author: DREW, J.

text:
    Keyona DAVIS, Individually and on behalf of Kyren Davis, Plaintiff-Appellant v. Glenda JOHNSON, M.D., and Christus Schumpert, Defendant-Appellee.
    No. 45,200-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 5, 2010.

      Susan Elizabeth Hamm, for Appellant.
    Cook, Yancey, King & Galloway, APLC by Herschel E. Richard, Jr., for Appellee, Glenda Johnson, M.D.
    Mayer, Smith & Roberts, L.L.P., by Mark Anthony Goodwin, for Appellee, Christus Health Northern Louisiana d/b/a Christus Schumpert Health System.
    Before GASKINS, DREW and MOORE, JJ.
   DREW, J.

_[iKeyona Davis appeals a judgment sustaining Dr. Glenda Johnson’s exception of prescription and/or peremption and dismissing her medical malpractice suit filed on behalf of her son Kyren Davis.

We affirm.

FACTS

Keyona Davis gave birth to Kyren Davis on December 29, 2005, at Schumpert Hospital. The next day, Dr. Glenda Johnson, Ms. Davis’s ob-gyn doctor, circumcised Kyren.

Over the course of the next year, Ms. Davis became concerned about the appearance of her son’s penis. She raised these concerns with her son’s pediatrician, Dr. Henson, but was reassured that everything was normal.

Dissatisfied with Dr. Henson’s treatment of her son regarding other health matters, Ms. Davis took him to see a pediatrician at the Family Practice Center at LSUHSC in Shreveport for an examination on February 9, 2007. Kyren was subsequently referred to the urology clinic at LSUHSC for evaluation of a retracted testicle. At this evaluation, which was performed on April 4, 2007, it was noted that Kyren’s penis had a lot of inner foreskin and a shortened amount of outer foreskin. A revision of the circumcision was performed on May 25, 2007.

On April 1, 2008, Davis filed a claim for medical malpractice against Dr. Johnson and Schumpert. Dr. Johnson filed the exceptions of prescription and/or peremption in which she contended that Davis knew or | .¿should have known of facts sufficient to put her on notice of a possible malpractice claim by February 9, 2007, at the latest.

The trial court granted the exception. In its reasons for judgment, the trial court noted that Ms. Davis’s deposition testimony revealed that she had enough notice to excite attention, put herself on guard, and call for inquiry at some point in 2006. The trial court added that even when interpreting the facts in a light most favorable to Ms. Davis, it concluded that she possessed a level of knowledge sufficient to commence prescription on February 9, 2007.

Ms. Davis has appealed. She argues that it was not until April 4, 2007, that Dr. Johnson’s negligence could have reasonably been discovered by her. She further argues that until that time, she had no knowledge that the representations of her son’s treating physicians had been incorrect.

DISCUSSION

The party raising the exception of prescription ordinarily bears the burden of proof at the trial of the peremptory exception. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). However, when prescription is evident from the face of the pleadings, the plaintiff bears the burden of showing the action has not prescribed. Id.

When evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261.

|sThe time period allowed for bringing a medical malpractice claim is set forth in La. R.S. 9:5628(A):

No action for damages for injury or death against any physician ... arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

In order to soften the occasional harshness of prescriptive statutes, our courts have recognized a jurisprudential exception to prescription: contra non valentem agere nulla currit praescriptio, which means that prescription does not run against a person who could not bring his suit. Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La.1992). Contra non valentem in medical malpractice suits is embodied in La. R.S. 9:5628. White v. West Carroll Hospital, Inc., 613 So.2d 150 (La.1992); Edwards v. Alexander, 42,000 (La.App.2d Cir.6/6/07), 960 So.2d 336.

The doctrine of contra non va-lentem acts as an exception to the general rules of prescription by suspending the running of prescription when the circumstances of the case fall into one of four categories. Prescription is suspended under the fourth category of contra non va-lentem when “some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.” Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211. Commonly known as the discovery rule, this category provides that prescription commences on the date the injured party discovers or should have discovered the facts upon 14which his cause of action is based. Id. For this category to apply, the plaintiffs ignorance of his cause of action cannot be attributable to his own willfulness or neglect, as a plaintiff is deemed to know what he could have learned by reasonable diligence. Renfroe v. State ex rel. Dept. of Transp. and Development, 01-1646 (La.2/26/02), 809 So.2d 947.

In Campo v. Correa, 01-2707, pp. 11-12 (La.6/21/02), 828 So.2d 502, 510-11, the supreme court explained the importance of the reasonableness of a plaintiffs action or inaction in determining whether the date of discovery interrupted prescription under La. R.S. 9:568(A):

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription. Nevertheless, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct.

Citations omitted.

The malpractice claim states that it arises out of care and treatment provided to Kyren in December of 2005. The claim does not state that it | Swas filed within one year of the date of discovery of the alleged malpractice; rather, it merely states that Kyren “later developed problems which [Ms. Davis] later learned were due to an improperly done circumcision.” Because the claim was not filed until April of 2008, it is prescribed on its face.

Ms. Davis testified in her deposition that Dr. Johnson went over the risks of the circumcision with her, including the risks of poor cosmetic results and of removing too much or too little skin, before getting her consent to perform it. On the list of material risks accompanying the consent form, the aforementioned risks were under the category of uncommon risks.

Ms. Davis testified that when Kyren’s penis healed following the circumcision, she did not like how his penis looked because there were small bumps where extra skin was. Therefore, she complained to Dr. Henson about the penis several times in 2006, but Dr. Henson said the penis looked fine and only had some extra fatty tissue that would go away as Kyren grew older. Despite Dr. Henson’s reassurances, Ms. Davis still did not like the way the penis looked, and she questioned whether the circumcision had been properly done.

Ms. Davis ceased having Dr. Henson treat her son and took him to the Family Practice Clinic at LSUHSC in 2007 because she was not satisfied with Dr. Henson’s treatment of her son, especially after Dr. Henson failed to diagnose an ear infection in the latter part of 2006. Ms. Davis was also not |f,satisfied with Dr. Henson’s answers when she raised questions about the appearance of her son’s penis.

Ms. Davis took Kyren to the Family Practice Center at LSUHSC on February 9, 2007, with the intent of getting her son an overall examination by a male doctor. She wanted an opinion from another doctor about the circumcision because she still had concerns about whether the circumcision had been done properly because Kyren’s penis did not look right to her, and she raised those concerns at LSUHSC. She asked Dr. Bergerone to examine the circumcision. Another physician at the Family Practice Clinic, Dr. German, referred Kyren to the Urology Clinic at LSUHSC. In his examination notes, Dr. Bergerone wrote that Kyren presented with a retracted testicle, and that the “foreskin [was] noted to be attached.”

On April 4, 2007, Kyren presented at the Urology Clinic for evaluation of the retracted testicle, and was examined by Drs. Mata and Speeker-Cruit. Ms. Davis again related her concerns regarding the circumcision. The record from that visit states that Kyren’s penis appeared to have some redundant foreskin, but on further examination, it was noticed that it had a lot of inner foreskin and a shortened amount of outer foreskin, as well as circumferential penile adhesions to the glans. The record further stated that hydrocortisone cream would be tried for the adhesions, and a circumcision revision would be done per Ms. Davis’s request. Ms. Davis recalled that Dr. Mata asked her if she wanted the circumcision redone because extra skin remained.

|7Ms. Davis explained that until April 4, 2007, she had no idea the circumcision had been done improperly. It was the appearance of the penis that drew her attention and she had had concerns about the circumcision, but had been reassured that all was right. Kyren never showed any discomfort because of the circumcision, and as he was a toddler during that time, she could not rely on complaints from him to arouse any suspicion in her mind.

In the recent case of Williamson v. Hebert, 2010-0071 (La.4/5/10), 31 So.3d 1047, the supreme court found that Hebert failed to establish that Williamson had constructive knowledge of the alleged medical malpractice more than one year prior to filing her complaint. Williamson had some apprehension that something was wrong following her surgery as she consulted with two doctors about her condition; however, both doctors assured her that her condition would continue to improve. When her condition did not improve within two years after her surgery, which is how long one of the doctors indicated it could take for her symptoms to resolve, Williamson researched her condition on the Internet and learned for the first time that her symptoms may have been caused by malpractice.

Ms. Davis was reassured by at least one physician that everything was normal concerning the appearance of her son’s penis. Nevertheless, it seems that Ms. Davis’s concern was never truly satisfied as she repeatedly raised the issue with Kyren’s doctors, including the doctors at LSUHSC.

Ms. Davis was 19 years old when Kyren was born. Upon graduation from Byrd High School in 2004, she attended nursing school in Shreveport |sfor a year. After Kyren was born, she studied to become a pharmacy tech at a career college, and is currently employed as a pharmacy tech at Wal-Mart. Although the focus at the February 2007 visit to the Family Practice Clinic was on the retracted testicle, Dr. Bergerone noted that Kyren’s foreskin remained attached. Clearly it was unreasonable for Ms. Davis not to recognize by at least February of 2007 that the undesirable condition of Kyren’s penis may have been related to the circumcision performed by Dr. Johnson.

CONCLUSION

The trial court was not clearly wrong in concluding that Ms. Davis had constructive knowledge of a possible medical malpractice claim no later than February of 2007. The exception of prescription and/or per-emption was properly granted. With Ms. Davis to pay costs of this appeal, the judgment is AFFIRMED.

      . Defendant Christus Schumpert had been dismissed earlier.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Bobby Dean HIGGINBOTHAM, Plaintiff-Appellant v. Caldwell A. FLOOD, Edna J. Cooper, George Taylor, Lionel Travers, Jr., and The Board of Alderman of Waterproof, Louisiana, Defendants-Appellees.
    No. 45,328-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 7, 2010.
    Bobby Higginbotham, In Proper Person.
    Joy R. Jackson, for Caldwell A. Floyd, Edna Cooper, George Taylor, Lionel Tra-vers, Jr., and the Board of Alderman of Waterproof, LA.
    Derrick Deshannon Carson, for Bobby Higginbotham.
    Koch & Messer by Karl J. Koch, for Intervenor, Town of Waterproof.

      Before CARAWAY, PEATROSS and DREW, JJ.
   CARAWAY, J.

This suit arises from the action of the Town of Waterproofs board of aldermen in declaring the office of its elected mayor vacant due to the mayor’s failure to meet the domicile requirement for office. After such action was taken at a regular meeting of the board, the mayor filed suit against the board and four of the five individual aldermen seeking a preliminary injunction and declaratory judgment. The preliminary injunction sought to prohibit the defendants from taking any action to declare the mayor’s seat vacant, interfere with his mayoral duties or appoint a new mayor. The mayor appeals the trial court’s judgment denying a preliminary injunction. Finding that the board of aldermen was without statutory authority to declare the mayor’s position vacant, we reverse the trial court judgment and grant injunctive relief.

Facts

In 2006, Bobby Higginbotham was elected mayor of the Town of Waterproof. The Board of Aldermen is the governing body of the town which is comprised of five individuals (hereinafter referred to as “the Board”). The facts giving rise to this litigation occurred on the evening of September 14, 2009, at a regularly scheduled Board of Aldermen meeting. At the meeting, the Board amended the announced agenda which had been prepared by the mayor and town clerk to additionally include the matter of Higginbotham’s domicile. As a result, the Board declared Higginbotham’s position vacant based upon his failure to meet the residency requirement.

|2An audio recording of the meeting which was introduced into evidence at the trial of the preliminary injunction reveals that it was first moved to amend the discussion agenda to include the issue of Higginbotham’s domicile. The motion was ultimately passed without objection. The issue of the Higginbotham’s domicile later came up for discussion. Alderwoman Edna Cooper indicated that state auditors had raised questions regarding Higginbotham’s domicile and that the Board wanted to be assured that the may- or met the residency requirements. For a considerable amount of time, the Board questioned Higginbotham about where he lived, slept, ate, and registered to vote. The Board also inquired as to where Higginbotham’s vehicles were registered. Higginbotham stated that his domicile was located at 218 A Street in Waterproof. He otherwise generally refused to answer questions about his habits, but admitted that he did not stay in town all week. He indicated that he had property at several addresses but did not claim a homestead exemption on any property. When asked, Higginbotham presented his driver’s license to the Board. The license contained the above-noted Waterproof address. Higginbotham indicated that he was registered to vote at the Waterproof address and that every one of his motor vehicles was registered there as well.

The mayor moved to the next item on the agenda and refused to answer any further questions about his domicile. After all items on the agenda were discussed, the mayor called for other business. It was during this time that Alderman Caldwell Flood moved to declare the mayor’s seat vacant due to Higginbotham’s failure to meet the residency requirement. IsAlderwoman Edna Cooper seconded the motion. When Higginbotham refused to consider the motion, Alderman Caldwell Flood, who referred to himself as the may- or pro tempore, called for a voice vote on the motion. The motion to declare the mayor’s position vacant carried by a 4-1 vote. Adjournment of the meeting was suspended until Higginbotham returned his keys to the town and left his position. Higginbotham refused to comply.

On September 16, 2009, Higginbotham filed this action for injunction and declaratory relief, naming the Board and Aider-men, Caldwell Flood, Edna Cooper, George Taylor and Lionel Travers, Jr., as defendants. In relevant part, Higginbotham sought preliminary injunctions to prohibit the Board (i) from appointing any person as mayor at a September 16, 2009 scheduled meeting, (ii) from interfering with his duties as mayor, maintaining his status quo until domicile was proven, and (iii) from declaring a vacancy in the office of mayor due to the Board’s lack of statutory authority.

The trial judge denied a temporary restraining order and set the hearing on the preliminary injunction for September 25, 2009. On September 24, 2009, the Town of Waterproof filed a motion to intervene which the trial court granted.

|4Trial of the issues occurred on October 1, 2009. The court deferred ruling on the defendants’ opposition to Waterproofs intervention and heard testimony from the town clerk and the five Town of Waterproof Aldermen who each testified as to their recollection of the removal of Higginbotham as mayor on September 14, 2009. After hearing the testimony and considering the evidence presented, the court determined that the Board had the authority to declare the mayor’s seat vacant and denied all requests for preliminary injunction. A signed written judgment followed on October 2, 2009. Thereafter, this appeal by Higginbotham ensued.

Discussion

Municipalities, being creatures of the legislature, possess only such powers as are granted to them by the legislature in express words, or those that are necessarily or fairly implied in or are incidental to the powers so expressly conferred. Town of Pineville v. Vandersypen, 212 La. 521, 33 So.2d 56 (1947). See also, Horseshoe Entertainment v. Bossier Parish Police Jury, 30,502, (La.App.2d Cir.6/26/98), 714 So.2d 920, writ denied, 98-1941 (La.11/6/98), 728 So.2d 392.

Title 33 of the Louisiana Revised Statutes provides for the governance of municipalities and sets forth the qualifications for Louisiana mayors in La. R.S. 33:384 as follows:

The mayor shall be an elector of the municipality who at the time of qualification as a candidate for the office of mayor shall have been domiciled and actually resided for at least the immediately preceding year in the municipality.

IsA mayor is an elected representative (La. R.S. 33:881), and under Chapter 5 of the Louisiana Election Code, (Title 18) La. R.S. 18:581(3), vacancy in public office is defined, as follows:

“Vacancy” occurs in an elective office when the office is or will be unoccupied by reason of the death of the official who was elected to the office, or by reason of his retirement or resignation, removal from office by any means, failure to take office for any reason, or when it becomes certain that the person elected to the office will not take the office on the day when the term for which he was elected commences, or when the person elected to or holding the office no longer meets the residence or domicile requirements of that office, any declaration of retention of domicile to the contrary notwithstanding, or when an office is created due to a reclassification of a municipality.

See also, La. Const, art. X, § 28.

Additionally, La. R.S. 33:383(C) provides for the filling of certain vacancies:

C. Any vacancy in a municipal office to which the officer is elected or appointed by the mayor and board of aldermen may be filled for the term by the mayor and board of aldermen at any regular or special meeting.

See also, La. R.S. 18:602(A).

The Louisiana Election Code, Chapter 5, Part VII provides for a judicial process for declaring a public office vacant. La. R.S. 18:671, et seq, In this section of the Election Code which was added in 1988, the only ^occurrence for a vacancy which is addressed concerns a change in the officeholder’s “designated domicile,” which is defined as his residence or domicile listed at the time of his notice of candidacy or his appointment for the office. Such residency/domicile challenge to an officeholder results from the combined actions of a voter in the election district and the district attorney or attorney general, which result in a judicial procedure for removal of the officeholder.

17From the above provisions of our law, we find that the Election Code provides the proper procedure for the challenge to the mayor’s domiciliary status in this case, so that his requested injunctive relief is warranted. The Election Code provisions, La. R.S. 18:671, et seq., specifically address a change in the domicile of an officeholder during his term. The law deals with the declarations of vacancies in office in that narrow context and provides the protection of due process and the evidentiary safeguards of a judicial proceeding.

The board of aldermen’s powers for a Louisiana municipality are provided in Title 33. See, La. R.S. 33:362, 33:382, 33:386 and 33:404.1. We have reviewed those enumerated powers, and no power to remove the mayor from office is present. Likewise, in view of the specific directives of La. R.S. 18:671, et seq., there is no implication in our law which suggests that the legislative arm of the municipality’s government may challenge the executive arm for the measure of the legal concept of the executive’s domicile without the involvement of a judicial process.

Conclusion

For the foregoing reasons, the ruling of the trial court is reversed. The action of the Board of Aldermen declaring a vacancy in the office of mayor being unauthorized by law is without effect. Injunctive relief against defendants is hereby granted, prohibiting defendants from further actions against the plaintiff in his capacity as mayor in violation of this ruling. |sCosts of this proceeding are assessed to defendants in the amount of $121.50, in accordance with La. R.S. 13:5112.

REVERSED AND RENDERED.

      . The suit is consolidated with a second matter concerning the Town of Waterproof, Toyna Barlow v. Town of Waterproof, et al., 45,211-CA which is also being decided at this time.

      . Higginbotham sought declaratory judgment voiding the actions of the Board of Aldermen in declaring his seat vacant and establishing him to be a resident and domiciliary of Waterproof. Higginbotham also sought statutory penalties for an Open Meetings Law violation.

      . A continuance was granted to the defendants to October 9, 2009. Higginbotham filed a Motion for Reconsideration of the continuance on the grounds that the trial date was beyond the statutory ten-day period required for a preliminary injunction. The trial court denied his request. Higginbotham sought writs to this court which ordered that the hearing be held no later than October 5, 2009. The hearing was set for and conducted on October 1, 2009.

      .No signed order granting the intervention is found in the record before us. Nevertheless, at the hearing on the preliminary injunction, the trial court stated on the record that the motion had been granted.

      . La. R.S. 18:671
      A. In addition to other procedures authorized by law, an office shall be considered vacant for purposes of this Part when a judgment declaring the office vacant as provided in this Subpart becomes final.
      B. For purposes of this Part, "designated domicile” means the residence or domicile stated on an officeholder's notice of candidacy or on the document evidencing the appointment or selection of the officeholder.
      C. For purposes of this Part, "proper official” means the district attorney of the officeholder’s designated domicile, except that in the case of an officeholder of a state office, as defined in R.S. 18:452, a state legislator, or a district attorney, the proper official shall be the attorney general, provided that in the case of the attorney general, the proper official shall be the district attorney of the Nineteenth Judicial District.
      La. R.S. 18:672
      When any voter lawfully registered in the district or geographical area from which an officeholder has been elected, or from which an officeholder has been appointed or otherwise selected to hold an office, has reason to believe that the officeholder no longer meets the residence or domicile requirements of that office, the voter may make a written complaint of that fact to the proper official.
      La. R.S. 18:673
      Within twenty days of the receipt of such written complaint, the proper official shall investigate and provide a written opinion, with reasons, as to whether the officeholder meets the residence or domicile requirements of the office he holds to the complainant and to the legislative or executive agency, board, commission, governing authority, or other body or entity of the state or of any political subdivision, to which the officeholder has been elected or appointed. The opinion shall also be published in the official journal of the parish of the officeholder’s designated domicile.
      La. R.S. 18:674
      A. The proper official shall institute suit in the district court of the officeholder's designated domicile to obtain a judgment declaring the office vacant within ten days after the issuance of his opinion, if his opinion is that the officeholder no longer meets the residence or domicile requirements of his office. The matter shall be tried by preference over all other matters and, if the court shall find that the officeholder no longer meets the residence or domicile requirements of his office, a judgment shall be rendered declaring the office vacant, and the vacancy may be filled as provided by law.

        B. A hearing on the petition for declaration of vacancy shall be held not more than twenty days after service upon the officeholder whose removal is sought. Judgment shall be rendered in the matter within ten days after trial. Either party may appeal the judgment suspensively within five days after the signing of the judgment, by obtaining an order of appeal and posting bond for a sum fixed by the court to secure the payment of costs. The trial judge shall fix the return day at a time not to exceed five days after the granting of the order of appeal. An application to the supreme court for a writ of certio-rari may be made only within three days after the signing of judgment by the court of appeal. Each appellate court to which the action is brought shall place the matter on its preferential docket, shall hear it without delay, and shall render a decision within ten days after oral argument. The granting of an order of suspensive appeal or writ of certiora-ri suspends the effect of the judgment during the pendency of such proceedings.
      La. R.S. 18:675
      The provisions of this Subpart shall not be construed as the exclusive procedure for declaration of vacancy in public office and shall not be construed to repeal any other provision of law for the removal of public officers or declaration of vacancy in public office.

      . Other settings for vacancy in public office implicitly acknowledged in La. R.S. 18:675 are, e.g., recall (La. Const, art. X, § 26; La. R.S. 18:1300.1, et seq.), impeachment (La. Const, art. X § 24; La. R.S. 42:1411-1414), expulsion of a member of the legislature (La. Const, art. Ill § 7) and determination of inability of a statewide election official (La. Const, art. IV § 17, 18).


author: GASKINS, J.

text:
    Katherine Ella Cathcart GAYDON Plaintiff-Appellee v. Phillip Lloyd GAYDON, Defendant-Appellant.
    No. 45,446-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2010.

      Fortson & Bokenfohr, by John Boken-fohr, for Defendant Appellant.
    Ronald J. Miciotto, for Plaintiff-Appel-lee.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   GASKINS, J.

|,In this matter involving the custody of two young boys, the father appeals, contending that the trial court placed too much emphasis upon his alcohol issues and granted him too little custody time after designating the mother as the domiciliary parent under a joint custody plan. We affirm the trial court judgment.

FACTS

The parties, Katherine Ella Cathcart Gaydon and Phillip Lloyd Gaydon, were married in May 2004. In July 2007, Ms. Gaydon adopted her husband’s son from another relationship, who was born in December 2001. They also had a biological son, who was born in October 2004. The parties separated in July 2009.

In August 2009, the mother filed suit seeking a divorce and sole custody of the children. She alleged that the father had substance abuse problems and a gambling addiction. She also asserted that he had been physically abusive to her, been fired from his job as a private investigator for stealing from his employer, and committed acts of adultery. She requested that the father be granted supervised and restricted visitation contingent upon completion of programs for his addictions and that no overnight visitation be granted.

The father answered pro se, contending that he had obtained counseling and was no longer abusing alcohol or drugs. However, he accused the mother of being addicted to a prescription drug, i.e., Ambien. He also claimed that she too gambled and that she spent excessive amounts of money on cosmetic procedures. He denied physically abusing the mother |2but asserted that she physically and emotionally abused him. As to the mother’s request that the father have only supervised visits, the father claimed that since filing for divorce, she had allowed unsupervised visits without incident.

In October 2009, the father — now represented by counsel — filed a rule to establish custody in which he sought to either be named domiciliary parent or be awarded equal shared custody of the children. He cited the “extreme close proximity” between the parents’ residences and the resulting ease in exchanging the children as a factor in support of his request.

At a hearing on October 22 and 23, 2009, testimony was given by the parties and the father’s former employer, who testified that the father had stolen almost $20,000 from his business. In his testimony, the 26-year-old father characterized what he had done as “moonlighting.” When the father was confronted with his own handwritten admissions in which he stated— among other things — that he drank on the job, padded his paychecks, and had taken money from his employer, he asserted that he did not recall writing them because he was “in withdrawal” at the time they were written. While he also did not recall making the statement that his wife could not trust him, he admitted that statement was true.

The father testified that he worked for the private investigation agency for five years. He admitted that he was drinking too much toward the end of his employment there. He acknowledged that he had been involved in multiple car accidents, one of which involved drinking and driving. He was arrested for DWI, but was acquitted. On one occasion, he ^received a speeding ticket when the boys were in the car with him. In 2008, he underwent outpatient treatment for his dependence on alcohol. However, he indicated that he has not refrained from drinking.

The father testified that he is currently on medications for anxiety and depression and that on his most recent birthday (which was about two months before the hearing), he had mixed them with alcohol. While he initially said he did not recall placing an inappropriate phone call to the mother while under the influence of this combination, he then admitted that he did remember calling her. He conceded that his wife was a “great” mother. According to the father, he had been at his present job selling phones at Verizon for about 20 months. He asserted that he had the ability to negotiate his schedule if he was given split custody of the children.

The 26-year-old mother testified that even though she adopted the older child, she loved the boys equally. She stated that she had helped care for the adopted child since he was about a year old. While stating that the father’s apartment was suitable and that she felt comfortable leaving the children there, she expressed reservations about an equal physical sharing of custody for several reasons. Among them was her concern that the arrangement would be too disruptive for the boys during the school year; however, she was agreeable to alternating weeks of custody during summer vacation. She did voice fears about the father’s stability, stating that since their separation he had begun “drinking again ... and partying again.” She was also especially concerned by his actions in reestablishing contact with the older child’s biological mother, who worked as a stripper. According to |4the mother’s testimony, this woman was a drug addict and they had worked hard to remove her from their lives.

The evidence at the hearing revealed that the mother and the children still lived in the house that had been the family home since 2004 and that each child had his own room there. The father lived in an apartment across the street; at this residence, the boys share a bedroom with bunk beds. The mother testified that she attends a Methodist church with the children; the father stated that he does not attend church. Both parents testified that the older boy is an excellent student making good grades; the younger child attends a daycare run by a Baptist church. While the father’s job at Verizon has frequently required him to work on the weekends, the mother’s payroll job at a company involved weekdays only.

At the conclusion of the hearing, the trial court awarded joint custody of the children with the mother being designated as the domiciliary parent. The father was granted visitation every other week from Thursday after school through Sunday at 6:00 p.m. Holidays and summer vacations were ordered to be shared equally; the court allowed the parents to alternate weeks of custody during the summer. Child support and spousal support were also awarded.

In oral reasons for judgment, the trial court stated that the evidence showed that the father had “an on-again-off-again alcohol problem.” It also referred to “some immature, selfish decisions” the father had made at work that caused him problems. The court mentioned the father’s “history of instability and questionable decisions,” which included his excessive ^gambling losses. However, the court also observed that the father had taken steps to address his problems and shown increased maturity. As to the mother, the court found that she was “impressive” when she testified and the more stable of the two.

A judgment reflecting the trial court’s ruling was signed on November 20, 2009.

The father appeals.

SPLIT CUSTODY

Law

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 1997-0541 (La.2/6/98), 708 So.2d 731; Semmes v. Semmes, 45,006 (La.App.2d Cir.12/16/09), 27 So.3d 1024. The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134. The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. Semmes, supra. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Semmes, supra.

La. R.S. 9:335(A)(2)(b) provides that to the extent feasible and in the best interest of the child, physical custody of the child should be shared equally. Yet, when the trial court finds that a decree of joint custody is in|fithe best interest of the child, the statute does not necessarily require an equal sharing of physical custody. Semmes, supra.

Substantial time, rather than strict equality of time, is mandated by the legislative scheme providing for joint custody of children. Pender v. Pender, 38,649 (La.App.2d Cir.5/12/04), 890 So.2d 1; Semmes, supra.

Continuity and stability of environment are important factors to consider in determining what is in the child’s best interest. Pender, supra.

The trial court has vast discretion in deciding matters of child custody and visitation. Slaughter v. Slaughter, 44,056 (La.App.2d Cir.12/30/08), 1 So.3d 788; Semmes, supra. This discretion is based on the trial court’s opportunity to better evaluate the credibility of the witnesses. Slaughter, supra; Semmes, supra.

Generally, the determination by the trial court regarding child custody is entitled to great weight and should not be disturbed on appeal absent a clear abuse of discretion. Pender, supra. An appellate court should be reluctant to interfere with custody plans implemented by the trial court in the exercise of its discretion. Pender, supra.

Discussion

The father argues that the trial court was manifestly erroneous in not awarding an equal sharing of the children under La. R.S. 9:335 because he lives across the street from the mother. He also contends that the trial court erred in not considering all of the factors listed in La. C.C. art. 134 and that it placed too much emphasis on his alcohol problems when there was no evidence that his “alleged” alcoholism had affected the children. The father 17complains that the trial court did not properly consider the “particularly special bond” between him and the older son. This child was born out of wedlock while the father was in high school; he was adopted by the mother more than two years before the custody trial.

In her brief, the mother emphasizes the evidence of the father’s alcoholism, thefts from his employer, and gambling. She also stresses that she had been raising the older child since he was only a year old. She contends that the father’s proposed seven days on/seven days off custody split would be too disruptive for the children. The mother argues that the trial court properly considered all factors and crafted a custody plan which was in the best interest of the children.

We note at the outset that the father requests de novo review under Evans v. Lungrin, supra, on the basis of legal error by the trial court in not applying La. R.S. 9:335 to award equal physical custody of the children after determining that joint custody was appropriate. He accuses the trial judge of “personal bias” against shared custody. A review of the record demonstrates that the father’s accusations are unfounded. While the trial judge expressed some reservations about the implementation of 50/50 shared custody because of problems he had encountered with it in other cases, he did in fact allow the parties alternating weeks during the summer. We find no reason to invoke the de novo review standard set forward in Evans v. Lungrin, supra.

Our review of the record reveals no manifest error in the trial court’s decision to make the mother the domiciliary parent under a joint custody |8plan giving the father reasonable visitation, as opposed to implementing a plan which would mandate strict equal sharing of custody between the parents. There were several issues of concern pertaining to the father and his stability which led to the trial court’s decision in formulating this custody plan for the parties’ children. As the trial judge correctly noted, the evidence establishes that the father has a substance abuse addiction; he also appears to have had a gambling problem. While the father attempts to minimize the importance of the alcohol issue, the fact remains that his addictions have caused significant problems for this young family in the recent past. While the father does appear to have made some strides toward improvement, the specter of reoccurrence still remains. In fact, the father’s actions in mixing medication and alcohol — which led to an inappropriate telephone call to the mother — just a few months before the custody hearing demonstrate that his judgment is still lacking.

However, the trial court was willing to recognize the father’s recent progress by not imposing supervision or restrictions upon his visitation with the children and in allowing him to having alternating equal weeks of custody during the summer when school (with its attendant pressures and demands) would not be an issue. The trial court obviously believed that the mother was better able to provide the children with the stability they require during the school year and that it was in their best interest for her to be ^designated their domiciliary parent. Upon this record, we find no manifest error as to this determination.

As to the older son, the father asserts that the trial court erred in failing to consider that he has a “special” bond with the boy because he is the child’s biological parent (whereas the mother is only an adoptive parent) and the father has participated in his care since birth. However, the evidence shows that the mother entered this child’s life and assumed the maternal role when he was very young. Now eight years old, he has been a recipient of the mother’s care since he was less than two years old, and he was five years old when she adopted him. The mother testified that she loves and treats the boys equally. Even the father conceded in his testimony that the mother loves the children equally. We find that the trial court did not err in treating the parties as having equal status as parents to both children.

Under the facts of the instant ease, the trial court concluded that an equal, alternating, split physical custody arrangement was not in the best interest of the children during the school year. We find no abuse of the trial court’s great discretion in so deciding.

CONCLUSION

The trial court judgment is affirmed. Costs of this appeal are assessed against the appellant, Phillip Lloyd Gaydon.

AFFIRMED.

      . We observe that the father emphatically asserts that he is entitled to shared custody because of his actions as a teenager in caring for the older child during infancy, while ignoring the alcohol problems which have plagued him as an adult.


author: BARNES, J.,

text:
    George DAVIS, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00578-COA.
    Court of Appeals of Mississippi.
    May 25, 2010.

      George Davis, Jr., Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
   BARNES, J.,

for the Court:

¶ 1. George Davis, Jr. appeals the Circuit Court of Tunica County’s denial of his petition for an out-of-time appeal. Finding no error, we affirm the circuit court’s judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In February 2004, a Tunica County grand jury jointly indicted Davis and Charlie Thomas “individually or while aiding and abetting and/or acting in concert” for armed robbery of the Sheraton Casino in Tunica County, Mississippi, pursuant to Mississippi Code Annotated section 97-3-79 (Rev.2000). They were accused of taking approximately $66,780 from a cashier at the casino. The circuit court granted the co-defendants’ motion for severance. Davis’s trial commenced in April 2005, and a jury found Davis guilty as charged, but it was unable to fix the penalty of life imprisonment for armed robbery. Thus, pursuant to section 97-3-79, the circuit court sentenced Davis in open court on June 27, 2005, to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with three years suspended and three years of post-release supervision. The circuit court entered a judgment to this effect on July 12, 2005.

¶ 3. Also on June 27, 2005, Davis filed a notarized “Affidavit” which both he and his attorney had signed. The affidavit stated that, after conferring with his court-appointed trial attorney and “being advised of all his constitutional rights,” Davis did not desire to appeal his conviction. Davis also claimed that he understood his right to appeal, but he “voluntarily, knowingly, understandably and without duress” waived this right. Davis admitted that he had fully discussed this waiver with his attorney and that after “numerous discussions” with him he still desired to “knowingly and voluntarily” waive the right and release his attorney from any obligation to file an appeal. In the affidavit, Davis also waived the right to have his trial attorney file post-trial motions for a judgment notwithstanding the verdict or a new trial.

¶ 4. Several months later, on March 20, 2006, Davis filed a pro se “Petition For Out-of-Time Direct Appeal.” In the petition, Davis stated that “immediately after his armed robbery conviction and sentence” he advised his attorney that he “desired an appeal to the Mississippi Supreme Court.” Davis claimed, however, that his attorney erroneously informed him that he would “only” be required to serve approximately four years of his twelve-year sentence “for ‘aiding and abetting’ [an armed robbery] because the sentence wasn’t mandatory,” and “[Davis] got a deal” because the jury could have sentenced him to life imprisonment. Davis contended he was manipulated by his trial counsel into signing the waiver of his right to appeal; thus, he was denied his right to due process and his right to effective assistance of counsel.

¶ 5. On January 10, 2007, the circuit court denied Davis’s petition for an out-of-time appeal, noting that the time for perfecting a direct appeal had lapsed and that Davis had knowingly and voluntarily waived this right. Furthermore, the circuit court explained that while Davis claimed he executed the affidavit waiving this right because he was misled and coerced by his attorney, there was no evi-dentiary basis to support these contentions. On March 20, 2007, the circuit clerk entered Davis’s pro se notice of appeal of the January 10 order. Davis, however, treated the appeal as a direct appeal of his conviction, raising issues related to a jury instruction and an alleged promise of leniency to one of the State’s witnesses, as well as the waiver-of-appeal issue. He also raised ineffective assistance of counsel related to the failure of his trial attorney to file a notice of appeal in spite of his affidavit stating he wanted to waive this right.

ANALYSIS

f 6. First, we shall address Davis’s contention that this appeal is a direct appeal of his conviction and sentence and not one for post-conviction relief. We shall also discuss the timeliness of Davis’s appeal. Then, we shall address the propriety of his waiver of a direct appeal and his claim of ineffective assistance of counsel related to the waiver.

1. Nature of Appeal and Timeliness

¶ 7. Davis argues his current appeal is a direct appeal of his conviction and sentence and not one for post-conviction relief. Under the circumstances of this case, however, the circuit court would have had no authority under the Mississippi Rules of Appellate Procedure to allow the filing of an out-of-time direct appeal approximately nine months after his conviction and sentence were entered; thus, it ruled properly.

¶ 8. Appeals to the Mississippi Supreme Court are made by filing a notice of appeal with the clerk of the trial court within thirty days of the entry of judgment or order appealed from. M.R.A.P. 4(a). Here, Davis was sentenced in an order dated June 27, 2005, and a judgment was entered on July 12, 2005. For a timely direct appeal, Davis would have had to file his notice of appeal by August 11, 2005, at the latest, but he did not. His petition for an out-of-time appeal was filed in March 2006. Two circumstances in which the trial court can grant an extension of time are found in Mississippi Rules of Appellate Procedure 4(g) and 4(h), neither of which apply here. Rule 4(g) allows an extension for “good cause.” The motion for an extension of time must be filed within thirty days of the expiration of the time prescribed by this rule. M.R.A.P. 4(g). Here, Davis’s petition was filed well outside of that time frame. Rule 4(h) allows the trial court to reopen the time for appeal if no notice was received by the party entitled to it. The motion for an extension of time must be filed within 180 days of entry of the judgment or order, or within seven days of the receipt of such notice, whichever is earlier. M.R.A.P. 4(h). Here, Rule 4(h) is not applicable as there is no question that Davis had notice of the circuit court’s judgment. Additionally, Davis filed his petition well outside of the 180-day time frame.

¶ 9. Mississippi Rule of Appellate Procedure 2(c) allows the appellate court to suspend the thirty-day requirement of Rule 4(a) in criminal cases for “good cause shown” and “in the interest of expediting decision.” “[Ajppellate courts do have the authority to grant a criminal defendant such an appeal if failure to perfect the appeal was ‘through no fault of his own’ and if ‘justice demands.’ ” Parker v. State, 921 So.2d 397, 399 (¶ 5) (Miss.Ct.App.2006) (citing McGruder v. State, 886 So.2d 1, 2 (¶ 4) (Miss.2003)). Davis, however, has failed to provide any evidence of “good cause” for this Court to suspend the rules to allow a direct appeal. Because Davis waived his appeal, and then apparently changed his mind well after the thirty-day deadline, we cannot find that his failure to perfect his direct appeal was “through no fault of his own.” Thus, we find no authority under the Mississippi Rules of Appellate Procedure or case law to allow a direct appeal in this instance.

¶ 10. However, we can and do consider Davis’s petition for filing an out-of-time appeal as a motion for post-conviction relief pursuant to Mississippi Code Annotated section 99-39-5(l)(h) (Rev.2000), which states whether a defendant is entitled to an out-of-time appeal is a ground for post-conviction relief. For our standard of reviewing a circuit court’s decision to deny a petition for post-conviction relief, this Court will not disturb the circuit court’s ruling unless it is found to be clearly erroneous. Questions of law are reviewed de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

¶ 11. Even though Davis’s petition is one for post-conviction relief, his appeal is untimely. The circuit court denied Davis’s motion for an out-of-time appeal on January 10, 2007, and it was entered on the circuit court’s docket the next day. Davis filed his notice of appeal on March 20, 2007, over thirty days after the entry of judgment. In examining the record, however, it appears that Davis may not have been aware of the entry of the circuit court’s judgment on January 11. The clerk of the Mississippi Supreme Court, in a letter dated March 5, 2007, explained to Davis that his motion to compel was not properly before the supreme court because the circuit court had denied his motion for an out-of-time appeal. This correspondence indicates Davis may not have been aware of the entry of the order. Davis’s notice of appeal was entered only fifteen days after the date of the supreme court clerk’s letter, on March 20, 2007. Accordingly, in the interest of justice, because Davis may not have had notice of the entry of the order denying his petition, and his notice of appeal was filed within thirty days of the date he certainly received notice of the denial, we shall suspend the thirty-day filing requirement for Davis’s notice of appeal of the circuit court’s January 2007 denial of his petition for out-of-time appeal pursuant to Rule 2(c). We now turn to the merits of Davis’s waiver of his right to appeal and the related ineffective assistance of counsel claim as a matter for post-conviction relief.

2. Davis’s Waiver of His Right to Appeal

¶ 12. While Davis raises four issues in his appeal, we need only address whether the circuit court erred in failing to grant Davis’s out-of-time appeal because he waived his right to a direct appeal, and Davis’s claim of ineffective assistance of counsel related to this issue.

¶ 13. Regarding Davis’s waiver of his right to a direct appeal, the circuit court found that he had knowingly and voluntarily waived this right, and we agree. It is well established that “[t]here is no constitutional right to an appeal; the right of appeal is purely a creature of statute.” 9 Fed. Proc., L.Ed. § 22:969 Waiver of Right to Appeal (2005). Additionally, “[a]n accused may voluntarily waive his or her right of appeal,” but any waiver of appeal must be “informed and voluntary.” 24 C.J.S. Criminal Law § 2349 (2006).

¶ 14. According to the record, Davis apparently changed his mind about the waiver in March 2006, when he filed his petition for an out-of-time appeal, where he stated he was erroneously informed by his trial counsel that he would only have to serve approximately four years of his twelve-year sentence for “aiding and abetting” an armed robbery. He claims this misinformation was the sole basis for his signing the waiver of appeal. Davis also stated that he had desired an appeal “immediately” after his conviction and sentence for armed robbery, in spite of signing the affidavit the same day he was sentenced. Davis also requested either a grant of his out-of-time appeal or an evi-dentiary hearing on these matters.

¶ 15. We note that Davis’s waiver was prepared with the assistance of his trial counsel. It was properly executed by both Davis and his counsel, notarized, and filed. There is no evidence in the record to show the waiver was in any way invalid. We also note that Davis could have revoked the waiver and perfected his appeal at any time prior to thirty days from the entry of judgment, pursuant to Rule 4(a), but there is no evidence that he made such an attempt. Instead, he waited until over eight months later to claim his waiver was invalid. In its order, the circuit court found “no basis to support [Davis’s] contentions. He executed an affidavit waiving his right to an appeal and stated that he did so knowingly, voluntarily, understandably and without duress.” We agree. Davis’s petition for an out-of-time direct appeal does not provide any affidavits of proposed witnesses to prove facts that would be outside of his knowledge about the waiver of his right, pursuant to Mississippi Code Annotated section 99-39-9(l)(e) (Rev.2000).

¶ 16. Further, Davis contends that his counsel was ineffective for advising him erroneously about how much time he would be required to serve, parole eligibility, and the ability to accumulate “good time” toward early release. Davis also argues that his counsel failed to advise him of his right to appeal and failed to timely perfect his appeal; thus, “through no fault of his own,” he was denied the right to appeal.

¶ 17. In order to prove his counsel was ineffective, Davis must show: (1) his counsel’s performance was deficient, and (2) the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant has the burden of proof for both prongs. Edwards v. State, 615 So.2d 590, 596 (Miss.1993) (citing McQuarter v. State, 574 So.2d 685, 687 (Miss.1990)). There is a strong presumption that trial counsel was competent. Id. (citing Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990)). To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In cases involving post-conviction relief, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Phillips v. State, 25 So.3d 404, 408-09 (¶ 14) (Miss.Ct.App.2010) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). A post-conviction-relief claim for ineffective assistance of counsel will be dismissed without an evidentiary hearing when it is “manifestly without merit.” Robertson v. State, 669 So.2d 11, 13 (Miss.1996) (citing Sanders v. State, 440 So.2d 278, 284 (Miss.1983)). A defendant must allege with “specificity and detail” that his counsel’s performance was deficient and prejudicial to his defense. Id. (citing Brooks, 573 So.2d at 1354; Perkins v. State, 487 So.2d 791, 793 (Miss.1986)).

¶ 18. Davis does not provide any evidence that he was misinformed by his counsel regarding how much of his sentence he would have to serve, except for his own statements alleged in his petition for an out-of-time appeal and in his briefs before this Court. While Davis’s petition could be considered a sworn statement by the petitioner setting forth matters within his knowledge pursuant to the requirements of Mississippi Annotated Code section 99 — 39—9(l)(d) (Rev.2000), since it was executed by Davis, dated, and “subscribed and sworn” before a notary, nonetheless, it is insufficient proof of his claim. He has not alleged with “specificity and detail” that his counsel was deficient. Moreover, Davis did not present sufficient proof to warrant an evidentiary hearing.

¶ 19. In his affidavit waiving his appeal, he states he was aware his sentence was fifteen years, with three years suspended, in the custody of the MDOC. The record indicates Davis was not provided any incorrect information about his sentence by either the circuit court or his counsel. His waiver-of-appeal affidavit states that: Davis was given advice regarding his right to appeal; he did not desire an appeal; and he knowingly waived the right. Davis claims that he waived his appeal based solely on the fact that his counsel erroneously informed him he would only have to serve approximately four years due to “earned time.” However, unless he provided some proof in the form of affidavits from other witnesses corroborating this contention beyond his own statements, we cannot find merit to Davis’s claim that his attorney was ineffective.

¶ 20. The case of Fair v. State, 571 So.2d 965 (Miss.1990) is similar to the instant case. In Fair, the supreme court upheld the denial of the defendant’s petition for an out-of-time appeal, when the defendant had waived his right to an appeal by affidavit. Within a few days of his conviction, John Wesley Fair met with his attorney. Fair claims he told his attorney he wanted an appeal; his counsel claims otherwise. They conferred again approximately one week later. Fair’s counsel claimed he again advised Fair of his right to appeal, and Fair again stated he did not want an appeal. Id. at 965. Therefore, his counsel presented Fair with an affidavit waiving his right to appeal, which Fair executed in the presence of a notary, with his counsel witnessing the signature as well. Id. at 965-66. Fair then moved for an out-of-time appeal fifty days after his judgment of conviction and sentence. The circuit court treated the motion as one for post-conviction relief pursuant to section 99 — 39—5(l)(h). While the circuit court granted an evidentiary hearing to resolve factual questions, it ultimately found that Fair was advised of his right to appeal and had knowingly waived this right. Id. at 966. There was no further evidence to support his claim for an out-of-time appeal. Id. at 967.

¶ 21. In the instant case, Davis waited approximately nine months before he filed his petition for out-of-time appeal, not fifty days as in Fair. The Fair court also examined the record and found no substantive grounds for an appeal that may have secured a reversal of Fair’s conviction. Id. at 967. Similarly, in the instant case, this Court was provided with the record and transcript from the circuit court proceedings, which we have reviewed. We find no basis for a possible reversal of Davis’s conviction.

¶ 22. Finally, this Court requested supplemental briefing from the parties specifically on Davis’s claim that he was erroneously advised by his counsel on earned time — the portion of the twelve-year sentence that he would actually have to serve — and whether such a claim, if proven, undermines the knowing and voluntary nature of Davis’s waiver of his right to a direct appeal. The State contends that this claim relates to Davis’s ineffective assistance of counsel claim, which is proee-durally barred because it was not raised in a petition for post-conviction relief. We disagree with this argument because Davis raised it in his petition for out-of-time appeal, which is properly considered a petition for post-conviction relief. The State also argues that his claim of being “misinformed” was not supported by sworn statements. We also disagree with this contention as Davis’s sworn petition for out-of-time appeal can be considered such a statement, as discussed above. However, because Davis is the only witness that provides proof to support his claims, and as the State notes, it contradicts his sworn affidavit of waiver, his petition for an out-of-time appeal does not assist his claims. Since Davis offers no proof that he was erroneously advised by his counsel, we cannot find that his waiver was made involuntarily and unknowingly because of that possibility.

¶ 23. Accordingly, we find no error with the circuit court’s denial of Davis’s petition for an out-of-time appeal.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY DENYING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TUNICA COUNTY.

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

      . Davis also makes another argument related to ineffective assistance of counsel: the prosecutor's alleged failure to disclose that he had “promised" to take the former co-defendant Thomas's testimony into consideration in "future negotiations” and that this had a limiting effect on Davis's right to cross-examine Thomas.

      . On appeal, Davis also raises issues regarding die propriety of a jury instruction on accessory-after-the-fact for robbery; whether Davis was prejudiced by the prosecution’s failure to disclose that Thomas, testifying for the State, had been promised leniency in his sentence in exchange for his testimony; and ineffective assistance of counsel related to the cross-examination of Thomas. However, none of these issues were raised before the circuit court except the matters related to the waiver of his appeal. It is well established that "[q]uestions will not be decided on appeal which were not presented to the trial court and that court given an opportunity to rule on them. In other words, the trial court cannot be put in error, unless it has had an opportunity of committing error.” Jones v. State, 915 So.2d 511, 513 (¶ 7) (Miss.Ct.App.2005) (quoting Stringer v. State, 279 So.2d 156, 158 (Miss.1973)). Therefore, only the issues dealing with the waiver of Davis's appeal are properly before us; the other issues are procedurally barred.