text:
    Eddie Dwayne HOLLINGSWORTH a/k/a Eddie Hollingsworth a/k/a Eddie Dewayne Hollingsworth a/k/a Eddie D. Hollingsworth a/k/a John Hollingsworth, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00389-COA
    Court of Appeals of Mississippi.
    June 19, 2018 Rehearing Denied September 25, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS
    DISTRICT ATTORNEY: JOHN W. CHAMPION
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. In Armstead v. State , 196 So.3d 913, 921 (¶ 20) (Miss. 2016), the Mississippi Supreme Court held that allowing testimony from a forensic-science expert who was "actively involved in the production of [a drug analysis] report and had intimate knowledge of the analysis even though she did not perform the tests first hand" did not violate the Confrontation Clause. Id. (quoting Jenkins v. State , 102 So.3d 1063, 1069 (¶ 17) (Miss. 2012) ). The Armstead ruling is in line with and almost identical to other Mississippi cases: Hingle v. State , 153 So.3d 659, 665 (¶ 13) (Miss. 2014) ; Grim v. State , 102 So.3d 1073, 1081 (¶ 22) (Miss. 2012) ; and Jenkins , 102 So.3d at 1069 (¶ 17). In each of these cited cases, all of which involved the sale or possession of a controlled substance, a forensic report or an expert-forensic opinion regarding the testing or identification of the substance of concern was admitted through the testimony of a drug analyst, supervisor, or technical reviewer who did not personally conduct the underlying testing but was directly involved in the creation of the report. In these cases, someone other than the analyst who conducted the tests was allowed to testify as to the findings that the substances were controlled substances.

¶ 2. Here, Eddie Dwayne Hollingsworth argues that allowing that same form of testimony at his trial violated his Sixth Amendment right to cross-examination. We find Hollingsworth's appeal wholly meritless and affirm his convictions and sentences.

FACTS

¶ 3. A DeSoto County grand jury indicted Hollingsworth on two counts of selling methamphetamine, one count of possession of methamphetamine with intent to sell, and one count of selling a substance falsely represented to be a controlled substance. See Miss. Code Ann. §§ 41-29-139(a)(1), 41-29-146(1) (Rev. 2013). After a trial on the merits, the jury found Hollingsworth guilty of all charges. The DeSoto County Circuit Court sentenced Hollingsworth as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015) to twenty years for each of the methamphetamine-related charges and five years for selling a substance he falsely represented to be a controlled substance. The trial court ordered the sentences to run concurrently.

¶ 4. At trial, Teresia Hickmon testified for the State. She was a forensic scientist who specialized in forensic-drug analysis. She worked for the Mississippi Crime Laboratory for twenty-eight years. The trial court accepted Hickmon as an expert witness in forensic-drug analysis without objection or voir dire from the defense. Hickmon testified she was a technical reviewer in the Hollingsworth case. She described the process of reviewing a drug analyst's work. She then testified that, as the technical reviewer, she followed the Mississippi Crime Laboratory's policies and procedures in her review of the crystal tested in Hollingsworth's case. Hickmon confirmed that the crystal, bagged and identified as lab number 15-001621, the third marked exhibit for trial (Exhibit 3), was tested and found to be 2.588 grams of methamphetamine. Hickmon testified that she was also the technical reviewer for the substances bagged in two separate bags and identified as lab number 15-001622 (Exhibit 5). She confirmed that she followed the Mississippi Crime Laboratory's policies and procedures in her review of the testing of the substances found in the two bags in Exhibit 5. Hickmon testified that one bag did not contain a controlled substance and that the other bag contained 0.496 grams of methamphetamine.

¶ 5. Thereafter, Gary Fernandez testified for the State. He served as lab manager of the Batesville Forensic Laboratory. Without objection or voir dire from the defense, the trial court accepted Fernandez as an expert witness in forensic testing. Fernandez testified he was the technical and administrative reviewer in Hollingsworth's case for lab number 14-023365 (Exhibit 2). Fernandez described the policies and procedures of the Batesville Forensic Laboratory for testing of substances and the review of the analyst's testing. He then testified that, as the technical and administrative reviewer, he followed those policies and procedures in his review of the analysis of the substance in Exhibit 2. Fernandez confirmed that the substance, bagged and identified as trial Exhibit 2, was tested and found to be 2.1333 grams of methamphetamine.

¶ 6. The jury found Hollingsworth guilty of two counts of selling methamphetamine, one count of possession of methamphetamine with intent to sell, and one count of selling a substance falsely represented to be a controlled substance. See Miss. Code Ann. § 41-29-139(a)(1) ; Miss. Code Ann. § 41-29-146(1). Trial counsel filed a motion for new trial and motion for judgment notwithstanding the verdict on Hollingsworth's behalf after the trial. Both were denied. Aggrieved, Hollingsworth appeals.

STANDARD OF REVIEW

¶ 7. Hollingsworth's appeal concerns the testimony of Hickmon and Fernandez. Hollingsworth argues that Hickmon's and Fernandez's testimonies violated his constitutional right to confrontation, and he submits that he should have been granted access to and the opportunity to cross-examine the primary analyst who actively performed the tests on the subject substances. Because there was no objection at trial to Hickmon's and Fernandez's statuses as experts in their field or to their testimonies, Hollingsworth did not preserve this issue for appellate review. This issue is therefore procedurally barred, and our review is restricted to the plain-error doctrine.

¶ 8. The plain-error doctrine allows consideration of the following:

[O]bvious error which was not properly raised by the defendant and which affects a defendant's fundamental, substantive right. For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity[,] or public reputation of judicial proceedings.

Johnson v. State , 155 So.3d 733, 738-39 (¶ 8) (Miss. 2014) (quoting Burdette v. State , 110 So.3d 296, 303 (¶ 23) (Miss. 2013) ). Hollingsworth's issue alleges a Confrontation Clause violation which the supreme court has held to be a violation of a "fundamental, substantive right." Conners v. State , 92 So.3d 676, 682 (¶ 15) (Miss. 2012). To reverse as Hollingsworth requests, we must find that Hollingsworth's constitutional right to confrontation was violated and that it was "an error that resulted in a manifest miscarriage of justice or [one that] seriously affects the fairness, integrity[,] or public reputation of judicial proceedings." Id. (internal quotation mark omitted).

ANALYSIS

¶ 9. Under the plain-error doctrine, we must first determine "whether the trial court deviated from a known legal rule ...." Starr v. State , 997 So.2d 262, 266 (¶ 11) (Miss. Ct. App. 2008). Here, the jury was not presented with testimony from a witness with no apparent relation to the crime laboratory, as in Bullcoming v. New Mexico , 564 U.S. 647, 652, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). The jury was not presented with crime laboratory reports or certificates presented without authenticating testimony subject to cross-examination, as in Melendez-Diaz v. Massachusetts , 557 U.S. 305, 309, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

¶ 10. No dispute exists that Hickmon and Fernandez were not the primary analysts for the substances found in Exhibits 2, 3, and 5. They were technical reviewers who reviewed the data and verified the conclusions of the primary drug analysts. Their testimony reveals that their active involvement in identification of the substances was their reexamination of the procedures utilized by the primary drug analyst, their review of the data obtained, and the instruments used. This form of testimony provided by just this type of witness, a technical reviewer, has been consistently upheld by the Mississippi Supreme Court as admissible. Further, it has been consistently found not to violate a defendant's rights under the Confrontation Clause. Armstead , 196 So.3d at 921 (¶¶ 20-21) ; Hingle , 153 So.3d at 665 (¶ 13) ; Grim , 102 So.3d at 1081 (¶ 22) ; Jenkins , 102 So.3d at 1069 (¶ 17).

¶ 11. The record reflects no deviation from a known legal rule or injustice to Hollingsworth. Plain-error review can only be used for "correcting obvious instances of injustice or misapplied law." Smith v. State , 986 So.2d 290, 294 (¶ 10) (Miss. 2008). Here, the trial court followed established legal precedent and properly applied the same to admit the testimony by Hickmon and Fernandez.

CONCLUSION

¶ 12. The trial court did not abuse its discretion by allowing Hickmon and Fernandez to testify regarding the forensic testing and their conclusion that bags of substances purchased from Hollingsworth or found in his home contained methamphetamine. Hollingsworth had the opportunity to confront and cross-examine Hickmon and Fernandez at trial, which satisfied his Sixth Amendment right to confront the witnesses against him. We therefore affirm Hollingsworth's convictions and sentences.

¶ 13. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      Through the testimony of other trial witnesses, the State presented Exhibit 3 as the substance purchased by an informant from Hollingsworth in an initial transaction between the two on December 11, 2014.

      Through the testimony of other trial witnesses, the State presented Exhibit 5 as the substance purchased by an informant from Hollingsworth in a second transaction on December 11, 2014.

      Through the testimony of other trial witnesses, the State presented Exhibit 2 as the substance purchased by an informant from Hollingsworth in a transaction on December 2, 2014.


source: Caselaw Access Project

author: IRVING, P.J., FOR THE COURT: CARLTON, J., DISSENTING:

license: Public Domain

text:
    Malcolm K. PATRICK a/k/a Malcolm Kendrel Patrick a/k/a Malcolm Patrick, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00854-COA
    Court of Appeals of Mississippi.
    June 26, 2018 Rehearing Denied September 25, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD, JACKSON
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Malcolm Patrick appeals the judgment of the Scott County Circuit Court adjudicating him guilty of receiving stolen property and sentencing him to ten years, with two years suspended, in the custody of the Mississippi Department of Corrections (MDOC). In this appeal, Patrick argues: his sentence is excessive; the trial court erred by granting a certain jury instruction; his due process rights were violated because he was forced to wear jail attire during his trial; and the State failed to present sufficient evidence to sustain the verdict.

¶ 2. Because we find the evidence insufficient to sustain the verdict, we reverse and render Patrick's conviction and sentence. Therefore, we do not address Patrick's other arguments, except for a limited discussion of the legality of his sentence.

FACTS

¶ 3. On October 28, 2015, Vickie Stroud contacted the Scott County Sheriff's Department and reported that her son, Perry Stroud's Honda Foreman 4x4 four-wheeler had been stolen. The Scott County Sheriff's Department conducted an investigation and listed the four-wheeler as stolen on the National Crime Information Center (NCIC) registry. Officers canvassed the area searching for information and for the stolen property. Investigator Donald Simpson led the investigation and testified that the day after the four-wheeler was reported stolen, he received information that it had been spotted. Shortly after, a concerned citizen, Willie Wilson, informed law enforcement officers that he had seen Patrick riding the four-wheeler and could arrange to purchase it. According to the State, Wilson received nothing in exchange for his agreement to work with investigators. He testified that he agreed to participate because he wanted to do the right thing.

¶ 4. Wilson called Patrick, who offered to sell Wilson the four-wheeler for $750. Vickie testified that she purchased the four-wheeler in December 2006, for $6,500, and that she thought the vehicle was worth between $1,000 and $5,000, but later testified that it was worth at least $3,500 at the time it was stolen. Vickie's son, Perry, testified that he thought the vehicle was worth approximately $4,200 at the time it was stolen.

¶ 5. Investigator Simpson contacted Brad Ellis, the sheriff's department's lead narcotics investigator, and asked him to facilitate the controlled buy. Investigator Ellis arranged for Wilson to meet him at the sheriff's department, where he provided the recording equipment and the official state funds to purchase the four-wheeler. Wilson then met with Patrick and purchased the four-wheeler and a trailer that he used to transport it. The entire transaction was captured via both audio and video using the recording equipment provided by the sheriff's department. As agreed, Wilson purchased the four-wheeler and the trailer for a total of $750.

¶ 6. Patrick was indicted on March 27, 2017, for receiving stolen property. On June 7, 2017, a jury found Patrick guilty of receiving stolen property. The circuit court sentenced him to ten years, with two years suspended and eight years to serve, in the custody of the MDOC. On June 16, 2017, Patrick filed a motion for a new trial, challenging, among other things, the weight and sufficiency of the evidence. Following the denial of that motion, Patrick now appeals.

DISCUSSION

I. Excessive Sentence

¶ 7. According to Mississippi Code Annotated section 97-17-70(4), the maximum sentence for receiving stolen property valued at less than $5,000 is five years. Miss. Code Ann. § 97-17-70(4) (Rev. 2014). However, as stated, the circuit court sentenced him to ten years.

¶ 8. The State concedes, and we agree, that Patrick received an erroneous sentence, because the maximum allowable sentence for his offense was five years. However, since we are reversing and rendering Patrick's conviction and sentence on another ground, it is not necessary that we correct the illegal sentence.

II. Sufficiency of the Evidence

¶ 9. The State presented evidence to show that Patrick was in possession of the stolen four-wheeler around the time that it was stolen and that he sold it for a price that was, arguably, below its market value. The four-wheeler was stolen on October 28, 2015, and Patrick sold it on November 6, 2015, for $750. As noted, the owner bought the four-wheeler in December 2006 for $6,500 and testified that in October of 2015, almost nine years later, she would not have accepted any amount less than $3,500. She reiterated that she had been offered that amount but chose not to sell it. However, the record is not clear as to the date that amount was offered. In a leading question, the owner finally affirmed that she believed the four-wheeler was worth $3,500 in October 2015. Also, as previously stated, the owner's son testified that he thought the four-wheeler was worth $4,200. No additional evidence was offered as to the value of the nearly nine-year-old vehicle.

¶ 10. The State contends that the evidence is sufficient to sustain Patrick's conviction. It points to the timing of his possession of the four-wheeler, coupled with the fact that he sold it at a price well below market value, to argue that he knew the property was stolen, and the jury was entitled to conclude that Patrick was guilty of receiving stolen property.

¶ 11. Patrick responds that the State did not carry its burden, as it did not prove beyond a reasonable doubt that he knew the property was stolen as required by statute:

A person commits the crime of receiving stolen property if he intentionally possesses, receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is possessed, received, retained or disposed of with intent to restore it to the owner.

Miss. Code Ann. § 97-17-70(1) (Rev. 2014). "A disparity between the value of the property in question and the price at which the defendant subsequently sells it may be evidence of guilty knowledge when coupled with the possession of the burglary tools adapted for breaking and entering and burglarizing." Whatley v. State , 490 So.2d 1220, 1222 (Miss. 1986). The defendant's "actions subsequent to receipt may have a bearing on whether he knew or should have known the property to be stolen." Id. Patrick argues that "a sale for $750 ... is not out of line with [the owner's] valuation. [The] sale price, aside from not being grossly disparate to the value, could just as easily prove Patrick simply needed some cash in a hurry." "Guilty knowledge is the gist of the offense of receiving stolen property. Guilty knowledge may be shown by evidence that the defendant received the property under circumstances that would lead a reasonable man to believe it to be stolen." Whatley , 490 So.2d at 1222.

¶ 12. The facts in Whatley are strikingly similar to our facts:

On August 30, 1984, employees from the Tennessee Gas Pipeline Corporation reported that a generator, worth about $350.00 to $400.00[,] had been stolen from the back of their truck in the parking lot of the Holiday Inn in Greenville, Mississippi. The record is bare of evidence regarding the identity of the actual thief or thieves. At about 1:00 a.m. on the morning of August 31, 1984, an employee of the Holiday Inn, Ronald Kilgore, offered to sell a portable generator to Charles Willmer, who was an off-duty policeman working as a security guard for the hotel. Willmer decided not to buy the generator; however, on the following day at work he saw the larceny report on a generator which was stolen. It fit the description of the generator which Kilgore had offered to sell him. He reported this information to Sgt. Criswell of the Greenville Police. Criswell conducted an investigation, which ultimately led to the recovery of the generator on September 7, 1984, and the arrest of the defendant, Perry Whatley.
According to testimony from Charles Rochelle, who testified as a state's witness, Perry Whatley appeared in Rochelle's bar in Greenville on the night of August 30, 1984, at about 10:30 to 11:30 p.m. Whatley told Rochelle that he had a power plant that he wanted to pawn to him, and he assured Rochelle that the generator belonged to him. Rochelle testified that he told Whatley that he wanted a bill of sale executed for the generator, and that if Whatley did not return to pick it up the next day he would sell it. Whatley agreed to sign the bill of sale for the generator. According to Rochelle, [h]e more or less pawned it to me, but I took a bill of sale on it in case he didn't come back.
When Whatley did not return for the generator within a couple of days, Rochelle asked Kilgore to help him sell it. When Kilgore was unsuccessful, Rochelle finally located a buyer, Charles Prestridge. Rochelle sold the generator to Prestridge for $100.00; however[,] after he was contacted by the police, he gave Prestridge his money back, and recovered the generator.

Id. at 1221.

¶ 13. In reversing Whatley's conviction, the Mississippi Supreme Court stated:

The state's evidence, taken in the light most favorable to it at the close of the state's case, merely established possession of property recently stolen, which was worth more than $100.00, and which was sold, or pawned, by the defendant for $20.00. That evidence was insufficient to show guilty knowledge. Furthermore, the state presented no evidence at trial bearing on the defendant's receipt of the goods, and the defendant's version of receipt of the goods was apparently rejected by the jury.
The state failed to present evidence sufficient to withstand the defendant's motion for a directed verdict on the charge of receiving stolen property.

Id. at 1224.

¶ 14. Patrick contends that the State presented no evidence as to how he came into possession of the four-wheeler. "Unexplained possession of recently stolen property, standing alone, is insufficient to satisfy the guilty knowledge required as an element for the crime of receiving stolen property." McClain v. State , 625 So.2d 774, 779 (Miss. 1993). We agree, based on Whatley , that the evidence is insufficient to show that Patrick knew that the four-wheeler had been stolen; therefore, we find that the State failed to prove beyond a reasonable doubt that Patrick was guilty of receiving stolen property. We reverse and render the judgment of the Scott County Circuit Court finding Patrick guilty of receiving stolen property, and the accompanying sentence.

¶ 15. REVERSED AND RENDERED.

GRIFFIS, P.J., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J.

CARLTON, J., DISSENTING:

¶ 16. I respectfully dissent. I would affirm the conviction, finding that the record contains sufficient evidence to support the jury verdict and conviction. I would, however, remand for resentencing because I agree that the sentence imposed exceeds the statutory maximum.

LEE, C.J., JOINS THIS OPINION.

      See Johnson v. State , 235 So.3d 1404, 1410 (¶ 12) (Miss. 2017) (In reviewing a challenge to the sufficiency of the evidence we determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... The State is given the benefit of all reasonable inferences that may be drawn from the evidence." (internal quotation marks and citations omitted) ).


author: WILSON, J., FOR THE COURT:

text:
    Latterance Dontae ADAMS a/k/a Laterrance Donta Adams, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00446-COA
    Court of Appeals of Mississippi.
    July 17, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN E. BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, JACKSON
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Latterance Adams was indicted for unlawful possession of a cell phone while confined in a correctional facility. At trial, Michael Jones, a security captain at Walnut Grove Correctional Facility, testified that as he was making his rounds on February 20, 2015, he noticed an open cell door. The cell was assigned to Yotyler Miller and Alvin Green, and a third inmate, Adams, was in the cell with Miller and Green. Jones testified that the cell door should have been closed, and there was "no reason for three offenders to be inside [one] cell." Jones placed Adams, Miller, and Green against the wall and conducted a pat search of each of them. Two other correctional officers witnessed him search the inmates. All three officers testified that Jones recovered three cell phones, one from each inmate. Jones recorded the phones' serial numbers in an incident report, the phones were placed in evidence bags, and Jones identified Adams's phone at trial. After the State rested its case, Adams, Green, and Miller all testified and denied that they had cell phones. They testified that Jones did not recover any cell phones when he searched them in the cell. They claimed that Jones first showed them the phones after they were taken to Jones's office. In short, Adams, Green, and Miller alleged that Jones set them up. However, the jury found Adams guilty as charged, and the circuit court sentenced him, as a habitual offender, to fifteen years in the custody of the Mississippi Department of Corrections.

¶ 2. Adams's appointed appellate counsel filed a Lindsey brief, certifying that she has scoured the record and that the case presents no "arguable issues" for appeal. Lindsey v. State , 939 So.2d 743, 748 (¶ 18) (Miss. 2005). Counsel complied with Lindsey by sending Adams a copy of the brief and advising him of his right to file a pro se brief, see id. , but Adams did not file a brief. Pursuant to Lindsey , we have "conducted an independent and thorough review of the record, and we conclude that there are no issues that warrant reversal." Taylor v. State , 162 So.3d 780, 787 (¶ 18) (Miss. 2015). The State presented sufficient evidence to sustain the conviction. It was the jury's role to assess the witnesses' credibility and resolve conflicts in the evidence, see Little v. State , 233 So.3d 288, 289 (¶ 1) (Miss. 2017), and there is no basis for us to disturb the jury's verdict on appeal. Therefore, Adams's conviction and sentence are affirmed.

¶ 3. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


author: BARNES, J., FOR THE COURT:

text:
    Frederick A. PETTERSEN, Appellant v. Audrey S. PETTERSEN, Appellee
    NO. 2017-CA-00089-COA
    Court of Appeals of Mississippi.
    October 23, 2018 Rehearing Denied February 5, 2019
    ATTORNEY FOR APPELLANT: G. CHARLES BORDIS IV, Ocean Springs
    ATTORNEY FOR APPELLEE: ROSS JONATHAN FRANCO, Ocean Springs
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. The Jackson County Chancery Court granted Frederick and Audrey Pettersen an irreconcilable-differences divorce on March 10, 2016, and the parties agreed to let the court resolve any remaining issues concerning child custody and the equitable distribution of marital assets. After trial, the court entered its final judgment dividing the marital assets on October 5, 2016. Frederick appeals the court's finding, claiming the court erred in (1) failing to award him child support; (2) determining the date of demarcation; (3) its determination of the equitable division of the couples' retirement accounts; and (4) its classification of certain real property and other miscellaneous assets. Finding no abuse of discretion in the chancery court's findings, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Frederick and Audrey were married in Richmond, California, on January 23, 1990. At the time of the marriage, Frederick was fifty-two years old; Audrey was thirty-four. Both were chemical engineers employed by Chevron. Frederick retired in 1992, and the couple embarked on a seven-year sailing trip around the world. Three children were born of the marriage: (1) Sara was born in June 1990; (2) Luke was born April 1993; and (3) Ryan was born November 1995. In 2000, the couple bought a marital residence in Gautier, Mississippi. Frederick already owned several rental properties in Mobile, Alabama prior to the marriage.

¶ 3. In March 2009, Audrey left the marital residence, moving out of state with another man. But in December 2010, she returned to Gautier and moved into a rental home she and Frederick owned located at 5101 Deerfield Avenue. Although Audrey never moved back to the marital residence, the parties made attempts at reconciliation throughout their separation, with the last attempt being in July 2014. Also during this period, Audrey returned to college to obtain a degree in education, and Frederick supported her, putting funds into a joint credit-card account for her use.

¶ 4. Frederick filed for divorce on September 3, 2014, seeking a divorce on the grounds of habitual cruel and inhuman treatment and desertion. Audrey filed a counterclaim for divorce. On December 12, 2014, a temporary hearing was held, and a Family Master entered a fill-in-the-blank style temporary order, which simply denied Audrey's request for attorney's fees. It did not address any other issues. On February 13, 2015, the chancery court entered a temporary order stating that the parties were to have joint legal and physical custody of their minor child, Ryan, and visitation was to be equally divided between the parties. Frederick was ordered to pay Audrey a one-time payment of $2,000, and then $2,500 per month until further order by the court.

¶ 5. After a day of trial testimony, the parties entered into a written consent to divorce based on irreconcilable differences on March 10, 2016. They agreed that the issue to be decided by the chancery court was the equitable division of marital assets and liabilities. However, an amended consent to divorce on irreconcilable differences was later filed, adding the issues of alimony, attorney's fees, child support, and college expenses, as well as child custody.

¶ 6. On October 5, 2016, the chancery court entered its opinion and final judgment. Because Ryan was almost twenty-one years old, the court did not order child support. Employing the applicable factors from Ferguson v. Ferguson , 639 So.2d 921 (Miss. 1994), the court analyzed and awarded marital assets as follows:

(1) Frederick was awarded the marital residence at 2025 Glen Cove (valued at $162,400) and ordered to pay Audrey $53,500 in equity. Audrey was awarded the property at 5101 Deerfield (valued at $55,400).
(2) Rental properties:
i. 675 Merritt Drive- Deemed a separate asset and awarded to Frederick.
ii. 670 Merritt Drive and 3757 San Juan Drive- Finding that Audrey contributed to the upkeep of these properties and performed bookkeeping services from before 1990 to 2011, the court concluded twenty-percent of the properties' value was marital; so Audrey received ten percent of the value-$6,860 and $5,770 respectively.
iii. Patio Apartments: Although Frederick had purchased the Patio Apartments and almost paid off the note on the property prior to the marriage, the chancery court determined it was a marital asset as both parties had "contributed substantially" to the property, and its value ($513,758.50) was to be split evenly between the parties. Frederick was awarded ownership of the property (including rental proceeds) and ordered to pay Audrey $256,879.25.
iv. 3940 Bienville Boulevard- As the parties purchased the property during the marriage, it was deemed a marital asset and both parties awarded one-half of its value of $357,070. Fred was awarded ownership and ordered to pay Audrey her one-half interest of $178,535.
(3) Retirement Accounts: The chancery court determined that the appreciation of the couple's retirement accounts during the marriage (Audrey - $112,427.75/Frederick - $810,020.48) constituted marital property and was subject to property division; therefore $922,448.23 was to be split equally between the parties. Audrey was to receive her entire retirement account to offset this amount, and Frederick was ordered to convey $348,796.36 to Audrey via a Qualified Domestic Relations Order.
(4) Liabilities and Debts: The court found no marital liabilities or debts.
(5) All requests for attorney's fees were denied, as both parties had "ample assets to pay for their respective attorneys."

Frederick filed a motion for reconsideration or to alter the judgment on October 17, requesting the chancery court to reconsider the division of property - specifically the retirement accounts, commercial property, and Patio Apartments. The chancery court denied the motion on December 16, and Frederick appeals the court's decision.

STANDARD OF REVIEW

¶ 7. A chancellor's decision is reviewed by this Court for abuse of discretion. Jenkins v. Jenkins , 60 So.3d 198, 200 (¶ 6) (Miss. Ct. App. 2011) (citing Mabus v. Mabus , 890 So.2d 806, 810 (¶ 14) (Miss. 2003) ). "We will not disturb the chancellor's factual findings unless the chancellor was manifestly wrong, clearly erroneous, or the chancellor applied an improper legal standard." Id. at 200-01 (¶ 6). Questions of law, however, are reviewed de novo. Id. at 201 (¶ 6).

DISCUSSION

I. Whether the chancellor erred by not considering child support.

¶ 8. At the time of the March 2016 hearing, the couple's son, Ryan, was twenty years old and, for the most part, lived several hours away at college. The chancellor commented at the hearing: "It's going to be hard to tell a [twenty]-year-old where to put his head at night." In the October 5, 2016 final judgment, the chancellor found:

At the time of the trial, Ryan was a college student living away from home. He will be an adult in November of 2016. Because he is turning twenty-one in about one month and he is off at college, this [c]ourt will not order child support. Further, the child custody, visitation, and support issues were not presented to this [c]ourt to be decided.[ ] After Ryan obtains the age of majority this [c]ourt does not have the power to obligate either party to provide support for Ryan.

¶ 9. Frederick argues that the chancellor should have ordered Audrey to pay child support for Ryan during the duration of the divorce proceedings. He also claims Audrey should have been ordered to pay child support, including college expenses, for the year preceding the filing of his complaint. Mississippi Code Annotated section 93-11-65 (1)(d) (Rev. 2013) provides: "The noncustodial parent's liabilities for past education and necessary support and maintenance and other expenses are limited to a period of one (1) year next preceding the commencement of an action." (Emphasis added). This language is not mandatory, however. The chancery court still maintains discretion on whether to award the child support. Therefore, we find no merit to this claim.

¶ 10. As to his assertion that "[t]he lower [c]ourt's refusal to consider the issue of child support was detrimental to the best interest of the minor child," we note that although both parties presented these issues in their initial complaint/counterclaim, Frederick made no argument below regarding the chancery court's failure to address this issue in the temporary order. At trial, when asked if he wanted custody of Ryan, Frederick replied, "I'm willing to go joint custody. I don't have a problem with that." Frederick's attorney also remarked at trial that Ryan was "going to be an adult in November," and there was no real concern conveyed by the parties on this issue during the trial. It was actually the chancery court's decision to put the issue of child custody and support in the amended consent to divorce "just to be safe." The chancery court noted that neither parent "would let their children do without." Furthermore, this issue was not asserted in Frederick's motion for reconsideration.

¶ 11. Frederick claims that "by not considering the issues regarding custody and support (past and present), the [chancellor] denied [him] the opportunity to have his noneconomic and indirect contributions considered in the equitable distribution of assets." While we do not question that Frederick unilaterally contributed to his children's education and support from marital assets after 2009, we find this claim is more pertinent to the court's equitable division of marital assets.

II. Whether the chancery court erred in its determination of the date of demarcation.

¶ 12. The chancery court found that the date of demarcation was December 12, 2014, the date of the temporary hearing. The retirement accounts reflected a value date of December 13, 2014. Frederick argues that the date of demarcation should have been in either 2008 or 2009, when the couple separated. Our Court has held:

"The law in Mississippi is that the date on which assets cease to be marital and become separate assets-what we refer to as the point of demarcation-can be either the date of separation (at the earliest) or the date of divorce (at the latest)." Collins v. Collins , 112 So.3d 428, 431-32 (¶ 9) (Miss. 2013). [However, a] chancellor may consider a temporary order as the line of demarcation between marital and separate property. Id. Ultimately, however, the chancellor has the discretion to draw the line of demarcation. Id. at (¶ 10).

Randolph v. Randolph , 199 So.3d 1282, 1285 (¶ 9) (Miss. Ct. App. 2016).

¶ 13. We find no abuse of discretion in the court's determination that the date of demarcation was the date of the temporary hearing. As the court noted, although Audrey left the marriage in 2009, both parties testified that there were numerous attempts at reconciliation between 2009-2014. They also spent holidays together as a family over this period of time. Frederick sent Audrey a Valentine's Day card in 2010 and admitted that, in July 2013, the couple went to a hotel and had intimate relations. Audrey testified that the couple had sexual relations in July 2014, when she was over at the house for a barbeque. However, when she asked about moving back home, Frederick told her he was dating someone else. The couple had also filed joint tax returns during the separation, and Frederick acknowledged that he had voluntarily provided monetary support to Audrey during this period.

¶ 14. The date of demarcation-December 12, 2014-was only a few months after the couple's final attempt at reconciliation (June 2014) and the filing of the complaint for divorce (September 2014). Moreover, Frederick's counsel repeatedly referred to the date of the temporary hearing as the date of demarcation, and on cross-examination, when asked about some financial documents, Frederick made no objection to this date.

Q. And they're all for around the time of the temporary hearing.
A. Yeah.
Q. -- because we've agreed that that's the line of demarcation.
A. Okay.

Therefore, we find this issue without merit.

III. Whether the chancery court erred in the classification and division of the parties' retirement accounts.

¶ 15. The chancery court determined that "the retirement funds accumulated during the course of the marriage [were] personal property subject to equitable division." With regard to Audrey's account, the Rule 8.05 financial declaration stated that on March 8, 2016, her Chevron retirement account was valued at $238,530.29. She testified that the balance at the time of marriage was $126,102.54; so the chancery court found "there was a $112,427.85 appreciation of Audrey's retirement account during the course of the marriage." In 2005, the couple invested all of her retirement into a money market account. The court found that on the date of demarcation, Frederick had $1,484,573.03 in his retirement accounts and "there was an appreciation of Fred's retirement of $810,020.48."

¶ 16. The chancery court determined that the parties had commingled their retirement accounts, noting Frederick had used retirement funds to pay for the children's expenses such as college tuition and travel. He also deposited his required minimum distributions into a money market account, M & M Holdings, which was the operating account for the Patio Apartments. Therefore, the chancery court found that Frederick's retirement became marital under the family-use doctrine and the appreciation of $810,020.48 was "marital property subject to property division." Although Frederick acknowledges that the couple met with financial advisors several times regarding their retirement accounts, he claims that the accounts were never commingled, which was evidence the couple never intended for the accounts to be considered marital property.

¶ 17. "[P]roperty division 'is committed to the discretion and conscience of the [c]ourt, having in mind all of the equities and other relevant facts and circumstances.' " Carter v. Carter , 98 So.3d 1109, 1113 (¶ 11) (Miss. Ct. App. 2012) (quoting Chamblee v. Chamblee , 637 So.2d 850, 864 (Miss. 1994) ). Frederick admits that he took out retirement funds from his IRA to pay for "family expenses such as education costs, groceries, etc." But he claims that the remainder of his retirement funds was nonmarital, citing McKissack v. McKissack , 45 So.3d 716 (Miss. Ct. App. 2010). In McKissack , this Court held that only the portion of a certificate of deposit that had been designated for family use was marital; the remainder of the funds was a separate asset. We find McKissack distinguishable. During the trial, Frederick admitted to commingling his IRA disbursements into his personal accounts, including the M & M business account for the Patio Apartments, which was classified as a marital asset by the court.

Q. All right. And the M & M small business account, which you just admitted the IRA finds its way into, that is the operating account for the Patio Apartments; true?
A. That is the operating account for my entire life .
....
Q. But I asked you yesterday if your IRA makes it into your Patio [Apartments] account, and you said, no, it doesn't, it goes into my savings account.
A. It does. That's what that preferred rate account -
Q. And then it goes into your Patio account; true?
A. Later, yeah. In dribs and drabs, yeah.
Q. And so when that IRA money finds its way into your M & M [Bank] small business account, which is the operating account for the Patio Apartments, it then goes into the Patio, and it goes into spending money on groceries, and it goes into spending money on the kids, and it goes all over the place; true?
A. Yeah. It's money that I spend . I told - I already said - I already testified that the money comes in from various sources, goes into the account, and I spend it as I - as I get bills. I pay my bills. That's what I do.
....
And if I don't have enough money - income generated, if there isn't enough cash in that account from checks that come in, from rent checks or whatever, then I have to draw money out of that - and as you've noticed, the amounts that I've been withdrawing from the IRAs has been increasing substantially recently, as I pointed out earlier.

(Emphasis added).

¶ 18. Furthermore, when determining whether certain property is marital, a chancery court "must inquire whether any income or appreciation resulted from either spouse's active efforts during the marriage." Rhodes v. Rhodes , 52 So.3d 430, 436 (¶ 20) (Miss. Ct. App. 2011). "If so, that income or appreciation becomes part of the marital estate." Id. Frederick testified that he had switched financial brokers and opened new accounts during the marriage. He also put retirement funds in stocks and other business dealings, such as an oil lease. As already noted, he and Audrey met with financial consultants on more than one occasion to discuss how best to manage the funds. On cross-examination, Audrey's counsel asked Frederick about his handling of the IRA monies:

Q. [D]o you remember telling me in your deposition that you had various experiments with your money, with the IRA funds, that you would tinker with this or try this to see if it would work; true?
A. Right.
Q. And you did TD Ameritrade. Do you remember how much you put into that program?
A. Well, I put $50,000 into the account. The program itself was, like, four.
....
Q. And do you remember telling me in your deposition that you rolled a bunch of money into an Edward Jones IRA because you wanted someone local; true?
A. That's correct.
....
Q. And so you took over $100,000 and put it into a local account because you wanted to have somebody who could advise you on your IRA that was in close geographic proximity.
A. I wanted to see if I could find somebody that might make more money than Charles Schwab was making with the money .

(Emphasis added). We find there was evidence that the appreciation of the accounts was due to active efforts by the couple to protect and increase their investments.

¶ 19. We also reject Frederick's claim that Audrey was not entitled to any of his retirement funds because of her extramarital affair. There was ample evidence that Frederick also had extramarital affairs with several women after the separation in 2009, while continuing his attempts to reconcile with Audrey. Their daughter testified in a deposition that Frederick had dated "quite a few" women. Moreover, a spouse's misconduct is only one factor to consider in the division of marital assets. A chancery court "should not view equitable distribution as a means to punish the offending spouse for marital misconduct. Rather, 'marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship.' " Bond v. Bond , 69 So.3d 771, 773 (¶ 6) (Miss. Ct. App. 2011) (quoting Carrow v. Carrow , 642 So.2d 901, 904-05 (Miss. 1994) ).

¶ 20. Frederick argues that the chancery court failed to consider Audrey's Charles Schwab IRA account no. 3106 and her Merrill Lynch IRA account no. 7729 in dividing the marital assets, specifically Frederick's economic and noneconomic contributions to the acquisition of those accounts. He claims the "combined value of the two IRAs accumulated to more than $78,000.00." The record does not support Frederick's claim. The chancery court took into account both of Audrey's Charles Schwab accounts (Accounts 3104 and 3106), finding they totaled $238,530.29, as evidenced by Audrey's Rule 8.05 financial declaration. Further, her Merrill Lynch account, which only had a listed balance of $13,498.79, was designated as an "Inherited IRA" on Audrey's Rule 8.05 financial declaration; thus, we find no error in the court's decision not to include it as a marital asset.

¶ 21. We find the chancellor's findings regarding the division of the couple's retirement accounts was not an abuse of discretion.

IV. Whether the chancery court erred in its classification of certain real property.

A. 670 Merritt Drive, Mobile, Alabama, and 3575 San Juan Drive, Mobile, Alabama

¶ 22. The chancery court found that although Frederick had acquired these Mobile rental properties before marriage, Audrey had contributed to their upkeep and management. Therefore, it concluded that twenty percent of the properties was marital, and Audrey should receive one-half of the marital portion of the value of the properties, which was ten percent ($6,860 and $57,700, respectively).

¶ 23. "Marital property is 'any and all property acquired or accumulated during the marriage and is subject to an equitable distribution by the chancellor.' " Mamiaro v. Mamiaro , 179 So.3d 51, 53 (¶ 7) (Miss. Ct. App. 2015) (quoting Hemsley v. Hemsley , 639 So.2d 909, 915 (Miss. 1994) ). There is no dispute that these properties were acquired before the marriage. But, in discussing Ferguson , the Mississippi Supreme Court held:

Instead of looking to the bare title of a marital asset, this Court, as should the trial courts, will continue to consider all of the facts and circumstances surrounding the accumulation of the marital assets, including noneconomic contributions and factors, when deciding how the marital property should be divided under our system of equitable distribution.

Carnathan v. Carnathan , 722 So.2d 1248, 1253 (Miss. 1998). Although Frederick argues that Audrey made no economic contribution to these properties, he acknowledges that Audrey helped prepare balance sheets with respect to the rental properties for a period of time during their marriage. We find, therefore, that the chancery court's awarding her ten percent of the properties' value was not an abuse of discretion.

B. Patio Apartments

¶ 24. Fred purchased the Patio Apartments thirteen years before he married Audrey, and had almost paid off the mortgage on the property. However, the chancery court determined that the Patio Apartments constituted a marital asset since Audrey had contributed over 17,000 hours of labor and restoration into the property and approximately $35,000 from an inheritance. The chancery court valued the property at $513,758.50 and awarded each party one-half of the value. As Fred was managing the property, he was awarded exclusive use and possession and any rental proceeds, along with taxes and insurance. Audrey was awarded $256,879.25 to be paid within six months of the court's order.

¶ 25. Audrey testified that she had spent hours of physical labor to restore the property, working "ten hours a day, seven days a week" the year the couple moved to the Gulf Coast. There were also extensive renovations to the property after Hurricane Katrina. Audrey noted that the work on the apartments, and their disagreements on how it was to be managed, was a source of friction in the marriage. She had also contributed inheritance funds to the property's upkeep. When asked whether Audrey had contributed any interest in the property, Frederick replied: "Yes, she did." Frederick also admitted that the couple had "worked side by side cleaning up [the] apartments, repairing damage that had occurred." He stated during cross-examination that he had viewed the property as an asset that the couple shared, which would provide them future income.

¶ 26. "Commingled property is a combination of marital and non-marital property[,] which loses its status as non-marital property as a result." Maslowski v. Maslowski , 655 So.2d 18, 20 (Miss. 1995). Audrey's significant noneconomic contributions and financial contribution from her nonmarital funds converted the property to a marital asset. Accordingly, we see no abuse of discretion in the chancery court's finding.

C. 3904 Bienville Boulevard, Ocean Springs, Mississippi

¶ 27. The chancery court determined that commercial real estate located at 3904 Bienville Boulevard was acquired during the marriage and was marital property. While he awarded Frederick the property, along with the rental proceeds, he awarded Audrey one-half of the marital interest totaling $178,535.

¶ 28. Frederick acknowledges that the property was bought in September 2007 when the couple was married and that the property was titled in both of their names. But he argues that the property is a "mixed asset," and the marital asset value should only be $82,070.08 (appraised value was $357,070.08) because he used nonmarital funds of $275,000 to satisfy the property's indebtedness and has managed the property since March 2009 without Audrey's assistance.

¶ 29. "[A] presumption of marital property arises to any property acquired during the marriage." Maslowski , 655 So.2d at 20. The chancellor properly considered the applicable Ferguson factors, finding: (1) the property was acquired during the marriage; (2) Audrey had "substantially contributed to this property by serving as bookkeeper"; and (3) Frederick had managed the subject property during the separation and continues to do so. Therefore, we find no merit to this issue.

V. Whether the chancery court erred in failing to classify other miscellaneous assets.

¶ 30. Frederick asserts that the chancery court erred in failing to classify Audrey's IRA accounts as marital, noting he had made economic and noneconomic contributions "in the acquisition of these IRA accounts." We have already addressed this issue and found no abuse of discretion in the court's findings regarding the couple's retirement accounts.

¶ 31. Frederick also contends the chancery court erroneously failed to consider the "joint debt" owed to Kilpatrick and Orr, the management company for the rental properties, in classifying the assets. Debts acquired during the course of a marriage are subject to equitable distribution. Carter , 98 So.3d at 1114 (¶ 15). However, Frederick was awarded sole ownership of the rental properties, which included rental proceeds. We, therefore, find no abuse of discretion in the chancery court's decision to order Frederick to be responsible for any management expenses associated with those properties.

¶ 32. Accordingly, we affirm the chancery court's judgment.

¶ 33. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      The order does not indicate whether the monthly payments were for temporary spousal support or child support, but this distinction is not relevant to the appeal.

      For brevity's sake, we will only address the equitable division of those assets at issue on appeal.

      Audrey testified that she purchased the Deerfield home with money from an inheritance from her father's estate.

      As the issues of child custody and support were briefly discussed at trial and noted in the amended consent to divorce, the chancery court was incorrect in this regard.

      Although the court also stated in its order that the line of demarcation was February 13, 2015, the date the temporary order was filed, we agree with Audrey that because the chancery court used the December 2014 date in valuing the IRAs and assets, the mention of February 2015 was likely a scrivener's error. Because Frederick's claim on appeal is not that the date should have been February 13, 2015, but that the court should have used the date of the separation, we find the distinction irrelevant.

      The chancery court noted that no value from December 2014-the date of demarcation-was in the record, and the trial date was "the closest date to the point of demarcation."

      Frederick acknowledged at trial that Audrey had used funds from that account to purchase a vehicle.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Nicholas D. BROWN a/k/a Nicholas Brown a/k/a Nicolas Brown, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00600-COA
    Court of Appeals of Mississippi.
    February 13, 2018
    ATTORNEY FOR APPELLANT: NICHOLAS D. BROWN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, Jackson
    EN BANC.
    MODIFIED OPINION ON MOTION FOR REHEARING
   WESTBROOKS, J., FOR THE COURT:

¶ 1. The motion for rehearing is denied in part and dismissed as moot in part. The previous opinion of this Court is withdrawn, and this opinion is substituted in its place.

¶ 2. Nicholas D. Brown, appearing pro se, appeals the Simpson County Circuit Court's denial of his motion for postconviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In April 2013, Brown was indicted by a Simpson County grand jury on two counts of possession of a controlled substance. In Count I, he was charged with possession of approximately 12.1 milliliters of a codeine. In Count II, he was charged with possession of approximately 1.2 grams of cocaine. In March 2014, Brown pleaded guilty to only Count II, possession of 1.2 grams of a cocaine. At his plea hearing, Brown requested to enter a drug-court program. The trial court withheld acceptance of Brown's guilty plea and placed Brown on nonadjudicated probation. The court also accepted Brown's request to enter a drug-court program.

¶ 4. In 2015, Brown was found to have violated the terms and conditions of the drug-court program. The trial court found that Brown's nonadjudicated status should be revoked and accepted his guilty plea. Brown was sentenced to sixteen years on Count I and eight years on Count II, with the sentences to run consecutively in the custody of the Mississippi Department of Corrections.

¶ 5. In October 2015, Brown filed a PCR motion in the circuit court in cause number 2013-90-K-1. In August 2016, Brown filed another PCR motion in the circuit court in cause number 2015-291-1, alleging that his plea was involuntary, his counsel was ineffective, and his search warrant was invalid. In November 2016, Brown filed two more PCR motions in cause number 2015-291-1, again alleging ineffective assistance of counsel and that his plea was involuntary. The record reflects that at one time, Brown had a total of four PCR motions before the circuit court.

¶ 6. In November 2016, the Simpson County Circuit Court denied Brown's PCR motions in cause number 2015-291-1. Brown timely appealed. On February 13, 2018, this Court handed down its original decision affirming the denial of Brown's PCR motions. Brown timely filed for rehearing. While Brown's rehearing motion was pending before this Court, the Simpson County Circuit Court entered an order on May 14, 2018, in Brown's criminal cause, 2013-90-K-1, to correct a scrivener's error in Brown's March 14, 2014 order of conviction. The May 14 order was also filed in Brown's civil PCR cause, 2015-291-1. The order states that the portion of the order of conviction stating that Brown pleaded guilty to Count I, possession of codeine, was a mistake. The May 14 order corrects the order of conviction to reflect that Brown only pleaded guilty to Count II, possession of cocaine. The April 22, 2015 order revoking Brown's nonadjudicated status was also corrected to strike the sixteen-year sentence on Count I. The May 14 order states that all other portions of the order of conviction and revocation order remain in effect.

¶ 7. On appeal, Brown did not specifically argue his conviction and sentence on Count I were incorrect; thus, it was not reviewed or addressed in this Court's original opinion. On rehearing, Brown does challenge his conviction on Count I. However, as the circuit court has now entered an order correcting the order of conviction and revocation order to reflect that Brown did not plead guilty to Count I and has struck Brown's sentence on Count I, Brown's rehearing arguments related to Count I are moot. As to Brown's remaining rehearing arguments on Count II, we find no merit to these issues and find they should be denied. Thus, we deny Brown's rehearing motion in part and dismiss it as moot in part. We issue this modified opinion consistent with the circuit court's May 14, 2018 order.

STANDARD OF REVIEW

¶ 8. "We review a circuit court's denial of a PCR motion under a clearly-erroneous standard of review." Vanwey v. State , 147 So.3d 367, 369 (¶ 8) (Miss. Ct. App. 2014). "[H]owever, we review the [circuit] court's legal conclusions under a de novo standard of review."

Jackson v. State , 178 So.3d 807, 809 (¶ 8) (Miss. Ct. App. 2014).

DISCUSSION

I. Voluntariness of Plea and Assistance of Counsel

¶ 9. Brown asserts that his guilty plea was involuntary because he received ineffective assistance of counsel. He maintains that his lawyer failed to properly assist with his defense. Brown asserts that he would not have pleaded guilty if he would have received effective assistance from his attorney. "The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence." Walton v. State , 16 So.3d 66, 70 (¶ 8) (Miss. Ct. App. 2009). "A guilty plea is deemed 'voluntary and intelligent' only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea." Id.

¶ 10. The record clearly indicates that Brown was informed of the nature of the charges against him and the consequences of his plea. The following is an excerpt from Brown's guilty-plea hearing:

THE COURT: Mr. Brown, before I can accept your guilty plea, it's necessary that I determine that your guilty plea is knowingly, understandingly, freely[,] and voluntarily made. In order for me to make this determination, I'm going to ask you a series of questions. And you can refuse to answer any of these questions if you want to. But if you do answer these questions, you're under oath, and any answer that you give can be used against you. Do you understand that?
DEFENDANT: Yes, sir.
....
THE COURT: Okay. Do you understand each and every element contained in the crime of which you were charged?
DEFENDANT: Yes, sir.
....
THE COURT: Do you fully understand what you're doing here today?
DEFENDANT: Yes, sir.
....
THE COURT: All right. Do you understand that the sentence that could be imposed upon you for the commission of this crime ranged from a minimum sentence of eight years confinement in the state penitentiary and or a zero dollar fine up to a $50,000 fine. Do you understand that?
DEFENDANT: Yes, sir.
....
THE COURT: Are you entering this guilty plea freely and voluntarily and after talking it over with your lawyer?
DEFENDANT: Yes, sir.

¶ 11. Brown represented to the court that he understood the nature of the charges against him and the consequences of his plea. Therefore, we find that this issue is without merit.

¶ 12. Additionally, Brown argues that his lawyer's failure to challenge the search warrant in his case constituted ineffective assistance of counsel. Brown asserts that this failure also supports his claim that his plea was involuntary. To prove an ineffective-assistance-of-counsel claim, Brown must "show by a preponderance of the evidence (1) that [his] counsel's performance was deficient, and (2) that but for the deficiencies, the trial court outcome would have been different." Funchess v. State , 202 So.3d 1286, 1290 (¶ 9) (Miss. Ct. App. 2016). "Additionally, under Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), [the] defendant must show that counsel's errors were so serious as to deprive the defendant of a fair trial." Id. (internal quotation mark omitted). Further, "[i]f the defendant has pled guilty, he must show unprofessional errors of substantial gravity." Cole v. State , 918 So.2d 890, 894 (¶ 10) (Miss. Ct. App. 2006). "He must also show that the deficient conduct proximately resulted in his guilty plea, and but for counsel's errors, he would not have entered the plea." Id.

¶ 13. The following is an excerpt from Brown's guilty-plea hearing:

THE COURT: Do you know of any reason [t]he [c]ourt should not accept [t]his guilty plea?
DEFENDANT: No, Your Honor.
THE COURT: Mr. Brown, are you satisfied with the services of your lawyer?
DEFENDANT: Yes, sir.
THE COURT: Has he threatened you in any manner, or has he promised you anything in order to get you to plead guilty?
DEFENDANT: No, sir.
THE COURT: Do you believe that your lawyer has properly advised you in this plea?
DEFENDANT: Yes, sir.
THE COURT: Do you believe that your lawyer has properly represented you in this case?
DEFENDANT: Yes, sir.
THE COURT: Do you have any complaints whatsoever about your lawyer?
DEFENDANT: No, sir.

¶ 14. Brown's statements on appeal contradict the statements he made before the circuit court. However, "a trial court is entitled to place great weight upon a defendant's initial plea under oath." Williams v. State , 107 So.3d 1016, 1021 (¶ 15) (Miss. Ct. App. 2012). Moreover, Brown failed to submit any evidence to the trial court to suggest that his lawyer's representation was deficient. Brown also failed to attach any affidavits, other than his own, to substantiate his claim for ineffectiveness of counsel. The Mississippi Supreme Court has held that "[it] has implicitly recognized in the post[ ]conviction[-]relief context that where a party offers only his affidavit, then his ineffective[-]assistance[-]of[-]counsel claim is without merit." Walden v. State , 201 So.3d 1042, 1045 (¶ 14) (Miss. 2016) (quoting Vielee v. State , 653 So.2d 920, 922 (Miss. 1995) ). Brown has not shown good cause why he has not provided affidavits other than his own. See id.

¶ 15. We find that Brown has failed to show that his counsel's performance was deficient, as required under Strickland . Furthermore, Brown failed to show that "but for his counselor's errors, he would not have pleaded guilty." Cole , 918 So.2d at 894 (¶ 10). Accordingly, this issue is meritless.

II. Validity of the Search Warrant

¶ 16. Brown asserts that the circuit court erred in accepting his guilty plea, because a search warrant was illegally obtained. However, Brown pleaded guilty, and "a valid guilty plea waives the right to challenge the sufficiency of the State's evidence." Bradley v. State , 224 So.3d 1267, 1270 (¶ 9) (Miss. Ct. App. 2017). Therefore, Brown is procedurally barred from challenging the sufficiency of the search warrant, and this issue is without merit.

¶ 17. Nevertheless, we will briefly address this issue. Brown contends that the police served a search warrant to a home that was not his, and that he was not present during the search. To support his assertion, Brown submitted the affidavit of Donna Brown, which alleged that his purported permanent address and the address that the police searched were two different addresses. However, at Brown's plea hearing, the State informed Brown that they had obtained Brown's address at that time from witness testimony and the Magee Police Department. Brown informed the court that he had heard all of the State's evidence, that he did not have anything to add, and that what the State presented was true. Moreover, as previously stated, a result of Brown's guilty plea was a waiver of his right to challenge the State's evidence. See Bradley , 224 So.3d at 1270 (¶ 9). Accordingly, we find this issue without merit.

III. Sufficiency of Brown's Guilty-Plea Hearing

¶ 18. It appears, although somewhat unclearly, that Brown asserts that some aspect of his plea hearing was inadequate. We disagree.

¶ 19. Brown was informed of his constitutional rights before and during his guilty plea. Moreover, Brown informed the circuit court that he was satisfied with his attorney, and that he was not under the influence of alcohol or drugs during the plea. In turn, the circuit court withheld acceptance of Brown's guilty plea and placed Brown on nonadjudicated probation with the stipulation that Brown successfully complete the drug-court program. Therefore, this issue lacks merit, and we find no error with the circuit court's denial of Brown's PCR motions as they relate to Brown's guilty plea to Count II, possession of cocaine.

¶ 20. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR.

      Brown tested positive for methamphetamine on three separate occasions, provided an altered urine specimen, and failed to report for drug testing on a separate occasion.

      The inadvertence of sentencing on Count I is addressed later in this opinion.

      Brown also submitted another brief to the Mississippi Supreme Court, alleging that his guilty plea was involuntary because of ineffective assistance of counsel, his attorney did not properly assist in his defense, a search warrant issued in his case was illegal, and he was coerced into pleading guilty.

      Mississippi Rule of Criminal Procedure 25.4 states that "[a]fter giving notice to the State and the defendant, the court may correct a clerical error in a judgment or order, correct an error in the record arising from oversight or omission, or correct a sentence that resulted from arithmetical, technical, or other clear error." The circuit court is authorized to correct a "scrivener's or clerical error at any time." M.R.Cr.P. 25.4 cmt. (citing Shinn v. State , 74 So.3d 901, 907 (¶ 18) (Miss. Ct. App. 2011) ). It is unclear whether the circuit court gave notice to the State and Brown before issuing the order correcting the clerical errors. Nonetheless, there has been no objection to the issuance of the corrections.

      On May 19, 2017, Brown filed a pro se "motion to dismiss charges." He filed another identically titled motion nine days later. On June 28, 2017, both motions were passed for consideration with the merits of Brown's appeal. Within those motions, Brown raised claims that the Court has now addressed through this opinion-i.e., that his guilty pleas were involuntary, and he received ineffective assistance of counsel. For the reasons discussed above, Brown's motions "to dismiss charges" are denied.


author: PER CURIAM:

text:
    Michael J. BOUNDS, Appellant v. Suzanne Marie BENSON, Individually, and Suzanne Marie Benson, as Trustee of the Suzanne Marie Benson Revocable Trust, Appellee
    NO. 2017-CA-00460-COA
    Court of Appeals of Mississippi.
    December 11, 2018 Rehearing Denied January 31, 2019
    ATTORNEYS FOR APPELLANT: THOMAS J. SUSZEK, GEOFFREY F. CALDERARO
    ATTORNEYS FOR APPELLEE: J. CAL MAYO, JR., KATE M. EMBRY
    BEFORE GRIFFIS, P.J., WILSON, WESTBROOKS AND TINDELL, JJ., ROBERTS AND GOWAN, S.JJ.

      Six judges of this Court recused themselves from participation in this case. Because a quorum of six judges is required to reach a decision, this Court asked the Chief Justice of the Mississippi Supreme Court to appoint two special judges to participate in the decision of this appeal pursuant to Mississippi Code Annotated section 9-1-105(1) (Rev. 2014). By order entered on July 27, 2018, the Chief Justice appointed Senior Status Judge Larry E. Roberts and Senior Status Judge William E. Gowan to serve as special judges for this case, including any motion for rehearing.

   PER CURIAM:

¶ 1. The judgment of the Lafayette County Chancery Court is affirmed by an evenly divided Court. See Wise v. Valley Bank , 861 So.2d 1029, 1033 (¶ 10) (Miss. 2003) ("We hold that when this Court is evenly divided, the order or judgment of the court from which the appeal is taken must be affirmed.").

¶ 2. AFFIRMED.

GRIFFIS, P.J., WILSON, WESTBROOKS AND TINDELL, JJ., ROBERTS AND GOWAN, S.JJ., CONCUR. LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR AND GREENLEE, JJ., NOT PARTICIPATING.


author: MOORE, Judge.

text:
    Frances MACK v. Alan ARBER
    2170713
    Court of Civil Appeals of Alabama.
    August 3, 2018
    J. Flint Liddon and David E. Miller, Jr., of Liddon Law Firm, Birmingham, for appellant.
    Submitted on appellant's brief only.
   MOORE, Judge.

Frances Mack appeals from a judgment entered by the Etowah Circuit Court ("the circuit court") in favor of Alan Arber on her claims arising from damage she allegedly sustained in a motor-vehicle accident with Arber. We dismiss the appeal.

Facts and Procedural History

On January 20, 2017, Mack filed a complaint against Arber seeking "compensatory and punitive damages as determined reasonable by a jury" for "negligence, wantonness and property damage she sustained in connection with a motor vehicle accident on March 27, 2015." On January 27, 2017, Arber answered the complaint.

On February 1, 2017, Arber filed a motion requesting that the trial court enforce a settlement agreement ("the settlement agreement") that Kevin Barnes, a former attorney for Mack, had allegedly entered into on behalf of Mack relating to the motor vehicle-accident referenced in Mack's complaint; Arber also requested in that motion that the trial court dismiss Mack's complaint against him. Arber attached evidentiary submissions in support of his motion. On April 10, 2017, Mack responded to that motion, arguing that she had not authorized Barnes to enter into the settlement agreement. Mack also attached evidentiary submissions in support of her response. On April 13, 2017, the trial court granted Arber's motion to enforce the settlement agreement. On April 17, 2017, Arber requested permission from the trial court to pay the funds required by the settlement agreement into court; that motion was granted the next day.

On May 1, 2017, Barnes filed a motion to intervene to assert a claim for attorney's fees and expenses for his having negotiated the settlement agreement on Mack's behalf; that motion was granted that same day. On May 3, 2017, Arber filed a motion again requesting that the trial court dismiss the claims asserted against him. On May 9, 2017, Mack filed a notice of appeal to the Alabama Supreme Court; that appeal was transferred to this court, and this court subsequently dismissed the appeal as having been taken from a nonfinal judgment. See Mack v. Arber, 266 So. 3d 32 (Ala. Civ. App. 2016) (table). On June 6, 2017, the trial court denied Arber's motion to dismiss as moot.

On October 2, 2017, Mack filed an amendment to her complaint, adding a claim for uninsured/underinsured-motorist benefits against Nationwide Mutual Insurance Company. On that same date, Arber renewed his motion to dismiss.

On November 22, 2017, Barnes filed a motion requesting that the trial court allow him to pay certain "MedPay funds" into court. That motion was later granted. On November 22, 2017, Nationwide answered and moved to dismiss the claim asserted against it.

After a hearing, the trial court entered an order on December 1, 2017, granting the pending motion to dismiss the claims against Arber; that order stated that the case remained pending as to the claims involving the other parties. The trial court also certified the order as final pursuant to Rule 54(b), Ala. R. Civ. P. On January 11, 2018, Mack filed her notice of appeal.

Discussion

On appeal, Mack argues that she had "expressly rejected the settlement offer and, therefore, [Barnes] did not have [Mack's] authority to enter into the alleged settlement agreement."

Although the parties have not raised the issue of the appropriateness of the circuit court's Rule 54(b) certification of its December 1, 2017, order, this court directed the parties to file letter briefs addressing whether the claims against Arber, which were resolved by the circuit court in its December 1, 2017, order, and the claims that remain pending in the trial court, i.e., the claims involving Barnes and Nationwide, are " ' " 'so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results,' " ' "

Loachapoka Water Auth., Inc. v. Water Works Bd. of Auburn, 74 So.3d 419, 423 (Ala. 2011) (quoting Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala. 2006), quoting in turn Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala. 2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala. 1987) ). Mack filed a letter brief with this court asserting that the Rule 54(b) certification should be set aside. Arber did not file a letter brief with this court on the Rule 54(b) issue.

" 'If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.' Baugus v. City of Florence, 968 So.2d 529, 531 (Ala. 2007) (emphasis added). However, this Court will not consider an appeal from a judgment certified as final under Rule 54(b) if it determines that the trial court exceeded its discretion in concluding that there is 'no just reason for delay.' Rule 54(b) ; see also Scrushy v. Tucker, 955 So.2d 988, 996 (Ala. 2006) ('Whether there was "no just reason for delay" is an inquiry committed to the sound discretion of the trial court, and, as to that issue, we must determine whether the trial court exceeded its discretion.').
"A trial court exceeds its discretion in determining that there is 'no just reason for delay' when ... 'the issues in the claim being certified and a claim that will remain pending in the trial court " 'are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.' " ' Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala. 2006) (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala. 2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala. 1987) ). See also Centennial Assocs., Ltd. v. Guthrie, 20 So.3d 1277, 1281 (Ala. 2009) (' "It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties." ' (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998) ) )."

Loachapoka Water Auth., Inc., 74 So.3d at 422-23.

With regard to the claim filed by Barnes, we note that, if this court rules that Mack rejected the settlement offer and that Barnes did not have the authority to enter into the settlement agreement on Mack's behalf, and the trial court awards Barnes attorney's fees and expenses relating to his having negotiated the settlement agreement on behalf of Mack, those results would be inconsistent. Because Barnes's unadjudicated claim is " ' " 'so closely intertwined [with Mack's claim against Arber] that separate adjudication would pose an unreasonable risk of inconsistent results,' " ' " Loachapoka Water Auth., Inc., 74 So.3d at 423 (quoting Schlarb, 955 So.2d at 419-20, quoting in turn Clarke-Mobile Counties Gas Dist., 834 So.2d at 95, quoting in turn Branch, 514 So.2d at 1374 ), we hereby dismiss this appeal. Schlarb v. Lee, 955 So.2d at 420. In light of our disposition, we pretermit discussion of whether the pendency of Mack's claim against Nationwide prevents a valid certification pursuant to Rule 54(b).

APPEAL DISMISSED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.


author: THOMPSON, Presiding Judge.

text:
    Gary L. RICKS v. 1ST FRANKLIN FINANCIAL CORPORATION
    2170598
    Court of Civil Appeals of Alabama.
    August 3, 2018
    Farahbin Majid, Pamela Jackson, and Elizabeth Peyton Faulk of Legal Services Alabama Inc., Huntsville, for appellant.
    T. Riley Wolfe of Wolfe, Jones, Wolfe, Hancock, Daniel & South, LLC, Huntsville, for appellee.
   THOMPSON, Presiding Judge.

Gary L. Ricks appeals from a judgment of the Colbert Circuit Court denying his motions to stay a garnishment and to dismiss that garnishment.

On July 29, 2013, 1st Franklin Financial Corporation ("the bank") obtained a judgment ("the bankruptcy judgment") in the United States Bankruptcy Court for the Northern District of Alabama against Ricks in the amount of $20,977. The bankruptcy judgment included $6,700 in compensatory damages, $6,700 in punitive damages, a $6,750 attorney fee, and costs of $827. The bankruptcy judgment specified that it was nondischargeable pursuant to 11 U.S.C. § 523(a)(6). From the record, we are unable to discern the specific allegations the bank made against Ricks in the "adversary proceeding" between them, other than a statement from the bank that the punitive-damages award resulted "from Ricks's willful and malicious injury to" the bank.

On October 1, 2013, the bank submitted a notice of filing a foreign judgment in the circuit-court clerk's office. Thereafter, the bank filed a process of garnishment in the circuit court, and a writ of garnishment was issued to Ricks's employer on November 26, 2013. Pursuant to the writ of garnishment, 25% of Ricks's disposable earnings each week was to be withheld until the bankruptcy judgment was satisfied.

On December 10, 2013, Ricks filed a declaration and claim of exemption and attached an inventory of his property, which included his residence, a 2004 Dodge Ram pickup truck, a 2008 Lincoln MKZ automobile, and unitemized "household goods and appliances" that Ricks valued at $1,200. Substantial balances were still owed on the residence and the two vehicles. He also claimed his wages were exempt from garnishment. The bank contested the declaration and claim of exemption, asserting that Ricks had previously represented the value of his assets as being higher than he did in seeking the exemption. On February 21, 2014, after a hearing on the matter, the circuit court entered a judgment granting Ricks's declaration and claim of exemption "only to the extent that [Ricks] has asserted an exemption as to personal property in household goods and appliances of $1,200." The circuit court determined that Ricks was entitled to exempt from execution $1,000 in personal property pursuant to § 204 of Article X of the Alabama Constitution. The circuit court determined that Ricks was entitled to an exemption of the remaining $200 pursuant to § 6-10-6, Ala. Code 1975.

Because Ricks had exhausted the $1,000 personal-property exemption to which he was entitled under § 204 through his "household goods and appliances," the circuit court stated, there was "no need for further inquiry as to [Ricks's] remaining personal property," including wages. The circuit court then granted the bank's contest of Ricks's declaration and claim of exemption and denied the declaration and claim of exemption "as to all remaining matters" and stated that the declaration and claim of exemption "shall not interfere with or prevent the operation of [the bank's] garnishment of [Ricks's] wages," subject to the limits of the law. Ricks did not appeal or otherwise seek review of the February 2014 judgment.

However, approximately two months later, on April 30, 2014, Ricks filed a second declaration and claim of exemption, which was dated March 1, 2014 ("the second exemption"). The inventory of personal property he attached to the second exemption included only his wages. The bank contested the second exemption. A second hearing was held, and on June 30, 2014, the circuit court entered an order finding that the second exemption was procedurally defective because it did not meet the statutory requirements of § 6-10-29, Ala. Code 1975; because it failed to provide an inventory; because a full and complete inventory of all Ricks's assets had not been provided to the bank within the time required by § 6-10-29 ; and because it did not include a valid notary attestation. Accordingly, the circuit court denied the second exemption and granted the bank's contest. The circuit court also ordered Ricks to "refrain from submitting any further claims of exemption to this court unless such claims are strictly compliant with Ala. Code (1975), § 6-10-29 and supported by sworn statement(s) evidencing a material change in Ricks's financial situation." The record does not indicate that Ricks appealed or otherwise sought review of the June 2014 order.

On July 25, 2017, Ricks filed a third declaration and claim of exemption ("the third exemption"). In the third exemption, Ricks claimed that all of his net wages, which, he said, amounted to $970 every two weeks, were exempt from garnishment. He also stated that all of his income was used to pay current expenses necessary to support his family and himself. Ricks stated that he did not have an accumulation of wages from paycheck to paycheck. Ricks also set forth an itemized list of personal property other than wages that he said was for inventory purposes only.

The bank filed its contest of the third exemption on August 2, 2017. In response, Ricks filed a motion to stay the garnishment and a motion to dismiss the garnishment, arguing, among other things, that his claim of exemption of his wages from garnishment was proper. A hearing was held on the matter, and, on October 3, 2017, the circuit court denied Ricks's motion to dismiss the garnishment, without explanation. By separate order, issued the same day, the circuit court denied Ricks's motion to stay the garnishment.

Ricks filed a purported motion to alter, amend, or vacate, the October 2017 orders. As discussed below, we conclude that the October 2017 orders were not final, and a motion to alter, amend, or vacate can be made only in reference to a final judgment. Rule 59(b), Ala. R. Civ. P ; Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala. 2003). Nonetheless, had the motion been filed in response to a final judgment, it would have been denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., and Ricks's notice of appeal would have been timely.

Neither party has raised the issue of this court's jurisdiction over this appeal. However, it is well settled that

" 'jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.' Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987). The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala. Civ. App. 1979)....
"Our Supreme Court has defined a final judgment as
" 'a terminative decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself....'
" Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala. 1976)."

Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala. Civ. App. 2006).

Rule 58(b), Ala. R. Civ. P., defines a judgment as one that, among other things, "indicates an intention to adjudicate, considering the whole record, and ... indicates the substance of the adjudication." In this case, the circuit court's orders of October 3, 2017, denied Ricks's motions to stay the garnishment and to dismiss the garnishment. In his motion to dismiss the garnishment, Ricks requested that the previously issued writ of garnishment be dismissed and that the wages that had been withheld as a result of that writ be returned to him. From the record before us, we cannot conclude that the October 3, 2017, orders addressed Ricks's third exemption requesting that his current wages be exempt from garnishment or that the bank's objection to the third exemption was granted or denied. In other words, there is no indication in the October 3, 2017, orders to indicate an intention to adjudicate the third exemption and the objection to the third exemption. To find such an intention, this court would be required to read more into the orders than is set forth.

Accordingly, we find that there is no final judgment that would support an appeal. " 'When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.' " Young v. Sandlin, 703 So.2d 1005, 1008 (Ala. Civ. App. 1997) (quoting Powell v. Republic Nat'l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974) ). Therefore, the appeal is dismissed.

APPEAL DISMISSED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      Section 204 provides:
      "The personal property of any resident of this state to the value of one thousand dollars, to be selected by such resident, shall be exempt from sale or execution, or other process of any court, issued for the collection of any debt contracted since the thirteenth day of July, eighteen hundred and sixty-eight or after the ratification of this Constitution."

      Section 6-10-6 provides:
      "The personal property of such resident, except for wages, salaries, or other compensation, to the extent of the resident's interest therein, to the amount of seven thousand five hundred dollars ($7,500) in value, to be selected by him or her, and, in addition thereto, all necessary and proper wearing apparel for himself or herself and family, all family portraits or pictures and all books used in the family shall also be exempt from levy and sale under execution or other process for the collection of debts. No wages, salaries, or other compensation shall be exempt except as provided in Section 5-19-15 or Section 6-10-7[, Ala. Code 1975]."