author: ISHEE, JUSTICE, FOR THE COURT:

text:
    Dalton TRIGG and Dr. Stephen D. Trigg v. Steven FARESE, Sr. and Farese, Farese & Farese, P.A.
    NO. 2015-CA-00045-SCT
    Supreme Court of Mississippi.
    November 29, 2018 Rehearing Denied April 4, 2019
    ATTORNEYS FOR APPELLANTS: MATTHEW WADE GILMER, BARRY W. GILMER, JONATHAN DAVID NUESCH, JOSEPH AARON CRONE, RICHARD COLEMAN WILLIAMS
    ATTORNEYS FOR APPELLEES: LAWRENCE JOHN TUCKER, JR., H. SCOTT SPRAGINS, RALPH EDWIN CHAPMAN
    BEFORE RANDOLPH, P.J., KING AND ISHEE, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. Dalton Trigg and his father, Dr. Stephen Trigg, sued Dalton's former criminal-defense attorney, Steven Farese Sr., alleging professional malpractice. The Lafayette County Circuit Court held that the claims were premature because Dalton had not yet secured postconviction relief from the underlying conviction, and it dismissed the complaint without prejudice.

¶ 2. This case presents the question of whether a convicted criminal may sue his former defense attorney for negligently causing him to be convicted while that conviction still stands. We join the substantial majority of courts in holding that, because these allegations would entitle the plaintiff to relief from his underlying conviction, he must first pursue them through the criminal-justice process. In other words, a convict must "exonerate" himself by obtaining relief from his conviction or sentence before he may pursue a claim against his defense attorney for causing him to be convicted or sentenced more harshly than he should have been. To the extent prior decisions of this Court or the Court of Appeals suggest otherwise, they are overruled.

¶ 3. But this holding extends only to claims that stem from allegations of professional malpractice. The Triggs' claim for an accounting of the substantial retainer paid to Dalton's attorney, to the extent it is just a fee dispute and does not depend on the quality of legal services rendered, should not have been dismissed. Finally, Dr. Trigg had standing to pursue the accounting claim because he claims he paid the retainer and is entitled to a refund of the unearned portion.

FACTS AND PROCEDURAL HISTORY

¶ 4. The following facts are drawn from the allegations in the Triggs' complaint, which, because of the procedural posture of this case, are taken as true. On September 10, 2011, Dalton drove his vehicle after drinking alcohol and collided with another vehicle. A fourteen-year-old passenger in the other vehicle suffered injuries to her lower extremities and a laceration to her eyebrow. She fully recovered, allegedly free of any permanent injuries or restrictions. Dalton, however, received life-threatening injuries. He suffered brain damage and was incapacitated for some period of time after the accident. When Dr. Trigg learned Dalton had been drinking before the accident, he approached Farese to discuss legal representation for his son. Farese demanded an up-front retainer of $50,000.

¶ 5. The Triggs further allege Farese warranted that Dalton would incur only a misdemeanor charge and would not be sentenced to any jail time. Dr. Trigg paid the retainer in reliance on this guarantee, and he believed the payment created an attorney-client relationship between him and Farese. But Dalton was eventually indicted for aggravated DUI, a felony punishable by up to twenty-five years' imprisonment. Farese then allegedly advised that if Dalton pled guilty to the felony charge, it would somehow be reduced to a misdemeanor and he would receive no jail time. Following this advice, Dalton pled guilty to the felony-but he ultimately received a ten-year sentence, with six years suspended and four years to serve. The four years to serve would be reduced to five years' probation after Dalton completed a long-term drug and alcohol treatment program.

¶ 6. Dalton finished the treatment program and was released from prison in February 2014-he spent roughly nine months incarcerated. He claims that during his time in prison, he was beaten by other inmates and suffered serious injuries. Unsatisfied with Farese's representation, Dalton and Dr. Trigg filed suit against Farese and his firm on April 1, 2014. The Triggs alleged a variety of claims, all of which stemmed from Farese's representation of Dalton. Specifically, the Triggs styled their causes of action fraud, breach of contract, legal malpractice (negligence), accounting for money paid, and negligent infliction of emotional distress. Because of certain allegations in the complaint, Farese successfully moved to have the file temporarily sealed. That seal remains intact to the present day.

¶ 7. On April 14, 2014, the circuit-court judges for the Third Judicial District entered a sua sponte order of recusal. This Court then appointed Judge L. Breland Hilburn to preside as a special judge.

¶ 8. Farese then filed his answer, which also contained a motion to dismiss or, in the alternative, for summary judgment. Farese argued the complaint should be dismissed because Dr. Trigg lacked standing and Dalton had failed to first seek postconviction relief. On August 25, 2014, the circuit court dismissed the Triggs' complaint pursuant to "Rule 12 and/or Rule 56 of [the] Mississippi Rules of Civil Procedure" after reviewing "all of the pleadings, responses, affidavits[,] and authorities of law filed by the parties." In response, the Triggs filed a posttrial motion seeking to vacate the order of dismissal and to reinstate their claims. At the hearing on the motion to vacate, the circuit judge explained that his intent was to dismiss the complaint under Rule 12(b). And on December 11, 2014, the circuit court entered an order denying the Triggs' motion to vacate, reaffirming its dismissal of their complaint without prejudice and denying all other pending motions. The Triggs timely perfected this appeal.

STANDARD OF REVIEW

¶ 9. "The standard of review for a trial court's grant or denial of a motion to dismiss is de novo." Long v. Vitkauskas , 228 So.3d 302, 304 (Miss. 2017). This Court likewise reviews a circuit court's grant of summary judgment de novo. Daniels v. Crocker , 235 So.3d 1, 6 (Miss. 2017). As to standing, which raises jurisdictional issues, the standard of review is also de novo. Hotboxxx, LLC v. City of Gulfport , 154 So.3d 21, 27 (Miss. 2015).

DISCUSSION

1. Affidavits on Motion to Dismiss

¶ 10. As a threshold issue, the Triggs complain the circuit court erroneously dismissed their complaint because it failed to explicitly exclude two affidavits which the Triggs themselves attached to their responses to the motion to dismiss. The Triggs also rely on the circuit court's original order of dismissal, which was somewhat unclear as to whether the complaint was dismissed under Rule 12 of the Mississippi Rules of Civil Procedure or whether summary judgment was granted under Rule 56. The order states that dismissal was under " Rule 12 and/or Rule 56 of [the] Mississippi Rules of Civil Procedure" and that the circuit court "considered all of the pleadings, responses, affidavits[,] and authorities of law filed by the parties." At the hearing on the "motion to vacate," the circuit judge clarified his ruling:

[I]t's obvious that I may have generated some misconception about the order [of dismissal] .... It was the intent of the [c]ourt to enter an order of dismissal under Rule 12. That order obviously sits. There [were] undisputed facts set out in the pleadings as to whether or not a post-conviction relief had been sought by [Dalton]. It was also mentioned as being a Rule 56 summary judgment ruling by the [c]ourt. The [c]ourt will amend the order to reflect at this point in time it is a Rule 12 dismissal, and that there's really not a need for the [c]ourt to reach summary judgment at this point.

The circuit court then entered an order denying the motion to vacate which returned to the merits of the motion to dismiss and omitted any mention of the affidavits or summary judgment.

¶ 11. The Triggs argue that since the first order recites that the circuit court reviewed affidavits, the court was required to convert the motion to dismiss into a motion for summary judgment. Farese responds by pointing out that the circuit court had to review affidavits in order to determine one of the asserted bases for dismissal, whether Dr. Trigg had standing.

¶ 12. We agree that the circuit court was entitled to review Dr. Trigg's affidavit as it pertained to standing. The challenge was based on Rule 12(b)(1) of the Mississippi Rules of Civil Procedure. In Schmidt v. Catholic Diocese of Biloxi , 18 So.3d 814, 822 (Miss. 2009), this Court explained the difference between facial attacks on subject-matter jurisdiction versus factual attacks. Facial attacks allege the court lacks jurisdiction as a matter of law, while a factual attack "requires resolution by the trial court of one or more factual disputes in order to determine subject matter jurisdiction." Id. (quoting Roman Catholic Diocese v. Morrison , 905 So.2d 1213, 1220 (Miss. 2005) ). "In a factual attack, matters outside the pleadings, such as testimony and affidavits, are considered." Id. Because the circuit court was faced with a factual attack as to Dr. Trigg's standing, it properly considered the affidavit submitted by Dr. Trigg on that point.

¶ 13. There is a second affidavit, however, which was also filed by the Triggs. It was addressed to the underlying merits of the malpractice claim and clearly should have been excluded from consideration under Rule 12(b)(6). The Triggs contend that it was not excluded and that the circuit court was therefore required to convert the motion to one for summary judgment. They cite Rule 12(b), which provides that "[i]f ... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." M.R.C.P. 12(b). Since the circuit court here was presented with an affidavit, which it did not expressly exclude, the Triggs argue it was error not to convert the motion to one for summary judgment.

¶ 14. The Triggs misunderstand what it means for the circuit court to exclude the affidavit-the circuit court is required only to exclude the affidavit from controlling its resolution of the 12(b)(6) motion. As this Court held in Delta MK, LLC v. Mississippi Transportation Commission , 57 So.3d 1284, 1290 (Miss. 2011), conversion of the motion to dismiss into a motion for summary judgment is required when the circuit court considers matters outside the pleadings. And considered, as it used here, must mean more than simply reviewed or contemplated-for there to be any error in considering affidavits, the circuit court's judgment must depend on those affidavits. Or, as the United States Court of Appeals for the Tenth Circuit, construing the parallel federal rules, put it: any error in failing to convert the motion "is harmless if the dismissal can be justified under [ Rule] 12(b)(6) standards without consideration of the matters outside the pleadings." Lowe v. Town of Fairland , 143 F.3d 1378, 1381 (10th Cir. 1998).

¶ 15. Here, the circuit court's reason for dismissing the complaint was Dalton Trigg's failure to allege he had secured postconviction relief-the circuit court accepted the allegations in the complaint as true. And the court dismissed the complaint without prejudice, as it should have under Rule 12(b)(6) for failure to state a claim; if the court had taken the motion as one for summary judgment, the decision would have been on the merits and the "dismissal" would have been a final judgment with prejudice. See M.R.C.P. 56(c). Despite the rote recitations in the circuit court's first order, it is apparent to us that the affidavit had nothing to do with the court's decision. Thus, it was not really considered, and the circuit court was under no obligation to convert the 12(b)(6) motion to dismiss for failure to state a claim into a motion for summary judgment. See Delta MK , 57 So.3d at 1290.

¶ 16. Even if the circuit court had been required to convert the motion to one for summary judgment, it still could have dismissed the complaint for failure to state a claim. Under Rule 12(h)(2), the defendants were entitled to raise the defense of failure to state a claim upon which relief can be granted, not only in their responsive pleading, but also "by motion for judgment on the pleadings, or at the trial on the merits." And under Rule 12(b)(6) itself, trial courts possess the authority to dismiss complaints which fail to state a claim-on the court's own motion. See, e.g. , Sparling v. Hoffman Const. Co. , 864 F.2d 635, 638 (9th Cir. 1988) ; see also 5B Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 1357 (3d ed.), Westlaw (database updated Sept. 2018). The only limitation is that the court must proceed in a way that is fair to the parties. See 5B Wright & Miller § 1357. Since the Triggs were on notice that the legal sufficiency of their complaint had been challenged and were given numerous opportunities to respond, we can find no unfairness in the dismissal.

¶ 17. Finally, we reiterate that our standard of review is de novo. The record gives no reason to suspect the circuit court based its decision on anything other than a careful study of the pleadings and the law. But under our standard of review it does not matter why the circuit court reached the result it did; we consider the legal sufficiency of the complaint anew. See Triplett v. S. Hens, Inc. , 238 So.3d 1128, 1130 (Miss. 2018) ; see also M.R.C.P. 12(b)(6). If the circuit court reached the right result for the wrong reason, its judgment would be affirmed; if it reached the wrong result, the judgment would be reversed. See Triplett , 238 So.3d at 1130. A circuit court is not even required to explain why it granted or denied a motion to dismiss. As the Court of Appeals has observed, the circuit court's explanation "may be helpful ... to the parties and [the reviewing court]," but its "rationale is not controlling." Satterfield v. State , 158 So.3d 380, 382 (Miss. Ct. App. 2015).

¶ 18. In summary, the issue of the legal sufficiency of the complaint is squarely before us on appeal. As we shall explain in due course, the trial court erred in dismissing one of the counts asserted in the complaint. But so far as the record reveals, any error in the circuit court's consideration of the affidavits was harmless.

2. Dr. Trigg's Standing

¶ 19. As to Dr. Trigg, the circuit court held that "[Dr.] Trigg's dissatisfaction in the performance of Farese [did] not create an attorney/client relationship." The circuit court further held that "[Dr. Trigg] occupies no better position than his son, Dalton; a successful result of a [p]ost [c]onviction [r]elief petition must be obtained before [Dr. Trigg's] claim for legal malpractice against Farese will be actionable."

¶ 20. "Standing is a jurisdictional issue." Hotboxxx, LLC , 154 So.3d at 27. Standing depends on "whether the plaintiff asserts a 'colorable interest in the subject-matter of the litigation or experience[s] an adverse effect from the conduct of the defendant, or as otherwise provided by law.' " Id. So, "while standing in federal court requires an 'injury in fact,' standing in Mississippi courts is more liberal and requires a 'colorable interest in the subject matter.' " Id. This Court has defined a colorable interest as "whether the particular plaintiff had a right to judicial enforcement of a legal duty of the defendant or whether a party plaintiff can show in himself a present, existent actionable title or interest, and demonstrate that this right was complete at the time of the institution of the action." Id.

¶ 21. The complaint alleged five causes of action-fraud, breach of contract, legal malpractice (negligence), accounting for money paid, and negligent infliction of emotional distress. As further explained below, four of these causes are essentially legal-malpractice allegations and were properly dismissed because Dalton failed to first secure postconviction relief. These counts were properly dismissed regardless of whether Dalton's father also had standing to pursue them, and thus the issue of his standing is moot. Any further discussion would be purely academic. But the request for an accounting-which is essentially a fee dispute-survives.

¶ 22. Dr. Trigg alleges he paid Farese's retainer and Farese failed to provide an accounting or refund the unearned portion of the fees. As explained below, a claim based on the quality of the representation is barred, but the accounting claim survives to the extent it alleges the Triggs paid for work that was just not done. No contract appears in the record, but Dr. Trigg alleges he paid the retainer and is entitled to a refund of the unearned portion. He has a colorable interest in the subject matter of the accounting claim, and he therefore has standing to pursue it. See Hotboxxx, LLC , 154 So.3d at 27.

3. The Malpractice Claims

¶ 23. The Triggs asserted various causes of action in the complaint, but the circuit court focused on the legal malpractice allegation, which it saw as the fountainhead from which all the other counts derived. The circuit court dismissed the complaint by holding that a criminal defendant must secure postconviction relief before pursuing a criminal-defense malpractice claim. For authority, the circuit court relied on a case from another jurisdiction, Gibson v. Trant , 58 S.W.3d 103 (Tenn. 2001). We are not aware of any prior decisions of this Court or the Court of Appeals discussing whether a convicted criminal must first "exonerate" himself before pursuing a malpractice claim against his defense attorney. In fact, reported criminal-malpractice decisions appear to have been rare at common law. See Wiley v. Cty. of San Diego , 19 Cal.4th 532, 79 Cal.Rptr.2d 672, 966 P.2d 983, 985 (1998) (noting prominent scholars had found only a handful of reported criminal malpractice cases nationwide as of 1974). But malpractice suits against criminal-defense attorneys have exploded in recent years, and most states have responded by adopting some form of the exoneration rule. See id. Thus, we take this as an issue of first impression in Mississippi, and after due consideration, we find the reasons for adopting an exoneration rule persuasive.

¶ 24. We begin our discussion with the traditional elements of a legal-malpractice claim: "a plaintiff must prove by a preponderance of the evidence the existence of a lawyer-client relationship, negligence on the part of the lawyer in handling his client's affairs entrusted to him, and some injury proximately caused by the lawyer's negligence." Estate of St. Martin v. Hixson , 145 So.3d 1124, 1128 (Miss. 2014).

¶ 25. The exoneration rule finds its justification mostly in that final element: the client must show that his attorney's negligence proximately caused his injuries. Id. Proximate cause requires that the attorney's negligence be both the cause in fact and the legal cause of the client's damages. Glenn v. Peoples , 185 So.3d 981, 986 (Miss. 2015). In the specific context of a legal-malpractice action, the plaintiff "must show that, but for his attorney's negligence, he would have been successful in the prosecution or defense of the underlying action." Id. (citation omitted). This "ensures that attorneys are only held professionally liable where their failures to adhere to the standard of care actually impacted the plaintiff's interests in the case." Id. at 843. The former client "must establish proximate cause by the so-called 'trial-within-a-trial' test." Crist v. Loyacono , 65 So.3d 837, 842 (Miss. 2011).

¶ 26. Immediately resorting to the trial-within-a-trial test makes sense in an ordinary civil-malpractice allegation because there are generally no "do overs" for a client who has suffered a loss as a result of his own attorney's professional negligence. Criminal law, on the other hand, provides both a substantive remedy for ineffective assistance of counsel and a procedural means to get it, the appellate and postconviction-relief processes.

¶ 27. Criminal defendants have a constitutional right to counsel-and, as a necessary consequence, a constitutional right to effective assistance of counsel. See Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). One convicted of a crime or punished more severely than he should have been because of his attorney's negligence can raise the ineffectiveness of his counsel as substantive grounds for relief from his conviction or sentence; a petitioner is entitled to have his conviction set aside for ineffective assistance of counsel if he can show that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms" and that counsel's negligence "was prejudicial to the defense." Strickland , 466 U.S. at 688, 691-92, 104 S.Ct. 2052. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.

¶ 28. The criminal process is "a more appropriate forum to present [these] claims." Morgano v. Smith , 110 Nev. 1025, 879 P.2d 735, 739 n.3 (1994). And

a convicted defendant who cannot meet the standard of proving that there is a reasonable probability that, but for counsel's unprofessional errors, there would not have been a conviction, also cannot meet the higher burden of proving by a fair preponderance of the evidence in a later malpractice action that but for counsel's negligent conduct, there would not have been a conviction.

Noske v. Friedberg , 656 N.W.2d 409, 413-14 (Minn. Ct. App. 2003).

¶ 29. Furthermore, before accepting a guilty plea, the circuit court is required to undertake an extensive colloquy with the defendant, face-to-face and in open court. See, e.g. , Hannah v. State , 943 So.2d 20, 25 (Miss. 2006). One of the questions circuit courts routinely ask of the defendant is whether he is satisfied with his attorney's representation, and the court will generally refuse to accept a guilty plea if the answer is no. See, e.g. , Wilson v. State , 81 So.3d 1067, 1082-83 (Miss. 2012). Before accepting the guilty plea, the circuit court must find that it is offered knowingly, intelligently, and voluntarily. Hannah , 943 So.2d at 25. Because of these (and other) safeguards, defense counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland , 466 U.S. at 690, 104 S.Ct. 2052.

¶ 30. The principle of collateral estoppel provides that "[w]here a question of fact essential to a judgment is actually litigated and determined by a valid and final judgment, that determination is conclusive against the party against whom it was made in a subsequent suit on a different cause of action." Jordan v. McKenna , 573 So.2d 1371, 1375 (Miss. 1990) (citation omitted). One scholar called the attempted repudiation of a guilty plea for the purposes of civil litigation "the clearest case for such an estoppel." See Gibson , 58 S.W.3d at 114 (quoting Ray v. Stone , 952 S.W.2d 220, 224 (Ky. Ct. App. 1997) (quoting Geoffrey C. Hazard, Revisiting the Second Restatement of Judgments; Issue Preclusion and Related Problems , 66 Cornell L. Rev. 564, 578 (1981) ) ). "Particularly galling is the situation where a criminal convicted on his own guilty plea seeks as plaintiff in a subsequent civil action to claim redress based on a repudiation of the confession. The effrontery or, as some might say it, chutzpah , is too much to take." Id. Thus, most other courts have concluded that "by operation of the doctrine of collateral estoppel, a valid criminal conviction acts as a bar to overturning that conviction in a civil damages suit." Levine v. Kling , 123 F.3d 580, 583 (7th Cir. 1997). This result has been reached by a substantial majority of courts that have considered the issue; "only a few courts have held to the contrary." See Rosenberg v. Shostak , 405 S.W.3d 8, 13-14 n.5 (Mo. Ct. App. 2013) (collecting authorities).

¶ 31. We note also that our Legislature has created a comprehensive scheme for a convicted criminal defendant to challenge that conviction on appeal or through postconviction relief. As the Legislature itself put it, the Mississippi Uniform Post-Conviction Collateral Relief Act is intended "to provide the courts of this state with an exclusive and uniform procedure for the collateral review of convictions and sentences." See Miss. Code Ann. § 99-39-3(1) (Rev. 2015). Permitting collateral relitigation of the validity of criminal convictions outside that framework "would undermine the effective administration of the judicial system." Rosenberg , 405 S.W.3d at 15. Courts from other states with similar statutory schemes have gone so far as to say it would "shock the public conscience, engender disrespect for courts and generally discredit the administration of justice." Id. As the Oregon Supreme Court has observed,

In our society, no other legal outcome of the trial process is so difficult to obtain [as a criminal conviction]. Yet, to allow a person convicted of a criminal offense to sue that person's lawyer without having first overturned the conviction would mean that the courts would be permitting relitigation of a matter that is supposed to be settled: The complaining party is deemed by the law to be guilty. The panoply of protections accorded to the criminally accused (including direct appeal and post-conviction relief) is so inclusive, and the significance of a conviction so important to vindication of the rule of law, that it would appear most unusual to permit a person to prosecute a legal malpractice action premised on some flaw in the process that led to that person's conviction at the same time that the person's conviction remained valid for all other purposes. In other words, while the conviction and sentence remain valid for all other purposes, it is inappropriate to treat a complaining convicted offender as having been "harmed" in a legally cognizable way by that conviction.

Stevens v. Bispham , 316 Or. 221, 851 P.2d 556, 562 (1993). Just as it is in Oregon, the public policy of this State is "to treat any person who has been convicted of any criminal offense as validly convicted unless and until the person's conviction has been reversed, whether on appeal or through post-conviction relief, or the person otherwise has been exonerated." Id. at 561.

¶ 32. Another public-policy interest is in facilitating the practical and effective administration of the court system and the criminal justice process. Requiring exoneration "promotes judicial economy because many issues litigated in the quest for post-conviction relief will be duplicated in the legal malpractice claim." Gibson , 58 S.W.3d at 114. It also helps "prevent a flood of nuisance litigation" and "encourag[es] the representation of criminal defendants," since criminal defendants are often indigent and representing them is rarely lucrative. Barker v. Capotosto , 875 N.W.2d 157, 163 (Iowa 2016). Moreover, the exoneration rule "encourag[es] the thorough representation of criminal defendants" by reducing "the practice of defensive law, in which lawyers spend time and energy attempting to insulate their trial court decisions from attack in a later malpractice case." Gibson , 58 S.W.3d at 115 (citation omitted). And since a malpractice suit waives attorney-client privilege, the exoneration rule helps avoid the specter of a former defense attorney revealing "privileged or other evidence in his or her defense" to the malpractice suit that might later be used against the former client in subsequent criminal proceedings. See Shaw v. State , 816 P.2d 1358, 1361 (Alaska 1991). It is also desirable to allow "a criminal defendant with a valid post-conviction relief claim to pursue that remedy without the distraction of also filing a legal malpractice claim." See id.

¶ 33. As the Oregon Supreme Court noted in Stevens v. Bispham , 316 Or. 221, 851 P.2d 556, 560 (1993), "[l]egal malpractice is a common-law tort claim." Thus, "[i]n the absence of any pertinent legislation, it is for this court to define what constitutes legally cognizable harm in a tort case." Id. And "the choice of what constitutes legally cognizable harm is a policy choice." Id. We agree, and we hereby adopt the majority rule in other states requiring exoneration as a prerequisite to a criminal malpractice action.

¶ 34. To be clear, when we say a defendant must be "exonerated," we mean he must obtain a more favorable disposition of his conviction or sentence through direct appeal, postconviction relief, habeas corpus, or similar means within the criminal justice process. At that point, the malpractice suit may be initiated even if the underlying criminal case has not yet been finally resolved. We choose reversal or vacation rather than final disposition because many criminal charges, when remanded for a new trial, are not actually retried-and there is no statute of limitations for many serious offenses in Mississippi, and thus those charges may never be finally resolved. See Miss. Code Ann. § 99-1-5 (Rev. 2015). This would effectively deny malpractice suits to many of those convicted of serious offenses. See Silvers v. Brodeur , 682 N.E.2d 811, 818 (Ind. Ct. App. 1997). Our definition of exoneration as reversal establishes a bright-line rule that is not "contingent on whether the State decides to continue or revive prosecution of the defendant, a decision that may be made promptly or never, depending on whether there is pressure from a statute of limitations." Mashaney v. Bd. of Indigents' Def. Servs. , 302 Kan. 625, 355 P.3d 667, 677 (2015).

¶ 35. But if the prosecution is resumed after a malpractice suit has been filed, the trial court should stay the malpractice action until the underlying criminal proceedings are resolved. If the defendant is ultimately convicted of the same offense on remand, he obviously cannot show that his first attorney's negligence proximately caused his first conviction, because of collateral estoppel. See Jordan v. McKenna , 573 So.2d 1371, 1375 (Miss. 1990). It follows that if he is convicted of a lesser offense, he can only show damages stemming from the original punishment if he has already suffered punishment in excess of the sentence he receives on remand. And if he is sentenced on remand to time served, he has no damages.

¶ 36. Some courts, a majority even, go further than exoneration in the criminal proceedings and require a malpractice claimant prove he is actually innocent of the charges, sometimes including lesser-included offenses or other offenses that might have been charged from the transaction at issue. See Barker , 875 N.W.2d at 161-62 (surveying cases). At least one court has adopted a similar rule but put the burden on the defendant by holding that the plaintiff's guilt is an affirmative defense barring the guilty plaintiff from collecting any damages resulting from his conviction. See Shaw v. State , 861 P.2d 566, 571-73 (Alaska 1993). These courts reason that the true proximate cause of a criminal-malpractice plaintiff's damages is his own guilt, that a guilty criminal has no legally protected interest in his liberty, and that any negligence by a defense attorney is legally superseded by the defendant's own criminal conduct. See Barker , 875 N.W.2d at 162-163 ; Shaw , 861 P.2d 566 at 572.

¶ 37. The procedural posture of today's case does not require this Court to decide whether or not to adopt a per se actual innocence rule. We leave that question for another day, but we observe, as the Barker court did, that a malpractice plaintiff "who was factually guilty of the crime for which he or she was convicted ... will likely confront significant causation issues" even without a per se rule actual innocence rule. Barker , 875 N.W.2d at 166.

¶ 38. Next, we address the operation of the statute of limitations. In prior decisions, both this Court and the Court of Appeals have rejected the claims of successful postconviction relief claimants that the statute of limitations for a malpractice claim began to run upon their achieving postconviction relief. Instead, we adopted the Court of Appeals' prior holding that the statute begins to run when the plaintiff "learns, or through reasonable diligence should have learned of his counsel's negligence." Bradley v. Jordan , 182 So.3d 439, 441 (Miss. 2016) (quoting Hymes v. McIlwain , 856 So.2d 416, 418 (Miss. Ct. App. 2003) ). This statement was actually misleading, because our general statute of limitations is tolled only when the injury is latent, not its cause. See Angle v. Koppers , 42 So.3d 1, 5-7 (Miss. 2010). Thus it would have been more correct to have said in Bradley that the statute begins to run at the time of conviction. But the distinction made no difference in Bradley or Hymes , as the real issue in those cases was whether the statute of limitations was tolled during appeals or postconviction proceedings; we held that it was not. See Bradley , 182 So.3d at 441.

¶ 39. Bradley and Hymes are untenable after today's decision because they were premised on the assumption that exoneration was not an element of a criminal-defense malpractice claim. If Bradley were paired with the exoneration rule, it would operate as de facto bar to many meritorious criminal-malpractice actions, as successful postconviction proceedings often take more than three years to work their way to a final disposition even if immediately pursued after conviction.

¶ 40. Most other courts with an exoneration rule have found that exoneration essentially becomes an element of the criminal-malpractice cause of action and that the cause of action accrues only after the malpractice plaintiff is exonerated of the underlying criminal charges. See Noske v. Friedberg , 656 N.W.2d 409, 414 (Minn. Ct. App. 2003) (surveying cases). These courts find this result appealing because it establishes a bright-line rule that can easily be applied. See Mashaney v. Bd. of Indigents' Def. Servs. , 302 Kan. 625, 355 P.3d 667, 674 (2015)

¶ 41. The Kansas Supreme Court, in reaching this result, relied on its prior holdings that "[a] cause of action accrues when the right to institute and maintain a suit arises, or when there is a demand capable of present enforcement" and the "true test of accrual determines point at which plaintiff could first have filed, prosecuted action to successful conclusion." See id. (citations and internal quotation marks omitted). Existing Mississippi caselaw has held the same. A cause of action accrues "when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested." Weathers v. Metro. Life Ins. Co. , 14 So.3d 688, 692 (Miss. 2009) (quoting Bullard v. Guardian Life Ins. Co. of Am. , 941 So.2d 812, 815 (Miss. 2006) ). Put another way, "the statute of limitations begins to run when all the elements of a tort, or cause of action, are present." Id. (internal quotation marks omitted) (quoting Caves v. Yarbrough , 991 So.2d 142, 147 (Miss. 2008) ).

¶ 42. Courts adopting the accrual rule further analogize the criminal-malpractice claim to one for malicious prosecution, which accrues only when the prosecution proceedings are terminated in the malicious-prosecution plaintiff's favor. See, e.g. , Shaw v. State , 816 P.2d 1358, 1362 (Alaska 1991). Again, the same is true in Mississippi. See Joiner Ins. Agency v. Principal Cas. Ins. , 684 So.2d 1242, 1244 (Miss. 1996). Similarly, the United States Supreme Court has held that an exonerated convict's claims under § 1983 accrue at the time of exoneration rather than conviction. See Heck v. Humphrey , 512 U.S. 477, 489-90, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

¶ 43. Still, we acknowledge that a substantial minority of courts have taken a different tack, which is often called the "two-track" approach. See Noske , 656 N.W.2d at 414-15 (surveying cases). Under the two-track approach, the statute of limitations on the malpractice claim generally begins to run upon the underlying conviction. Since exoneration often cannot be obtained within the statute of limitations for the malpractice claim, the would-be malpractice plaintiff is allowed to file his malpractice suit averring that he is in the process of obtaining postconviction relief. The trial court then stays the malpractice case until the postconviction relief claim is disposed of. See id.

¶ 44. The two-track approach has the advantage of putting the defense attorney on notice of the claims against him, but it comes with substantial administrative and practical costs. It would " require every convicted defendant who seeks relief from a conviction ... to also file a legal-malpractice action or risk later having the action be time-barred." Id. at 416. Considering the volume of criminal appeals and postconviction petitions, the burden on trial courts to administer these innumerable, speculative malpractice claims would obviously be substantial. And the two-track approach further creates this "invitation to bring litigation, including the attendant burden and expense placed on finite judicial resources as well as on the parties, for cases in which no justiciable controversy currently exists or may ever exist." Id. (citation omitted).

¶ 45. We agree with the Noske court that the burdens of the two-track approach outweigh the benefits. We therefore overrule Bradley and Hymes and adopt the majority rule that the criminal malpractice claim accrues and begins to run on the date of exoneration, as defined above. We recognize that this holding creates a somewhat unique situation in that the accrual of the cause of action-and the extent of the damages-depends on the plaintiff's diligence in pursuing his postconviction remedies. But we think these concerns can adequately be addressed by the application of two familiar principles of law. First, the plaintiff has a duty to mitigate his damages. See Wall v. Swilley , 562 So.2d 1252, 1258 (Miss. 1990). Any damages that can be shown by the defendant to result from the malpractice plaintiff's unreasonable delay in pursuing his exoneration from the underlying criminal charges cannot be said to have been caused by the defendant attorney. Second, the doctrine of laches bars suit when the plaintiff's unreasonable delay "results in injustice or disadvantage to another." Bolden v. Gatewood , 250 Miss. 93, 119, 164 So.2d 721, 732 (1964). While we have previously held that laches ordinarily has no application when the statute of limitations has not yet run, Greenlee v. Mitchell , 607 So.2d 97, 111 (Miss. 1992), that holding does not extend to the peculiar situation created today.

¶ 46. Finally, we turn to the specific causes of action asserted in the Triggs' complaint. Addressing these claims under Rule 12(b)(6), the question is whether the complaint stated a claim upon which relief may be granted. To do so, the Triggs were required to provide (1) a short and plain statement of the claim for relief; and (2) a demand for judgment for the relief to which they claim entitlement. M.R.C.P. 8(a). In assessing the legal sufficiency of the complaint, all factual allegations must be taken as true, and dismissal is improper unless it "appear[s] to a certainty that the plaintiff[s] [are] entitled to no relief under any set of facts that could be proved in support of the claim." Crum v. City of Corinth , 183 So.3d 847, 850-51 (Miss. 2016) (internal quotations omitted).

¶ 47. The complaint alleged five causes of action, which it labeled fraud, breach of contract, legal malpractice (negligence), accounting for money paid, and negligent infliction of emotional distress. The malpractice and negligent-infliction-of-emotional-distress claims are clearly founded on allegations of professional malpractice. Despite the label, the breach-of-contract count also sounds in the tort of professional negligence: it alleges Farese breached the contract by negligently performing his duties as a defense attorney. Likewise, the claim of fraud is addressed to the correctness of Farese's legal judgment and is therefore just a malpractice claim couched as an intentional tort; this claim also requires exoneration before it may be pursued. See Greathouse v. McConnell , 982 S.W.2d 165, 172 (Tex. App. 1998). All of these claims are barred by Dalton's failure to secure exoneration prior to filing suit.

¶ 48. But the cause of action for an accounting is different. The Triggs allege Farese took a $50,000 retainer to defend Dalton, but that Farese never accounted for the money and did not actually earn it. To the extent this claim does not depend on the quality of the services rendered, it is a mere fee dispute and should not have been dismissed. See Labovitz v.Feinberg , 47 Mass.App.Ct. 306, 713 N.E.2d 379, 385 (1999).

CONCLUSION

¶ 49. In summary, we hold that a convicted criminal must first "exonerate" himself through the criminal-justice process before suing his defense attorney for professional negligence in causing his conviction. Here, Dalton Trigg admits he did not secure relief from his conviction, and thus the malpractice-based claims against his attorney were properly dismissed. But to the extent the Triggs allege they were charged for work not actually performed, the claim should not have been dismissed. Thus, we affirm the judgment in part, reverse it in part, and remand the case for further proceedings consistent with this opinion.

¶ 50. AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL AND BEAM, JJ., CONCUR. WALLER, C.J., AND CHAMBERLIN, J., NOT PARTICIPATING.

      See Miss. Code Ann. § 63-11-30(5) (Rev. 2013).

      The Triggs submitted an amended complaint adding a sixth cause of action for breach of fiduciary duty. In their briefs on appeal, the Triggs assume the amended complaint is the relevant document; but it was filed after the answer and the record contains no order permitting the amendment. The amended complaint is therefore not properly before us because "[i]t is the responsibility of the movant to obtain a ruling from the court on motions filed by him and failure to do so constitutes a waiver of same." Martin v. State , 354 So.2d 1114, 1119 (Miss. 1978). At any rate, the result would be the same under the amended complaint because the breach of fiduciary duty claim just restates the other causes of action under a new label.

      One court suggested a better name for the relief required would be "vindication," but we use exoneration because many other courts have used it. See Mashaney v. Bd. of Indigents' Def. Servs. , 302 Kan. 625, 355 P.3d 667, 673-74 (2015).


source: Caselaw Access Project

author: KING, PRESIDING JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Elijah ARRINGTON, III, D.M.D. v. MISSISSIPPI STATE BOARD OF DENTAL EXAMINERS
    NO. 2017-CA-01647-SCT
    Supreme Court of Mississippi.
    March 21, 2019
    ATTORNEYS FOR APPELLANT: TERRIS CATON HARRIS, DENNIS C. SWEET, III, JACKSON
    ATTORNEYS FOR APPELLEE: STANLEY T. INGRAM, OFFICE OF THE ATTORNEY GENERAL, BY: ONETTA WHITLEY, JACKSON, ROBERT DAVIS HOUSE
    BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J.
   KING, PRESIDING JUSTICE, FOR THE COURT:

¶1. Elijah Arrington, III, appealed the Mississippi State Board of Dental Examiners' decision to revoke his dental license. He filed a notice of appeal with the Hinds County Chancery Court thirty-one days after receiving notice of the Board's order, and he filed a cost bond many days later. The chancery court dismissed the appeal, finding that Arrington's failure to file the cost bond within thirty days deprived it of appellate jurisdiction. Arrington appeals to this Court. We decline to address the cost-bond issue, and we find that the chancery court lacked appellate jurisdiction based on Arrington's failure to file his notice of appeal within thirty days.

FACTS AND PROCEDURAL HISTORY

¶2. The Mississippi State Board of Dental Examiners (Board) held a disciplinary hearing on June 15, 16, and 17, 2017, to litigate four complaints (involving seventeen violations) against Elijah Arrington, III, DMD. The Board ultimately revoked Arrington's dental license and his Limited Enteral Conscious Sedation Permit. The Board served Arrington and his counsel with its order on July 24, 2017. Arrington filed a notice of appeal with the Hinds County Chancery Court on August 24, 2017. On August 29, 2017, the Board filed a motion to dismiss the appeal, alleging that Arrington failed to file a cost bond within thirty days. Arrington filed a response in opposition and also requested more time to deposit the bond. He then deposited the bond with the chancery court on August 31, 2017. The court held a hearing on October 4, 2017, at which the Board argued that the notice of appeal was not filed within the thirty days required by statute, and that the cost bond was not timely filed. The trial court found that Arrington was served on July 24, 2017, that he filed his notice of appeal on August 24, 2017, and that he "did file his Notice of Appeal within thirty (30) days of notice of the action of the Board." However, the court found that the failure to file the cost bond within thirty days deprived the court of appellate jurisdiction, and, accordingly, it dismissed the appeal.

¶3. Arrington appeals, arguing that the cost bond in the statute at issue is not jurisdictional, but procedural, and thus the failure to timely post bond is a deficiency that may be corrected.

ANALYSIS

1. Standard of Review

¶4. "Jurisdiction and statutory interpretation are matters of law" that this Court reviews de novo. 5K Farms, Inc. v. Miss. Dep't of Revenue , 94 So.3d 221, 225 (Miss. 2012). Factual determinations made by the trial court are only reversed if the trial court abused its discretion, was manifestly wrong, was clearly erroneous, or applied an erroneous legal standard. T. Jackson Lyons & Assocs., P.A. v. Precious T. Martin, Sr. & Assocs., PLLC , 87 So.3d 444, 447-48 (Miss. 2012).

2. Analysis

¶5. The statute providing for appeals from Board determinations states in pertinent part that

The appeal must be taken within thirty (30) days after notice of the action of the board. The appeal is perfected upon filing a notice of appeal, together with a bond in the sum of One Hundred Dollars ($ 100.00), with two (2) sureties, conditioned that if the action of the board regarding the license is affirmed by the chancery court the dentist or dental hygienist will pay the costs of the appeal and the action in the chancery court.... In lieu of the bond, the dentist or dental hygienist may deposit One Hundred Dollars ($ 100.00) with the clerk of the chancery court.

Miss. Code Ann. § 73-9-65 (Rev. 2012).

¶6. The parties disagree whether posting bond within thirty days is a jurisdictional or procedural requirement under Section 73-9-65. But regardless of the answer to that question, it is clear is that, in the least, the notice of appeal must be filed within thirty days of notice of a Board decision. The trial court found, and the record supports, that Arrington was served with the Board's order on July 24, 2017, and filed his notice of appeal on August 24, 2017. August 24, 2017, is thirty-one days after July 24, 2017. And August 23, 2017, was a Wednesday and was not a holiday. However, the trial court found that the notice of appeal was filed within thirty days of notice of the Board's action. It is impossible for all three of those findings to be true. This Court may, on its own motion, consider a jurisdictional issue even when not raised by the parties. Miss. Mun. Liab. Plan v. Jordan , 863 So.2d 934, 941 (Miss. 2003).

¶7. No right to appeal an administrative agency's decision exists unless the Legislature expressly confers such a right. 5K Farms , 94 So.3d at 227. Additionally, the Mississippi Constitution does not grant chancery courts original jurisdiction over appeals; thus, the chancery court is without appellate jurisdiction absent statutory authority. Khurana v. Miss. Dep't of Revenue , 85 So.3d 851, 855 (Miss. 2012). Consequently, a chancery court lacks appellate jurisdiction over an appeal "that is not in full compliance with the statutory requirements." Id. Regardless of whether the bond in this case is procedural or jurisdictional, what is clear is that the appeal must be taken within thirty days. The only way under the statute to "take" an appeal is by, at the least, filing a notice of appeal. And Arrington admits that the notice of appeal must be filed within thirty days. Thus, to vest the chancery court with appellate jurisdiction, the notice of appeal must be filed within thirty days. In this case, it was not. The chancery court's finding that the notice of appeal was filed within thirty days of the notice of the Board's action was manifestly wrong and clearly erroneous, and that finding conflicted with the court's other findings that Arrington was served on July 24, 2017, and filed his notice of appeal on August 24, 2017. The chancery court lacked jurisdiction because the notice of appeal was not timely filed. We therefore decline to address the issue of whether the Section 73-9-65 cost bond being posted within thirty days is a jurisdictional or procedural requirement.

CONCLUSION

¶8. We affirm the chancery court's order dismissing Arrington's appeal for lack of jurisdiction, albeit for a different reason. The chancery court's finding that the notice of appeal was timely filed was manifest error. Because the notice of appeal was not timely filed, the chancery court did not have jurisdiction over the appeal. We express no opinion on the nature of the cost bond, and we affirm the chancery court's order in result only.

¶9. AFFIRMED.

RANDOLPH, C.J., KITCHENS, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      The hearing was initially based on five complaints, but prior to the initiation of the hearing, the Board announced that it would not be pursuing one of the complaints.

      In his memorandum opposing the motion to dismiss, Arrington claimed that "counsel for [the Board] reached out to Appellant's counsel via telephone regarding the acceptance of service of the Order. During that conversation, it was made clear that Appellant's counsel would accept service of the Order on behalf of Dr. Arrington." The memorandum also alleged that counsel was not served until July 25, 2017. Yet, the person served at counsel's office signed the proof of service dated July 24, 2017, and the process server filed an affidavit stating that she personally served both Arrington and an employee of counsel on July 24, 2017. Also in his memorandum, Arrington acknowledged that the thirty day clock began on the date the order was received; the record indicates, and the trial court found, that counsel received the order on July 24, 2017, as an employee of counsel signed the proof of service as received on that day.


author: RANDOLPH, CHIEF JUSTICE, FOR THE COURT: KING, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

text:
    Howard PAYTON a/k/a Howard "Lil Dank" Payton v. STATE of Mississippi
    NO. 2016-KA-00378-SCT
    Supreme Court of Mississippi.
    March 21, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY T. GERBER
    EN BANC.
   RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

¶1. During the early morning hours of September 19, 2010, N.B., a sophomore at the University of Southern Mississippi, was kidnapped and brutally raped by Howard Payton, a/k/a "Lil Dank," a/k/a "Supreme." N.B. testified that Payton ran up to her vehicle, put a box cutter or knife to her throat, and said, "where is the [expletive] money?" N.B. told Payton that she did not have any money. Payton told her, "quit [expletive] lying. Where is the money?" Payton grabbed N.B.'s neck, pushed her head down, and shoved her over to the passenger's seat. Payton sat in the driver's seat of N.B.'s vehicle and drove her to a remote location. Payton then forced N.B. to perform oral sex. N.B. began to cry and begged Payton to let her go, but he told her to stop complaining and to "just do it." Payton then pulled N.B. out of the car and forced her to perform oral sex until she vomited on him. Payton forced N.B. to lick her vomit off of him. Payton then put on a condom and raped N.B. vaginally. Payton attempted to rape N.B. anally, but again penetrated her vaginally. After that, Payton removed the condom and forced N.B. to perform oral sex again. Payton ejaculated in N.B.'s mouth and forced her to swallow his ejaculate, "because he didn't want any proof." He then forced her to remove her clothing and to lie on the ground. Payton told N.B. that if she told anyone about what he had just done, he would kill her. Payton then took N.B.'s tank top and her glasses, got back into N.B.'s car, and left. N.B. was left alone in the dark in an unfamiliar location. N.B. found a nearby road and walked to a stoplight. She was able to flag down two women who were driving by. The women drove N.B. to the hospital. On the way to the hospital, N.B. called 911 to report what had just occurred.

¶2. At the June 2014 term, a duly empaneled, sworn, and charged grand jury comprised of citizens of Lamar County returned an indictment charging Payton for the kidnapping and rape of N.B.

¶3. At trial, inter alia , the State presented definitive scientific evidence of guilt. Payton's DNA matched the DNA sample obtained from N.B.'s rape kit so closely that the probability of finding someone other than Payton with the same DNA profile was less than one in 999 trillion. A petit jury comprised of twelve citizens of Lamar County found Payton guilty as charged. Upon his conviction, a duly elected circuit judge sentenced Payton as a habitual offender to a thirty-year term for kidnapping and three forty-year (less one day) terms for each rape count. The order of conviction, which was signed by the trial judge and filed on January 7, 2016, provided that the sentences were to be served consecutively. The same day, the trial judge signed an order transporting Payton to the custody of the Mississippi Department of Corrections in Rankin County immediately. According to Uniform Rule of Circuit and County Court Practice 10.05, which was in place at that time, any post-trial motion for a new trial was to be filed within ten days. URCCC 10.05.

¶4. It was not until January 25, 2016, that Payton filed a twelve-page pro se motion for a judgment notwithstanding the verdict (JNOV), or, in the alternative, a new trial. The State did not raise the untimeliness of the motion. In fact, the State did not respond to the motion. The trial judge considered the substantive issues raised in the motion and, finding no merit, denied Payton's requests for relief one week later on February 1, 2016. However, the order was not file stamped until February 4, 2016. Upon entry of that order, Payton's notice of appeal was to be filed within thirty days. Miss. R. App. P. 4(e). On the same day that the trial judge signed the order denying Payton's post-trial motion, Payton signed a request for a copy of the trial court transcript. However, Payton's request was not file stamped until February 5, 2016. Payton's request for the trial transcript was granted by the trial court without contest by the State on February 12, 2016. It was not file stamped until February 17, 2016.

¶5. The record reflects five filings by Payton on Monday, February 29, 2016: (1) notice of appeal; (2) application to proceed in forma pauperis ; (3) designation of the record; (4) certificate of compliance; and (5) motion for appointment of counsel. Each of these filings included its own certificate of service to the circuit clerk of Lamar County, the Lamar County District Attorney's Office, and the Lamar County circuit judge certifying that they were mailed on February 29, 2016. Additionally, Payton's application for in forma pauperis status was sworn and subscribed before notary Jessica Pearl Sellers on February 29, 2016. Without explanation, these filings were not file stamped by the circuit clerk until Wednesday, March 9, 2016.

¶6. On March 9, 2016, the trial court granted Payton in forma pauperis status for this appeal. It was not file stamped until March 10, 2016. The trial judge also signed an order on March 9, 2016 appointing Payton counsel. That order was not file stamped until March 14, 2016. The State did not contest either filing. Under the trial court's order, the State provided Payton counsel via the Indigent Appeals Division of the Office of the State Public Defender. George T. Holmes entered an appearance on Payton's behalf. A few days before Payton's appeal brief was due, Payton died.

¶7. Holmes then filed a suggestion of death. Holmes subsequently pleaded that no substitution of parties had been requested and that Payton had no known personal representative. Holmes then moved for abatement ab initio . He asked that the Court allow a thirty-day period or other reasonable amount of time to allow any personal representative of Payton to come forward and to move for a substitution for the deceased appellant. Holmes requested, if no such motion was made, that the Court enter an order of abatement voiding the entire criminal proceeding against Payton from its inception, nullifying the petit jury's verdict and the circuit judge's judgment of conviction and remanding the case back to the same trial court with instructions to dismiss the grand jury's indictment, all without notice to the victim, N.B.

¶8. No response was filed either to the suggestion of death or to the motion for abatement ab initio . A single-justice order was entered staying briefing for a period of thirty days to allow any personal representative of Payton to move for substitution. No attempt to substitute was made.

¶9. The Court considered the motion for abatement ab initio en banc on February 8, 2018, and authorized the issuance of a single-justice order requiring supplemental briefing "[d]ue to the uniqueness of the petition, the seeking of extraordinary relief and the development of constitutional and statutory law since this Court's holding in Gollott v. State , 646 So.2d 1297, 1299 (Miss. 1994)...." Order, Payton v. State , No. 2016-KA-00378-SCT (Miss. Feb. 13, 2018). For those stated causes, counsel for Payton and the State were ordered to address the following:

1. What statutory or constitutional authority exists, if any, for this Court to nullify or negate (a) a facially valid indictment from a constitutionally [e]mpaneled Grand Jury, (b) a facially valid, guilty jury verdict(s), and (c) facially valid judgments and sentences of a circuit court absent a ruling of error?
2. Since 1994, when Gollott was published, Section 26A in Article 3 of the Mississippi Constitution was adopted. It reads:
(1) Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity and respect throughout the criminal justice process; and to be informed, to be present and to be heard, when authorized by law, during public hearings.
(2) Nothing in this section shall provide grounds for the accused or convicted offender to obtain any form of relief nor shall this section impair the constitutional rights of the accused. Nothing in this section or any enabling statute shall be construed as creating a cause of action for damages against the state or any of its agencies, officials, employees or political subdivisions.
(3) The Legislature shall have the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section.
Miss. Const. Art. 3, § 26A. Address the ramifications, if any, of Section 26A on this proceeding.
3. Also in 1998, the Legislature adopted the Mississippi Crime Victims' Bill of Rights. See Miss. Code Ann. §§ 99-43-1, et seq. Address the ramifications, if any, of this Bill of Rights, including but not limited to Section 99-43-35, on this proceeding.
4. In 2009, the Legislature passed the Compensation to Victims of Wrongful Conviction and Imprisonment Statute, recognizing and providing compensation for wrongfully incarcerated persons. See Miss. Code Ann. §§ 11-44-1, et seq. Address the ramifications, if any, of this statute, including but not limited to sections 11-44-3(1)(b) and (1)(c), 11-44-7(1)(a)(ii)(1) and (4), and 11-44-13, on this proceeding.
5. Whether this Court should overrule Gollott v. State , 646 So.2d 1297, 1299 (Miss. 1994), and reinstate Haines v. State , 428 So.2d 590 (Miss. 1983), and Berryhill v. State , 492 So.2d 288 (Miss. 1986).

Id. The State and Holmes filed supplemental briefs addressing the above issues.

DISCUSSION

¶10. In 1983, this Court was tasked with deciding a question of first impression in Mississippi: if a convicted defendant dies while his appeal is pending, what should occur with respect to his appeal and/or judgment of conviction? Haines v. State , 428 So.2d 590 (Miss. 1983), overruled by Gollott v. State , 646 So.2d 1297 (Miss. 1994). In Haines , the defendant was convicted of murder and sentenced to life imprisonment. He later died while his appeal was pending. Id. The State of Mississippi filed a suggestion of Haines's death and requested that the appeal be dismissed as moot. Id. Haines's attorneys countered with a motion to dismiss the appeal, to vacate the judgment of the lower court, and to remand the cause to the lower court with instructions to dismiss the indictment-i.e. , abatement ab initio .

¶11. The Haines Court noted that although a majority of jurisdictions, including federal courts, followed the abatement ab initio doctrine, other jurisdictions did not. Id. at 591. Those jurisdictions chose to dismiss the deceased appellant's appeal as moot, preserving the conviction. Id. at 591-92. The Haines Court examined both approaches, turning first to Mississippi precedent concerning the validity of judgments. Id. at 591. It found the Court had previously held that "a judgment of conviction in a lower court removes the presumption of innocence and the judgment is considered to be valid." Id. The Court reasoned,

[U]nless and until the judgment of the trial court is reversed, the defendant stands convicted, is no longer presumed to be innocent of the crime for which he is convicted, and may be impeached by that conviction. When a jury in circuit court returns a verdict of guilty, it is a conviction of the crime charged, and unless and until it is reversed by this Court, the conviction stands....

Id. (quoting Nicholson v. State , 254 So.2d 881, 884 (Miss. 1971) (citing Bucklew v. State , 192 So.2d 275 (Miss. 1966) ) ). The Court then discussed an Indiana Supreme Court decision that rejected abatement ab initio in favor of dismissing a deceased appellant's appeal as moot.

We do not see that the dismissal of the appeal, without more, denies any rights granted or protected by the statutes or the constitutional provisions . Such rights were personal to and exclusively those of the defendant. Although a criminal conviction carries a definite "fall-out" that extends beyond the person of the defendant, we are aware of no right to be free of such, even if such conviction be erroneous.

Id. at 591 (emphasis added) (quoting Whitehouse v. State , 266 Ind. 527, 364 N.E.2d 1015, 1016 (1977) ). The Haines Court then quoted the Indiana Supreme Court's discussion regarding the validity of a judgment of conviction, holding that absent a successful appeal, the defendant stands convicted:

The presumption of innocence falls with a guilty verdict. At that point in time, although preserving all of the rights of the defendant to an appellate review, for good and sufficient reasons we presume the judgment to be valid, until the contrary is shown. To wipe out such a judgment, for any reason other than a showing of error, would benefit neither party to the litigation and appears to us likely to produce undesirable results.... It, therefore, is our opinion that it would be unwise for us to reach out and adopt a policy favoring survivor interests of questionable validity.

Id. at 591-92 (quoting Whitehouse , 364 N.E.2d at 1016 ).

¶12. The Haines Court also considered the countervailing policy of abatement ab initio , citing United States v. Pauline , 625 F.2d 684, 685 (5th Cir. 1980) :

Abatement of the entire course of the proceedings has several significant effects: if the sentence included a fine, abatement ab initio prevents recovery against the estate, and, ultimately, the heirs; the abated conviction cannot be used in any related civil litigations against the estate; and arguably the family is comforted by restoration of the decedent's "good name."

Id. at 591 (quoting Pauline , 625 F.2d at 685 ). After considering the competing rationales, the Haines Court definitively rejected abatement ab initio . Id. at 592. Recognizing that "a judgment of conviction in a lower court removes the presumption of innocence and the judgment is considered to be valid[,]" this Court clearly favored the minority rule. Id. at 591. The Haines court dismissed the appeal as moot, leaving history unrevised and the deceased appellant's conviction intact. Id. at 591-92.

¶13. Three years later, this issue was raised again. Berryhill v. State , 492 So.2d 288, 289 (Miss. 1986), overruled by Gollott v. State , 646 So.2d 1297 (Miss. 1994). Following the precedent of Haines , the Berryhill Court unequivocally held "that the minority rule is sound when considering our decisions on the validity of judgments. Therefore, the motion to abate and vacate the judgment of conviction is overruled and the State's motion to dismiss the appeal as moot is sustained." Berryhill , 492 So.2d at 289 (quoting Haines , 428 So.2d at 592 ).

¶14. Haines and Berryhill remained the established law of this state until 1994, when the Gollott court-without citing any authority or providing any legal justification to abandon the principle of stare decisis-rejected the decisions expressly announced in Haines and Berryhill :

We are no longer of the opinion that the abatement ab initio rule obviously results in a "miscarriage of justice." There are essentially three reasons for penal statutes in our justice system: (1) to protect society from dangerous individuals; (2) to hopefully rehabilitate convicted criminals; and, (3) to deter others from violating the law. Following the abatement ab initio rule does not undermine any of these purposes. What is obvious is that society needs no protection from the deceased, nor can the deceased by rehabilitated. Moreover, other potential criminals will be no less deterred from committing crimes.

Gollott v. State , 646 So.2d 1297, 1300 (Miss. 1994).

¶15. The Gollott Court jettisoned established law set by Haines and Berryhill , nullifying a facially valid indictment from a constitutionally empaneled grand jury, negating a facially valid guilty verdict by a lawfully empaneled petit jury, nullifying facially valid judgments of a circuit judge (i.e. , the judgment of conviction, orders denying post-trial motions), and restoring a convicted killer to the status of an innocent man, all without any finding of reversible error at any stage of the proceeding. The Gollott Court cited no statutory or constitutional authority for its rejection of the established rule of law, rather opining that Berryhill and Haines failed to satisfy the purpose of penal statutes. The Gollott Court cited not one pernicious error that necessitated a change in the law. See Stone v. Reichman-Crosby Co. , 43 So.2d 184, 190 (Miss. 1949) (Courts will depart from stare decisis when such departure is necessary to avoid the perpetuation of pernicious error.). Finally, the Gollott court failed to identify the source of its ruling, because no statutory or constitutional authority existed then (or now) for this Court to abate not only an appeal, but the entire criminal proceeding. Indeed, "abatement ab initio is not grounded in the constitution or in statute, but is instead a court-created common law doctrine." People v. Griffin , 328 P.3d 91, 92 (Colo. 2014) (citing United States v. Estate of Parsons , 367 F.3d 409, 415 (5th Cir. 2004) ).

¶16. Four years after Gollott overruled Haines and Berryhill without offering legal justification, a nationwide victims' rights movement gained steam in Mississippi. The citizens of Mississippi voted to amend the Mississippi Constitution to grant constitutional rights to crime victims: "Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity and respect throughout the criminal justice process; and to be informed, to be present and to be heard, when authorized by law, during public hearings." Miss. Const. art. 3, § 26A. The Mississippi Constitution further enabled the Legislature "to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section." Id.

¶17. That same year, the Legislature enacted the Mississippi Crime Victims' Bill of Rights. Miss. Code Ann. §§ 99-43-1 to -101 (Rev. 2015). The Legislature provided that "[t]he purpose of this chapter is to ensure the fair and compassionate treatment of victims of crime, to increase the effectiveness of the criminal justice system by affording rights and considerations to the victims of crime, and to preserve and protect victims' rights to justice and fairness in the criminal justice system." Miss. Code Ann. § 99-43-1 (Rev. 2015). Under this chapter, victims of crime were formally recognized and accorded substantial rights, including, inter alia , the right to be provided information by law enforcement, the right to confer with the prosecuting attorney, the right to receive a transcript of the proceedings, the right to be present throughout all proceedings , and the right to participate during any entry of a plea of guilty, sentencing or restitution proceeding.

¶18. In the decades since Gollott departed from established precedent, our Constitution and state law were amended to recognize victims' rights. The landscape has changed to protect victims from being traumatized again. Since our Constitution was amended and the Crime Victims' Bill of Rights was enacted, we have not had the opportunity to address a motion for abatement ab initio . Good cause exists today to do so.

¶19. "[F]undamental jurisprudential policy requires that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current court." Hye v. State , 162 So.3d 750, 755 (Miss. 2015). This policy "is based on the assumption that consistency and definiteness in the law are the major objectives of the legal system." Id. (citing Laurel Daily Leader, Inc. v. James , 224 Miss. 654, 681, 80 So.2d 770, 780-81 (1955) (Gillespie, J., special opinion) ). However, "stare decisis is not an inexorable command."

Bester v. State , 188 So.3d 526, 529 (Miss. 2016) (quoting Payne v. Tennessee , 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) ). Stare decisis "is flexible enough to allow the Court to admit change under certain limited circumstances where the previous rule of law would perpetuate error and wrong would result if the decisions were followed." Hye , 162 So.3d at 755 (alterations omitted) (emphasis added) (citing Laurel , 80 So. 2d at 781) (Gillespie, J., special opinion) ). This Court has found that stare decisis "is subordinate to legal reason and justice, and courts 'will depart therefrom when such departure is necessary to avoid the perpetuation of pernicious error.' " Hye , 162 So.3d at 755 (quoting Stone , 43 So.2d at 190 ). The Gollott Court did not address whether departing from Haines and Berryhill would perpetuate error or whether wrong would result if Haines and Berryhill were followed.

¶20. Whether to abandon abatement ab initio is a question that has been considered by many courts post- Gollott . The Supreme Court of Alaska undertook such a review in 2011. Carlin v. State , 249 P.3d 752, 754 (Alaska 2011). Like Mississippi, Alaska was part of a national movement to recognize the constitutional and statutory rights of crime victims, following its supreme court's adoption of the abatement ab initio doctrine. Id. at 758. The Alaska Legislature had passed "a comprehensive Alaska Crime Victims' Rights Act," and "Alaska's voters [had] overwhelmingly approved the Rights of Victims of Crime Amendment to the Alaska Constitution[,]" providing "substantial constitutional and statutory rights to crime victims during all phases of the criminal justice process." Id.

¶21. Given this "dramatic shift" in the law, the Alaska Supreme Court addressed the propriety vel non of abatement ab initio . Id. The Court found that the abatement ab initio doctrine was contrary to crime victims' rights under the Alaska Constitution:

Hartwell 's assertion that the "underlying principles of penal administration in Alaska are reformation and protection of the public" is thus no longer complete. Alaska's statutes and its constitution now also require the criminal justice system to accommodate the rights of crime victims. The abatement of criminal convictions has important implications for these rights. Therefore, the expansion and codification of victims' rights since Hartwell provides the changed conditions needed to satisfy the first element of the test for overruling precedent.

Id. at 759.

¶22. The Alaska Supreme Court examined the increasing trend of other state courts to reject the abatement ab initio doctrine. Id. The Court noted that "a steadily growing number of state courts have rejected the [abatement ab initio ] doctrine" due to "the unfairness to crime victims of abating criminal convictions and the doctrine's inconsistency with the presumption of guilt following a jury conviction." Id. ; see also Haines , 428 So.2d at 591, and Berryhill , 492 So.2d at 289. For example, in State v. Korsen , the Idaho Supreme Court noted that the abatement ab initio doctrine "is particularly unfair to crime victims who have participated in often times painful trials only to see a hard won conviction overturned, not because of any error in the criminal proceedings, but simply as a matter of routine procedure based upon the arbitrary timing of the defendant's death." State v. Korsen , 141 Idaho 445, 111 P.3d 130, 134 (2005).

¶23. Likewise, the Alabama Supreme Court rejected abatement ab initio , noting its constitutional and statutory protections for victims of crime and "the callous impact [abatement ab initio ] necessarily has on the surviving victims of violent crime." Wheat v. State , 907 So.2d 461, 463 (Ala. 2005) (emphasis omitted) (quoting People v. Robinson , 298 Ill.App.3d 866, 232 Ill.Dec. 901, 699 N.E.2d 1086, 1091 (1998), judgment vacated by People v. Robinson , 187 Ill.2d 461, 241 Ill.Dec. 533, 719 N.E.2d 662, 663 (1999) ). Other states have followed suit. See , e.g. , State v. Benn , 364 Mont. 153, 274 P.3d 47, 50 (2012) (discontinuing application of abatement ab initio , noting the negative impact on crime victims); State v. Devin , 158 Wash.2d 157, 142 P.3d 599 (2006) (declining to abate conviction automatically upon appellant's death, noting its conflict with modern laws that compensate victims for their suffering); People v. Griffin , 328 P.3d 91, 92 (Colo. 2014) (declining to apply abatement ab initio to matters pending on certiorari review, noting that other courts have questioned its impact on the rights of crime victims); Brass v. State , 130 Nev. 318, 325 P.3d 1256, 1258 (2014) (denying motion for abatement ab initio , finding that "[v]acating the judgment and abating the prosecution from its inception undermines the adjudicative process and strips away any solace the victim or the victim's family may have received from the appellant's conviction"); and Surland v. State , 392 Md. 17, 895 A.2d 1034, 1035 (2006) (declining to adopt abatement ab initio , noting the concerns of other courts regarding abatement's impact on victim restitution).

¶24. The Alaska Supreme Court then examined whether more good than harm would result were it to depart from precedent and overrule its prior adoption of abatement ab initio . Carlin , 249 P.3d at 761. The Court balanced "the benefits of adopting a new rule against the benefits of stare decisis: providing guidance for the conduct of individuals, creating efficiency in litigation by avoiding the relitigation of decided issues, and maintaining public faith in the judiciary." Id. at 761-72. The Court found that

[t]hese countervailing interests do not weigh heavily in this case. It is unclear how an individual would rely on the rule adopted in Hartwell . That is, it is unlikely that a person would commit a crime because he believed that, upon his death while his appeal was pending, his conviction would be abated. As for the efficiency rationale, while it is true that overturning Hartwell would result in some additional litigation of the continued appeals of deceased defendants, the number of such cases should be small. As for the third factor, public faith in the judiciary, allowing continued appeals will protect both victims and defendants by providing the opportunity to have criminal charges fully litigated and decided.

Id. at 762.

¶25. Having balanced the benefits of stare decisis with the adoption of a new rule, the Alaska Supreme Court found that substitution was the better course and held that "either the State or the defendant's estate may request substitution, allowing another party to be substituted for the defendant." Id. at 762-63. Under this approach, substitution may be sought, and the appeal proceeds; if no substitution is sought, the appeal is dismissed, and the conviction remains intact. Id. at 766. The Court found that this approach struck the correct balance between protecting a defendant's right to appeal and a victim's rights under the Alaska Constitution. Id. at 762.

¶26. We find Alaska's approach beneficent, because it fairly balances defendants' and victims' rights alike. Like Alaska, Mississippi has experienced a dramatic shift in the law since Gollott . Because of the increased recognition of crime victims in both our Constitution and statutory law, we find that departure from the abatement ab initio doctrine is necessary to avoid the perpetuation of pernicious error. Hye , 162 So.3d at 755. The abatement ab initio doctrine tramples upon victims' rights by denying victims "fairness, respect and dignity." Korsen , 111 P.3d at 135. Moreover, we find that the policies undergirding stare decisis-consistency and definiteness in the law-are not served by continued application of the abatement ab initio doctrine. We agree with the Alaska Supreme Court that it is "unlikely that a person would commit a crime because he believed that, upon his death while his appeal was pending, his conviction would be abated." Carlin , 249 P.3d at 762. Finally, we reiterate that no constitutional or statutory authority existed for the Gollott Court to undo the action of a lawfully constituted grand jury, petit jury, and circuit judge, absent reversible error's being affirmatively established. See , e.g. , Newell v. State , 308 So.2d 71, 72 (Miss. 1975). Accordingly, we find that this Court's previous decision in Gollott v. State was wrongly decided and should be overruled.

¶27. This Court adopts Alaska's balanced approach in Carlin , which protects victims' rights-a factor not considered by the Gollott Court. See Morris v. Slappy , 461 U.S. 1, 14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) ("[I]n the administration of criminal justice, courts may not ignore the concerns of victims."). Under this approach, the estate or personal representative may move for substitution and seek to reverse the conviction, should it choose to do so. See Carlin , 249 P.3d at 763 ("allowing the defendant's appeal to continue when the defendant's estate does not wish it would undermine[s] the right to appeal that substitution is meant to protect"). If the estate or a personal representative declines to substitute, the appeal is dismissed as moot, and the conviction remains intact. This approach strikes a balance between the rights of the victim with the rights of the accused, the approach Gollott ignored.

¶28. We recognize that the abatement ab initio doctrine, which first surfaced over one-hundred years ago, was created in part to avoid punishing the decedent's family.

State v. Furth , 82 Wash. 665, 667, 144 P. 907 (1914), overruled by Devin , 142 P.3d at 599. "In one of the earliest expressions of the policy underlying abatement, Pomeroy said that 'the fundamental principle applicable to this case is that the object of criminal punishment is to punish the criminal , and not to punish his family.' " Devin , 142 P.3d at 601 (quoting United States v. Pomeroy , 152 F. 279, 282 (C.C.S.D.N.Y. 1907), rev'd on other grounds sub nom . United States v. N.Y. Cent. & Hudson River R.R. , 164 F. 324 (2d Cir. 1908) ). We think this sound principle should be recognized in Mississippi. "There is no justice in punishing [the decedent's] family for his offense." Pomeroy , 152 F. at 279. Thus, although we overrule Gollott and decline to abate a deceased appellant's criminal conviction ab initio , we "do not preclude courts from abating financial penalties still owed to the county or State, as opposed to restitution owed to victims, where the death of a defendant pending an appeal creates a risk of unfairly burdening the defendant's heirs." Devin , 142 P.3d at 606. Again, this approach strikes the appropriate balance between the victim's rights and the defendant's rights.

¶29. To be clear, today's decision does not minimize the rights exercised by Payton under the Mississippi Constitution. Article 3, section 26 provides that the accused shall have the right (1) to be heard by himself or counsel, or both; (2) to demand the nature and cause of the accusation; (3) to be confronted by the witnesses against him; (4) to have compulsory process for obtaining witnesses in his favor; (5) to a speedy and public trial by an impartial jury of the county where the offense was committed; and (6) not to be compelled to give evidence against himself.

¶30. In this case, over the course of the trial-court proceedings, the circuit judge appointed four different attorneys to represent Payton. Payton ultimately chose to proceed pro se, with two lawyers appointed to serve as his legal advisors. During trial, Payton was confronted by the victim, and Payton personally cross-examined her. Payton was granted the right to send the DNA evidence to a lab of his own choosing, at the State's expense, to retest his own DNA. Payton was additionally appointed his own DNA expert, paid for by the citizens of Lamar County. The trial court accommodated Payton's every request concerning DNA testing, until Payton ultimately refused to provide another DNA sample. Payton additionally received his right to a speedy trial and an impartial jury, and he was not compelled to give evidence against himself.

¶31. Payton was accorded each and every right guaranteed him under the Constitution. Yet now, we are asked to ignore N.B.'s constitutional right "to be treated with fairness, dignity and respect ...." Miss. Const. art. 3, § 26A. We decline to do so. Because our Constitution balances the rights of the accused with the rights of the victim, we-as guardians of the Constitution-can do no less. Payton has been accorded his constitutional rights; N.B. shall be accorded hers.

¶32. Ample time was provided for the estate or any personal representative of Payton to move for substitution. No response was filed. Accordingly, we dismiss Payton's appeal as moot and leave his conviction intact.

CONCLUSION

¶33. Because of the increased recognition of crime victims in our constitution and statutory law, and because the policies undergirding stare decisis are not served by continued application of the abatement ab initio doctrine, we expressly overrule Gollott . Since no motion was filed for substitution pursuant to Rule 43(a), we dismiss Payton's appeal as moot and leave his conviction intact. Miss. R. App. P. 43(a). Holmes's motion to abate Payton's conviction ab initio is denied.

¶34. APPEAL DISMISSED.

COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR. KING, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.

KING, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶35. This appeal should be dismissed as untimely; but because this Court reaches the merits of the issue of what procedure to employ when a convicted defendant dies while the appeal is pending and no one moves to substitute, I believe that this Court should address each appeal on a case-by-case basis. Accordingly, I respectfully dissent in part.

¶36. Payton filed an untimely notice of appeal. The Mississippi Rules of Appellate Procedure provide that "[a]n appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5." Miss. R. App. P. 2(a)(1) (emphasis added). In criminal cases, this Court may suspend that rule "[i]n the interest of expediting decision, or for other good cause shown[.]" Miss. R. App. P. 2(c). Because dismissing this appeal accomplishes the same result as the majority reaches on the merits, I do not find any "good cause shown" for suspending the Mississippi Rules of Appellate Procedure and allowing this untimely appeal. Nor does allowing the untimely appeal expedite any decision, as dismissing the appeal would be the more expeditious procedure.

¶37. Alternatively, because the Court does reach the merits, I disagree with the all-or-nothing approach the majority and our caselaw employ. The majority bases its decision to overrule Gollott and the abatement ab initio doctrine primarily on a recognition of crime victims' rights. While I completely agree with the majority that crime victims' rights should certainly be part of our analysis in these cases, I do not agree that those rights always mandate dismissing an appeal as moot when a defendant has died and no substitution has been made. For example, how do crime victims' rights outweigh a defendants' rights in the case of a victimless crime such as possession of a small amount of marijuana? The majority fails to address how victims' rights automatically outweigh those of the defendant and/or his heirs in a victimless crime. For this reason, I believe we should determine the appropriate course in the rare instance when a convicted defendant dies pending appeal and no substitution is made on a case-by-case basis. A case-by-case approach would strike the appropriate balance between the rights of victims and defendants, instead of automatically applying either abatement ab initio or dismissing the appeal as moot.

¶38. Rule 43(a) of our Rules of Appellate Procedure provides for substitution when a party dies pending appeal. Miss. R. App. P. 43(a). However, "[i]f the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appropriate appellate court may direct ." Id. (emphasis added). This Court need not adopt a bright line rule for these cases; our Rules allow us to make an appropriate determination in each case. The Court in Gollott correctly observed that

[T]here are valid policy considerations in favor of both the abatement ab initio doctrine and our present law in the area [dismissing the appeal as moot and leaving the conviction intact], as well as problems with each. Upon the death of a defendant pending appeal, it is no more reasonable to deem the appeal moot and let the conviction stand, acting as though we have heard the appellant's arguments and found them meritless, than it is to automatically follow the abatement ab initio rule and pretend the defendant was never indicted, tried and found guilty."

Gollott v. State , 646 So.2d 1297, 1303-04 (Miss. 1994). Our rules do not demand an all-or-nothing approach, nor does justice require that we adopt an all-or-nothing approach in these uncommon situations. This Court should determine whether abatement ab initio or dismissing the appeal as moot is the appropriate action in each individual case. In doing so, this Court should consider, and the parties should present, relevant arguments describing with particularity the rights of the victim or victims impacted, the defendant's constitutional rights impacted, the collateral effects on the defendant's estate or heirs, and any other relevant issues.

¶39. I believe that this Court should exercise judicial restraint and dismiss this appeal as untimely under Mississippi Rule of Appellate Procedure 2(a)(1). However, because this Court reaches the merits of the abatement ab initio issue, I believe we should abandon the bright line rules of Gollott , Haines , and Berryhill , and adopt a measured case-by-case analysis regarding whether dismissing a case as moot or abatement ab initio is appropriate. In the present case, I agree that dismissing the appeal as moot is appropriate; given that Payton did not timely file his post-trial motions or his appeal, I fail to see how dismissing his appeal as moot would infringe upon his rights.

KITCHENS, P.J., JOINS THIS OPINION.

      See Miss. Const. art. 3, §§ 26, 27.

      See Miss. Code Ann. §§ 13-5-1 to -97 (Rev. 2012).

      The estimated global population in 2010 was 6.9 billion. Population Reference Bureau, 2010 World Population Data Sheet (July 23, 2010), https://www.prb.org/2010wpds/. Payton's DNA was also confirmed as the semen contributor in two other rape cases.

      Harris's habitual-offender sentence was based on the following convictions: (1) sale of a controlled substance in Forrest County on August 20, 2001; (2) possession of a controlled substance in Lamar County on February 12, 2004; and (3) possession of a controlled substance in Forrest County on July 13, 2010. Harris's criminal history reveals eighteen other criminal charges in Forrest County between June 2008 and January 2016.

      The certificate of compliance was also mailed to the clerk of the Mississippi Supreme Court.

      Mississippi Rule of Appellate Procedure 43(a) provides, in relevant part,
      If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the Supreme Court.... If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appropriate appellate court may direct.
      Miss. R. App. P. 43(a).

      The State alternatively asked whether, were the Court not to overrule Gollott , the Court should allow Payton's conviction to stand because his notice of appeal was not timely filed. The untimeliness of Payton's notice of appeal was not advanced by the State until this Court ordered supplemental briefing. See supra , ¶¶ 4-6. Thus, we deem any claim of untimeliness to have been waived.

      In this case, any speculation regarding the restoration of Payton's "good name" lacks credulity, considering the jury's finding of guilt for the despicable acts inflicted upon his victim, not to mention his criminal history. See supra , ¶¶ 1-3.

      If one relied solely on this faulty logic, which was not cited, briefed, or argued by either party in Gollott , all convicted criminals who die in prison-regardless of whether their appeal is pending-should have their indictments and convictions vacated.

      Miss. Code Ann. § 99-43-7 (Rev. 2015).

      Miss. Code Ann. §§ 99-43-11, -13 (Rev. 2015).

      Miss. Code Ann. § 99-43-15 (Rev. 2015).

      Miss. Code Ann. § 99-43-21 (Rev. 2015).

      Miss. Code Ann. § 99-43-33 (Rev. 2015).

      Pernicious , Webster's II New College Dictionary (3d ed. 2001) ("Causing great harm: ruinous"); see also Hye , 162 So.3d at 765 n.6 (Kitchens, J., dissenting) ("Pernicious" is defined as "having a harmful effect, especially in a gradual or subtle way.")

      In Carlin v. State , the Alaska Supreme Court observed,
      It appears that the highest courts in 41 states have addressed abatement in some manner. The courts in [17] states have continued to apply strictly the doctrine of abatement ab initio . Eight states generally dismiss a deceased defendant's appeal but leave the conviction intact. Two states have unique approaches; Alabama places a particular notation in the deceased defendants record, while Oregon gives judges discretion both to dismiss the appeal and to vacate the judgment. Eight states allow some mechanism for the appeal to continue with substitution; if no substitution occurs some of those states abate the conviction while others allow it to stand.
      Carlin v. State , 249 P.3d 752, 761 (Alaska 2011) (footnotes omitted) (citations omitted). Montana now allows for substitution; if no substitution is sought, then the appeal is dismissed as moot. State v. Benn , 364 Mont. 153, 274 P.3d 47 (2012). On March 13, 2019, Massachusetts abandoned abatement ab initio in favor of dismissing the appeal as moot, finding that "the doctrine of abatement ab initio is outdated and no longer consonant with the circumstances of contemporary life, if, in fact, it ever was." Commonwealth v. Hernandez , 481 Mass. 582, 583, 118 N.E.3d 107, 2019 WL 1141521, at *1 (2019).

      In Hartwell v. State , 423 P.2d 282 (Alaska 1967), overruled by Carlin , 249 P.3d at 754, Alaska adopted abatement ab initio .

      Payton requested that the trial court allow his sister, an owner of a beauty salon, to collect his DNA sample, instead of law enforcement. The trial court denied his request.

      Rule 43(a) applies equally to civil and criminal proceedings, notwithstanding the comment to the contrary.

      Of course, to avoid such a case-by-case review, the State or the attorney for the defendant may move for substitution. Miss. R. App. P. 43(a).