery.” Specifically, the applicable section of the Mississippi Administrative Code relating to MDES appeals states, in pertinent part, that:

(A) Time for Filing: Pursuant to Sections 71-5-517 and 71-5-519 of the Law, an interested party must file an appeal for an initial or amended determination within fourteen (14) days of the date the determination was mailed to the last known address. If the last day to appeal falls on a Saturday, Sunday, or other legal holiday, or day in which the Agency is closed for business, then the time allowed to appeal shall run until the end of the next business day.
(B) Method of Filing: Appeals shall be tiled using methods and procedures the Agency has established. Those methods ... specifically include the following:
(1) delivery by the United States Postal Sendees to the address provided on the determination or decision being appealed;
(2) faxing to the number provided in the determination or decision being appealed;
(3) in-person at any WIN Job Center;
(4) electronically at the address provided in the determination or decision being appealed; or
(5) telephonically by calling the number provided on the determination or decision being appealed.

38-000-006 Miss.Code R. § 200.01 (Weil 2008) (emphasis added). As can be seen, MDES’s regulation includes only one “method of filing” applicable to the mail, and that method requires “delivery” to MDES. Id. It does not say “mailing” to MDES. Therefore, according to MDES’s published regulations, an appeal from an initial determination is not “filed” until it is “delivered” to (ie., received by) the MDES. Id.

¶ 14. Applying this rule to the instant case, Wal-Mart’s appeal was untimely “filed.” The claims examiner’s initial determination, mailed on June 6, 2008, specifically informed Wal-Mart that its appeal must be “filed” no later than June 20, 2008. Wal-Mart’s appeal letter, although postmarked on June 20, 2008, was not stamped “Received” by MDES until June 25, 2008. Because it was not “delivered” until June 25, it was not “filed” until June 25 under the terms of Section 200.01 of MDES’s regulations. Hence, pursuant to Section 200.01, Wal-Mart’s appeal from the initial determination was “filed” five days late. But this does not end the inquiry.

II. Whether Brown has waived the issue of the untimeliness of Wal-Mart’s appeal.

¶ 15. MDES argues that the asserted untimeliness of Wal-Mart’s appeal to the ALJ is procedurally barred on appeal because Brown faded to raise the issue in the proceedings before MDES or in the circuit court below. This Court repeatedly has held that an issue not raised before the lower court is deemed waived and is procedurally barred. Pub. Employees’ Ret. Sys. v. Freeman, 868 So.2d 327, 330 (Miss.2004) (citing Davis v. State, 684 So.2d 643, 658 (Miss.1996); Cole v. State, 525 So.2d 365, 369 (Miss.1987)). However, the United States Supreme Court has explained recently that an administrative agency’s nonjurisdictional filing requirements and deadlines, or “claim-processing rules,” may be waived if not raised at the earliest opportunity, whereas jurisdictional filing requirements, which affect an appellate tribunal’s subject-matter jurisdiction, can never be waived. Union Pac. R. Co. v. Bhd. of Locomotive Eng’rs and Trainmen Gen. Comm. of Adjustment, Cent. Region, — U.S. -, 130 S.Ct. 584, 596-97, - L.Ed.2d -, 2009 WL 4573275, *9 (2009).

¶ 16. In the realm of workers’ compensation proceedings, our cases appear to hold that, where the statutes and rules governing appeals from the Workers’ Compensation Commission deem a decision “final” upon the running of the allotted time for appeal, the appeal deadline is jurisdictional, and hence unwaivable. See, e.g., Dependents of Townsend v. Dyer Woodturnings, Inc., 459 So.2d 300, 302 (Miss.1984) (where “statute states that the final award of the Commission shall be conclusive and binding” unless either party appeals within thirty days, “the procedure set forth therein is jurisdictional of an appeal to the circuit court”); Aetna Cas. & Sur. Co. v. Dir., Office of Worker’s Comp. Programs, U.S. Dep’t of Labor, 97 F.3d 815, 818 (5th Cir.1996) (citing 33 U.S.C.A. § 921(a)) (holding that statute which “provides a thirty[-]day period during which appeals may be filed before a decision of an ALJ or deputy commissioner will be considered final ... imposes a jurisdictional requirement ... ”). In other words, if such a decision is not appealed by the applicable deadline, the circuit court is without jurisdiction to review the decision. See also Carney v. Moore, 130 Miss. 658, 94 So. 890, 891 (1923) (citing Kramer v. Holster, 55 Miss. 243 (1877)) (“time within which such appeals [from justice court] were required by the statute to be taken was a limitation on the jurisdiction of the circuit court”).

¶ 17. The timeliness of an appeal from a claims examiner’s initial determination to the ALJ is nonjurisdictional, and hence, it is a waivable issue. Section 71-5-517 does not state that the claims examiner’s initial determination automatically will become final if no appeal is filed within fourteen days. Miss.Code Ann. § 71-5-517 (Rev.2000). In fact, the notice of the claims examiner’s initial determination states that “[i]f an appeal is filed after the 14-day period, a hearing will be held to determine whether good cause exists for the filing delay.” Therefore, the fourteen-day deadline for filing an appeal to the ALJ in MDES proceedings is nonjurisdic-tional. As such, the untimeliness of such an appeal is a waivable issue, Union Pacific, 130 S.Ct. at 596-97, and will be procedurally barred if not raised before the lower court. Freeman, 868 So.2d at 330.

¶ 18. Brown has waived the issue of the untimeliness of Wal-Mart’s appeal to the ALJ. After reviewing all the documents Brown filed before the ALJ, the Board of Review, and the circuit court, it is apparent that Brown failed to raise this issue in any of the proceedings below. Brown did not object to the untimeliness of Wal-Mart’s appeal at the hearing before the ALJ. See Wilkerson, 630 So.2d at 1001. Further, Brown did not assert this issue in any of her filings before the Board of Review or the circuit court. Her arguments below focused squarely on the merits of the ALJ’s and the Board of Review’s decision to deny her unemployment benefits, based on their finding that she had been terminated for misconduct. In fact, the first time Brown raised the issue of the untimeliness of Wal-Mart’s appeal to the ALJ was in her appellate brief before this Court. Therefore, we find that Brown waived her assertion regarding the untimeliness of Wal-Mart’s appeal, and accordingly, it is procedurally barred on appeal.

CONCLUSION

¶ 19. As Brown’s only asserted error on appeal is procedurally barred, we must affirm the circuit court’s decision, which affirmed the MDES’s denial of unemployment benefits to Brown.

¶ 20. AFFIRMED.

CARLSON, P.J., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY. RANDOLPH, J., NOT PARTICIPATING.

      . The appeal letter actually was sent by Wal-Mart's “duly authorized agent,” TALX UCM Services, Inc., UC eXpress, which handles Wal-Mart’s employment and labor matters.

      . According to the Wal-Mart representatives who testified before the ALJ, the second break on May 5, 2008, started at 5:05 a.m. and ended at 5:23 a.m., "for a total of 28 min-ules.” By this Court’s calculations, that is only eighteen (18) minutes. At any rate, eighteen is still more than fifteen, and Brown was witnessed on several other occasions taking breaks of more than twenty minutes. Thus, the Wal-Mart representatives' and the ALJ’s miscalculation is harmless error.

      . Effective July 1, 2004, the name of the Mississippi Employment Security Commission was changed to the Mississippi Department of Employment Security, Office of the Governor. ses Miss.Code Ann. § 71-5-11(F) and Amendment Notes (Supp.2009).

      . According to MDES, there are four main reasons for its new "postmark policy.” First, pursuant to Wilkerson and Parker, "Li]f the parties are bound by the mail date and not the receipt date to calculate the fourteen (14) day period, it is only equitable that the parties be allowed to mail their appeal on the fourteenth (14th) day.” Second, due to the large amount of mail MDES receives daily, some mail may take several days to get sorted to the appropriate department, so "the support staff in appeals must look to the postmark on the envelope to determine if a notice of appeal was filed timely.” Third, due to the large number of appeals received daily by the appeals department, not all mail can be opened on the day it is received, so the staff must look to the postmark date to determine its timeliness. Finally, "due to inconsistencies with the mail[,] ... MDES does not believe a parly should be procedurally barred due to an issue with the mail.”

      . Conversely, MDES's official website states that "[an] appeal request may be made ... by mailing or faxing a signed letter indicating a desire to appeal to [MDESV' MDES website, "Appeals Process,” http://www.mdes.ins.gov/ wps/portal# null (follow "Appeal Information” hypérlink under "Unemployment Services” tab, then follow "Appeals Process" hyperlink under "Appeal Information” heading) (last visited March 9, 2010) (emphasis added).

      . However, the fourteen-day deadline to appeal an ALJ’s decision to the Board of Review, and the ten-day period in which to appeal the Board of Review's decision to the circuit court, are jurisdictional deadlines. The ALJ's decision "shall be deemed to be the final decision of the executive director unless, within fourteen (14) days after the date of notification of such decision, further appeal is initiated. ...” Miss.Code Ann. §71-5-519 (Supp.2009). Similarly, ”[a]ny decision of the Board of Review, in the absence of an appeal therefrom as herein provided, shall become final ten (10) days after the date of notification^]" Miss.Code Ann. § 71-5-529 (Rev.2000). As such, the untimeliness of such an appeal is an issue that cannot be forfeited or waived.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    BRENTWOOD HEALTH MANAGEMENT OF MISSISSIPPI, LLC d/b/a Children’s Hospital of Vicksburg, Appellant, v. MISSISSIPPI STATE DEPARTMENT OF HEALTH, Appellee.
    No. 2008-SA-00169-COA.
    Court of Appeals of Mississippi.
    May 19, 2009.
    Rehearing Denied Nov. 17, 2009.
    Certiorari Denied March 11, 2010.

      Thomas L. Kirkland, Andy Lowry, Allison Carter Simpson, Ridgeland, attorneys for appellant.
    Sondra Simpson McLemore, Donald E. Eicher, Flowood, attorneys for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. This appeal focuses on the Mississippi State Department of Health’s (MSDH) decision to revoke two “Certificates of Need” (CONs) formerly granted to Brentwood Health Management of Mississippi, LLC. To paraphrase, the MSDH revoked the CONs at issue based on its conclusion that Brentwood had failed to substantially undertake development of the project contemplated by the two CONs. Brentwood appealed to the Hinds County Chancery Court, and the chancellor affirmed the MSDH’s decision. Brent-wood appeals and raises four issues. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. There are two CONs at issue, both of which were held by Brentwood. One CON was originally awarded in 1996. It allowed Brentwood to establish twenty beds for the treatment of child and adolescent psychiatric conditions. Miss.Code Ann. § 41 — 7—191 (4)(a)(iii) (Rev.2005). The other CON was originally awarded in 1997. It allowed Brentwood to establish sixty beds for psychiatric residential treatment. Miss.Code Ann. § 41-7-191(3)(b) (Rev. 2005). Although the CONs date back to 1996 and 1997, our present purposes require that we focus on events that transpired after the MSDH granted Brent-wood’s request to amend both CONs on September 5, 2001.

¶ 3. As of the 2001 amendments, the beds contemplated by the CONs were to be placed in a proposed 40,000 square foot facility to be built at a specific site west of the Vicksburg Medical Center in Warren County, Mississippi. Additionally, the allowed expenditure cost was increased to approximately $4,000,000. Brentwood had one year from that date to complete the facility and to get the eighty beds into operation. If Brentwood failed to complete the project or request a six-month extension by that time, Brentwood’s CONs would expire.

¶ 4. On February 24, 2005, approximately two years and five months after the September 2002 deadline, the MSDH informed Brentwood that a progress report was due on or before March 11, 2005. Brentwood fulfilled the MSDH’s request. Brentwood estimated that the project was 2% complete at that time. Brentwood also reported that it had spent $200,000 on the project and that it was investigating potential construction locations. Brentwood did not report any progress on completing the facility at the location contemplated by the 2001 amendments to the CONs. Finally, Brentwood said that PSI was preparing a pro forma financial statement and a business plan. Brentwood also filed a request for a six-month extension to complete the project.

¶ 5. On August 8, 2005, the MSDH acknowledged receipt of Brentwood’s progress report and Brentwood’s request for an extension. The MSDH notified Brent-wood that Brentwood’s request for an extension was denied because it was untimely. The MSDH informed Brentwood that it had to demonstrate substantial progress toward the project by September 2005.

¶ 6. In January 2006, the MSDH requested another progress report. Brent-wood had not responded as of August 2006, so the MSDH repeated its request. On September 12, 2006, the MSDH received Brentwood’s second progress report. Yet again, Brentwood did not report any progress regarding the facility contemplated in the 2001 amendments. Instead, Brentwood said that PSI was still trying to find an appropriate location for the project and that it was still determining whether construction of the project was feasible. Brentwood estimated that the project was 3% complete at that time, as compared to its 2005 progress report in which Brentwood estimated that the project was 2% complete. In other words, after eighteen months, Brentwood estimated that it was 1% closer to completing the project.

¶ 7. By way of a letter dated December 18, 2006, Samuel H. Dawkins, the Director of the Office of Health Policy and Planning, put Brentwood on notice that the MSDH intended to revoke Brentwood’s two CONs. Dawkins also notified Brent-wood that it had a right to a hearing regarding whether the MSDH should revoke the CONs. Brentwood exercised its right to a hearing.

¶ 8. On May 10, 2007, a MSDH hearing officer conducted the revocation hearing. The MSDH called Dawkins as its first and only witness. Brentwood called four witnesses: (1) Michael Carney, Brentwood’s chief executive officer; (2) Philip Cook, the president of PSI’s Mid-America Division; (3) Darren Rozas, an architect; and (4) Philip Merideth, M.D., Brentwood’s chief medical officer. Suffice it to say, Carney and Cook generally testified that Brent-wood preferred to move the project from Warren County to existing facilities in Rankin County, Mississippi, and Lauder-dale County, Mississippi. Rozas testified that Brentwood hired him to analyze the feasibility of locating property for the facility and building on that unimproved property, as well as renovating an existing facility at another alternative site. None of Rozas’s efforts were focused on building the proposed facility at the location established in the 2001 amendments.

¶ 9. On July 31, 2007, the hearing officer rendered her findings of fact and conclusions of law. Broadly speaking, the hearing officer reported that the issues at the hearing were: (1) whether the MSDH had the authority to revoke a CON established by the direction of the Legislature; (2) whether the CON had expired; and (3) whether Brentwood had substantially undertaken completion of the project. The hearing officer found that “the [MSDH] did not abuse its discretion when making [its] determination that [Brentwood] had not substantially undertaken construction or other preparation for the project, and had not made a good faith effort toward the project.” Accordingly, the hearing officer recommended that the State Health Officer “concur with the [MSDH]’s withdrawal and revocation of the CONs.”

¶ 10. The hearing officer mentioned that, based on an unrelated request, the Mississippi Attorney General’s Office had recently issued an advisory opinion regarding the time a CON holder has to complete a project contemplated by a CON and the MSDH’s authority to revoke a CON. It bears mentioning that the attorney general’s office did not issue its advisory opinion until after the hearing. Stated differently, the attorney general’s opinion was not available before or at the time of the hearing.

¶ 11. At the next monthly CON meeting, interim state health officer F.E. Thompson, Jr., M.D., MPH, followed the hearing officer’s recommendation and entered a final order revoking Brentwood’s CONs. Specifically, Dr. Thompson stated, “I have reviewed the record prepared on [the CONs] and have determined that ... Brentwood ... [has not] substantially undertaken construction or other preparation to complete the ... project, and [has] not made a good faith effort toward the project.”

¶ 12. Brentwood appealed to the Hinds County Chancery Court. On December 14, 2007, the chancellor held oral arguments. Approximately one month later, the chancellor entered an order and opinion. According to the chancellor, the issues were: (1) whether the MSDH had the authority to revoke the CONs; (2) whether the MSDH acted arbitrarily and capriciously when it revoked the CONs; and (3) whether the hearing officer utilized an improperly deferential standard of review. Ultimately, the chancellor found that the MSDH had the authority to revoke the CONs and that its decision was neither arbitrary nor capricious. Additionally, the chancellor held that the MSDH’s “actions were based upon a reasonable interpretation of the subject statutes and the evidence contained in the record.” Aggrieved, Brentwood appeals.

STANDARD OF REVIEW

¶ 13. As with appeals regarding CON applications, we conduct a de novo review of the chancellor’s decision, but we are “constrained by the same familiar standard of review under which [the chancellor] operated.” Miss. State Dep’t of Health v. Baptist Mem’l Hosp.-Desoto, Inc., 984 So.2d 967, 974(¶ 12) (Miss.2008). That standard of review has been described as “quite limited.” St. Dominic-Jackson Mem’l Hosp. v. Miss. State Dep’t of Health, 728 So.2d 81, 83(119) (Miss. 1998). The limits in this instance are set forth by statute, which specifically provides that the MSDH’s decision:

shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order ... is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the ... [MSDH] , or violates any vested constitutional rights of any part involved in the appeal.

Miss.Code Ann. § 41-7-201(2)(f) (Rev. 2005).

¶ 14. “This is nothing more than a statutory restatement of familiar limitations upon the scope of judicial review of administrative agency decisions.” St. Dominio-Jackson, 728 So.2d at 83(¶ 9). In other words, “[t]he decision of the hearing officer and [the] State Health Officer is afforded great deference upon judicial review by this Court, even though we review the decision of the chancellor.” Id. However, when issues involve questions of law, we conduct a de novo review. Oktibbeha County Hosp. v. Miss. State Dep’t of Health, 956 So.2d 207, 208-09(¶5) (Miss.2007).

ANALYSIS

I. THE MSDH’S AUTHORITY TO REVOKE

¶ 15. Brentwood argues that the MSDH did not have the authority to revoke the CONs at issue. Brentwood’s reasoning stems from the fact that the CONs at issue were not issued after an application, but they were instead directed by the Mississippi Legislature. According to Brentwood, because the Legislature authorized the CONs, the CONs are beyond the MSDH’s authority to revoke.

¶ 16. As authority for its position, Brentwood cites the Mississippi Supreme Court’s decision in Oktibbeha County Hospital, 956 So.2d at 209-11 (¶¶ 7-18). We interpret those two pages of the Oktibbeha County Hospital case as a distinction of the CON application process regarding discretionary-issued and mandatory-issued legislative CONs. Id. at 209(¶ 9). In other words, the supreme court discussed the concept that in the event that the Legislature requires the MSDH to issue a CON by using language that includes the word “shall” rather than “may,” the Legislature directs the MSDH to waive the CON application process. Id. at (¶ 10). However, nothing in the Oktibbeha County Hospital decision pertains to whether the MSDH may revoke a CON authorized by the Legislature.

¶ 17. Language in the statutes that established the CONs indicates that the Legislature did not intend for the CONs to exist in perpetuity. Instead, the CONs at issue had a specific legislatively-enacted expiration date. Pursuant to Mississippi Code Annotated section 41 — 7—191 (4)(a)(iii):

If by January 1, 2002, there has been no significant commencement of construction of the beds authorized under this subparagraph ..., or no significant action taken to convert existing beds to the beds authorized under this subpara-graph, then the [CON] that was previously issued under this subparagraph shall expire.

(Emphasis added). The Legislature clearly gave Brentwood a deadline, and it fell to the MSDH to determine whether Brent-wood had “significantly] commence[d] construction of the beds” or whether Brent-wood had taken “significant action ... to convert existing beds to the beds authorized” by the CON. As for the second CON, pursuant to Mississippi Code Annotated section 41-7-191(3)0»), “[t]he [MSDH], on or before July 1, 2002, shall transfer the [CON] authorized under the authority of this paragraph (b), or reissue the [CON] if it has expired, to River Region Health System.” (Emphasis added). Again, the Legislature gave Brentwood a deadline that depended on a determination by the MSDH.

¶ 18. Most significantly, pursuant to Mississippi Code Annotated section 41-7-195(4) (Rev.2005):

If commencement of construction or other preparation is not substantially undertaken during a valid certificate of need period or the [MSDH] determines the applicant is not making a good faith effort to obligate such approved expenditure, the [MSDH] shall have the right to withdraw, revoke or rescind the ICON].

(Emphasis added). Nothing in section 41-7-195(4) indicates that the Mississippi Legislature intended to limit the MSDH’s CON revocation power to only those CONs that are not authorized by statute. Accordingly, we find no merit to Brentwood’s claim that the MSDH exceeded its authority when it revoked the CONs.

II. DEFERENCE BY THE HEARING OFFICER

¶ 19. Under a heading titled “standard of proof’ of the hearing officer’s findings of fact and conclusions of law, the hearing officer stated:

Due to the [MSDH’s] issuance of its notice of intent and its finding, [Brentwood] has the burden to show the [MSDH]’s finding is “arbitrary and capricious” and without “substantial evidence” or in the alternative, demonstrate substantial compliance with substantial progress on the project. Generally, the [MSDH] is afforded “great deference” and has a presumption in favor of its decision. Therefore, the evidence presented by [Brentwood] would have to show that evidence relied upon by the [MSDH] in this matter is not based on reason or judgment and [that it is] contrary to the applicable criteria.

The hearing officer then proceeded to analyze the evidence presented during the hearing under a heading titled “analysis of the evidence.” Under a heading titled “summary and conclusion,” the hearing officer stated as follows:

After considering all the testimony and evidence at the hearing regarding the [MSDH]’s intent to withdraw/revoke [the CONs], I find the [MSDH] did not abuse its discretion when making it’s [sic] determination that [Brentwood] had not substantially undertaken construction or other preparation for the project, and had not made a good faith effort toward the project. Therefore, I respectfully recommend [that] the State Health Officer ... concur with the [MSDH]’s withdrawal and revocation of the CONs.

¶ 20. Brentwood claims the hearing officer improperly applied a deferential standard of review to the MSDH’s notice of its intent to revoke the CONs. Brent-wood correctly claims that the hearing officer was obligated to make original recommended findings of fact and conclusions of law. According to Brentwood, the hearing officer was reversibly deferential to the notice of intent to revoke the CONs, which was not a factual determination at all.

¶ 21. In the “analysis of the evidence” portion of the hearing officer’s recommended findings of fact and conclusions of law, the hearing officer once stated that Brentwood presented several arguments as a “rebuttal to the [MSDH]’s finding of lack of substantial progress on the project.” At another point, the hearing officer stated that Brentwood’s arguments that there had been substantial progress on the CONs “[would] be analyzed in their totality against the finding of the MSDH that there has been a lack of progress on the project.”

¶ 22. However, while Brentwood correctly argues that the hearing officer was obligated to make original conclusions instead of deferring to a finding by the MSDH that did not yet exist, the substance of the hearing officer’s analysis indicates that, despite the inclusion of deferential language, the hearing officer fulfilled her obligation to weigh the evidence. The hearing officer weighed Brentwood’s argument that by lobbying the Mississippi Legislature to amend the statutory sections at issue, Brentwood had been making progress toward completion of the project. The hearing officer stated that:

this does not show any progress on the project, but rather supports the [MSDH]’s position that there is no progress on the project. Further, these efforts suggest that [Brentwood] was not interested in pursuit of the project as amended [on] September 5, 2001. It appears that [Brentwood] took a risk in not taking steps to construct the project, but rather put all its efforts behind lobbying the Mississippi Legislature for authority to move the beds. This risk taken by [Brentwood] and its decision to not proceed with the project [have] to be construed against it and not the [MSDH],

The hearing officer then addressed Brent-wood’s evidence that it had been studying the feasibility of the project, drafting pro forma financial statements, “and other business analysis.” The hearing officer noted that, when the CONs were amended in 2001, “pro-formas and other business analysis had been done on the project.” The hearing officer then concluded, without deferring to the MSDH, that evidence of further analysis of the project in the form of new pro forma financial statements and other business analysis does not demonstrate progress, especially because Brentwood presented no justifiable reason for any further analysis.

¶ 23. Next, the hearing officer addressed Brentwood’s argument that it had made progress on the project by continuing to search for possible locations for a facility. The hearing officer stated that:

it should be noted that in the application for the amendment of the CONs, there is an identified location for the proposed facility. There was no reasonable basis or explanation on behalf of [Brentwood] of why it was necessary to relocate the facility. Further, [Brentwood] presented two options, new construction on a tract that it paid an option to purchase on [sic] in May of 2007 and recent acknowledgment of an intent to lease the space of the Marion Hill building, but both were in its initial stages of “due diligence.” Further, [Brentwood] could not present details on either project. The fact that [Brentwood] is not focused on one solution for the completion of the CONs, [sic] tends to support the [MSDH]’s assertion that lack of progress existed and still exists. Moreover, the finder of fact has to account that actions [Brentwood] presented into evidence on about [sic] the actions it took after the [MSDH]’s notice of inten[t] to ■withdraw/revoke, [sic] supports the [MSDH]’s assertion and position that [Brentwood] had been in default of not making substantial progress on the CONs.

The hearing officer distinguished the MSDH’s notice of intent from the MSDH as the fact-finder. Additionally, it is clear that the hearing officer acted as a finder of fact when she found that: Brentwood’s assertions were not reasonable; Brent-wood was not focused on a means to complete the project; and Brentwood’s actions support a conclusion that Brentwood failed to make “substantial progress on the CONs.”

¶ 24. Next, the hearing officer stated, “[i]n weighing all the evidence presented, the evidence and testimony suggests [sic] that in fact a regression of the project has occurred.” The hearing officer based this clear finding of fact on the following:

at the time that the amendment of the CONs was approved, the project had an identifiable location, plan, and capital expenditure cost. As of the hearing!,] it is clear that the project does not have [an] identifiable location, plant,] and capital expenditure cost. At a hearing of this nature, it would be expected that problems and special issues would be presented by [Brentwood] about why the project is not complete, not issues as to lobbying, feasibility, and site location as presented by [Brentwood] in this case. It appears that [Brentwood] presented good reasons that it should continue its efforts in lobbying the Mississippi Legislature for authority for beds at its other facilities, but it is also clear that this should be done without the distraction of additional investigation of its options in regards to the CONs it holds that are restricted to a facility that must be located in Warren County, Mississippi.

Again, the hearing officer obviously acted as a fact-finder and did not defer to any finding by the MSDH. The hearing officer noted that she weighed all the evidence presented and that “in fact a regression of the project has occurred.” To find that the hearing officer conducted a deferential review purely on the basis that the hearing officer used such language as a preliminary matter to conducting what is obviously not a deferential review of the evidence would be to favor form over substance.

¶ 25. The hearing officer’s misstatement appears to have been exacei'bated by the nature of the MSDH’s administrative revocation process. When Dawkins put Brentwood on notice that the MSDH intended to revoke the CONs, the MSDH, through Dawkins, essentially notified Brentwood of its opinion that it was appropriate to revoke the CONs and intended to do so without further proceedings unless Brentwood exercised its right to have a revocation hearing. In a sense, the MSDH’s intent to revoke the CONs was a quasi-finding, but it was not one that was entitled to a deferential review. Consequently, the hearing officer should not have included such language in her findings of fact and conclusions of law, but a careful review indicates that the hearing officer acted according to her mandate to make recommended findings of fact and conclusions of law to the State Health Officer. To be imminently clear, this opinion is not to be construed as a conclusion that the improper inclusion of such language is never reversible error. Instead, we merely find that, under the precise circumstances of this case, the hearing officer’s improper use of such language, in and of itself, does not rise to the level of reversible error when viewed in light of her actual findings. Accordingly, we find no merit to this issue.

III. RELIANCE ON AN OPINION BY THE ATTORNEY GENERAL

¶ 26. On May 8, 2007, Representative Bryant W. Clark wrote a letter to the Mississippi Attorney General requesting an advisory opinion. Representative Clark listed four specific issues regarding the scope of his request:

1) Does a CON automatically expire or elapse without further action on part of its holder to obtain an extension prior to the expiration or elapse?
2) After an issued CON has expired, can a holder later file for an extension of the time thereof?
3) Because a CON is expired, must the [MSDH] cite the expiration and take action under Section 41-7-195(4) to withdraw, revoke, or rescind the certificate?
4) Does the [MSDH] have the authority under the CON law to grant an extension to a holder of a CON after such has expired or elapsed according to a specified time period?

On June 15, 2007, the attorney general’s office issued an advisory opinion. It should be noted that the attorney general’s office issued its advisory opinion after the revocation hearing, but before the hearing officer rendered her findings of fact and conclusions of law.

¶ 27. When the hearing officer rendered her findings of fact and conclusions of law, she discussed the first three questions addressed in the attorney general’s opinion. The hearing officer summarized the attorney general’s opinion regarding those three questions, and then she stated as follows:

Based on the official opinion, it has been advised that a CON is only valid for [the] time stated thereon, and the [MSDH] has the discretion whether or not to grant an extension and whether or not to withdraw, revoke or rescind the CON. Additionally, the [MSDH] determines whether the holder has “substantially undertaken” construction or other preparation under Mississippi Code [Annotated] [s]eetion 41-7-195(4). Since it is clearly established that the CON[s] in question ceased to be valid after September 5, 2002[,] and the [MSDH] has not granted any extension of the CON[s], then the inquiry in this case has to be limited to whether under the facts and circumstances has the [MSDH] abused its discretion in finding that the CON holder has not “substantially undertaken” construction or other preparation during the period of the CON[s], Considering the fact that the CON holder produced no evidence that any action was undertaken on the project during the valid period of the CON[s] ..., then a directed verdict in favor of the [MSDH] would have been appropriate; however, as analyzed below, even if [the] actions after the valid period are reviewed and considered, such fails to suggest that the [MSDH] has abused its discretion in finding insufficient progress on the CON project and that the CON[s] should be withdrawn, revoked or rescinded.

¶ 28. Brentwood claims the hearing officer committed reversible error when she relied on an opinion from the attorney general because that opinion was issued after the revocation hearing. Brentwood argues that the hearing officer failed to follow Chapter 5, Section 101.01 of the MSDH’s CON Manual, which holds that the State Health Officer “shall consider only the record in making his decision; he shall not consider any evidence or material which is not included therein.” Additionally, Brentwood properly notes that an opinion from the Mississippi Attorney General is “merely a persuasive authority” and is not binding upon this Court or any other court. See State ex rel. Holmes v. Griffin, 667 So.2d 1319, 1326 (Miss.1995).

¶ 29. Although all four issues could be considered pertinent to the matter presently before us, the fact remains that the State Health Officer’s decision was not based on the legal mechanisms that accompany expiration or lapse of the CONs. It is undisputed that Brentwood was out of time to request an extension of the CONs. Instead, the State Health Officer’s decision was based on the conclusion that Brentwood had not substantially undertaken to complete the two CONs at issue and that there had been no good faith effort to complete the projects contemplated by the CONs. Accordingly, Brentwood experienced no prejudice based on the attorney general’s opinion, and we find no merit to this issue.

IV. ARBITRARY AND CAPRICIOUS REVOCATION

¶ 30. In its final issue, Brentwood claims the hearing officer’s decision was arbitrary and capricious. We disagree. The CONs were amended on September 5, 2001. At that time, the facility that would house the beds contemplated by the CONs was to be built for a specific capital expenditure amount on a specific tract of land in Warren County. Approximately three and one half years later, Brentwood estimated that the project was 2% complete. Brent-wood reported that it had spent $200,000 on the project and that it was investigating potential construction locations — despite the fact that the location was already specified by the 2001 amendments to the CONs. Brentwood presented absolutely no evidence that it had done anything to advance the project as contemplated by the 2001 amendments.

¶ 31. In September 2006, Brentwood again stated that it was trying to find an appropriate location for the facility and that it was determining whether the project was feasible. Brentwood estimated that the project was 3% complete at that time. Eighteen months after its 2% estimation, Brentwood was only 1% closer to completion.

¶ 32. Mississippi Code Annotated section 41-7-195 (Rev.2005) sets forth as follows:

(1) A [CON] shall be valid only for the defined scope, physical location and person named in the application. A[CON] shall not be transferable or assignable nor shall a project or capital expenditure project be transferred from one person to another, except with the approval of the [MSDH]. A[CON] shall be valid for the period of time specified therein.
(2) A [CON] shall be issued for a period of twelve (12) months, or such other lesser period as specified by the [MSDH],
(3) The [MSDH] may define by regulation, not to exceed six (6) months, the time for which a[CON] may be extended.
(4) If commencement of construction or other preparation is not substantially undertaken during a valid [CON] period or the [MSDH] determines the applicant is not making a good faith effort to obligate such approved expenditure, the [MSDH] shall have the right to withdraw, revoke or rescind the [CON].

(Emphasis added). The Legislature has defined “commencement of construction” in Mississippi Code Annotated section 41-7-173(e) (Rev.2005) as follows:

“Commencement of construction” means that all of the following have been completed with respect to a proposal or project proposing construction, renovating, remodeling or alteration:
(i) A legally binding written contract has been consummated by the proponent and a lawfully licensed contractor to construct and/or complete the intent of the proposal within a specified period of time in accordance with final architectural plans which have been approved by the licensing authority of the [MSDH];
(ii) Any and all permits and/or approvals deemed lawfully necessary by all authorities with responsibility for such have been secured; and
(iii) Actual bona fide undertaking of the subject proposal has commenced, and a progress payment of at least one percent (1%) of the total cost price of the contract has been paid to the contractor by the proponent, and the requirements of this paragraph (e) have been certified to in writing by the [MDSH],
Force account expenditures, such as deposits, securities, bonds, et cetera, may, in the discretion of the [MSDH], be excluded from any or all of the provisions of defined commencement of construction.

¶ 33. It is clear that the MSDH’s decision was not arbitrary or capricious when it concluded that Brentwood did not do anything that qualifies as “commencement of consti'uction” or “a good faith effort to obligate [the] approved expenditure.” The Legislature clearly mandated that “[a][CON] shall be valid only for the defined ... physical location ... named in the [CON] application.” Miss.Code Ann. § 41-7-195(1) (emphasis added). Under the circumstances, it is irrelevant that Brentwood attempted to move the CONs. In its second progress report, Brentwood stated that it had spent $200,000 on the project. However, the evidence indicated that $70,000 of that amount went toward lobbying the Legislature during the 2006 and 2007 legislative sessions. Brentwood wanted the Legislature to amend the relevant CONs to move the beds out of Warren County.

¶ 34. After the MSDH issued its notice of intent to revoke the CONs, Brentwood took certain measures to find an appropriate location for a facility, but none of those efforts were focused on constructing the proposed facility at the defined location contemplated by the amended CONs. Instead, Brentwood hired an architect, negotiated a potential lease of an existing facility, and acquired an option to purchase property that was different from the contemplated facility site. To be entirely clear, Brentwood obviously had the right to make a business decision that favored relocating the beds to existing facilities in Rankin County and Lauderdale County, but that decision carried the risk that the MSDH could find it appropriate to revoke the CONs. Additionally, it seems reasonable that Brentwood would make a business decision to avoid spending capital on completing the project after it received the MSDH’s notice of intent to revoke the CONs, but the events that occurred before the MSDH issued its notice of revocation clearly indicate that Brentwood focused its efforts on moving the project, rather than completion of the project contemplated by the CONs. It follows that we cannot find that the MSDH abused its discretion or that its decision was arbitrary and capricious. Accordingly, we find no merit to this issue.

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

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT. IRVING, J., NOT PARTICIPATING.

      . The CONs were first awarded to the Children's Hospital of Vicksburg, LLC. (Children's Hospital). Children's Hospital later agreed to transfer ownership of the CONs to Brentwood. That transfer became effective upon the MSDH's September 5, 2001, approval of the amendment and transfer of the CONs. In 2004, Psychiatric Solutions, Inc., (PSI) acquired Brentwood. For clarity's sake, we collectively refer to Brentwood as the owner of the CONs throughout this opinion.

      . According to Dawkins, his responsibilities included direct oversight over the MSDH’s CON program.

      . To be precise, Mississippi Code Annotated section 41 — 7—191 (4)(a)(iii) and 41 — 7—191 (3)(b) both use discretionary "may issue" language as opposed to mandatory "shall issue” language.

      . We recognize that the record currently before us contains a set of findings of fact and conclusions of law in which, incident to the summary judgment proceedings initiated by Brentwood that are not directly related to the matter currently before us, the Hinds County Chancery Court found that the transfer provision was unconstitutional because the Mississippi Legislature "usurped” the MSDH's executive administrative authority over the CON program when it added the transfer language. That decision is not an issue on appeal before this Court, and we do not disturb it. We merely mention these provisions to demonstrate the fact that the Legislature did not intend to limit the MSDH's authority to revoke the CONs by making the CONs exist indefinitely until further legislative action.

      . This provision of the CON manual is based on Mississippi Code Annotated section 41-7-197(2) (Rev.2005), which sets forth that the State Health Officer "shall consider only the record in making his decision, and shall not consider any evidence or material which is not included therein.”


author: BARNES, J.,

text:
    Bennie E. LACEY a/k/a Bennie E. Lacy a/k/a Benny E. Lacey a/k/a Bandigo Lacey a/k/a Bendo a/k/a Bennie Everette Lacey, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-00917-COA.
    Court of Appeals of Mississippi.
    June 9, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied March 11, 2010.
    Bennie E. Lacey, (Pro Se), attorney for appellant.
    Office of the Attorney General, by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, P.J, IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Bennie E. Lacey appeals the Wayne County Circuit Court’s dismissal of his motion for post-conviction relief. Finding that this Court lacks jurisdiction, we dismiss the appeal.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Lacey was indicted on January 16, 1991, (Cause No 8343) of selling a Schedule II controlled substance. Lacey was subsequently convicted at a jury trial, and a sentencing hearing was held on April 12, 1991. At the hearing, the circuit court determined that Lacey was eligible for enhanced sentencing as a habitual offender under Mississippi Code Annotated sections 99-19-81 (1972) and 41-29-147 (Supp.1989) and sentenced him to thirty years in the custody of the Mississippi Department of Corrections -without parole. His two previous felony convictions were for grand larceny on July 21, 1980 (Cause No. 7528), and the sale of a Schedule IV controlled substance on July 18, 1984 (Cause No. 7754). Lacey had pleaded guilty to both felonies.

¶ 3. On direct appeal, the Mississippi Supreme Court affirmed Lacey’s conviction and sentence on February 27, 1994. See Lacey v. State, 632 So.2d 958 (Miss.1994). Lacey filed a motion for post-conviction relief with the supreme court on July 22, 1994, which was subsequently denied. On December 14, 2004, the supreme court denied another motion for post-conviction relief filed by Lacey.

¶ 4. On March 6, 2008, Lacey filed a motion with the Circuit Court of Wayne County to vacate his illegal sentence enhancement. In the motion, Lacey claimed that the indictment for the sale of a Schedule IV controlled substance (Cause No. 7754) did not include his name; therefore, his defense counsel’s performance was deficient for allowing such evidence to be offered. On May 8, 2008, the circuit court dismissed Lacey’s motion for post-conviction relief finding his claim to be procedurally barred as it was not filed within three years of the ruling by the Mississippi Supreme Court on Lacey’s direct appeal.

STANDARD OF REVIEW

¶ 5. In reviewing a decision to dismiss a motion for post-conviction relief, we will not disturb a circuit court’s “factual findings unless they are found to be clearly erroneous.” Williams v. State, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004). “However, where questions of law are raised[,] the applicable standard of review is de novo.” Id.

¶ 6. Mississippi Code Annotated section 99-39-5(2) (Rev.2007) states that a motion for post-conviction relief “shall be made within three (3) years after the time in which the prisoner’s direct appeal is ruled upon by the Supreme Court of Mississippi[.]” The supreme court ruled on Lacey’s appeal on February 27, 1994. Lacey’s latest motion for post-conviction relief was filed on March 6, 2008, more than fourteen years after the supreme court’s ruling on his direct appeal. Therefore, the circuit court found that Lacey’s motion for post-conviction relief was procedurally barred.

¶ 7. We find, however, that neither the trial court nor this Court has jurisdiction over Lacey's most recent motion, as he did not first obtain permission from the Mississippi Supreme Court to seek post-conviction relief. Mississippi Code Annotated section 99-39-7 (Rev.2007) provides that where a “prisoner’s conviction and sentence have been appealed to the [S]upreme [C]ourt of Mississippi and there affirmed or the appeal dismissed,” his motion for post-conviction relief “shall not be filed in the trial court until the motion shall have first been presented to a quorum of the justices of the supreme court[.]” Failure to obtain permission from the supreme court deprives the trial court and this Court of jurisdiction. See Crosby v. State, 982 So.2d 1003, 1005(¶ 6) (Miss.Ct.App.2008) (trial court lacked jurisdiction to entertain the prisoner’s motion for post-conviction relief as the prisoner failed to comply with section 99-39-7; appeal dismissed for lack of jurisdiction); Robinson v. State, 968 So.2d 981, 981-82(¶2) (Miss.Ct.App.2007) (same); Jackson v. State, 915 So.2d 484, 485(¶ 4) (Miss.Ct.App.2005) (same); Meshell v. State, 832 So.2d 1244, 1245(¶ 5) (Miss.Ct.App.2002) (same); see also State v. Read, 544 So.2d 810, 813 (Miss.1989) (finding that county court did not have jurisdiction over the motion for post-conviction relief, which was filed as a petition for writ of habeas corpus, where the prisoner did not first obtain permission to seek post-conviction relief from supreme court pursuant to section 99-39-7).

¶ 8. Since Lacey’s conviction and sentence were affirmed on direct appeal, he was required to seek leave of the Mississippi Supreme Court to file a motion for post-conviction relief in the circuit court pursuant to Mississippi Code Annotated section 99-39-7. We find no evidence to suggest that he did so. Therefore, both the circuit court and this Court lack jurisdiction to consider Lacey’s motion. Accordingly, we dismiss the appeal.

¶ 9. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WAYNE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Although the specific statute under which Lacey was indicted and convicted is not contained in the record, we note that the statute is Mississippi Code Annotated section 41-29-139 (Supp.1989).

      . The indictment in Cause No. 7754 charged "Adam Lacey” and "Bandingo Lacey.” A handwritten notation on the indictment indicated that "Bandingo” had two aliases "Ben-do” and "Benny E. Lacey.” While Lacey contends that the indictment was defective, he makes no claim that he was not, in fact, the person who pleaded guilty to the indictment or served the sentence of incarceration.


author: GRIFFIS, J.,

text:
    Jessie James DAVIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-00229-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.
    Rehearing Denied Nov. 24, 2009.
    Certiorari Denied March 11, 2010.

      Jessie James Davis, pro se, appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Jessie James Davis appeals the denial of his motion for post-conviction collateral relief. Davis argues that the trial court imposed an illegal sentence and, therefore, erred when it summarily denied his claim without requiring the State to file an answer to his claim or conducting an evidentiary hearing. We find no error and affirm.

FACTS

¶ 2. Davis was indicted for kidnapping (count one), under Mississippi Code Annotated section 97-3-53 (Rev.2006), and attempted rape (count two), under Mississippi Code Annotated sections 97-1-7 (Rev. 2000) and 97-3-65(3)(a) (Rev.2000). On July 10, 2003, count one was dismissed as part of Davis’s plea agreement, and Davis pleaded guilty to count two — attempted rape — and was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections (“MDOC”)with nine years and two hundred and sixty five days suspended for a period of five years and one-hundred days to serve. He was also placed on five years of supervised probation and fined $1,000. On November 12, 2004, Davis’s probation was revoked, and he was sentenced to serve nine years and two hundred and sixty five days in the custody of the MDOC.

¶ 3. Davis then filed his motion for post-conviction collateral relief. The trial court summarily denied his motion, and Davis now appeals.

¶4. Before we address the merits of Davis’s claim, we address whether his claims are time-barred. Davis alleges that he was subject to an illegal sentence. “[Pjetitions alleging an illegal sentence are not subject to the time bar.” Jackson v. State, 965 So.2d 686, 690 (Miss.2007). The supreme court “has held that errors affecting fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit their consideration.” Kennedy v. State, 732 So.2d 184, 186(¶ 8) (Miss.1999) (citing Luckett v. State, 582 So.2d 428, 430 (Miss.1991)). “[T]he right to be free from an illegal sentence has been found to be fundamental.” Id. Accordingly, We address Davis’s claims on their merits.

STANDARD OF REVIEW

¶ 5. A circuit court’s denial of post-conviction collateral relief will not be reversed absent a finding that the court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 13) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

1. Did the trial court impose an illegal sentence on Davis?

¶ 6. Davis argues that his sentence was illegal because under section 97-3-65(3)(a) — the statute listed in Davis’s indictment — provides that the maximum term of imprisonment is five years. The State responds that this was merely a scrivener’s error due to the correction of a typographical error in section 97-3-65 that renumbered section 97-3-65(3)(a) to section 97-3-65(4) (a).

¶ 7. Davis was sentenced to ten years for attempted rape; however, his indictment and plea stated that he committed attempted rape under section 97-3-65(3)(a) — -a section that provides for a sentence of only five years. Mississippi Code Annotated section 97-3-65(3)(a) (Supp. 2008) currently reads:

Upon conviction for statutory rape, the defendant shall be sentenced as follows:
(a) If eighteen (18) years of age or older, but under twenty-one (21) years of age, and convicted under subsection (l)(a) of this section, to imprisonment for not more than five (5) years in the State Penitentiary or a fine of not more than Five Thousand Dollars ($5,000.00), or both.
Davis’s indictment referenced section 97-3-65(3)(a), but it was silent as to statutory rape and the age of Davis and victim. The indictment alleged that Davis:
did wilfully, unlawfully, feloniously, forcibly and against her will attempt to have sexual intercourse with [the victim], a female person, by forcibly removing her from her automobile, carrying her into his apartment, throwing her onto a couch, pulling her pants down and attempting to remove her underwear, pulling his own pants down, getting on top of her and telling her that he was “going to get his nuts”, the said [Davis] failed in his attempt to rape the [victim] because she fought, screamed and struggled against [Davis] and broke free from him and ran out of the apartment to her car and got away, in violation of Mississippi Code Annotated [section] 97-3-65(3)(a) and [section] 97-1-7, and against the peace and dignity of the State of Mississippi.

11 8. Davis was indicted on December 6, 2001, sentenced on July 10, 2003, and his probation was revoked on November 12, 2004. The notes to section 97-3-65 explain that on June 3, 2003, the Joint Legislative Committee corrected a typographical error in this section by changing section 97-3-65(l)(c) to section 97-3-65(2) and renumbering the remaining paragraphs accordingly. Rape, which was previously numbered section 97-3-65(3)(a), was moved to section 97-3-65(4)(a) after the correction. Thus, Davis was correctly indicted for rape in 2001 under section 97-3-65(3)(a), which is now located at Mississippi Code Annotated section 97-3-65(4)(a) (Supp.2008).

¶ 9. This Court addressed a similar claim of an illegal sentence in Ward v. State, 914 So.2d 332, 336 (¶¶ 9-10) (Miss.Ct.App.2005). Ward claimed that he was subject to an illegal sentence because his indictment was for the offense of rape under section 97-3-65(2) — statutory rape, but in the body of the indictment, it referenced section 97-3-65(3)(a) — forcible rape. Ward argued, like Davis, “that he should have been sentenced to a maximum of five years in accordance with subsection (3)(a), and anything more constitutes an illegal sentence.”

¶ 10. This Court explained that “[s]o long as from a fair reading of the indictment, taken as a whole, the nature and cause of the charge against the accused are clear, the indictment is legally sufficient.” Id. at (1110) (quoting Richmond v. State, 751 So.2d 1038, 1046 (¶ 19) (Miss. 1999)). As we have noted, at the time he was indicted, section 97-3-65(3)(a) was the code section for rape, not statutory rape which was 97-3-65(2)(a). It was not until he was sentenced that the section numbers changed. The indictment rras correct and made the nature and cause of the charges against him clear as required under Ward. Accordingly, we find that his argument lacks merit.

2. Did the trial court err ivhen it summarily denied Davis’s claim ivith-out requiring the State to file an answer to his claim or conducting an evidentiary hearing?

¶ 11. Davis argues that the trial court erred by not requiring the State to respond to his motion for post-conviction collateral relief. Under Mississippi Code Annotated section 99-39-11(2) (Rev.2007), “[i]f it plainly appears from the face of the motion ... that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.” The trial court will only “order the [Sjtate to file an answer or other pleading” “if the motion is not dismissed under” section 99-39-11(2). Miss.Code Ann. § 99-39-11(3). Davis was not entitled to any relief, and the trial court did not eiT when it did not require the State to file an answer.

¶ 12. Next, Davis argues that the trial court should have granted an evidentiary hearing on his motion for post-conviction collateral relief. The supreme court has held, a post-conviction collateral relief motion which “meets basic requirements is sufficient to mandate an evidentiary hearing unless it appears beyond doubt that the petitioner can prove no set of facts in support of his claim which would entitle him to relief.” Marshall v. State, 680 So.2d 794, 794 (Miss.1996) (citing Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992)). Here, Davis alleged no set of facts in his motion that would entitle him to relief. This issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


text:
    Willie Earl GRAY a/k/a Joe Collier, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CA-00682-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.
    Rehearing Denied Dec. 8, 2009.
    Certiorari Denied March 11, 2010.

      Imhotep Alkebu-Lan, attorney for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Willie Earl Gray appeals the dismissal of his motion for post-conviction collateral relief by the Circuit Court of Hinds County. He claims that his guilty plea was not voluntarily and intelligently made. Finding no error, we affirm.

FACTS

¶2. Gray was arrested for the sale of cocaine pursuant Mississippi Code Annotated section 41-29-139 (Rev.2005). An undercover officer with the Mississippi Bureau of Narcotics purchased the cocaine from Gray, and the transaction was videotaped. Gray requested the videotape during discovery. Gray’s counsel received the videotape and viewed it.

¶ 3. The State made a plea offer to Gray which expired on July 19, 2004. Gray’s counsel tried on two occasions — July 15, 2004, and July 18, 2004 — to have Gray view the videotape while he was incarcerated at the Hinds County Detention Center, but his efforts were unsuccessful. Gray claims that he was granted permission to watch the videotape, but permission was rescinded before he could watch the videotape.

¶ 4. During a motion hearing on this issue, the trial judge stated that Gray would be allowed to view the videotape during a recess in his trial. Gray did not view the videotape before the State withdrew its plea offer of five years on July 19, 2004. Although the record is unclear, it does not appear that Gray viewed the videotape before he pleaded guilty.

¶ 5. On August 4, 2004, Gray pleaded guilty to the sale of cocaine under section 41-29-139. On November 12, 2004, the trial court sentenced Gray to serve a term of twenty years in the custody of the Mississippi Department of Corrections. Prior to his sentencing order, Gray improperly filed his notice of direct appeal with the supreme court on October 7, 2004. On February 16, 2005, Gray moved to voluntarily dismiss his appeal, and this Court granted his motion on February 28, 2005.

¶ 6. On August 27, 2007, Gray filed his motion for post-conviction collateral relief with the trial court. The trial court dismissed Gray’s motion. Gray appeals this dismissal and argues that his plea was not voluntarily and intelligently made because he was unable to view the videotape.

STANDARD OF REVIEW

¶ 7. A trial court’s dismissal of a motion for post-conviction collateral relief will not be reversed on appeal absent a finding that the trial court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

1. Was Gray’s motion properly before the trial court ?

¶ 8. The State argues that Gray’s motion for post-conviction collateral relief was not properly before the trial court because the dismissal of Gray’s first appeal was a final judgment. Therefore, Gray was required to obtain permission from the supreme court before filing a motion for post-conviction collateral relief in the trial court. Gray argues that he was procedurally barred from appealing his guilty plea directly to the supreme court; accordingly, his motion was properly filed with the trial court.

¶9. Gray’s appeal to the supreme court was improper. When Gray pled guilty, Mississippi Code Annotated section 99-35-101 (Rev.2007) provided that “[a]ny person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.” Nevertheless, while a conviction from a plea of guilty may not be directly appealed, a defendant may directly appeal the sentence given as a result of that plea. Trotter v. State, 554 So.2d 313, 315 (Miss.1989). Gray pleaded guilty and was not appealing his sentence; therefore, his appeal to the supreme court was procedurally barred. Gray’s only recourse was to file a motion for post-conviction collateral relief with the trial court. Miss.Code Ann. § 99-39-7 (Rev.2007).

¶ 10. The State argues that a dismissal is a final judgment which “requires that the motioner present any subsequent motion to a quorum of justices of the supreme court for permission to file in the trial court” under Mississippi Code Annotated section 99-39-7 (Rev.2007). Lyons v. State, 881 So.2d 373, 376(¶ 9) (Miss.Ct.App.2004). But Lyons is factually distinguishable from this case. Lyons was found guilty by a jury, and he subsequently filed a direct appeal in accordance with section 99-35-101. Id. at 375 (¶¶ 2-3). “In an agreement reached after his notice of appeal, Lyons and the State agreed to a dismissal of [additional charges against him], if Lyons would withdraw his appeal to the supreme court.” Id. at (¶ 3). This Court held that “[t]he dismissal of [Lyons’s] direct appeal from the supreme court was a final judgment.” Id. at 376(¶ 9).

¶ 11. Lyons does not address the issue presented here of whether the voluntary dismissal of a procedurally barred claim constitutes a final judgement within the meaning of section 99-35-101.

¶ 12. This Court finds the supreme court’s analysis in Martin v. State, 556 So.2d 357 (Miss.1990) helpful. Martin pleaded guilty to the sale of less than one ounce of marijuana, and he was sentenced to a term of three years in prison. His sentence was suspended, and he was placed on five years’ probation. Id. at 358. Martin’s probation was revoked after a subsequent arrest, and he filed a direct appeal to the supreme court. Id. The supreme court dismissed the motion “without prejudice for Martin to institute [a] post-conviction relief action under [Mississippi Code Annotated section 99-39-5(l)(g) (Supp.1998) ],” because “an order revoking probation is not directly appealable.” Id. The supreme court explained:

implicit in the scheme of the [Mississippi Uniform] Post-Conviction Relief Act is the requirement that in order for [the appellate court] to acquire exclusive, original jurisdiction over a motion filed thereunder, [the appellate court] must have previously made some final determination going to the merits of the underlying conviction and sentence. It is not enough ... that we dismissed an appeal without prejudice for lack of jurisdiction.

Id. at 359 (emphasis added).

¶ 13. Gray voluntarily dismissed his appeal, but if he had not done so, this Court would have dismissed it due to the procedural bar. Accordingly, we follow the supreme court’s direction in Martin and find that Gray’s motion for post-conviction collateral relief is not barred.

2. Was Gray’s guilty plea voluntarily and intelligently made?

¶ 14. Gray argues that his guilty plea was not voluntarily and intelligently made, because the State: (1) violated his constitutional right to view the evidence against him — the videotape — and (2) withdrew the plea offer before he was allowed to view the videotape.

¶ 15. A plea of guilty is binding only if it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). Such a plea is voluntary and intelligent when the defendant is informed of the charges against him and the consequences of his plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). He must also understand “the maximum and minimum penalties provided by law.” URCCC 8.04(A)(4)(b).

¶ 16. Gray argues that his guilty plea was not voluntary and intelligent because the State failed to comply with Rule 9.04 of the Uniform Rules of Circuit and County Court. He claims that he had a right to examine, inspect, test, and photograph all of the physical evidence in the possession of the State under Rule 9.04. However, this is not an accurate statement of the rule. Rule 9.04(A) states, in part, that:

the prosecution must disclose to each defendant or to defendant’s attorney, and permit the defendant or defendant’s attorney to inspect, copy, test, and photograph upon written request and without the necessity of court order the following which is in the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecution:
5. Any physical evidence and photographs relevant to the case or which may be offered in evidence[.l

URCCC Rule 9.04 (emphasis added).

¶ 17. Rule 9.04 states that the defendant or his attorney must be permitted access to the evidence. The trial judge asked Gray’s counsel if he was able to watch the videotape, and Gray’s attorney answered that he watched it. Therefore, the State complied with Rule 9.04.

¶ 18. Despite Gray’s argument, the record reflects that his guilty plea was entered voluntarily and intelligently. The trial judge informed Gray of the charges against him, the consequences of his plea, and the maximum and minimum penalties provided by law. Gray swore that he understood the elements of the charge against him, listed the elements, and stated that he met the elements because he sold cocaine to an undercover agent on February 18, 2001. Gray understood the charge and how it related to his actions. Gray was asked if he understood that the trial judge could sentence him to up to thirty years of imprisonment and assess of a fíne of no less than $5,000 and up to $1,000,000. Gray answered yes. This Court finds no basis for Gray’s contention that his guilty plea was not voluntary and intelligent.

¶ 19. Furthermore, Gray does not provide this Court with any support for his assertion that the State acted improperly by setting a deadline for the plea offer and, subsequently, withdrawing the plea offer after that date passed. This issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.