author: MAXWELL, J.,

text:
    Willie Rudolph SMITH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-01088-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.
    Rehearing Denied March 2, 2010.
    Certiorari Denied May 27, 2010.

      Willie Rudolph Smith, Pro Se Appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Attorney for Appellee.
    Before MYERS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court.

¶ 1. On August 4, 1999, Willie Rudolph Smith pleaded guilty in the Harrison County Circuit Court to transfer of a controlled substance. He was sentenced as a habitual offender to fifteen years in the custody of the Mississippi Department of Corrections. On October 25,1999, he filed an initial petition for post-conviction relief (PCR). The circuit court neglected to rule on his initial petition, and Smith failed to secure a final judgment on this PCR petition. Smith filed a second PCR petition on December 17, 2007, more than eight years later. His second PCR petition raised substantially the same issues as his first.

¶ 2. On September 9, 2008, the trial court considered both of Smith’s PCR petitions and by order dated that same day, denied Smith’s original PCR petition on the merits, and denied Smith’s second PCR petition as both time-barred and without merit. Aggrieved, Smith appeals the trial court’s denial of his PCR petitions and raises essentially the following three issues: (1) his indictment was defective; (2) his guilty plea was obtained through the use of threats and coercion; and (3) his sentence exceeds the statutory maximum authorized by law.

¶ 3. Though Smith was only granted leave by the trial court to proceed in forma pauperis on his second PCR petition, we note that the trial court addressed and denied both of his PCR petitions in the September 9, 2008, order from which he appeals. Thus, we will consider the trial court’s denial of both petitions. In doing so, we affirm the circuit court’s denial of both of Smith’s PCR petitions. Specifically, we find the claims contained in his first PCR petition lack merit, and his second PCR petition was filed outside of the three-year statute of limitations.

STANDARD OF REVIEW

¶ 4. When reviewing a trial court’s denial of a petition for post-conviction relief, “our standard of review is well stated. We will not disturb the trial 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.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

DISCUSSION

I. Smith’s First PCR Petition

A. The Indictment

¶ 5. Smith initially claims in his first PCR petition that his indictment was improperly amended on the day he entered his guilty plea to reflect his habitual-offender status. We find nothing improper with the trial court’s decision to proceed in this manner. In fact, this Court has previously upheld a post-guilty plea amendment to an indictment to reflect a defendant’s habitual-offender status. Spencer v. State, 994 So.2d 878, 879(¶ 5) (Miss.Ct.App.2008). The only requirement for amending an indictment to charge a defendant as a habitual offender is that “the defendant be afforded a fair opportunity to present a defense and that he not be unfairly surprised.” Id. at 880. For reasons discussed later in this opinion, we find Smith was given ample opportunity to present defenses and was not surprised by the State’s decision to seek enhanced penalties based on his habitual-offender status.

¶ 6. Smith next claims his indictment was defective because it contained clerical errors concerning his name, social security number, and date of birth. The primary purpose of an indictment is to put a defendant on notice of the charges against him so he is able to prepare an adequate defense. Evans v. State, 916 So.2d 550, 551(¶ 5) (Miss.Ct.App.2005). When an indictment sufficiently puts a defendant on notice of the charges against him, minor technical errors are deemed harmless. Cooper v. State, 639 So.2d 1320, 1323 (Miss.1994); Brooks v. State, 573 So.2d 1350, 1353-54 (Miss.1990) (technical and non-jurisdictional deficiencies were waived when defendant failed to raise them in the lower court).

¶ 7. Also, it is well settled that defects in indictments resulting from clerical errors in names, dates of birth, and social security numbers are non-jurisdictional. See, e.g., Evans v. State, 988 So.2d 404, 407 (¶¶ 16-17) (Miss.Ct.App.2008) (name of defendant in indictment is non-jurisdictional); Gray v. State, 926 So.2d 961, 974(¶ 39) (Miss.Ct.App.2006) (birth date and social security number of defendant is non-jurisdictional).

¶ 8. Smith does not claim he lacked notice of the charges against him or that the wrong person was indicted. Furthermore, because' Smith entered a guilty plea, he waived any, and all, potential non-jurisdictional defects. Brooks, 573 So.2d at 1352; McClurg v. State, 758 So.2d 473, 479(¶ 17) (Miss.Ct.App.2000). This issue is without merit.

B. Smith’s Guilty Plea Was Not Obtained Through Threat or Coercion

¶ 9. 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). Smith contends his plea was not voluntarily entered because his counsel informed him for the first time, in open court, that as a habitual offender he faced the possibility of a life sentence. Smith claims he was coerced into his guilty plea because he was only given fifteen minutes to decide whether to enter a guilty plea or risk a guilty verdict and a life sentence. The record, however, contradicts Smith, as he was clearly on notice that the State might possibly amend his indictment. In fact, the State moved to amend his indictment to reflect habitual-offender status over a month prior to Smith’s entry of his guilty plea. The record also reveals that Smith repeatedly sought to obtain counsel who would assure him the State would not seek enhanced penalties, which indicates he was aware of the State’s authority to proceed under the habitual-offender statute.

¶ 10. In Spencer v. State, 994 So.2d 878, 880-81 (¶¶ 6-12) (Miss.Ct.App.2008), this Court held that when an indictment was amended to reflect habitual-offender status, and a defendant was given notice of the amendment weeks in advance of entering a guilty plea, the amendment did not render the plea involuntary. Because we find Smith had adequate notice of the possibility that the State would seek enhanced penalties, this issue is without merit.

C. Illegal Sentence

¶ 11. Smith merely repeats his previous arguments that because his indictment was defective he received an illegal sentence. As discussed earlier, there was no error in amending Smith’s indictment to reflect habitual-offender status, and any other non-jurisdictional defects that may have existed were waived by the entry of his guilty plea. Smith faced life imprisonment as a habitual offender. It is not illegal, nor uncommon, for a defendant to plead guilty to avoid a potentially more severe sentence as a habitual offender. See, e.g., Lewis v. State, 797 So.2d 248, 249(¶ 1) (Miss.Ct.App.2001). We next turn to Smith’s second PCR petition.

II. Smith’s Second PCR Petition

¶ 12. In addressing Smith’s second PCR petition, we note that claims for post-conviction relief from a judgment of conviction must be made within three years after an entry of the judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Rev. 2007). However, several statutory exceptions to the three-year statute of limitations exist:

Excepted from this three-year statute of limitations are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Miss.Code Ann. § 99-39-5(2).

¶ 13. Smith’s second PCR petition included essentially the same allegations as the first petition. He does not contend the claims contained in his second PCR petition are in any way excepted from the time bar, and we find no applicable exceptions to the bar. The statute of limitations expired in 2001, and Smith filed his second PCR petition in 2007, more than six years too late. Accordingly, we affirm the circuit court’s finding that Smith’s second PCR petition was time-barred.

¶ 14. For reasons discussed herein, we affirm the trial court’s denial of both of Smith’s PCR petitions.

¶ 15. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DENYING THE PETITIONS FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Roderic C. CATCHINGS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2009-CP-00286-COA.
    Court of Appeals of Mississippi.
    Jan. 26, 2010.
    Rehearing Denied May 25, 2010.

      Roderic C. Catchings (pro se), attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Roderic C. Catchings appeals the Rankin County Circuit Court’s dismissal of his motion for post-conviction relief. Finding that the circuit court erred in dismissing Catchings’s motion as successive-writ barred, we reverse and remand the circuit court’s judgment for the court to consider the motion on the merits.

FACTS

¶ 2. Catchings pleaded guilty to three counts of armed robbery and one count of aggravated assault on November 28, 2005. The circuit court sentenced Catchings to twenty years on the aggravated assault charge and thirty-five year terms on each armed robbery charge, with ten years suspended and all the sentences to run concurrently. An additional charge of conspiracy to commit armed robbery was retired to the file.

¶ 3. Catchings subsequently filed a motion for post-conviction relief, arguing that his guilty plea was involuntary because he had not been informed that his sentences on the armed robbery counts must be served day for day. The circuit court appointed counsel for Catchings, and on March 17, 2008, the court held a hearing on Catchings’s motion.

¶ 4. The circuit court ultimately found that Catchings’s guilty plea was involuntary. It then offered Catchings a choice: he could elect to be resentenced, or he could withdraw his guilty plea entirely and face trial. The circuit court’s offer was that Catchings would be sentenced to thirty-five years on the each of the armed robbery charges with eighteen years to serve, day for day, with seventeen years suspended. The circuit court stated that this was its estimate of the actual time Catchings would have served if his mistaken understanding of the previous sentence had been accurate. The offer also provided that Catchings would receive the same twenty-year sentence for aggravated assault; the conspiracy count would be retired to the file; and all the sentences would run concurrently. Catchings accepted the court’s offer, and the circuit court resentenced him as promised.

¶ 5. On November 25, 2008, Catchings filed a second motion for post-conviction relief alleging that he was misinformed regarding the effect of the sentence offered by the circuit court. The trial court dismissed the second motion as successive-writ barred, and Catchings appeals from that judgment.

STANDARD OF REVIEW

¶ 6. This Court reviews the dismissal of a post-conviction relief motion for an abuse of discretion. Willis v. State, 904 So.2d 200, 201(¶ 8) (Miss.Ct.App.2005). Questions of law, however, are reviewed de novo. Ruff v. State, 910 So.2d 1160, 1161(¶ 7) (Miss.Ct.App.2005).

ANALYSIS

1. Jurisdiction; Timeliness of Catchings’s Notice of Appeal

¶ 7. As a threshold issue, the State argues that we must dismiss this appeal for want of jurisdiction because Catchings failed to file a notice of appeal within thirty days of the entry of the trial court’s order dismissing his motion for post-conviction relief, as required by Rule 4(a) of the Mississippi Rules of Appellate Procedure.

¶ 8. The record indicates that the circuit court filed an order on December 19, 2008, dismissing Catchings’s motion. It then filed a second order to a slightly different effect on December 29, 2008. Catchings’s appeal was taken from the second order and was filed on February 5, 2009.

¶ 9. The State’s argument on this issue is without merit. We enforce the “prison mailbox rule” with regard to notices of appeal filed by prisoners. See generally Jewell v. State, 946 So.2d 810, 812-18 (¶¶ 7-9) (Miss.Ct.App.2006). In close cases such as this one, the burden is on the State to prove that a prisoner has failed to comply with Rule 4(a) in light of the extra time that may be allowed by the mailbox rule. Id. at 813(¶ 9). The State has wholly failed to meet its burden in this case, and we find jurisdiction over Catchings’s appeal.

2. Successive-writ Bar

¶ 10. The circuit court found Catchings’s second motion barred as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp.2009), which provides that an order granting post-conviction relief operates as a bar to successive motions. Catchings argues that the bar does not apply because his second motion for post-conviction relief was taken from a separate and distinct conviction and sentence that followed the circuit court’s granting of his first motion for post-conviction relief. We agree.

¶ 11. Catchings’s first motion for post-conviction relief alleged that his prior guilty plea was involuntary. The circuit court found in his favor and granted the motion. While the circuit court purported only to resentence Catchings, the effect of finding a guilty plea involuntary is to vacate both the guilty plea and the sentence; the court could not set aside the sentence alone. Courtney v. State, 704 So.2d 1352, 1358(¶ 20) (Miss.Ct.App.1997). Accordingly, we find that the circuit court erred in dismissing Catchings’s motion for post-conviction relief as successive-writ barred. We therefore reverse the circuit court’s judgment and remand the case for that court to consider the motion on the merits.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . Among other things, Catchings argues that he was misinformed of the effect of having the sentences run concurrently. Catchings alleges that he was told by counsel that he would be released from custody upon completion of the longest sentence—i.e., when he was paroled on the aggravated assault sentence— when in reality he could not be released until he had completed the day-for-day armed robbery sentences.

      . The first order contained additional findings not present in the second order; it would have found the motion barred by the three-year statute of limitations and without merit, but the second order only found it barred as a successive writ.


text:
    Demario WALKER, Appellant v. STATE of Mississippi, Appellee. Demario Walker, Appellant v. State of Mississippi, Appellee.
    Nos. 2008-CP-01987-COA, 2008-CP-01988-COA.
    Court of Appeals of Mississippi.
    March 30, 2010.

      Demario Walker, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for Appellee.
    Before KING, C.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Demario Walker submitted three pro se filings in the Circuit Court of Marion County, which were labeled “Motion for Post-Conviction Collateral Relief,” “Petition for an Order to Show Cause,” and “Petition to Clarify Sentence.” The circuit court treated the latter two filings as requests for post-conviction relief (PCR), and dismissed them under Mississippi Code Annotated section 99-39-23(6) (Supp.2009) as proeedurally-barred successive writs. On appeal, Walker argues the circuit court erred in treating these filings as PCR motions.

¶ 2. The circuit court also dismissed the filing Walker labeled a PCR motion. Walker argues the circuit court should have granted this motion because his parole was unlawfully revoked and because Mississippi Code Annotated section 47-7-27 (Rev.2004) (which contains the applicable procedure for parole revocation) is unconstitutional.

¶ 3. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 4. A Marion County grand jury charged Walker with four counts of attempting to utter a forgery. He pled guilty to one count, and the State agreed not to pursue the remaining three. On June 7, 2002, the circuit court entered an order of conviction on Walker’s guilty plea, and sentenced Walker to ten years in the custody of the Mississippi Department of Corrections (MDOC).

¶ 5. Soon thereafter, Walker was granted an early release on probation, and his remaining sentence was suspended. However, less than one month later, the circuit court found Walker had violated the terms of his probation and revoked Walker’s probationary release.

¶ 6. Walker then filed two PCR motions, which were both appealed to this Court. In the first motion, Walker raised multiple issues, most of which were procedurally barred, and we affirmed the circuit court’s denial of his PCR motion. See Walker v. State, 861 So.2d 354, 355-56 (¶¶ 2, 8) (Miss.Ct.App.2003). In his second motion, Walker argued: “(1) the trial court denied him due process of law by revoking his probation and not providing him with counsel, and (2) [his sentence] to a restitution center was cruel and unusual punishment.” Walker v. State, 910 So.2d 584, 585 (¶ 2) (Miss.Ct.App.2005). We affirmed the dismissal of this PCR motion as well. Id. at 586 (¶ 11).

¶ 7. Walker later became eligible for parole and was released in early 2006. Less than six months later, his parole was revoked. But he was again released on parole in September 2007. Less than a month later, Walker pled guilty to two felony counts of uttering bad checks in violation of Mississippi Code Annotated section 97-19-55 (Rev.2006). The Mississippi Parole Board subsequently revoked Walker’s parole on the attempting-to-utter-forgery crime based upon his recent guilty pleas to the two felony-bad-check counts.

¶ 8. On August 1, 2008, Walker made the three filings giving rise to this appeal, all of which the circuit court dismissed.

STANDARD OF REVIEW

¶ 9. “This Court reviews the dismissal of a post-conviction relief motion for an abuse of discretion.” Felton v. State, 18 So.3d 328, 329 (¶4) (Miss.Ct.App.2009) (citation omitted). The trial court may summarily dismiss a PCR motion where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss.Code Ann. § 99-39-11(2) (Supp.2009); See also State v. Santiago, 773 So.2d 921, 923-24 (¶11) (Miss.2000). “On appeal, this Court will affirm the summary dismissal of a PCR petition if the petitioner has failed to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009). We review questions of law de novo. Felton, 18 So.3d at 329 (¶ 4).

DISCUSSION

¶ 10. Walker argues the circuit court erred in addressing his petitions to show cause and clarify his sentence under the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA). He also claims the circuit court erred in dismissing a third filing, which he admits was a PCR motion. The State responds that the circuit court appropriately dismissed all three filings. The State also requests this Court decide whether Walker’s “repetitive, frivolous filings” warrant imposing sanctions.

I. Petitions to Show Cause and Clarify Sentence

¶11. The UPCCRA contains various grounds for relief that are properly sought in a PCR motion. These grounds include claims that the inmate’s “sentence has expired; his probation, parole or conditional release [was] unlawfully revoked; or he is otherwise unlawfully held in eustody[.]” Miss.Code Ann. § 99-39 — 5(l)(h) (Supp.2009). However, as our statutes and ease law make clear, a PCR motion is not a proper vehicle for all inmate grievances. Mississippi Code Annotated section 47-5-803(2) (Rev.2004) provides that “[n]o state court shall entertain an offender’s grievance or complaint which falls under the purview of the administrative[-]review procedure unless and until such offender shall have exhausted the remedies as provided in such procedure.”

¶ 12. In Bums, we had occasion to consider an MDOC prisoner’s complaints that were similar to those presently before us. In that case, David Burns filed a pro se motion to clarify and show cause. Burns v. State, 933 So.2d 329, 330 (¶4) (Miss.Ct.App.2006). The circuit court considered the motion as a filing under the UPCCRA and denied relief. Id. Burns argued that he simply wanted clarity about the meaning of his sentence. Id. at 331 (¶ 7). He therefore argued his filing was not a PCR motion. Id. This Court concluded that Burns did not pursue the correct avenue for the relief he sought. The Bums Court reasoned:

An argument that the sentence violates law, either because it is clearly erroneous or because it is unredeemably ambiguous or incomplete, would be proper under the post-conviction relief procedures.
On the other hand, if the operation of the sentence is confusing to the petitioner, that is not necessarily due to any violation of law. Clarity is after all in the eye of the beholder. The inmate may simply not have sufficient knowledge to make clear to him what is legally clear. For many such questions regarding confusion about the operation of the state’s system of incarceration, the proper procedure is for a prisoner to seek relief through the administrative processes of the Department of Corrections. Miss.Code Ann. §§ 47-5-801 through 47-5-807 (Rev.2004).... We conclude that an inmate who is uncertain about the operation of his sentence and desires clarity should pursue the administrative-review procedures before turning to court.

Id. at 331 (¶¶ 8-9). Here, Walker’s complaints are nearly identical to those in Bums. We find his petitions to clarify and show cause should be handled initially under administrative-review procedures rather than in the courts. See Miss.Code Ann. § 47-5-803. Since there is no indication in the record that Walker exhausted his administrative remedies on these claims, we are without jurisdiction to consider them. Miss.Code Ann. § 47-5-803(2); Adams v. Epps, 900 So.2d 1210, 1213 (¶ 12) (Miss.Ct.App.2005). Notwithstanding our lack of jurisdiction, we point out that the record reflects Walker has been advised on multiple occasions that he must serve the remaining balance of his sentence for attempting to utter a forgery.

¶ 13. To the extent Walker is claiming any illegality regarding his sentence within the meaning of section 99-39-5 — which he does not appear to do and in fact argues adamantly that he is not — -his petitions would have been properly dismissed as proeedurally barred. This issue is without merit.

II. Motion for Post-Conviction Relief

¶ 14. We turn now to the third filing made by Walker — the one he labeled a PCR motion. The circuit court dismissed the filing pursuant to Mississippi Code Annotated section 99-39-11(2). On appeal, Walker argues his parole was unlawfully revoked because he was not given notice and a fair opportunity to present evidence at his parole-revocation hearing. He also argues section 47-7-27 is unconstitutional.

A. Notice and Fair Opportunity to Respond

¶ 15. Before reaching the merits of this issue, we note that this issue is not proeedurally barred. Because Walker presents an argument that his parole was unlawfully revoked, his PCR motion fits within an exception to both the general prohibition against successive writs and the three-year statute of limitations. See Miss.Code Ann. § 99-39-23(6) (successive-writ exception); Miss.Code Ann. § 99-39-5(2)(b) (time-bar exception).

¶ 16. The United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), addressed the minimum due-process rights states must afford parolees. The Supreme Court explained:

Revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. Parole arises after the end of the criminal prosecution, including imposition of sentence. Supervision is not directly by the court but by an administrative agency, which is sometimes an arm of the court and sometimes of the executive. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.

(Internal citation omitted). Mississippi Code Annotated section 47-7-27 has been specifically held to include the minimum due-process requirements set forth in Morrissey. Godsey v. Houston, 584 So.2d 389, 392 (Miss.1991) (citing section 47-7-27); see also Bobkoskie v. State, 495 So.2d 497, 500 (Miss.1986). Section 47-7-27 states in pertinent part: “An offender convicted of a felony while on parole, whether in the State of Mississippi or another state, shall immediately have his parole revoked upon presentment of a certified copy of the commitment order to the board.”

¶ 17. Here, the record shows the Mississippi Parole Board received a certified copy of Walker’s commitment order showing Walker pled guilty to two felony counts of uttering bad checks. Thus, upon receiving the certified copy of this order, the parole board had authority pursuant to section 47-7-27 to immediately revoke Walker’s parole on his earlier conviction of attempting to utter a forgery. Miss.Code Ann. § 47-7-27. Furthermore, we note the record shows a preliminary revocation hearing and a parole-revocation hearing were held. The parole board then sent Walker a letter, which provided notice of its decision to revoke his parole and afforded an opportunity to present evidence on his behalf. Though Walker may have indeed responded, his response contains no specific facts and presents no arguable reason for not revoking his parole.

¶ 18. For these reasons, we find that Walker’s due-process rights were not violated. See Godsey, 584 So.2d at 392; Bobkoskie, 495 So.2d at 500. This issue is without merit.

B. Constitutionality of Section 17-7-27

¶ 19. Walker cites no authority that supports his claim that section 47-7-27 is unconstitutional, and we are aware of none. The constitutionality of section 47-7-27 has been upheld on many occasions by our supreme court. See, e.g., Godsey, 584 So.2d at 392 (interpreting section 47-7-27 to embody minimum due-process requirements). This issue is without merit.

III. Sanctions

¶ 20. As noted by the circuit judge, Walker had previously filed numerous motions in the circuit court, all of which have been found meritless. The judge observed that Walker’s repetitive filings have caused “waste of [the circuit court’s] personnel, materials, and time.” The same could probably be said of this Court, although it is apparent that the circuit court has been affected to a much greater extent. The State requests that we sanction Walker for his repetitive, frivolous filings.

¶ 21. This Court is vested, as are the trial courts, with authority to impose sanctions on pro se litigants for frivolous filings. McLamb v. State, 974 So.2d 935, 939 (¶ 17) (Miss.Ct.App.2008) (citing Miss. Code Ann. § 47-5-138(3) (Supp.2007)). One potential sanction is that an inmate’s accrued earned time may be forfeited. Id. Other sanctions include “monetary sanctions as well as appropriate restrictions on future filings,” so long as these restrictions are “appropriately tailored to redress the transgression found and to assure that valid claims will not be prohibited.” Ivy v. State, 688 So.2d 223, 224 (Miss.1997) (imposing a $250 fine on pro se petitioner for frivolous filing). We do not find imposing sanctions to be appropriate at this time, but Walker should be aware of these various measures available to the Court.

¶ 22. THE JUDGMENTS OF THE CIRCUIT COURT OF MARION COUNTY DISMISSING THE MOTIONS FOR POST-CONVICTION RELIEF ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR. KING, C.J., AND IRVING, J„ CONCUR IN RESULT ONLY.

      . By order dated December 11, 2009, cause numbers 2008-CP-01988-COA and 2008-CP-01987-COA were consolidated by this Court on its own motion. See M.R.A.P. 3(b).

      . More specifically, Walker’s motions would have been proeedurally barred for being successive writs and for being time-barred. See Miss.Code Ann. § 99-39-23(6); Miss.Code Ann. § 99-39-5(2) (Supp.2009).

      . Walker’s supplemental record excerpts indicate that he responded to the parole board's letter, but Walker's response appears nowhere in the official record.


text:
    Francis MURRAY, Appellant v. INGALLS SHIPBUILDING/NGSS and Continental Casualty Company, Appellees.
    No. 2009-WC-01221-COA.
    Court of Appeals of Mississippi.
    May 25, 2010.
    James Thomas Dulin, Jr., attorney for appellant.

      Andrew Glen McCullough, attorney for appellees.
    Before MYERS, P.J., ISHEE, and ROBERTS, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Francis Murray appeals from the Jackson County Circuit Court’s judgment affirming the decision of the Mississippi Workers’ Compensation Commission (Commission) that her claim for benefits was barred by the two-year statute of limitations. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 7, 1999, Murray slipped and fell, striking her head, while working at Ingalls Shipbuilding, in Mississippi, where she was employed as a logistics analyst. Murray was examined at In-galls’s onsite medical facility and, subsequently, by her family physician, Dr. Gary Groff. She was released to return to her regular duties after missing approximately four hours of work as a result of the injury. Ingalls and/or Continental Casualty Company (collectively “Ingalls”) treated the incident as compensable and provided medical benefits associated therewith.

¶ 3. On May 18, 2004, Murray came under the care of Dr. Terry Millette after experiencing “vertigo” and “dizzy spell” symptoms. Dr. Millette noted a prior history of a closed-head trauma, and he diagnosed Murray with “occipital trauma” and “cerebral hematoma,” which had caused her to suffer “central disequilibrium” and tension-type headaches. Dr. Millette referred Murray to Dr. Kent Ozon, who diagnosed her on June 18, 2004, as having “central disequilibrium syndrome with vertigo.” Dr. Ozon prescribed medication to help alleviate Murray’s symptoms and to help her sleep.

¶ 4. On August 2, 2006, Murray filed a petition to controvert. Ingalls timely filed an answer and affirmative defenses, admitting the occurrence of a work-related accident on April 7, 1999, but disputing continued compensability based upon the running of the two-year statute of limitations set forth in Mississippi Code Annotated section 71-3-35 (Rev.2000). Ingalls thereafter filed a motion to dismiss based upon section 71-3-35. A ruling was withheld by the administrative law judge (ALJ) at the initial hearing of the motion in order to fully develop the record with medical records and depositions. Following discovery, the ALJ dismissed Murray’s claim, finding it time-barred pursuant to section 71-3-35. The Commission affirmed the ALJ’s order, and the circuit court affirmed the Commission’s decision. Murray appeals.

STANDARD OF REVIEW

f 5. In workers’ compensation cases, a decision by the Commission is afforded great deference; facts determined by the Commission may not be disturbed on appeal when those facts are supported by substantial, credible evidence. Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 335 (¶ 11) (Miss.2003) (citations omitted). On questions of law, our standard of review is de novo. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

DISCUSSION

¶ 6. Murray argues that the Commission misapplied the two-year statute of limitations in this instance, as she was misdiagnosed in April 1999 by her treating physicians following the injury she sustained at Ingalls. Murray contends that the injury she sustained at Ingalls caused discreet brain damage, and she had no duty to file her petition to controvert until her “latent brain injury” was evaluated, ascertained, and related to her employment by Drs. Millette and Ozon. Murray further contends that Ingalls never filed a requisite B-3 First Report of Injury with the Commission.

¶ 7. Section 71-3-35 provides that if no payment for compensation is made other than medical treatment or burial expense, and no application for benefits is filed with the Commission within two years from date of the injury or death, the right of compensation shall be barred. Our supreme court has interpreted section 71-3-35 relative to latent compensable injuries. Pepsi Cola Bottling Co. of Tupelo, Inc. v. Long, 362 So.2d 182, 184 (Miss.1978) (citing Struthers Wells-Gulfport, Inc. v. Bradford, 304 So.2d 645 (Miss.1974); Tabor Motor Co. v. Garrard, 233 So.2d 811 (Miss.1970)). The court explained that, in most cases, the time of a work-related injury will be found to coincide with the accident; however, there may be instances where the extent of the injury could not reasonably have been ascertained by medical evidence at the time of the accident. Id. at 185. Accordingly, “the two-year limitation statute does not begin to run until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained.” Id. at 184 (citations omitted); see also Quaker Oats v. Miller, 370 So.2d 1363, 1366 (Miss.1979) (holding the time period for filling a claim does not begin to run until the claimant, judged by the standard of a reasonable person, recognizes the nature, seriousness, and probable compensable character of his injury).

¶ 8. Here, the ALJ determined that based on the evidence presented, Murray was aware of the existence and appreciated the extent and nature of her injury as a result of the 1999 fall immediately post-injury. The ALJ further found that even if Murray did not fully recognize the nature, seriousness, and probable compensa-ble character of her injury in 1999, she did so at the latest on May 18, 2004, when Dr. Millette diagnosed her with a “brain stem contusion” and associated the condition with Murray’s fall in 1999. Therefore, her petition to controvert filed on August 2, 2006, was time-barred by the two-year statute of limitations set forth under section 71-3-35. We agree.

¶ 9. According to her own deposition, Murray was diagnosed with a “cerebral hematoma,” immediately following the injury. Because she did not show signs of a concussion, her treating physician felt that an x-ray was unnecessary and gave her permission to go back to work. Murray now alleges that had an x-ray been taken immediately following the injury, it would have shown that she was bleeding around her brain stem. Yet, by her own admission, had an x-ray been taken in 1999, the “brain stem contusion” would have been discovered. Thus, the injury for which Murray contends she was misdiagnosed, reasonably could have been ascertained by medical evidence at the time of the accident. Long, 362 So.2d at 185. When this factor is coupled with Murray’s testimony stating that the pain associated with the blow to her head has never resolved itself and that the symptoms of dizziness began soon after the injury, we fail to see the discreet nature involved with this particular injury. Further, according to Murray, Dr. Millette informed her that there is no cure for the ill-effects of the type of injury she had sustained, only treatment through medication. Thus, we find there is substantial evidence that Murray did not suffer a latent injury, as contemplated by Long and Miller.

¶ 10. But, even if it could be said that Murray, when judged under the reasonable-person standard, did not know the nature, seriousness, and probable compen-sable character of her injury in 1999, she knew or should have known, as the ALJ found, on May 18, 2004. Thus, the statute began to run, at the latest, on that date. Accordingly, we find that Murray’s petition to controvert, filed on August 2, 2006, was rightly dismissed pursuant to the limitations provision set forth in section 71-3-35.

¶ 11. Also, we find no merit to Murray’s argument that the limitations period should be tolled due to Ingalls’s failure to file a first report of injury with the Commission (commonly referred to as a B-3 form). Section 71-3-67 of the Mississippi Code Annotated (Rev.2000) requires an employer, if self-insured, or its carrier, to file a report to the Commission within ten days of the occurrence of any injury that disables an employee for five days or more, or where “the employer or carrier knows, or reasonably should know, that an injury has resulted, or likely will result, in permanent disability or serious head or facial disfigurement, but which does not cause a loss of time in excess of the prescribed waiting period.... ” According to the record, Murray missed approximately four hours of work as a result of the injury, and there is no indication that In-galls had any reason to suspect that Murray had sustained a permanent disability. There also is no indication that Murray suffered a serious head or facial disfigurement as a result of the fall. According to the evidence presented, Ingalls was not required to report Murray’s injury to the Commission.

¶ 12. Lastly, Murray asserts that In-galls failed to file a notice of final payment (known as a B-31 form), which is required to be filed in order to close the Commission file; accordingly, she contends that her claim remains open. This argument, however, is raised for the first time on appeal; thus, it was not properly preserved for review. We, therefore, decline to address this issue. Winter v. Wal-Mart Supercenter, 26 So.3d 1086, 1090 (¶ 14) (Miss.Ct.App.2009).

¶ 13. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: KING, C.J.,

text:
    James MEDLIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00360-COA.
    Court of Appeals of Mississippi.
    May 25, 2010.

      James Medlin, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., BARNES and MAXWELL, JJ.
   KING, C.J.,

for the Court:

¶ 1. James Medlin was convicted of aggravated assault and sentenced to twenty years, with five years suspended, in the custody of the Mississippi Department of Corrections (MDOC). Medlin filed a motion for post-conviction relief, which the trial court denied. Aggrieved, Medlin appeals, raising one issue: whether his sentence was illegal. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 20, 2004, Medlin was indicted by a Marshall County grand jury for the aggravated assault of Bobby Neal Mannis. The indictment listed the charging statute as Mississippi Code Annotated section 97-3-7(3) (Supp.2004), which proscribes simple domestic violence. However, the body of the indictment charged, in pertinent part, that Medlin “unlawfully, willfully and feloniously, purposely and knowingly cause[d] bodily injury to Bobby Neal Mannis, with a vehicle, a deadly weapon[,] by running over him one or [more] times, in violation of the provisions of section 97-3-7 ... which offense is punishable by imprisonment not exceeding twenty years.... ”

¶ 3. On November 7, 2005, Medlin was convicted in the Circuit Court of Marshall County of aggravated assault. He was sentenced to serve twenty years, with five years suspended, in the custody of the MDOC.

¶ 4. Medlin filed a “motion to clarify sentence” in the trial court on June 13, 2008. The trial court treated Medlin’s motion as a motion for post-conviction relief. In that motion, Medlin alleged that his sentence was illegal because it exceeded the maximum penalty provided by law. Specifically, Medlin argued that he should have been sentenced pursuant to section 97-3-7(3), which provides a maximum sentence of ten years. The trial court found that Medlin’s motion was without merit and denied the requested relief. Aggrieved, Medlin timely filed his notice of appeal.

ANALYSIS

¶ 5. This Court will not disturb the trial court’s denial of a motion for post-conviction relief absent a finding that the trial court’s decision was clearly erroneous. Brown v. State, 731 So.2d 595, 598 (¶6) (Miss.1999). However, questions of law are reviewed de novo. Id.

¶6. Medlin argues that his sentence exceeds the maximum sentence provided by Mississippi Code Annotated section 97-3-7(3) (Supp.2009). Conversely, the State argues that the listing of subsection three was merely a scrivener’s error, and Medlin was properly sentenced for aggravated assault.

¶ 7. An indictment serves as notice to the defendant of the charges against him. Golden v. State, 968 So.2d 378, 386 (¶ 28) (Miss.2007). When reviewing an indictment, we consider the substance of the indictment over the form of the indictment. Id. There is no requirement that an indictment must include the statute number of the crimes charged. Johnson v. State, 879 So.2d 1057, 1060 (¶ 10) (Miss.Ct.App.2004). Thus, the statute number referenced in the indictment is of no consequence because we look to the substance of the indictment to determine whether it sufficiently gave notice of the pending charges. See Golden, 968 So.2d at 386 (¶ 29).

¶ 8. In Medlin’s indictment, the charging statute number was listed as section 97-3-7(3). Section 97-3-7(3) proscribes simple domestic violence, and the statute provides a five-year sentence to a ten-year sentence upon a defendant’s third or subsequent conviction of simple domestic violence. However, the substance of Medlin’s indictment neither charged him with simple assault nor alleged domestic violence.

¶ 9. Instead, the substance of Medlin’s indictment charged him with the aggravated assault of Mannis with a deadly weapon — a car. Mississippi Code Annotated section 97-3-7(2) (Supp.2009) provides, in pertinent part, that:

[A] person is guilty of aggravated assault if he ... (b) attempts to cause or purposefully or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the Penitentiary for not more than twenty (20) years.

The substance of Medlin’s indictment tracks the language of section 97-3-7(2). Thus, it is clear that Medlin was charged with aggravated assault and not simple domestic violence.

¶ 10. The listing of section 97-3-7(3) as the charging statute was merely a scrivener’s error. The law is clear that “the incorrect citation of a statute number does not alone render an indictment defective, but rather is ‘mere surplusage’ and not prejudicial to the defendant.” Brown v. State, 944 So.2d 103, 106 (¶ 8) (Miss.Ct. App.2006) (quoting Evans v. State, 916 So.2d 550, 552 (¶6) (Miss.Ct.App.2005)). The substance of Medliris indictment clearly charged him with aggravated assault under section 97-3-7(2), which provides a maximum penalty of twenty years in the custody of the MDOC. Because the trial court properly sentenced Medlin within the statutory guidelines, we find that Medlin’s sentence is not illegal. See Moss v. State, 752 So.2d 427, 430 (¶ 10) (Miss.Ct.App.1999) (finding that there is no error in sentencing where the trial court sentences the defendant within the limits set forth by the statute). This issue is without merit.

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

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.


text:
    Oscar SAYLES, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00376-COA.
    Court of Appeals of Mississippi.
    May 25, 2010.

      Oscar Sayles, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Oscar Sayles appeals the Tunica County Circuit Court’s order denying his motion for post-conviction relief (PCR). Finding no error, we affirm the circuit court’s judgment.

FACTS

¶ 2. Sayles was indicted by a Tunica County grand jury, as a habitual offender, pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007), for sale of cocaine, a schedule II controlled substance as listed in Mississippi Code Annotated section 41-29-115(A)(a)(4) (Rev.2009). Sayles thereafter entered into a plea bargaining agreement with the district attorney’s office. According to the agreement, in exchange for a plea of guilty, the State agreed to recommend to the circuit court that Sayles receive a twenty-five-year sentence in the custody of the Mississippi Department of Corrections and pay a $5,000 fine; the State also agreed not to prosecute Sayles as a habitual offender and to nolle prosse another pending criminal charge. Sayles subsequently pleaded guilty in the circuit court and received a twenty-five-year sentence and fined $5,000. Sayles later filed a PCR motion in the circuit court requesting the court to vacate the judgment and set aside sentence from his guilty plea. Sayles claimed that: (1) his plea of guilty was involuntary as it was induced by threats from his court-appointed counsel; (2) his legal counsel was constitutionally deficient; and (3) he was denied his right to a speedy trial. Finding no merit to these claims, the circuit court denied Sayles’s PCR motion.

¶ 3. Feeling aggrieved, Sayles appeals.

DISCUSSION

¶ 4. When reviewing the trial court’s decision to deny a PCR motion, we will not disturb the lower court’s factual findings unless they are found to be clearly erroneous. Moore v. State, 986 So.2d 928, 982 (¶ 13) (Miss.2008). The applicable standard of review pertaining to questions of law is de novo. Id.

I. Involuntary Guilty Plea

¶ 5. Sayles contends that his guilty plea was involuntary because his legal counsel threatened him with an excessive habitual-offender sentence if he did not plead guilty. Sayles further contends that the “small amount of cocaine” involved would have been an important factor in the consideration of a “legal and fair sentence.” Thus, Sayles argues that the failure of counsel to inform him of the statutory sentencing structure invalidates his guilty plea.

¶ 6. In its order denying Sayles’s PCR motion, the circuit court found that Sayles was queried thoroughly at the plea hearing to the court’s satisfaction and that Sayles’s decision to plead guilty was voluntary. The circuit court determined that Sayles’s attorney had informed Sayles of the potential sentence he faced if he proceeded to trial; as such, the circuit court found that Sayles had been fully informed about his decision to plead guilty and he understood the consequences thereof.

¶ 7. Sayles has the burden of proving by a preponderance of the evidence that his guilty plea was involuntary. Dearman v. State, 910 So.2d 708, 711 (¶ 8) (Miss.Ct.App.2005). Facts alleged to exist by Sayles must be proven and placed before this Court in a certified record as required by law; “otherwise, we cannot know their existence.” Id. Sayles did not provide us with a transcript of the plea hearing. As a general rule, when an appellant fails to include a transcript of his or her plea hearing in the appellate record, this Court presumes that the trial court acted properly. Bates v. State, 914 So.2d 297, 299 (¶ 7) (Miss.Ct.App.2005).

¶ 8. All we are able to ascertain from the record is that according to his indictment, Sayles was charged as a habitual offender under section 99-19-81. If proven by sufficient evidence, Sayles indeed would have been facing a fixed sentence of thirty years, the maximum sentence under Mississippi Code Annotated section 41-29-139(b)(1) (Rev.2009). See Dixon v. State, 812 So.2d 225, 228-29 (¶ 12) (Miss.Ct.App.2001) (noting that sentencing standards under the habitual-offender statute require mandatory sentencing of the maximum amount provided in the statute). Further, as the State correctly points out, section 41-29-139(b)(l) applies to the sale of cocaine in “any amount.” See Morgan v. State, 966 So.2d 204, 206 (¶ 7) (Miss.Ct.App.2007) (explaining that under section 41-29-139(b)(l), “the sale of cocaine in any amount can result in a sentence of imprisonment of up to thirty years”).

¶ 9. As was set out in the plea petition, which Sayles acknowledged under oath he read and understood, there is no minimum sentence for the crime of selling cocaine; the maximum sentence for said crime is thirty years of imprisonment. Generally, the trial court has the discretion to impose whatever sentence it deems appropriate within the limits prescribed in the applicable statute. Burrough v. State, 9 So.3d 368, 372 (¶ 10) (Miss.2009). Thus, even without the habitual-offender charge, and despite the “small amount” of cocaine Sayles contends was involved, potentially, Sayles was facing a greater penalty than what he ultimately received.

¶ 10. That said, without the transcript of the plea hearing, there is no way for us to know whether the circuit court, prior to accepting Sayles’s guilty plea, expressly informed Sayles as to the minimum and maximum penalties prescribed by section 41-29-139(b)(1). Nevertheless, we must presume that the trial court did so. Bates, 914 So.2d at 299 (¶ 7). Accordingly, Sayles fails to demonstrate that his decision to plead guilty was involuntary. Therefore, this issue is without merit.

II. Ineffective Assistance of Counsel

¶ 11. To prove ineffective assistance of counsel, Sayles must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced Sayles’s defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Sayles, “and we will measure the alleged deficiency within the totality of circumstances.” Dearman, 910 So.2d at 711 (¶ 11) (citations omitted). A strong presumption exists, however, that counsel’s conduct was adequate. Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001); see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (“a court must indulge a ‘strong presumption’ that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight”).

¶ 12. Sayles contends that his court-appointed counsel was ineffective for failing to conduct a pretrial investigation and for not informing him that the weight of cocaine affected the sentence. As we already have explained, section 41-29-139(b)(1), which Sayles was sentenced under, does not take into consideration the weight of cocaine. Thus, Sayles’s legal counsel rightly did not mislead Sayles into thinking otherwise. With respect to Sayles’s contention that counsel failed to investigate the matter, Sayles must assert some critical evidence that would have been discovered had it not been for his counsel’s alleged omission. Ivy v. State, 589 So.2d 1263, 1265 (Miss.1991). Sayles did not do so, and we find no merit in this point of contention.

III. Speedy Trial

¶ 13. Sayles avers that he was denied his right to a speedy trial. Our supreme court, however, has held that a guilty plea waives the right to a speedy trial; thus, this claim is not a basis for relief on a PCR motion. Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991). According to the plea petition contained in the record, Sayles acknowledged that he understood that with his guilty plea he was giving up his right to a speedy and public trial. We find this issue is also without merit.

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

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


author: BARNES, J.,

text:
    Jarret NICHOLS, Appellant v. CITY OF MADISON, Mississippi, Appellee.
    No. 2009-KM-01007-COA.
    Court of Appeals of Mississippi.
    May 25, 2010.

      Betty Slade Derossette, Vann Fredric Leonard, Jackson, R. Scanlon Fraley, attorneys for appellant.
    John Hedglin, Madison, attorney for ap-pellee.
    Before KING, C.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. Jarret Nichols appeals his conviction of driving under the influence, first offense. The City of Madison, Mississippi, contends that this Court lacks jurisdiction. We agree and dismiss the appeal.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On March 7, 2008, Nichols entered a plea of nolo contendré with the Madison Municipal Court to the charges of driving under the influence, first offense, and careless driving. After a de novo trial in the County Court of Madison County, Nichols was found guilty of both charges, and a final judgment of conviction on the charges was entered on August 7, 2008. Nichols appealed the judgment to the Madison County Circuit Court, and on May 19, 2009, the circuit court affirmed his convictions. Nichols now appeals his conviction of driving under the influence, first offense, to this Court claiming that the City failed to meet its burden of evidence.

¶ 3. Mississippi Code Annotated section 11-51-81 (Rev.2002) states, in pertinent part, that:

[Tjhere shall be no appeal from the circuit court to the supreme court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the supreme court.

Thus, in order for this type of appeal to the supreme court to be viable, “[t]he presence of a constitutional question and the granting of an appeal by either the circuit judge or a judge of the supreme court are both necessary ingredients.” Williams v. Town of Flora, 13 So.3d 875, 877 (¶ 6) (Miss.Ct.App.2009) (quoting Johnson v. State, 879 So.2d 1057, 1060 (¶ 7) (Miss.Ct.App.2004)).

¶ 4. Nichols’s case originated in municipal court, was tried de novo in county court, and affirmed by the circuit court. Therefore, under the statute, Nichols is not permitted a further appeal unless a constitutional issue is presented, and his appeal is specifically allowed by either the circuit judge or by “a judge of the supreme court.” We find no constitutional question present in the appeal, and Nichols has not submitted any to this Court allowing the case to proceed. Accordingly, Nichols’s appeal is dismissed as we lack jurisdiction to hear this matter.

¶ 5. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BOLIN, Justice. STUART, Justice

text:
    Ex parte William CREWS. (In re William Crews v. State of Alabama).
    1060840.
    Supreme Court of Alabama.
    Sept. 21, 2007.
    William Crews, pro se.
   BOLIN, Justice.

We hereby suspend the provisions of Rule 39(g) and (h), Ala. R.App. P., allowing the petitioner and the respondent to file a brief and to request oral argument, and we summarily grant the writ. In an opinion released today, this Court overrules Wells v. State, 941 So.2d 1008 (Ala.Crim.App.2005), to the extent that it created a limitation on a trial court’s jurisdiction to consider successive § 13A-5-9.1, Ala.Code 1975, motions. See Ex parte Gunn, 993 So.2d 433 (Ala.2007). The Court of Criminal Appeals relied solely on Wells in affirming the trial court’s judgment. Therefore, we reverse the judgment of the Court of Criminal Appeals and remand the ease for proceedings consistent with Gunn.

WRIT GRANTED; REVERSED AND REMANDED.

SEE, LYONS, WOODALL, SMITH, PARKER, and MURDOCK, JJ., concur.

STUART, J., concurs specially.

COBB, C.J., recuses herself.

STUART, Justice

(concurring specially).

See my writing in Ex parte Gunn, 993 So.2d 433, 437 (Ala.2007).


author: PARKER, Justice.

text:
    Ex parte Matthew Wayne TUBBS. (In re Matthew Wayne Tubbs v. State of Alabama).
    1061139.
    Supreme Court of Alabama.
    Oct. 5, 2007.

      Matthew Wayne Tubbs, pro se.
   PARKER, Justice.

Matthew Wayne Tubbs has filed a petition for a writ of certiorari seeking review of the Court of Criminals Appeals’ affir-mance, in an unpublished memorandum, of the Jefferson Circuit Court’s denial of his motion for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975, which supplements § 13A-5-9, Ala.Code 1975, the Habitual Felony Offender Act. We hereby suspend the provisions of Rule 39(g) and (h), Ala. R.App. P., allowing the petitioner and the respondent to file a brief and to request oral argument, and we summarily grant the writ; we reverse and remand.

On August 31, 1999, Tubbs was convicted of first-degree robbery. On September 3, 1999, the circuit court sentenced him, as a habitual offender, to imprisonment for life without the possibility of parole. See § 13A-5-9(c)(3), Ala.Code 1975. On August 25, 2006, Tubbs filed a motion for reconsideration of his sentence pursuant to § 13A-5-9.1, Ala.Code 1975, and Kirby v. State, 899 So.2d 968 (Ala.2004) (“the Kirby motion”). The State responded, and the circuit court then summarily denied the Kirby motion.

Tubbs appealed the denial of the Kirby motion, and the Court of Criminal Appeals affirmed the circuit court’s denial in an unpublished memorandum. Tubbs v. State (No. CR-06-0522, April 20, 2007), 9 So.3d 583 (Ala.Crim.App.2007)(table). In its unpublished memorandum, the Court of Criminal Appeals reasoned that Tubbs’s Kirby motion was at least the second motion for sentence reconsideration that Tubbs had filed and was therefore due to be denied because the circuit court did not have jurisdiction to hear such a motion. Tubbs argues that his first Kirby motion was not fully adjudicated on its merits and, thus, that he has never had a full and fair review under the statute. Tubbs alleges that the decision of the Court of Criminal Appeals conflicts with this Court’s decisions in Kirby and Ex parte Seymour, 946 So.2d 536 (Ala.2006).

This petition presents a Kirby resen-tencing issue like the one presented in Ex parte Gunn, [Ms. 1051754, Sept. 14, 2007] 993 So.2d 433 (Ala.2007). In Gunn, the Court of Criminal Appeals, in an unpublished memorandum, had held, as they did in this case, that under Wells v. State, 941 So.2d 1008 (Ala.Crim.App.2005), the circuit court does not have jurisdiction to consider a successive Kirby resentencing motion and affirmed the circuit court’s dismissal of Gunn’s petition. Gunn v. State (No. CR-05-1350, August 11, 2006), 988 So.2d 1082 (Ala.Crim.App.2006) (table). This Court granted certiorari review in Gunn and overruled Wells v. State to the extent that Wells created a limitation on a circuit court’s jurisdiction to consider successive Kirby motions, noting that Wells conflicts with Kirby and Ex parte Seymour. Ex parte Gunn, 993 So.2d at 435.

The Court of Criminal Appeals relied solely on Wells in affirming the circuit court’s judgment in this case. Therefore, in light of our decision in Gunn, we reverse the judgment of the Court of Criminal Appeals and remand this case to that court for proceedings consistent with Gunn.

WRIT GRANTED; REVERSED AND REMANDED

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and MURDOCK, JJ., concur.

COBB, C.J., recuses herself.


author: MURDOCK, Justice. WOODALL, Justice

text:
    CITY OF MONTGOMERY v. TOWN OF PIKE ROAD and Gordon Stone, in his official capacity as mayor of the Town of Pike Road.
    1071690.
    Supreme Court of Alabama.
    June 5, 2009.
    Rehearing Denied Oct. 16, 2009.

      Joe Espy III and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery; and Walter R. Byars and Kimberly 0. Fehl, City of Montgomery Legal Department, for appellant.
    J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, P.C., Montgomery, for appellees.
   MURDOCK, Justice.

The City of Montgomery (“the City”) appeals from a summary judgment in favor of the Town of Pike Road (“the Town”), a municipal corporation in Montgomery County, and Gordon Stone, in his official capacity as mayor of the Town, in an action challenging the Town’s right to annex three parcels of land in Montgomery County. We reverse and remand.

I. Factual Background

In 2007, Montgomery County (“the County”) and the Montgomery County Commission (“the Commission”) sued the Town and Mayor Stone. Subsequently, the County and the Commission (hereinafter referred to collectively as “the County plaintiffs”) amended their complaint to add the City as a defendant.

The City filed an answer to the complaint as well as a cross-claim against the Town, which contained essentially the same averments and sought similar relief as the County plaintiffs’ complaint. Both the City and the County plaintiffs challenged the Town’s purported annexation of three parcels of property. The City’s cross-claim, for example, averred that, in August 2007, the Town “passed ordinances in an invalid attempt to annex the [parcels].” More specifically, the City alleged that the purported annexations were void for, among other things, “lack of contiguity with the corporate limits of [the Town]” and failure to comply with the “statutory requirements for annexation.” The City and the County plaintiffs sought a judgment declaring the annexations void and writ of quo warranto nullifying the annexations.

All parties moved for a summary judgment. On April 16, 2008, the trial court entered an order purporting to grant the summary-judgment motions filed by the City and the County plaintiffs and to deny the summary-judgment motion filed by the Town and Stone. The order declared, in pertinent part, “that the purported annexations of [two of the parcels] by [the Town] are legally flawed for failure to comply with the applicable annexation statute, are void and neither parcel/property is annexed into the Town of Pike Road.”

Subsequently, the Town and Stone moved to alter, amend, or vacate the judgment, arguing, in pertinent part:

“4. On June 2, 2008, counsel for [the Town] became aware of Act No. 2008-481, which was passed during the 2008 Regular Session of the Alabama Legislature. Act No. 2008-481 attached hereto as Exhibit 2.
“5. Act No. 2008-481(b) provides:
“ ‘[ (b) ] In addition to the provisions of subsection (a), in all cases in which there has been after the year 1990, an attempt to organize the inhabitants of any territory as a municipal corporation under the laws of this state and the judge of probate of the county in which the territory is situated has entered an order that the inhabitants of the territory are incorporated as a town or city, as the case may be, the incorporation is hereby validated ab initio, and any extensions or other alterations of the corporate limits of the municipality which occurred prior to the effective date of the act adding this subsection are also validated ab initio and the territory is confirmed as a part of the corporate limits of the municipality, any law to the contrary notwithstanding.... This subsection shall not apply to ... any extension or alteration of its corporate limits which occurred prior to the effective date of this act where litigation is pending on the incorporation prior to the effective date of the act adding this subsection.’
“6. The Act became effective upon its approval by the Governor on May 29, 2008.
“7. Since [the Town] has annexed [the parcels in ordinances] passed prior to May 29, 2008, and because there is no litigation pending on the incorporation of [the Town] in 199[7], the Legislature has validated this previous annexation and thus, this litigation is moot.
“13. Since the passage of Act No. 2008-481 has validated ... [the Town’s] annexation[ ], this litigation is now moot and due to be dismissed.”

(Emphasis omitted.)

On August 15, 2008, the trial court vacated its April 16, 2008, judgment. It “conclud[ed] that Act No. 2008-481 [had] validated] the annexations by [the Town] at issue in this case” and entered a judgment dismissing the claims of the County plaintiffs and the City “in their entirety.” On September 4, 2008, the trial court denied motions of the City and the County plaintiffs to alter, amend, or vacate its August 15, 2008, judgment. The City appealed.

On appeal, the City challenges both the constitutionality of Act No. 2008-481, Ala. Acts 2008 (“the Act”), which amended § 11^1-8, Ala.Code 1975, as well as the applicability of § 11 — 41—8(b) to the annexations at issue. It asks this Court to reverse the trial court’s August 15, 2008, judgment and to remand the case with instructions for the trial court to reinstate its April 16, 2008, judgment.

II. Standard of Review

“ ‘This court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’ Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review.”

Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005). Likewise,

“ ‘[o]ur review of constitutional challenges to legislative enactments is de novo.’ Richards v. Izzi, 819 So.2d 25, 29 n. 3 (Ala.2001). However, we must approach this review in light of the following:
“ ‘ “[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.” Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944).’ ”

Board of Water & Sewer Comm’rs of Mobile v. Hunter, 956 So.2d 403, 408-09 (Ala.2006) (quoting McInnish v. Riley, 925 So.2d 174, 178 (Ala.2005) (emphasis omitted)).

III. Analysis

Before it was amended in 2008 by the Act, § 11-41-8 provided:

“In all cases prior to June 13, 2007, where there has been an attempt to organize the inhabitants of any territory as a municipal corporation under this article, and the judge of probate of the county in which the territory is situated has entered an order that the inhabitants of the territory are incorporated as a town or city, as the case may be, pursuant to Section 11-41-4, but the attempted incorporation is invalid because of some irregularity in the procedure followed, the incorporation of that municipality so attempted to be organized and with respect to which the order has been made is validated ab initio in accordance with the description of the territory attempted to be incorporated as the description is contained in the order or, if the description of the territory attempted to be incorporated is not contained in the order in accordance with the description of the territory contained in the petition of the electors filed with the judge of probate, notwithstanding any failure to comply with the requirements respecting the signatures to or contents of the petition for incorporation, any irregularities as to publication or posting, or any other failure to comply with the procedures set forth in that article or otherwise required by law. This section shall not apply to the incorporation of any municipality held to be invalid by a court of competent jurisdiction by judgment entered prior to June 13, 2007, or in any matter where litigation is pending relating to the incorporation of the municipality.”

The Act (approved May 29, 2008) was entitled: “An act [t]o amend Section 11-41-8 of the Code of Alabama 1975, as last amended by Act 2007-385, [Ala. Acts 2007,] to further provide for [1] the incorporation of certain municipalities incorporated under certain conditions and [2] any extension of the corporate limits related thereto.” The Act provided, in full:

“Section 1. Section 11-41-8 of the Code of Alabama 1975, as last amended by Act 2007-385, is further amended to read as follows:
“ ‘ § 11-41-8.
“ ‘(a) In all cases prior to June 13, 2007, where there has been an attempt to organize the inhabitants of any territory as a municipal corporation under this article, and the judge of probate of the county in which the territory is situated has entered an order that the inhabitants of the territory are incorporated as a town or city, as the case may be, pursuant to Section 11-41-4, but the attempted incorporation is invalid because of some irregularity in the procedure followed, the incorporation of that municipality so attempted to be organized and with respect to which the order has been made is validated ab initio in accordance with the description of the territory attempted to be incorporated as the description is contained in the order or, if the description of the territory attempted to be incorporated is not contained in the order in accordance with the description of the territory contained in the petition of the electors filed with the judge of probate, notwithstanding any failure to comply with the requirements respecting the signatures to or contents of the petition for incorporation, any irregularities as to publication or posting, or any other failure to comply with the procedures set forth in that article or otherwise required by law. This section shall not apply to the incorporation of any municipality held to be invalid by a court of competent jurisdiction by judgment entered prior to June 13, 2007, or in any matter where litigation is pending relating to the incorporation of the municipality.
“ ‘(b) In addition to the provisions of subsection (a), in all cases in which there has been after the year 1990, an attempt to organize the inhabitants of any territory as a municipal corporation under the laws of this state and the judge of probate of the county in which the territory is situated has entered an order that the inhabitants of the territory are incorporated as a town or city, as the case may be, the incorporation is hereby validated ab initio, and any extensions or other alterations of the corporate limits of the municipality which occurred prior to the effective date of the act adding this subsection are also validated ab ini-tio and the territory is confirmed as a part of the corporate limits of the municipality, any law to the contrary notwithstanding. Any municipality validated pursuant to this subsection, including any extensions or alterations of the corporate limits, shall be subject to provisions in Sections 11-41-1 and 11-49-80 with regard to assuming responsibility to control, manage, supervise, regulate, repair, maintain, and improve all public streets or parts thereof lying within the incorporated limits. This subsection shall not apply to the incorporation of any municipality held to be invalid in a court of competent jurisdiction by judgment entered prior to the effective date of the act adding this subsection or in a matter where litigation is pending on the effective date of this act relating to the incorporation of the municipality, or to any extension or alteration of its corporate limits which occurred prior to the effective date of this act where litigation is pending on the incorporation prior to the effective date of the act adding this subsection.’
“Section 2. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.”

A comparison of the Act with § 11^41-8 reveals that subsection (a) of the Act is a virtual reiteration of what was then § 11-41-8. It is thus apparent that the only substantive change made to § 11-41-8 by the Act was the addition of subsection (b).

A. The Text of § ll-il-8

By its own terms, § ll-41-8(b) does not address all annexation elections. Instead, § 11^41 — 8(b) expressly concerns itself only with the annexation elections of “the municipalities]” which have had their incorporation elections validated ab initio by the curative operation of § 11^41-8(a). Nothing in the text of § 11 — 41—8(b) expressly addresses questions regarding any irregularities in the annexation election itself.

Thus, § 11 — 41—8(b) is intended to remove the uncertainty concerning the validity of annexations that would otherwise exist because of the fact that the annexations were executed by a city or town that, at the time of the annexation election, may not have been validly incorporated. In other words, the purpose of § 11-41-8(b) is simply to ensure that the initial invalidity of the incorporation of a city or town does not itself serve to taint a subsequent annexation by that city or town, given the fact that the legislature has since chosen, through § 11 — 41—8(a), to retroactively validate that faulty incorporation.

This understanding of § 11-41-8(b) comports with the plain language of that section and that of § 11-41-8(a), which of course must be read in pari materia with one another. “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute.” IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). In so doing, this Court must give words in a statute their “plain meaning.” Id. Further, this Court must

“‘consider the statute as a whole and ... construe the statute reasonably so as to harmonize [its] provisions.’ McRae v. Security Pac. Hous. Servs., Inc., 628 So.2d 429, 432 (Ala.1993). Additionally, ‘[sections of the Code originally constituting a single act must be read in pari materia in order to “produce a harmonious whole.” ’ Ex parte Jackson, 625 So.2d 425, 428 (Ala.1992) (quoting 2A Norman J. Singer, Sutherland Statutory Construction § 46.05 (5th ed.1993)).”

Proctor v. Riley, 903 So.2d 786, 789-90 (Ala.2004).

Section ll-41-8(a) begins by stating that “[i]n all cases prior to June 13, 2007, where there has been an attempt to organize the inhabitants of any territory as a municipal corporation ... and the judge of probate ... has entered an order that the inhabitants of the territory are incorporated as a town or city,” that incorporation is “validated ab initio.” The end of the first sentence of § ll-41-8(a) explains that the “irregularit[ies] in the procedure[s]” the legislature had in mind include failure to comply with signature or content requirements, failure as to publication or posting requirements, and any other failure to comply with procedures required by law for incorporation elections.

The first sentence of § ll-41-8(b) echoes the first sentence of § ll-41-8(a) as a way of syntactically laying the context or predicate for what is being added to the law by the rest of that sentence, i.e., clarifying the status of any annexations associated with certain cities or towns whose incorporations were in question but that are validated ab initio by subsection (a). In a clause that must be read in pari materia with the parallel sentence of § ll-41-8(a), the first sentence of § 11-41-8(b) reiterates for municipal-incorporation efforts after 1990 that those efforts are validated ab initio. Specifically, it states that “in all cases in which there has been ... an attempt to organize the inhabitants of any territory as a municipal corporation ... the incorporation is hereby validated ab initio, and any extensions or other alterations of the corporate limits of the municipality which occurred prior to May 29, 2008, are also validated ab initio.” § ll-41-8(b), Ala.Code 1975 (emphasis added). The reference to “the” municipality is a reference to the municipality that falls within the description contemplated by the first part of the sentence, which, when read in pari materia with § 11 — 41— 8(a), is a municipal corporation that has had to take advantage of the ab initio validation provided by the statute in order to overcome irregularities in the election that purportedly brought the municipal incorporation into existence in the first place.

Further, as has been noted, § 11-41-8(b) contains no language comparable to the language in § ll-41-8(a) that, as to the annexation election itself, seeks to remove procedural irregularities (e.g., signature requirements, publication requirements, and other procedural defects) as the source of taint for the annexation election. Similarly, the reference in § 11 — 41— 8(b) to annexations is not, as in the case of the statute’s reference to incorporations in § ll~41-8(a) and (b), to some “attempt” or to some effort to annex that is “invalid” because of irregularities, but rather to annexations which actually have occurred: “any extensions or other alterations of the corporate limits of the municipality which occurred.” § 11 — 41—8(b), Ala.Code 1975 (emphasis added). In other words, these references are to annexation elections that, for all appearing, are valid and, in and of themselves, are not tainted by irregularities.

B. Omissions in § U-Jl-8(b)

In addition to comporting with the plain language of § 11-41-8, the foregoing interpretation also explains what would otherwise be irrational omissions by the legislature in § ll-41-8(b). First, we note that in § ll-41-8(a) the legislature creates an exception to the ab initio validation of in-corporations where the validity of the incorporation election is the subject of pending litigation or, a fortiori, where a court judgment already has invalidated the incorporation. Moreover, these exceptions to the validation of underlying incorpo-rations are repeated in § ll-41-8(b), the focus of which is purportedly annexations. Yet, § 11 — 41—8(b) expresses no exception to the ab initio validation of annexations where the annexation is the subject of pending litigation or has been declared invalid because of irregularities in the annexation election itself.

The explanation for the absence of any exception either for pending litigation challenging the validity of the annexation election or, a fortiori, for a final court judgment actually invalidating the annexation election does not come from the fact that the legislature intended to create, was willing to accept, or simply overlooked the fact that it was creating, such logical inconsistencies. Rather, the explanation for these omissions comes from the fact that § 11— 41-8(b) does not have as its focus the validation of annexation elections that could be questioned in their own right— that is, because of their own procedural irregularities.

C. Avoiding Constitutional Infirmities

Interpreting § ll-41-8(b) as not having been intended by the legislature to validate annexation elections that suffer from their own irregularities avoids a constitutional separation-of-powers problem. As this Court has noted: “[T]he core judicial power is the power to declare finally the rights of the parties, in a particular case or controversy, based on the law at the time the judgment becomes final.” Ex parte Jenkins, 723 So.2d 649, 656 (Ala.1998). The legislature certainly possesses the power to amend the law, “but it may not do so in a manner that impinges on the judicial power by retroactively changing the laws that were incorporated into the judgment when it became final.” 723 So.2d at 658. To interpret § ll-41-8(b) as the trial court has done would raise questions as to a possible conflict between the law as enacted by the legislature and final judgments concerning the validity and invalidity of annexation elections. It is our duty, if possible, to avoid such conflicts when interpreting a statute. See, e.g., Jenkins, 723 So.2d at 658 (stating that “ ‘ “[i]t is the duty of the court to construe a statute so as to make it harmonize with the constitution if this can be done without doing violence to the terms of the statute and the ordinary canons of construction.” ’ ” (quoting Board of Educ. of Choc taw County v. Kennedy, 256 Ala. 478, 482, 55 So.2d 511, 514 (1951) (other citation omitted))); Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 10, 18 So.2d 810, 815 (1944) (“Where the validity of a statute is assailed and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other would be valid, the courts should adopt the construction which would uphold it.... Or, as otherwise stated, it is the duty of the courts to adopt the construction of a statute to bring it into harmony with the constitution, if its language will permit.”); Lunsford v. Jefferson County, 978 So.2d 327, 330 (Ala.2007) (“ ‘ “We will not invalidate a statute on constitutional grounds if by reasonable construction it can be given a field of operation within constitutionally imposed limitations.” ’ ” (quoting Town of Vance v. City of Tuscaloosa, 661 So.2d 739, 742-43 (Ala.1995), quoting in turn Mobile Hous. Bd. v. Cross, 285 Ala. 94, 97, 229 So.2d 485, 487 (1969))).

We note as well that the City argues that the trial court’s interpretation of § ll-41-8(b) would cause the Act to run afoul of § 45 of the Alabama Constitution of 1901. Section 45 requires that “[e]ach law shall contain but one subject, which shall clearly be expressed in its title .... ”

The Act was entitled: “An act [t]o amend Section 11-41-8 of the Code of Alabama 1975, as last amended by Act 2007-385, [Ala. Acts 2007,] to further provide for [1] the incorporation of certain municipalities incorporated under certain conditions and [2] any extension of the corporate limits related thereto.” This Court has said that § 45 requires that “ ‘the matter of [an] amendatory act must be germane to, suggested by, and supplemental to the subject of the section sought to be amended.’ ” City of Birmingham v. Merchants Cigar & Candy Co., 235 Ala. 204, 206, 178 So. 220, 221 (1938) (quoting State v. Smith, 187 Ala. 411, 417, 65 So. 942, 944 (1914)). Our understanding of § 11-41-8(b) makes it unnecessary for us to address the City’s argument that the trial court’s interpretation of that statute conflicts with § 45. We hold that § ll-41-8(b) was intended only to remove those doubts as to the validity of an annexation that otherwise would arise from the fact that the annexation was purportedly made by a city or town whose original incorporation was in doubt. Under this interpretation, § 11— 41 — 8(b) is clearly “supplemental” to and “suggested by” the topic addressed in § ll-41-8(a), i.e., the validity of the existence of the city or town itself.

D. Avoiding Statutory Duplication

Any remaining doubt as to the correctness of the foregoing interpretation is removed upon consideration of the fact that the legislature separately enacted the act that is codified at § 11-42-5. Section 11-42-5 provides:

“Every annexation undertaken prior to May 1, 1998, under any statutory procedure for annexation by any municipality and which the annexation procedure has been completed, notwithstanding any irregularity or defect in the procedure, is ratified and confirmed and given effect in all respects as if all provisions of law relating to the annexation proceeding had been duly and legally complied with. This section shall not apply to any annexation or attempted annexation which, prior to May 1, 1998, has been held invalid by the Supreme Court of Alabama or by the Court of Civil Appeals of Alabama or by a final judgment of the circuit court in the county in which the annexation was completed and from which judgment an appeal was not taken to the Supreme Court of Alabama or the Court of Civil Appeals of Alabama within the time provided by law for taking appeals, or to any annexation the validity of which is an issue in a pending action commenced prior to May 1,1998.”

It is apparent that § 11-42-5 is for annexation elections what § 11-^41 — S(a) is for incorporation elections, i.e., it serves to retroactively ratify annexation elections that might otherwise be deemed invalid because of irregularities in the procedures in those elections. Yet, if § 11 — 41—S(b) is applied according to the interpretation adopted by the trial court, then it is a virtual duplication of § 11-42-5, except that § 11-42-5 does have built into it the expected exceptions for annexations whose validity in relation to their own procedural irregularities is being questioned in litigation and annexations that have been invalidated by a final judgment of a circuit court — thus avoiding any potential constitutional separation-of-powers conflict.

“ ‘ “There is a presumption that every word, sentence, or provision [of a statute] was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.” ’ ” Ex parte Children’s Hosp. of Alabama, 721 So.2d 184, 191 (Ala.1998) (quoting Sheffield v. State, 708 So.2d 899, 909 (Ala.Crim.App.1997), quoting in turn 82 C.J.S. Statutes § 316 (1953)). Moreover, “[c]ourts will attempt to give meaning to a legislative enactment and it is presumed that the Legislature did not do a vain and useless thing,” Alidor v. Mobile County Comm’n, 291 Ala. 552, 558, 284 So.2d 257, 261 (1973), and “the Legislature, in enacting new legislation, is presumed to know the existing law.” Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 297 (Ala.1998). We presume the legislature was aware of the existence of § 11-42-5 when it amended § 11-41-8 by adding subsection (b) and that it did not intend to repeat an existing provision of the Code through its enactment. The presence of § 11 — 42-5 in our Code easily corroborates the conclusion that § 11 — 41—8(b) pertains only to the validation of annexations by towns or cities whose incorporations require the validation provided by § ll-41-8(a).

IV. Conclusion

In sum, established rules of statutory construction — giving the words in a statute their plain meaning, construing statutory provisions in pari materia, avoiding constitutional infirmities, and presuming meaning in every legislative enactment— dictate that § 11 — 41—8(b) does not apply to all annexations by any city or town. Section 11 — 41—8(b) clearly validates annexations that were legally proper in themselves but that could be called into question by the failure of the city or town that performed the annexation to be properly incorporated. By enacting § ll-41-8(a), the legislature has retroactively validated the incorporation of such cities or towns; by enacting § ll-41-8(b) the legislature has removed any taint the original, questionable incorporation might otherwise have given annexations by such cities or towns.

In this case, the Town is a duly incorporated municipality; its incorporation has never been in doubt or questioned. Therefore, § 11^41 — 8(b) does not apply to the Town’s purported annexations at issue in this action. Accordingly, the trial court erred in concluding that § 11-41-8(b) required a dismissal of the claims of the County plaintiffs and the City in their entirety. The trial court’s August 15, 2008, judgment is therefore reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

LYONS, PARKER, and SHAW, JJ., concur.

WOODALL, STUART, and BOLIN, JJ., concur in the result.

COBB, C.J., recuses herself.

WOODALL, Justice

(concurring in the result).

The main opinion’s strained analysis has not convinced me that § ll-41-8(b), Ala. Code 1975, does not apply to the Town’s purported annexations at issue in this action. However, because I am convinced that Act No. 2008-481, Ala. Acts 2008 (“the Act”), violates § 45 of the Alabama Constitution of 1901, I concur in the decision to reverse and remand for further proceedings.

“Each law shall contain but one subject, which shall be clearly expressed in its title.” § 45, Ala. Const.1901. “[Ajnnex-ation and incorporation are two distinct subjects,” City of Birmingham v. City of Vestavia Hills, 654 So.2d 532, 536 (Ala.1995), and Act No. 2008M81 purports to validate both defective incorporations and defective annexations. Thus, the Act clearly violates § 45.

STUART and BOLIN, JJ., concur.

      . The order expressly addressed only two of the three parcels at issue in this action.

      . Section 11 — 41—8(b) contains for annexation elections no language comparable to that in § ll-41~8(a) that cures irregularities with regard to signature and publication requirements for petitions for incorporation and other procedural defects of incorporation elections.

      . In Karrh v. Board of Control of Employees’ Retirement System of Alabama, 679 So.2d 669, 672 (Ala.1996), this Court elaborated on "the principle that statutes are to be construed as a whole, so as to harmonize their parts, if possible," stating: “ 'A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole.’ " (Quoting 2A Singer, Statutes and Statutory Construction § 46.05 (1992).)

      4. The order of the probate court to be made pursuant to § 11-41-4, Ala.Code 1975, as referenced in § 11 — 41—8(a), is part of the procedure for certifying the incorporation election results. It does not entail an adjudication on the merits as to any possible irregularities in or invalidity of the election. That section requires, instead, the probate judge to obtain the total number of inhabitants in the area being incorporated and then to enter an order that those inhabitants are incorporated as a town or city, thus formalizing the apparent results of the election.

      . Section 11-41-8 is a statute in the nature of a “curative act,” which is "a retrospective statute, curing defects in legal proceedings where they are in their nature irregularities only and do not extend to matters of jurisdiction.” Horton v. Carter, 253 Ala. 325, 328, 45 So.2d 10, 12 (1950). Specific to the present context, the purpose is "to place all cities in the same position as if the proceedings by which they had attempted to adopt their charters had been in all things regular and valid.” 62 C.J.S. Municipal Corporations § 30 (1999). Thus, § 11-41-8 aids "de facto municipal corporations,” which exist where "there [is] a general or special charter under which the corporation might be created, formed, or organized, an attempt in good faith to incorporate or organize thereunder, a colorable compliance with the statutory requirements, and a subsequent actual user of the corporate franchise.” 62 C.J.S. Municipal Corporations § 29 (footnotes omitted).

      . It is this addition to the law to which the opening phrase of § 11 — 41—8(b), "[i]n addition,” evidently refers.

      . As discussed below, such exceptions are found in § 11-42-5, a statute that does have as its purpose the curing of defects in annexation elections themselves.

      . The special writing asserts that we have engaged in "strained analysis” in some respect. We do not find the corroboration provided by the presence of § 11-42-5 in our law to be strained, nor do we find any of the other grounds noted for our holding to be strained. Further, the fact that we are able to and do note multiple grounds for our conclusion is indicative of the strength of that conclusion, not of straining to reach it.

      . We note that the August 15, 2008, judgment was based solely on the Act. Consequently, the trial court pretermitted consideration of other grounds asserted by the Town and Stone for alteration of the April 16, 2008, judgment, including allegations that there remained genuine issues of material fact precluding a summary judgment for the City and the County plaintiffs and the fact that the earlier judgment did not expressly address the validity of the third parcel at issue in this case. Therefore, we decline to direct the trial court on remand to reinstate its earlier judgment as requested by the City. In remanding as we do, we express no view as to the merits of the Town and Stone's other objections to the April 16, 2008, judgment.