author: CHANDLER, Justice, CARLSON, Presiding Justice, PIERCE, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Johnny C. HARTZOG.
    No. 2009-JP-01022-SCT.
    Supreme Court of Mississippi.
    April 22, 2010.

      Darlene D. Ballard, Ayanna Batiste Butler, attorneys for appellant.
    Johnny C. Hartzog, Appellee, pro se.
   CHANDLER, Justice,

for the Court:

¶ 1. On November 11, 2008, the Mississippi Commission on Judicial Performance (Commission) filed a formal complaint against Johnny C. Hartzog, Justice Court Judge for District Two, Jefferson Davis County, Mississippi, alleging judicial misconduct which was actionable pursuant to Article 6, Section 177A, Mississippi Constitution of 1890, as amended. While the record reveals no formal answer by Judge Hartzog, it does contain two letters signed by Judge Hartzog relating to this matter and an undated copy of an order of recu-sal. The Committee of the Commission on Judicial Performance had a hearing on the allegations on April 10, 2009. Following the hearing on May 28, 2009, the Committee filed its Findings of Facts, Conclusions of Law and Recommendations. Judge Hartzog objected to these findings. The Commission filed Commission Findings of Fact, Conclusions of Law and Recommendations on June 22, 2009, with this Court. The Commission found that Judge Hartzog’s conduct violated Canons 1, 2, 3, and 4 of the Code of Judicial Conduct. Further, the Commission found that Judge Hartzog’s conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice bringing the judicial office into disrepute pursuant to Article 6, Section 177A of the Mississippi Constitution of 1890, as amended. The Commission recommended that Judge Hartzog receive a public reprimand; suspension from the office of Justice Court Judge, Jefferson Davis County, Post 2, for a period of six months without pay; and assessment of costs of the proceeding in the amount of $1,411.55. This Court adopts the Commission’s recommendation.

FACTS

¶ 2. On April 10, 2009, the Commission conducted a hearing in this judicial-performance matter. Judge Hartzog testified that he was the Justice Court Judge in Jefferson Davis County, District Two, in Prentiss, Mississippi. He was elected in 1981 and was serving his twenty-ninth year as justice court judge. This case involved a tenant-removal action before Judge Hartzog. Carol Oatis filed an affidavit to remove a tenant in Jefferson Davis County. Oatis sought removal of Veronica Moses from Oatis’s land located on Fate Ward Road in Carson, Mississippi. The justice court file contained a notice to vacate the property addressed to Moses. In addition, the file contained a summons for Moses to appear in court on April 10, 2008.

¶ 3. According to Judge Hartzog, the following events transpired over a number of court dates. Oatis and Moses appeared in court, and Moses requested a continuance for another party to be present, DiMa Homes. Oatis, Moses, and DiMa Homes had been in litigation concerning construction of the home on the same property at issue in this disciplinary matter. Judge Hartzog granted the continuance. When he granted the continuance, Judge Hart-zog stated that he did not ask the parties any questions. The case was continued a number of times. On June 5, 2008, the case was continued to July 10, 2008, because Judge Hartzog was recovering from surgery. On July 10, 2008, the file indicated that the case was continued to August 7, 2008, because DiMa Homes was not present in court. On August 7, 2008, Oatis and Moses appeared before Judge Hart-zog. During this hearing, Judge Hartzog stated that Oatis said “I just want her out of my house.” Moses mentioned DiMa Homes, and then Oatis stated “I recuse myself from this case.” At this point, Judge Hartzog stated “I recuse myself too from this case. And you can carry it to the next judge.”

¶ 4. Judge Hartzog knew Moses’s father, Henry Johnson. Johnson died in 2001 or 2002 prior to the 2008 eviction case. Both Judge Hartzog and Johnson had served on the deacon board of the same church. In addition, Judge Hartzog knew both litigants, Moses since her birth and Oatis for a long time prior to the eviction action. Judge Hartzog also had a landscaping business and had cleared the property twice at Johnson’s request and had spread gravel on the driveway at Moses’s request. This work was done a minimum of eight years prior to Oatis’s eviction case.

¶ 5. Oatis stated that he owned property in Jefferson Davis County. Moses had dated Oatis’s son and had asked to put a mobile home on Oatis’s property. Oatis told Moses that she could place a mobile home on his property. A few months later, Oatis was informed that a house was being built on his property. When Oatis visited his property, he found a house that was eighty percent complete and a DiMa Homes sign on the land. Litigation ensued in a separate case in the Chancery Court of Jefferson County over that matter. The chancery court ultimately determined that Moses had no interest in the property.

¶ 6. Oatis later filed an affidavit with the justice court to remove Moses from the property. According to Oatis, on April 10, 2008, he told Judge Hartzog that he wanted Moses evicted from his property. At this point, Oatis claimed that Judge Hart-zog had told Oatis that Johnson, Moses’s father, had told Judge Hartzog “this and that.” Further, Judge Hartzog asked Oa-tis how much money he wanted for the property. When Oatis stated “$50,000,” Judge Hartzog stated that the price was “too much.” Oatis stated that he had told Judge Hartzog “[wjell, you have a conflict of interest in this, judge.” The case was continued in order to have DiMa Homes present in court. On July 10, 2008, Oatis stated that he took the “Fifth” because Judge Hartzog kept talking about Oatis selling the property to Moses. When Judge Hartzog told Oatis how he should handle the matter, Oatis told the judge “You have a conflict of interest. You need to dismiss yourself.” Oatis stated that Judge Hartzog suggested that Oatis should accept $1,200 for the property. It was not until the August 7, 2008, hearing that Oatis knew that Judge Hartzog was no longer presiding over the matter. Exhibits 5, 6, and 7 were a series of documents that Oatis had filed complaining about Judge Hartzog’s conduct. Oatis stated that he thought Judge Hartzog had a conflict of interest because he had cleared the land and because Judge Hart-zog had stated, in court, that Johnson had told Judge Hartzog that he was proud of his daughter (Moses) for having her own place.

¶ 7. Charles McGilberry, Oatis’s brother-in-law, corroborated Oatis’s testimony that at one of the court hearings, Oatis took the “Fifth.” In addition, McGilberry stated that Oatis was there for an eviction matter, while the judge spoke about settling a land deal. When asked whether any numbers were discussed, McGilberry stated that “I thought something like $1200 or something like that.” McGilberry also stated that he had heard Oatis asking Judge Hartzog not to hear the case, that he never had heard Judge Hartzog recuse himself, and that the case was continued in order to bring the company responsible for building the house to court.

¶ 8. Jefferson County Justice Court Clerk Judy Cole testified that she had seen Oatis at the justice court for a civil, eviction case. She stated that, during the April 10, 2008, hearing, Larry Johnson, Moses’s brother, had suggested that Oatis sell the property. Then, Judge Hartzog had asked Oatis how much money he wanted for the property. Cole also stated that Oatis had asked Judge Hartzog to recuse himself when they were discussing Judge Hartzog’s landscaping business. According to Cole, Judge Hartzog had stated, “Well, I can keep my contracting business and my judging separate.” The case was continued because Moses requested that DiMa Homes be present. At the July 10 court hearing, Cole stated that Oatis had pleaded the “Fifth” because he did not want to talk about the house. She also stated that Oatis again had asked Judge Hartzog to recuse himself. Judge Hartzog recused himself after an investigator with the Commission on Judicial Performance spoke with Cole, which was some time after July 10, 2008.

¶ 9. Moses testified that, after the house was completed in 1999, Judge Hartzog had “smoothed it out all the way ‘round the house.’ ” Moses did not recall any discussion about Judge Hartzog recusing himself from the case. However, she stated that Judge Hartzog had asked Oatis what he wanted for the land and whether Oatis would do as he promised. At the next court date, Moses stated that Oatis had pleaded the “Fifth,” and there had been no discussion by Judge Hartzog about the sale of the property. Moses was not aware that Judge Hartzog had recused himself from the case until she attended the next scheduled hearing. On cross-examination, Moses was questioned about Oatis’s statements concerning the home on his property. Oatis recused himself after Moses told the judge about a statement that Oatis had made concerning the house on his property. Moses also admitted that Judge Hartzog had recused himself after Oatis had recused himself from the case. She stated that Judge Hartzog had smoothed out the area around the house in 1999 or 2000, some eight or nine years prior to the eviction case. She also stated that her brother had asked Oatis in court how much money he wanted for the property.

¶ 10. Luther T. Brantley testified concerning prior disciplinary actions taken by the Commission against Judge Hartzog.

DISCUSSION

¶ 11. The standard of review for this Court in judicial misconduct proceedings is de novo. Miss. Comm’n on Judicial Performance v. Osborne, 16 So.3d 16, 18 (Miss.2009) (Osborne IV); Miss. Comm’n on Judicial Performance v. Vess, 10 So.3d 486, 489 (Miss.2009); Miss. Comm’n on Judicial Performance v. Thompson, 972 So.2d 582, 585 (Miss.2008). This Court gives great deference to the Commission’s findings which are based on clear and convincing evidence. Osborne, 16 So.3d at 18. Notwithstanding the great deference given to the Commission’s findings, this Court is bound to exercise an independent inquiry into judicial-conduct matters. Miss. Comm’n on Judicial Performance v. Carr, 990 So.2d 763, 766 (Miss.2008); Miss. Comm’n on Judicial Performance v. Agin, 987 So.2d 418, 419 (Miss.2008); Miss. Comm’n on Judicial Performance v. Hartzog, 904 So.2d 981, 984 (Miss.2004). This Court, in exercising its independent inquiry, is not bound by any findings of the Commission and may impose additional sanctions in a judicial-misconduct proceeding. Osborne TV, 16 So.3d at 19; Miss. Comm’n on Judicial Performance v. Boland, 975 So.2d 882, 888 (Miss.2008) {Boland I).

I. Whether Judge Hartzog’s conduct constitutes willful misconduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Section 177A of the Mississippi Constitution.

¶ 12. In judicial-performance proceedings, this Court determines whether the conduct of the judge constitutes willful misconduct, prejudicial to the administration of justice, which brings the judicial office into disrepute, pursuant to Section 177A of the Mississippi Constitution of 1890, as amended. Willful misconduct has been defined by this Court as follows:

Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally, or with gross unconcern for his conduct and generally in bad faith.... A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith.... Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 212-213 (Miss. 2006) (quoting Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1157 (Miss.2004)). Actual, willful behavior is of no import. Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 875 (Miss.2000). This Court has held that a judge “through negligence or ignorance not amounting to bad faith, [may] behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute[,]” and the effect of these actions “is the same regardless of whether bad faith or negligence and ignorance are involved and warrants sanctions.” In re Anderson, 451 So.2d 232, 234 (Miss.1984).

¶ 13. The Commission determined by clear and convincing evidence that Judge Hartzog had violated Judicial Conduct Canons 1 (integrity and independence of the judiciary), 2A (promotion of public confidence in the integrity and impartiality of the judiciary), 2B (family, social, or other relationships influencing judicial conduct and judgment), 3B(2) (faithfulness and competence in the law), 3B(7) (ex parte communications), 3B(8) (performance of duties impartially and diligently/disposing of judicial matters promptly, efficiently, and fairly), 3C(1) (impartiality and diligence in performing administrative responsibilities), and 4A (minimizing risk of conflict between judicial extrajudicial obligations). In addition, the Commission found that Judge Hartzog’s conduct constituted willful misconduct in office and conduct that was prejudicial to the administration of justice, bringing the judicial office into disrepute.

¶ 14. The Commission determined that when Oatis and Moses had appeared before Judge Hartzog, the judge had an obvious conflict of interest. Judge Hartzog had known Moses all her life; was friends with her father and on the board of deacons at the same church as her father, Johnson; had performed yard work on the property that was at issue in the eviction case; and had spoken with Johnson, prior to Johnson’s death, about the fact that Johnson was proud of Moses for owning her own home. In addition, Judge Hart-zog had tried to negotiate the sale of the property by Oatis to Moses instead of hearing evidence in the eviction matter. Further, Judge Hartzog had commented in court before Oatis and Moses about discussions which had taken place some seven or eight years prior to the eviction action, between Moses’s deceased father and himself concerning the property at issue in the eviction action. When Oatis had requested that Judge Hartzog recuse himself, the judge had claimed that he orally had re-cused himself. However, a written recusal was not entered until sometime between the July 10, 2008, and the August 7, 2008, court dates and after an investigator with the Commission spoke to Cole, the Jefferson Davis County Justice Court Clerk, about the matter. The Commission also found that Judge Hartzog had failed to conduct his extrajudicial activities in a manner that minimized risk of conflict with judicial obligations. Judge Hartzog had performed yard work on the property in question prior to the eviction action at the time that Moses lived on the property. He also had failed to acknowledge that conflicts of interest may arise when yard services customers appear before him and that he may gain knowledge of information relating to a litigant’s case in the process of serving them in a business capacity. The Commission determined that Judge Hartzog had a fundamental lack of understanding of legal principles in connection with the recusal process. Judge Hartzog had stated that “recusal” meant to dismiss a case. The Commission found that Judge Hartzog obviously had no understanding of what constitutes a recusal or an underlying conflict of interest that requires recusal.

¶ 15. This Court finds that Judge Hart-zog’s actions constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

II. Whether Judge Hartzog should be publicly reprimanded, suspended without pay for a period of six months, and assessed all costs of the proceeding as recommended by the Commission.

¶ 16. The Commission recommended that Judge Hartzog receive a public reprimand, be suspended for a period of six months without pay, and assessed costs in the amount of $1,411.55.

¶ 17. Imposition of sanctions is a duty conferred to the discretion of the Supreme Court. Boland I, 975 So.2d at 883. The Mississippi Constitution provides sanctions that this Court may impose in judicial performance matters. The Mississippi Constitution states:

On recommendation of the commission on judicial performance, the Supreme Court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character.

Miss. Const, art. 6, § 177A (1890). However, this Court is mindful that the sanctions imposed must fit the offense. Bo-land I, 975 So.2d at 893. “The primary purpose of judicial sanctions is not punishment of the individual judge but ‘to restore and maintain dignity and honor of the judicial office and to protect the public against future excesses.’” Miss. Comm’n on Judicial Performance v. Osborne, 11 So.3d 107, 116 (Miss.2009) (Osborne III) (quoting Miss. Comm’n on Judicial Performance v. Guest, 717 So.2d 325, 329 (Miss.1998)).

(1) The length and character of the judge’s public service.

¶ 18. Judge Hartzog has held his position for twenty-nine years. No further evidence of Judge Hartzog’s public service is in the record.

(2) Whether there is any prior caselaw on point.

¶ 19. This Court has imposed similar sanctions to those recommended by the Commission in other cases. Here, the Commission recommends a public reprimand, suspension without pay for a period of six months, and costs. In Mississippi Commission on Judicial Performance v. Britton, 936 So.2d 898 (Miss.2006), this Court imposed a public reprimand, costs, and a suspension on a justice court judge for repeated violations of the Canons resulting in multiple disciplinary actions against him. Britton, 936 So.2d at 907. In Britton, this Court set out the history of a justice court judge’s alleged ex-parte communications resulting in six complaints against him over a six-year period. Id. at 900-03. As prior disciplinary action had been taken on some of the other allegations in the complaints, this Court’s opinion in Britton concerned only the sanctions for the last two complaints concerning ex-parte communications and setting aside a default judgment and setting aside another judge’s order. Id. at 903.

¶ 20. In Mississippi Commission on Judicial Performance v. Cowart, 936 So.2d 343, 348-51 (Miss.2006), this Court imposed a public reprimand, costs, and a suspension without pay for a number of offenses including acknowledging a conflict of interest. In Mississippi Commission on Judicial Performance v. Osborne, 977 So.2d 314 (Miss.2008) (Osborne II), this Court imposed a public reprimand, costs, and a six-month suspension for, among other things, failing to maintain a high standard of conduct, allowing familial or social relationships to influence the judge’s conduct, and lending the prestige of the office to aid members of his family. Osborne II, 977 So.2d at 327. In Mississippi Commission on Judicial Performance v. Sanford, 941 So.2d 209 (Miss.2006), this Court imposed a public reprimand, costs, and suspension for interfering with a driving-under-the-influence charge. Sanford, 941 So.2d at 218. This Court found that Judge Sanford had violated almost the identical canons as Judge Hartzog is accused of violating, including Canons 1, 2A, 2B, 3B(2), 3B(7), and 3B(8). Id. at 213. In addition, in Mississippi Commission on Judicial Performance v. Carr, 990 So.2d 763, 770 (Miss.2008), this Court imposed a public reprimand, suspension without pay for a period of sixty days, a fíne, and costs. Judge Carr was disciplined for engaging in ex-parte communications and using the power of his office to get a citizen to return pieces of fence to a cemetery. Id. at 768-69.

(3)The magnitude of the offense and the harm suffered.

¶ 21. Oatis was affected by Judge Hartzog’s conduct because his eviction action was delayed. Once Judge Hartzog recused himself from the case, another justice court judge heard the case. Ultimately, the case was dismissed without prejudice because the justice court judge determined that the case was not within the justice court’s jurisdiction. Had the case been dismissed in April 2008, Oatis would have been able to seek further relief via other avenues. In addition, Oatis was subjected to pressure to settle the matter by selling the property to Moses. The cause of action was for an eviction, not settlement of a dispute through negotiations and sale of land.

¶ 22. It is reasonable to conclude that the public’s perception of the judiciary, through Judge Hartzog’s actions, was harmed. Judge Hartzog attempted to negotiate a land sale in place of making a decision on a tenant-eviction matter for the same property in question. One litigant requested that Judge Hartzog recuse himself because the judge had related information that the other litigant’s father had told Judge Hartzog. “Official integrity of our Justice Court Judges is vitally important, for it is on that level that many citizens have their only experience with the judiciary.” Vess, 10 So.3d at 493 (quoting In re Inquiry Concerning Garner, 466 So.2d 884, 887 (Miss.1985)).

(4)Whether the misconduct is an isolated incident or evidences a pattern of conduct.

¶ 23. Judge Hartzog has had prior disciplinary actions against him in the past. In Mississippi Commission on Judicial Performance v. Hartzog, 646 So.2d 1319, 1320-21 (Miss.1994), this Court imposed a public reprimand and costs on Judge Hart-zog for falsely notarizing a signature and entering two orders in cases that were not before him. In Mississippi Commission on Judicial Performance v. Hartzog, 822 So.2d 941 (Miss.2002), this Court imposed a suspension on Judge Hartzog while criminal charges relating to writing bad checks were pending against him. In the companion case, Mississippi Commission on Judicial Performance v. Hartzog, 904 So.2d 981, 986 (Miss.2004), this Court imposed a public reprimand, a fíne, and costs on Judge Hartzog after criminal charges were dismissed without prejudice. While Judge Hartzog’s conduct in this case is not the same as in the other cases, his conduct shows a pattern of continued violations of the Code of Judicial Conduct.

(5)Whether “moral turpitude” was involved.

¶ 24. This Court has defined the term “moral turpitude” to include “actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” Sanford, 941 So.2d at 217 (quoting Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 n. 2 (Miss.2004)). Judge Hartzog’s conduct interfered with the administration of justice by delaying the resolution of an eviction action. In addition, Judge Hartzog’s conduct shows a continued pattern of violations of the Code of Judicial Conduct.

(6) The presence or absence of mitigating or aggravating circumstances.

¶ 25. We see no evidence of mitigating circumstances in the record. The Commission asserts that Judge Hartzog has an aggravating circumstance in that he has not acknowledged any improper conduct. Indeed, Judge Hartzog never acknowledged any wrongdoing either at the hearing or in his written submission of information to the Commission.

CONCLUSION

¶ 26. This Court finds that the conduct of Johnny C. Hartzog, Justice Court Judge for Post 2, Jefferson Davis County, Mississippi, constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Article 6, Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 27. For the reasons stated, this Court orders Justice Court Judge Johnny C. Hartzog to be publicly reprimanded; to be suspended from office for a period of six months without pay; and to be assessed costs in the amount of $1,411.55. This public reprimand shall be read in open court on the first day of the next term of the Circuit Court of Jefferson Davis County in which a jury venire is present, with Judge Hartzog present.

¶ 28. JUDGE JOHNNY C. HART-ZOG, JUSTICE COURT JUDGE FOR JEFFERSON DAVIS COUNTY, DISTRICT TWO, SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT WHEN THE VENIRE PANEL MEETS BY THE PRESIDING JUDGE OF THE JEFFERSON DAVIS COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT AFTER THIS DECISION BECOMES FINAL, IS SUSPENDED FROM OFFICE WITHOUT PAY FOR SIX (6) MONTHS, AND IS ASSESSED COSTS IN THE AMOUNT OF $1,411.55.

WALLER, C.J., GRAVES, P.J., DICKINSON, LAMAR AND KITCHENS, JJ., CONCUR. RANDOLPH, J„ CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLSON, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., DICKINSON AND RANDOLPH, JJ.; PIERCE, J„ JOINS IN PART. PIERCE, J„ SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND CHANDLER, JJ.

CARLSON, Presiding Justice,

Specially Concurring:

¶ 29. The majority finds that Jefferson Davis County Justice Court Judge Johnny C. Hartzog’s conduct in today’s case constituted willful misconduct in office, and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. I agree. The majority con-eludes that the appropriate sanction for Judge Hartzog’s conduct in today’s case is a public reprimand, suspension from office for a period of six months without pay, and assessment of costs. I agree. My reason for writing separately is to expand the discussion beyond that found in the excellently written majority opinion.

¶ 30. Once this Court finds that a judge has engaged in misconduct, it becomes our solemn responsibility to consider the appropriate sanctions by applying the Baker/Gibson factors to the evidence before us. In Re Baker, 535 So.2d 47, 54 (Miss. 1988); Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004) (hereinafter “Gibson factors”). Gibson factor number four is “[wjhether the misconduct is an isolated incident or evidences a pattern of conduct.” Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 216 (Miss.2006) (citing Gibson, 883 So.2d at 1158).

¶ 31. Thus, the majority opinion appropriately discusses this factor by way of a brief recitation of the history of Judge Hartzog’s prior judicial discipline. In expanding this discussion, I begin by borrowing language from prior decisions of this Court:

As this Court stated on an earlier occasion, “[tjhis was hardly Sartain’s maiden judicial voyage.” See, e.g., Sartain v. City of Water Valley, 528 So.2d 1125 (Miss.1988); Sartain v. Caulfield, 465 So.2d 999 (Miss.1985) (memorandum of decision); Sartain v. State, 406 So.2d 43 (Miss.1981); Sartain v. White, 388 So.2d 884 (Miss.1980) (memorandum of decision); Sartain v. Sanders, 358 So.2d 1327 (Miss.1978) (memorandum of decision); and Sanders v. Sartain, 353 So.2d 1144 (Miss.1978) (memorandum of decision).

Sartain v. White, 588 So.2d 204, 207 n. 2 (Miss.1991). In my opinion, this description of Sartain certainly applies as well to Judge Hartzog. As noted in the majority opinion, Judge Hartzog has been the subject of three informal actions by the Commission in 1987, 1991, and 1996, as well as one private reprimand and two public reprimands.

¶ 32. At the hearing before a committee appointed by the Commission, former Commission Executive Director Luther T. “Brant” Brantley, III, testified at length concerning Judge Hartzog’s prior judicial discipline. Brantley’s testimony is best summarized by the Commission in its brief before this Court (in reading this summary of Judge Hartzog’s prior judicial conduct, I encourage the reader to keep in mind how similar some of these past instances are to the acts of judicial misconduct which bring Judge Hartzog before this Court once again today):

a. [Judge Hartzog’s] first Complaint was filed with the Commission in 1987, and has similarities with the present Complaint. Commission Inquiry No. 1987-098 involved an eviction matter filed by a landlord against a tenant for nonpayment of rent. Instead of hearing and ruling on the eviction affidavit, [Judge Hartzog] proceeded to work out a payment plan for the tenant. The landlord took exception and filed a Complaint with the Commission. Commission minutes for November 13, 1987, indicate that the matter was resolved through informal Commission action and remanded to the files without prejudice. [Judge Hartzog] was so notified by Commission letter and advised to avoid such activities in the future.
b. Commission Minutes from April 12, 1991, indicate that Commission Inquiry No. 1990-147 was resolved through informal Commission action and that the matter was remanded to the files without prejudice. A letter forwarded to [Judge Hartzog] from the Commission Executive Director expressed concern regarding “your admission of letting some prisoners be released on an appearance bond without payment of the bond fee before their release.” The matter was considered by the Commission to be serious, but there was no finding of judicial misconduct.
c. In its Formal Complaint filed against [Judge Hartzog], the Commission found that [Judge Hartzog] falsely acknowledged a deed, indicating that the grantor in the deed had personally appeared before him, when in fact the grantor had not done so, and further, that [Judge Hartzog] falsely entered orders in two separate cases purportedly pending in the Justice Court of Jefferson Davis County, Mississippi, when, in fact, no such cases existed. The Supreme Court, in Miss. Comm’n on Judicial Performance v. Johnny C. Hartzog, 646 So.2d 1319 (Miss.1994), adopted the Commission’s recommendation and held that [Judge Hartzog] had violated the Code of Judicial Conduct and Miss. Const. § 177A by committing willful misconduct and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Further the Court approved the Commission’s recommendation that [Judge Hartzog] be publicly reprimanded and assessed with the cost of the proceedings.
d. Commission Inquiry No. 1996-155 involved a recusal issue. In this Inquiry, [Judge Hartzog], in his official capacity as Justice Court Judge, Post 2, Jefferson Davis County, accepted a DUI guilty plea from his daughter. Following Commission investigation, the matter was resolved through informal Commission action and remanded to the files without prejudice. [Judge Hartzog] was advised that in the future, if a member of his family within the third degree of kinship appears before [Judge Hartzog] as a litigant, he should recuse himself, even if the family member is pleading guilty and receiving the standard fine.
e.On February 16, 2000, [Judge Hart-zog], in his capacity as Justice Court Judge, presided over a civil action filed by Betty Ellis against Robert Jones. Prior to any hearing, [Judge Hartzog] called the parties into his office and attempted to negotiate a settlement, which resulted in [Judge Hartzog] informing the parties of what his ruling would be. No evidence and no sworn testimony was received. Based upon the actions of [Judge Hartzog], the parties did settle the matter. Subsequently, a complaint was filed with the Commission by one of the parties to that litigation. On August 9, 2001, the second Formal Complaint against [Judge Hartzog] was filed by the Commission in Inquiry No. 2000-047. The Commission found that the actions of [Judge Hartzog] amounted to forced negotiations under the pretense of a “settlement conference” ending with [Judge Hartzog] informing the parties how the matter should be handled and resolved. [Judge Hartzog] failed to follow rules of procedure, denied the parties their right to be heard in open court, and injected himself into the lawsuit between the parties to the action. In mitigation, the Commission found that the actions of [Judge Hartzog] were based on a sincere attempt to help the parties resolve their differences in as economical and amenable method as possible, and that the actions were not intended to willfully harm or deprive either party of any State or Constitutional rights. Having considered the matter, the Commission imposed a private reprimand and assessed costs to [Judge Hartzog].
f. On August 29, 2001, [Judge Hartzog] was indicted by the Grand Jury of Lamar County, Mississippi, on one felony count of false pretense and one felony count of attempted false pretense based upon his writing an insufficient funds check and a check written after the account was closed. Accepting the recommendation of the Commission, the Mississippi Supreme Court suspended [Judge Hartzog] from his duties as Justice Court Judge, Post 2, Jefferson Davis County, Mississippi on an interim basis, in Miss. Comm’n on Judicial Performance v. Johnny C. Hartzog, 822 So.2d 941 (Miss.2002). Subsequently, in an opinion rendered on November 18, 2004, in connection with the Commission’s third Formal Complaint filed against [Judge Hartzog], the Supreme Court in Miss. Comm’n on Judicial Performance v. Johnny C. Hartzog, 904 So.2d 981 (Miss.2004), accepted and adopted the joint recommendation of the Commission and [Judge Hartzog], and found that [Judge Hartzog’s] actions constituted willful misconduct prejudicial to the administration of justice which brought the judicial office in disrepute. Accordingly, [Judge Hartzog] was issued a public reprimand and a fine of $4,056.30, and assessed costs in the sum of $100.00.

¶ 33. Consistent with his acts of denial in these past cases, Judge Hartzog denies any wrongdoing in today’s case. In fact, notwithstanding overwhelming evidence to the contrary, including the testimony of his own Justice Court Clerk, Judy Cole, Judge Hartzog denies that he was involved in a forced settlement in today’s case by attempting to persuade Carol Oatis to sell the subject property to Veronica Moses.

¶ 34. I have come to the conclusion that some of the actions taken by Judge Hart-zog in today’s case best can be described in one word — bizarre. For instance, after the Formal Complaint was filed in this case on November 11, 2008, Judge Hart-zog, evidently in “response” to the Formal Complaint, wrote a letter, dated January 19, 2009, to the Commission. In this letter, Judge Hartzog stated, inter alia:

On or about June or July 2008 Carol Oatis appeared in Justice Court and informed me that he was an attorney representing a client in a DUI case. I refused to allow Mr. Oatis to represent the young man, because he could not show proof of him being an attorney. Mr. Oatis told me that he went to the Air Force and he was superior over me. I informed him that he still could not represent the person without proof of him being an attorney.

First of all, I am at a total loss as to how Judge Hartzog’s letter in response to the Commission’s Formal Complaint was in any way relevant to the allegations contained in the Formal Complaint. Secondly, it is important to keep in mind that Judge Hartzog and Oatis had known each other for years! In fact, at the hearing before the committee, Judge Hartzog testified:

A. On what Little Brother said that I said?
Q. Wait a minute. Who’s Little Brother?
A. Carol Oatis. That’s what we all call him, Little Brother. Been knowing him.

Later, during the hearing, when Carol Oa-tis was testifying, Judge Hartzog, who was representing himself at the hearing, questioned Oatis:

Q. Okay. We’ll move on. The day that I was fixing to have criminal court and you came in and told me that you was Attorney Carol Oatis representing a young man that was with you for DUI, and I told you what?
A. Judge, you’re lying. It’s just that simple. I can’t put it no other way. You are lying, Judge. And I would like for you to bring whoever you said this come up, come bring them up. Let me tell — ask them a question. You lying, Judge. Judge, look at me in the eyes. You’re lying.

(Emphasis added).

¶ 35. Additionally, after the committee submitted its Findings of Fact, Conclusions of Law and Recommendation to the Commission, Judge Hartzog mailed a letter, dated June 7, 2009, to Darlene Ballard, Senior Staff Attorney for the Commission, and in this letter, Judge Hartzog stated, inter alia:

I object to the committee’s recommendation to be removed from the office of Justice Court Judge, Jefferson Davis County, post 2.
The ease in question should never should (sic) have been filed in Justice Court, because it was already in Chancery Court and dealt with a house and land. Justice Court had no jurisdiction over the case.

What does this have to do with anything remotely relevant to the complaint lodged against Judge Hartzog before the Commission?

¶ 36. Quite frankly, stated in today’s vernacular, I am of the opinion that Judge Hartzog has issues. Mike Royko, the late syndicated columnist who, over the years, wrote for the Chicago Daily News, the Chicago Sun-Times, and the Chicago Tribune, once wrote an article bemoaning the fact that our society had become a “blameless society.” In other words, it had become commonplace in modern society for many of this nation’s citizens to refuse to accept responsibilities for their actions, to refuse to be held accountable for their actions: “blame someone else for my conduct, but don’t blame me.” Judge Hartzog seems to epitomize this mindset. Throughout his history of defending the numerous claims of judicial misconduct on his part, Judge Hartzog has for the most part denied any wrongdoing.

¶ 37. When I first decided to write separately in this case, my primary reason was to go further than the majority opinion in discussing moral turpitude (Gibson factor number five), because, while the majority opinion correctly discussed moral turpitude, it made no specific finding as to whether moral turpitude was involved in today’s case concerning Judge Hartzog. Before studying the record in this case, I opined that moral turpitude most likely was not involved in this case. However, after studying the record in this case in its entirety, I have changed my mind. “Moral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” Gibson, 883 So.2d at 1158 n. 2. In other words, moral turpitude in the judicial arena is the antithesis of the concepts of good morals, justice, and honesty in dealing with those who come before the court.

■ ¶ 38. I do not believe that the importance of all judges conducting themselves in accordance with the Code of Judicial Conduct can be overemphasized, and it also should be remembered that for most Mississippi citizens, their only contact with the judicial system will be at the grassroots level via justice court. Therefore, these citizens’ perception of our entire state-wide judicial system in Mississippi will be based on their experiences — good or bad — in justice court.

There are good reasons why our justice court judges must regard scrupulously the nature of their office. In the first place, most of our citizens have their primary, if not their only, direct contact with the law through the office of the justice court judge. See In re Gamer, 466 So.2d 884, 887 (Miss.1985). The perception of justice of most of our citizens is forged out of their experiences with our justice court judges. If these judges do not behave with judicial temperament and perform their duties according to the law and by reference to the process of adjudication, there seems little hope that our citizenry at large may understand and respect the legal process.

Sanford, 941 So.2d at 215 (quoting In re Bailey, 541 So.2d 1036, 1039 (Miss.1989)).

¶ 39. As of March 1, 2010, Judge Hart-zog has been on the bench for twenty-nine years. It can only be hoped that today’s decision will finally right his ship in his service to the citizens of Jefferson Davis County.

WALLER, C.J., DICKINSON AND RANDOLPH, JJ., JOIN THIS OPINION. PIERCE, J., JOINS THIS OPINION IN PART.

PIERCE, Justice,

Specially Concurring:

¶ 40. I specially concur in this matter due to the fact that the Commission on Judicial Performance included as one factor that Judge Hartzog had “known Moses all her life _” in its pleadings. Jefferson Davis County, much like many rural counties in Mississippi, is sparsely populated. Thus, it is not uncommon for a justice court judge to have known a party all of his or her life. In this case, much more was involved than simply knowing a party. I write separately, however, to emphasize that knowing a party, standing alone, is not the test for a conflict of interest. See Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990) (holding that this Court’s objective test to determine whether a judge should recuse himself is whether “a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” (Emphasis added, internal citations omitted.))

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND CHANDLER, JJ., JOIN THIS OPINION.

      . Judge Hartzog sent two letters dated January 19, 2009, with an undated recusal letter and a letter dated March 18, 2009. The Commission referred to the January 19 letter as Judge Hartzog's "answer” and the March 18 letter as an "addendum.”

      . Judge Hartzog initially stated that Oatis had recused himself on July 10, 2008. However, when questioned about the continuance of the case from July 10 to August 7, 2008, Judge Hartzog stated that the discussion had occurred on August 7. While there is a slight discrepancy in the accounting of the dates Judge Hartzog claims the statements were made, it is of no moment to the resolution of this matter before the Court.

      . The distinction between Sanford and this case is that this Court also found that Judge Sanford had violated Canons 3B(1) and 3E, whereas the Commission found that Judge Hartzog had violated Canons 3C(1) and 4A.

      . I also agree with Justice Pierce’s specially concurring opinion explaining that more is required to mandate recusal than just knowing a party for a long period of time, but instead, the appropriate criteria is the objective test espoused in Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990). See also Jen

        kins v. Forrest County Gen. Hosp., 542 So.2d 1180, 1181 (Miss.1988).


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Anfei Luo HENRICHS, Appellant, v. Donald Walter HENRICHS, Appellee.
    No. 2008-CA-00929-COA.
    Court of Appeals of Mississippi.
    Sept. 8, 2009.
    Rehearing Denied Dec. 8, 2009.
    Certiorari Denied April 8, 2010.

      David L. Walker, attorney for appellant.
    John Thomas Lamar, attorney for appel-lee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. The Tate County Chancery Court granted Donald Henrichs a divorce from Anfei Henrichs on the ground of habitual cruel and inhuman treatment. The chancellor awarded custody of the parties’ minor child, Tai, to Donald and divided the marital estate. Feeling aggrieved, Anfei appeals and asserts (1) that the chancellor erred in her division of the marital property, (2) that the chancellor erred in failing to award Anfei any visitation with Tai, (3) that the chancellor erred in failing to award her alimony, and (4) that the chancellor erred in awarding custody of Tai to Donald.

¶ 2. Finding no reversible error, we affirm the chancellor’s judgment.

FACTS

¶ 3. Anfei and Donald were married on April 11, 2000, in Chengdu, People’s Republic of China. One child, Tai, was born unto the marriage on December 26, 2000. The parties were living together as husband and wife in Tate County, Mississippi on September 25, 2006, when Donald filed a complaint for divorce and a motion and application for a temporary restraining order against Anfei. In the motion for the temporary restraining order, Donald alleged that Anfei was physically and verbally abusive toward him and that he feared that Anfei would “possibly kill or injure him.” On September 25, 2006, Anfei was personally served with a copy of the complaint for divorce and summons, informing her that she was required to submit her response by mail or hand delivery within thirty days of receipt of the complaint and summons. Also, on September 25, 2006, Anfei was served with a copy of the motion and application for a temporary restraining order, along with a Rule 81 summons advising her that a hearing would be held on the motion and application on October 23, 2006. Nevertheless, Anfei did not file an answer or respond to the complaint in any way.

¶4. A series of continuances ensued. The first order of continuance was entered on October 6, 2006, nunc pro tunc to September 27, 2006, continuing the motion and application for temporary restraining order “for [a] hearing to be set by this [c]ourt at a later date.” Also, on October 6, 2006, the court entered an order continuing the motion for temporary relief to November 6, 2006. The record reflects that the last order of continuance was filed on January 7, 2008, continuing the cause until January 28, 2008. On March 19, 2008, the chancellor granted the motion for the temporary restraining order. On April 14, 2008, the chancellor granted a preliminary injunction against Anfei, finding that “the allegations [in Donald’s motion and application for temporary restraining order] depict a potential immediate dangerous situation to the welfare of [Tai] and to plaintiff/movant, Donald Walter Henrichs.”

¶ 5. On April 29, 2008, the chancellor granted Donald a divorce on the ground of habitual cruel and inhuman treatment. The divorce was granted at an ex parte hearing due to Anfei’s failure to appear. In the judgment of divorce, the chancellor stated that she applied the Ferguson factors and equitably distributed the marital property. The chancellor further stated that she applied the Albright factors to determine that it was in Tai’s best interest for Donald to have primary custody. The chancellor permanently enjoined Anfei from having contact with Donald:

The defendant, Anfei Luo, be and is hereby permanently enjoined from having any contact, directly or indirectly, with the plaintiff, with the only exception being able to contact him periodically in a ... manner with regard to the well-being of the minor child of the parties.
The defendant, Anfei Luo, be and is hereby permanently enjoined from coming on, about, or around the former marital residence located at 102 Temple Cove, Senatobia, Mississippi and from removing the parties’ minor child from the care and custody of plaintiff, Donald Walter Henrichs, and/or his agents, or from removing the minor child from the State of Mississippi.

¶ 6. On May 23, 2008, Anfei filed a motion for reconsideration of decree of divorce and requested that the chancellor make findings of fact and conclusions of law. On May 27, 2008, Anfei filed her notice of appeal.

¶ 7. Additional facts, as necessary, will be discussed during the analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 8. “Our standard of review for all appeals involving domestic relations matters is limited. We will not disturb the findings of a chancellor unless the chancellor was ‘manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.’ ” Lauro v. Lauro, 924 So.2d 584, 587(¶ 7) (Miss.Ct.App.2006) (citing Perkins v. Perkins, 787 So.2d 1256, 1260-61(¶9) (Miss.2001)). “We will not reverse the chancellor’s ‘factual findings where there is substantial evidence in the record supporting [those] findings of fact.’ ” J.P. v. S.V.B., 987 So.2d 975, 979(¶7) (Miss.2008) (quoting Floyd v. Floyd, 949 So.2d 26, 28(¶ 5) (Miss.2007)).

¶ 9. Anfei argues that the chancellor erred in her ruling on the issues of property division, custody, visitation, and alimony. Specifically, Anfei argues that the chancellor failed to make findings of fact and conclusions of law under the Al-bright, Ferguson, and Armstrong analy-ses. She further argues that she should have at least been awarded reasonable visitation with the parties’ minor child.

¶ 10. This Court has affirmed a chancellor’s judgment in a case factually similar to today’s case. In Luse v. Luse, 992 So.2d 659, 660(¶ 1) (Miss.Ct.App.2008), John Luse failed to answer the complaint for divorce and failed to appear at the divorce hearing. No transcription was made in the matter. Id. at 662(¶ 8). In his appeal, John argued that the chancellor erred in failing to make specific findings of fact and conclusions of law. Id. at 663(¶ 11). We affirmed the judgment of the chancellor, stating:

[W]e find that on the merits, [John] is correct in stating that there were no specific findings made in the chancellor’s order regarding the property distribution. However, there is a presumption that sufficient evidence was heard to sustain a decree once it has been entered. Stinson [v. Stinson], 738 So.2d [1259,] 1264-65(¶ 28) [(Miss.Ct.App. 1999)]. No evidence was presented by [John] to counter this presumption....
[T]o require a chancellor to make specific findings of fact and conclusions of law ... either on the record or in an order in every uncontested chancery court matter in this State, when the defendant already had the opportunity to have his day in court and had chosen not to take advantage of it, is not justified. There were no specific Ferguson findings made by the chancellor and no transcription made of the matter because it was uncontested.

Id. at 663-64 (¶¶ 13-15) (emphasis added).

¶ 11. The disposition of the case before us arises out of one fact-Anfei failed to defend the case in chancery court. She is attempting to defend the case for the first time on appeal, but our supreme court has consistently held that this is improper. Williams v. Skelton, 6 So.3d 428, 430(¶ 6) (Miss.2009) (citing Alexander v. Daniel, 904 So.2d 172, 183(¶26) (Miss.2005)). In Williams, the Mississippi Supreme Court stated:

[W]e need not consider matters raised for the first time on appeal, which practice would have the practical effect of depriving the trial court of the opportunity to first rule on the issue, so that we can then review such trial court ruling under the appropriate standard of review.

Id.

¶ 12. Accordingly, we find that all of Anfei’s issues are procedurally barred because they were not raised in the court below. Furthermore, we can find no justification in this record for considering An-fei’s issues under plain error as permitted by Rule 103(d) of the Mississippi Rules of Evidence.

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

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . We find it important to note that the complaint for divorce and the application for temporary restraining order were filed under the same cause number. Also, beginning with an order of continuance dated February 27, 2007, no specific reference was made as to what was being continued. The order simply stated that the cause was being continued. Prior to this date, each order recited that it was the hearing on the temporary matters that was being continued.

      . We were unable to find in the record an order continuing the motion and application for temporary restraining order to March 19, 2008.

      . In Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994), the Mississippi Supreme Court established a list of factors to be considered when determining the equitable distribution of marital property.

      . In Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), the Mississippi Supreme established a list of factors relevant to a determination of the best interest of the child and child custody.

      . The record indicates that the chancellor did not rule on Anfei’s motion for reconsideration. The failure to get a ruling on the motion, however, does not affect our jurisdiction, because the motion was filed outside of the ten-day period allowed by Rule 49 of the Mississippi Rules of Civil Procedure for seeking a modification or reconsideration of a trial judge’s ruling.

      . In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993), the Mississippi Supreme Court established a list of factors to be considered by chancellors when determining whether alimony is appropriate.


author: ROBERTS, J.,

text:
    Kay Sherman TYRONE, Appellant, v. Jimmie L. TYRONE, Appellee.
    No. 2007-CA-01933-COA.
    Court of Appeals of Mississippi.
    Sept. 22, 2009.
    Rehearing Denied April 20, 2010.

      John Hubert Anderson, Hattiesburg, attorney for appellant.
    Renee M. Porter, attorney for appellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.

      . Additionally, Jimmie was asked if he had given Kay the items she was to receive pursuant to the agreed order. Jimmie said that he had not, and he gave various reasons and excuses for his failure to comply with the agreed order.

   ROBERTS, J.,

for the Court.

¶ 1. This appeal is the result of the marital difficulties between Jimmie L. Tyrone and Kay Sherman Tyrone. Jimmie filed a complaint for separate maintenance. Kay filed a response that included, among other things, a counterclaim for an irreconcilable differences divorce and a motion to dismiss Jimmie’s complaint for separate maintenance. The Lawrence County Chancery Court granted Kay’s motion to dismiss and never conducted a hearing on her counterclaim for a divorce.

¶2. Undeterred, Jimmie filed a second complaint for separate maintenance in the Lawrence County Chancery Court. Jimmie filed his second complaint under the same cause number that had been assigned to his previously-filed and dismissed first complaint. Kay responded with a motion to dismiss and argued that the chancellor should dismiss Jimmie’s second complaint because Jimmie’s first complaint, under the same cause number, had been dismissed. Kay did not include a counterclaim for a divorce in her response to Jimmie’s second complaint. However, during a subsequent hearing, the chancellor ordered Jimmie and Kay to come to an agreement regarding the division of their marital property because the chancellor intended to grant them a divorce based on irreconcilable differences.

¶ 3. Jimmie and Kay followed the chancellor’s instructions and entered a form agreement that will be described in greater detail below. Jimmie later claimed that Kay was in contempt of the chancellor’s order regarding division of the marital property. Kay reciprocated and filed her own claim that Jimmie was in contempt of the same order. The chancellor conducted a hearing, but he did not find anyone in contempt. Instead, the chancellor resolved certain matters regarding the appraisal of the marital home and division of the marital property. Kay subsequently filed unsuccessful post-trial motions, including a motion to set aside the divorce. Aggrieved, Kay appeals and argues that the chancellor erred by granting a divorce based on irreconcilable differences and in failing to set aside the judgment of divorce because, at the time the chancellor entered the judgment of divorce, neither she nor Jimmie had filed a pleading requesting a divorce based on irreconcilable differences. We find Kay’s argument to be persuasive. Accordingly, we reverse the chancellor’s judgment and remand this matter to the active docket of the Lawrence County Chancery Court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 4. Jimmie and Kay were married on April 2, 1966. Although they had one daughter during their marriage, that daughter was emancipated by the time Jimmie had filed a complaint for separate maintenance on November 7, 2003. Jimmie claimed Kay deserted him. He requested use of the marital home and separate maintenance payments from Kay.

¶ 5. On February 23, 2004, Kay filed a multi-purpose response pleading that included the following: (1) a motion to dismiss Jimmie’s complaint, (2) a response to Jimmie’s complaint for separate maintenance, (3) a “motion for temporary relief,” and (4) a “cross-complaint” for divorce. In the motion to dismiss a portion of her response, Kay argued that the chancellor should dismiss Jimmie’s complaint for separate maintenance for the following reasons: (1) she and Jimmie were residents of Humphreys County when they separated; (2) she was a resident of Alcorn County, Mississippi; (3) Jimmie’s complaint failed to state a claim upon which relief could be granted; and (4) Jimmie was not entitled to relief because he intentionally made unspecified false representations in his complaint for separate maintenance. In her “cross-complaint,” Kay requested a divorce based on Jimmie’s alleged cruel and inhuman treatment. Alternatively, Kay requested a divorce based on irreconcilable differences.

¶ 6. On September 27, 2004, the chancellor entered an “order of dismissal.” The chancellor’s order did not indicate whether the chancellor dismissed the case due to Kay’s motion to dismiss or any other reason whatsoever. However, the chancellor’s order of dismissal states that “[t]his cause coming on this date on motion for a dismissal and the Court, having duly heard said motion, finds that same should be and is hereby dismissed.” Accordingly, it appears that the chancellor granted Kay’s motion to dismiss and dismissed the cause in its entirety.

¶ 7. Neither Jimmie nor Kay filed a motion for relief from the chancellor’s order dismissing the case. The record does not indicate that either Jimmie or Kay filed a motion to reinstate the case to the chancery court’s active trial docket. However, on September 30, 2004, Jimmie filed a second complaint for separate maintenance. Jimmie changed the date of separation in his second complaint. In his first complaint, Jimmie claimed he and Kay separated in May 2003. In his second complaint, Jimmie claimed he and Kay separated in July 2008. Aside from other slight changes that are irrelevant to our present purposes, Jimmie’s second complaint was otherwise substantially the same as his first complaint. Within his second complaint, Jimmie swore that “there is not presently pending action for divorce between the parties.” The Lawrence County Chancery Clerk assigned Jimmie’s second complaint the same cause number that had previously been assigned to Jimmie’s dismissed first complaint.

¶ 8. On December 10, 2004, Kay filed a motion to dismiss Jimmie’s second complaint. Kay noted that: Jimmie’s first complaint for separate maintenance had been dismissed; the order of dismissal had not been set aside; and Jimmie’s first complaint had not been reinstated. According to the record, the next significant proceedings occurred on April 21, 2005. The parties’ appellate briefs state that the chancellor conducted a hearing on April 21, 2005. That hearing is not transcribed in the record. Be that as it may, the parties report that, during the April 21, 2005, hearing, the chancellor directed Jimmie and Kay to reach some agreement before they left the courtroom so that the chancellor could enter a divorce.

¶ 9. Apparently, Jimmie and Kay managed to reach an agreement, because the record contains a document titled “agreed order” that is dated April 21, 2005. The agreed order reflects that Jimmie and Kay received a divorce based on their irreconcilable differences and states that they settled all matters regarding division of the marital property. The section of the form regarding child custody and child support were struck through, as was most of the second page, which addressed child visitation and provisions regarding medical care for children. The third and final page, which purportedly sets out the provisions regarding the property settlement, is almost indecipherable. There is a substantial amount of printed writing in the margins, and a significant portion of the printed words are struck through.

¶ 10. As best we can tell, pursuant to the agreed order, Jimmie received the exclusive use and possession of the marital home. Handwriting in the margin of the agreed order states as follows:

The parties shall have the home appraised by an appraiser selected by the Court at the parties’ joint expense and shall then calculate the equity in the home giving credit of 15% off the top and credit for principle paid by Mr. Tyrone since the separation [illegible] Ms. Tyrone shall be paid her equity to be done within 90 days of this judgment^]

Kay received exclusive use and possession of some appliances, furniture, and other personal items. There was a notation indicating that some of the furniture “ha[d] been stolen.” Additionally, the parties agreed to pay all debts in their own name. Other handwritten notations appear requiring: (1) appraisal of three “18 wheelers and trailers accumulated during the marriage” and that Jimmie “shall pay [Kay] her one-half interest in the same”; and (2) that Jimmie “timely pay[s] for [Kay’s] car and [that] she keep it.” Another handwritten notation appears to put a ninety-day limit on those two obligations. Scribbled below the necessary signatures are the provisions that Kay’s “name shall revert to Sherman [and Jimmie] shall take no action to affect [Kay’s] Social Security income.” Although the order was executed on April 26, 2005, it was not filed with the chancery clerk until May 9, 2005.

¶ 11. The delayed filing of the agreed order coincided with what appears to have been the chancellor’s unrequested sua sponte entry of an order reinstating Jimmie’s first complaint to the chancery court’s active docket. Stated differently, at the same time the agreed order was filed, the chancellor entered and filed an order reinstating Jimmie’s first complaint for separate maintenance. The record does not indicate that either Jimmie or Kay moved to reinstate Jimmie’s previously-dismissed complaint for separate maintenance. The chancellor did not elaborate as to why Jimmie’s first complaint was reinstated to the chancellor’s active docket. The reinstating order simply states that “[t]his cause having been dismissed[,] is hereby reinstated to the active docket. So ordered and adjudged on this the 26th day of April 2005.” The only logical interpretation of the purpose behind reinstating Jimmie’s first complaint was to attempt to resurrect Kay’s counterclaim for a divorce based on irreconcilable differences so that the order granting a divorce based on irreconcilable differences was entered after a request for such a divorce.

¶ 12. Moving forward to the events that followed, on June 27, 2005, the chancellor appointed appraiser Jimmy W. Tyrone (Tyrone) to appraise the marital home. Tyrone appraised the marital home and attached property at a value of $73,000. Although Tyrone’s appraisal was referenced in a subsequent court order, the appraisal was never introduced into evidence during the only transcribed hearing in this matter. It was, however, introduced for identification purposes only.

¶ 13. On October 26, 2005, Jimmie’s attorney mailed a letter and a quitclaim deed to Kay’s attorney. Pursuant to the instructions in the letter, Kay was to execute the quitclaim deed transferring her ownership in the marital property to Jimmie in exchange for $5,043, which according to the letter, represented Kay’s equity in the marital home. Kay apparently refused to do so, because on December 12, 2005, Jimmie filed a complaint accusing Kay of contempt for refusing to execute the quitclaim deed. Kay denied Jimmie’s allegation and filed a counterclaim for contempt against Jimmie. According to Kay, Jimmie refused to abide by the agreed order in that he failed to make timely payments on her car. Kay also claimed that Jimmie was in contempt because he refused to allow her on the property of the marital home so that she could retrieve the items she had received in the agreed order.

¶ 14. On November 11, 2006, the chancellor conducted the only transcribed hearing in this case. Purportedly on Jimmie’s complaint for contempt and Kay’s counterclaim for contempt, the hearing actually focused primarily on whether Tyrone’s appraisal was adequate. Kay called Willie Hill, a certified real estate appraiser, as a witness. Hill testified that he performed what he described as a “drive-by appraisal,” which entailed looking at the property from the street. Hill stated that he performed a “drive-by appraisal” because Jimmie would not allow him on the premises, and he was unable to bypass the fence and the locked gate. Hill appraised the marital home and the property it was situated on at $110,000. Tyrone, the court-appointed appraiser, was summoned for the hearing, but he did not report to testify about his appraisal. As a result of the hearing, the chancellor ordered Jimmie to allow Hill on the marital property to conduct a proper appraisal. The chancellor indicated that the parties would reconvene before the chancery court, but there is no indication that the parties actually reconvened.

¶ 15. On April 25, 2007, the chancellor issued an order setting the value’ of the marital home. The chancellor noted that there were two appraisals and that there were discrepancies as to the size of the property in the appraisals. The chancellor went on to note that, on some unidentified date, the chancellor had viewed the marital home and real property with the attorneys for Jimmie and Kay. After viewing the property, the chancellor requested that Tyrone adjust his appraisal because he did not include part of the house that had been partially converted into living space. The order reflected that Tyrone’s appraisal had been adjusted upward from $73,000 to $76,500.

¶ 16. The chancellor deducted $20,000 from Tyrone’s appraisal value, which was reportedly necessary to repair damage to the home’s foundation. The chancellor then deducted $33,500 from the adjusted value of the marital home. The $33,500 figure was the “pay-off’ on the mortgage on the home. For reasons that are not completely clear’, the chancellor stated that “of course, the Court is taking off the 15 percent from the $56,000.” Accordingly, the chancellor subtracted an additional $9,500 from the remaining $23,000. The chancellor calculated that $23,000 minus $9,500 was $14,500. The chancellor found that Kay was entitled to one-half of that figure, which the chancellor calculated as $7,200. The chancellor then noted that Jimmie owed Kay $5,000 to pay off the remaining debt on her car. Accordingly, the chancellor awarded Kay a judgment of $12,500 against Jimmie.

¶ 17. On May 7, 2007, Kay filed a motion for “rehearing/reconsideration.” The chancellor filed an order overruling Kay’s motion on September 24, 2007. Four days earlier, on September 20, 2007, Kay filed a motion to set aside the judgment of divorce. Kay argued that the chancellor should set aside the divorce because, at the time the chancellor entered a judgment of divorce, neither party had requested a divorce under any grounds, much less one that had been on file for sixty days prior to the entry of the chancellor’s order.

¶ 18. On October 24, 2007, Kay filed her notice of appeal “of the judgment against her ... rendered and entered ... on the 24th day of September, A.D., 2007.” At that time, the chancellor had not ruled on her motion to set aside the judgment of divorce. However, the chancellor subsequently entered an order “dismissing” Kay’s motion to set aside the judgment of divorce. Meanwhile, Jimmie requested that the Mississippi Supreme Court dismiss Kay’s appeal. On December 11, 2008, the supreme court ruled that Jimmie’s motion should be passed for consideration with the merits of the appeal.

STANDARD OF REVIEW

¶ 19. The findings of a chancellor will not be disturbed unless the chancellor was either manifestly wrong or clearly erroneous or the chancellor arrived at those findings after an application of an erroneous legal standard. Lowrey v. Lowrey, 919 So.2d 1112, 1117(¶16) (Miss.Ct. App.2005). We review questions of law de novo. Estate of Jones v. Howell, 687 So.2d 1171, 1174 (Miss.1996).

ANALYSIS

¶ 20. Kay claims that the chancellor should have set aside the judgment of divorce because neither she nor Jimmie had filed a request for a divorce based on irreconcilable differences when the chancellor entered his judgment of divorce. The chancellor found no merit to Kay’s claim, and he did not elaborate on his decision. However, we find that Kay’s argument has merit.

¶ 21. After Jimmie filed his first complaint for separate maintenance, Kay responded with, among other things, a counterclaim for an irreconcilable differences divorce. The chancellor subsequently dismissed the case. It is not exactly clear why the chancellor entered an order of dismissal. However, the primary basis of Kay’s motion to dismiss was that the Lawrence County Chancery Court had no jurisdiction over her. That is, Kay argued Jimmie’s complaint should be dismissed because she and Jimmie were not residents of Lawrence County at the time they separated, and she was not a resident of Lawrence County when Jimmie filed his first complaint.

¶ 22. The chancellor subsequently dismissed the case. The chancellor’s order of dismissal states that “[t]his cause coming on this date on motion for a dismissal and the Court, having duly heard said motion, finds that same should be and is hereby dismissed.” Accordingly, we can only conclude that the chancellor’s decision followed Kay’s motion to dismiss.

¶ 23. The chancellor did not elaborate on his reasoning, but the chancellor’s decision could have only been predicated on a finding that the Lawrence County Chancery Court did not have personal jurisdiction over Kay. The record supports this conclusion. Kay was served with Jimmie’s complaint on December 5, 2008. The sheriffs return indicates that an Alcorn County Deputy Sheriff personally served Kay in Alcorn County. The record does not indicate whether Jimmie and Kay were residents of Lawrence County at the time they separated. In her motion to dismiss, Kay stated that she and Jimmie were residents of Humphreys County when they separated. Based on the substance of Kay’s motion to dismiss and the language in the chancellor’s order of dismissal, we can only conclude that the chancellor dismissed Jimmie’s complaint for lack of personal jurisdiction over Kay. Accordingly, Kay’s alternative pleading for a divorce, which was based on irreconcilable differences, was never properly before the chancellor.

¶ 24. When Jimmie filed his second complaint for separate maintenance, the chancery clerk gave Jimmie’s new complaint the same cause number as the first complaint for separate maintenance. In any event, when Jimmie filed his second complaint, he did not request a divorce based on irreconcilable differences. Additionally, he swore that “there is not presently pending [any] action for divorce between the parties.” Kay responded with another motion to dismiss. She did not file a second counterclaim for an irreconcilable differences divorce. On April 21, 2005, when the chancellor ordered Jimmie and Kay to come to some agreement, neither party had pled for an irreconcilable differences divorce.

¶ 25. It could be considered reasonable to conclude that, by coming to an agreement and later trying to enforce that agreement by arguing that Jimmie was in contempt, Kay consented to the irreconcilable differences divorce. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” M.R.C.P. 15(b). However, the Mississippi Rules of Civil Procedure “are subject to limited applicability in [domestic-relations] actions which are generally governed by statutory procedures.” M.R.C.P. 81(a)(9). In other words, if a provision of the irreconcilable-differences-divorce statute is contrary to the Mississippi Rules of Civil Procedure, the statute dictates the proper procedure to be followed.

¶ 26. “Divorce in Mississippi is a creature of statute.” Gardner v. Gardner, 618 So.2d 108, 111 (Miss.1993). “A divorce based on irreconcilable differences has certain statutory requirements that must be met.” Perkins v. Perkins, 787 So.2d 1256, 1261(¶ 11) (Miss.2001). Strict compliance with the statute is required. Id. at 1264(¶ 24). One such requirement is that “[cjomplaints for divorce on the ground of irreconcilable differences must have been on file for sixty (60) days before being heard.” Miss.Code Ann. § 93-5-2(4) (Supp.2008) (emphasis added). The Mississippi Legislature, in using the word “must,” did not give chancellors any discretion to waive the sixty-day requirement.

¶ 27. There was no pleading for divorce based on irreconcilable differences, much less one that had been on file for sixty days prior to the chancellor’s May 9, 2005, order. The chancellor attempted to sua sponte enter an order reinstating Jimmie’s first complaint to the active docket in what must have been an attempt to somehow resurrect Kay’s counterclaim for divorce. However, there is nothing in the record that indicates that either Jimmie or Kay provided notice to the other that the April 21, 2005, hearing would be on a request for a divorce based on irreconcilable differences.

¶ 28. Based on the lack of compliance with Mississippi’s express statutory requirements, we find that the chancellor’s decision to award a divorce based on irreconcilable differences amounts to manifest error on his part. Likewise, the chancellor committed reversible error when he decided to “dismiss” Kay’s motion to set aside the judgment of divorce. Consequently, we reverse the chancellor’s judgment of divorce and remand Jimmie’s complaint and Kay’s undecided motion to dismiss that complaint to the chancellor’s active docket. Because we have held that the chancellor should not have entered a divorce when none was requested, we have, in effect, wiped the slate clean and put the parties back where they were pri- or to trial. Perkins, 787 So.2d at 1265(¶ 25).

¶ 29. THE JUDGMENT OF THE LAWRENCE COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . The Mississippi Rules of Civil Procedure sets forth proper terminology for pleadings. Rather than a "cross-complaint,” Kay’s responsive request for a divorce should have been titled as a "counterclaim.” M.R.C.P. 81(f).

      . On April 15, 2005, the chancellor entered an order for a continuance, stating that a hearing had been scheduled for March 22, 2005, and that the hearing at issue was rescheduled for April 21, 2005.

      . The agreed order is a form document consisting of three pages of fill-in-the-blank see-tions which are completed in handwriting that is barely legible. Much of that handwriting appears in the margins of the document. But for the parties' briefs, this Court would be unable to decipher portions of the agreed order.

      . Jimmy W. Tyrone is not related to the appellant.

      .As best we can tell, Kay hired Hill with the chancellor’s approval after she received Tyrone’s appraisal and expressed concerns about it.

      . We take judicial notice that $23,000 minus $9,500 is actually $13,500 and not $14,500. Neither party took issue with the chancellor's miscalculation.

      . We take judicial notice that one-half of $14,500 is $7,250 and not $7,200. Again, for whatever reason, neither party took issue with the chancellor’s calculation.

      .We also take judicial notice that $7,200 plus $5,000 equals $12,200, rather than $12,500. Perhaps the additional $300 was to compensate Kay for the loss of personal items that were apparently stolen at some point. In any event, neither party objected to the unexplained discrepancy in the chancellor’s calculations.

      . As previously mentioned, on September 24, 2007, the chancellor overruled Kay’s motion for reconsideration.

      . Jimmie’s motion to dismiss is nothing more than a recitation of the substantive arguments he raises in his brief on appeal. Therefore, as we must consider his arguments on appeal in either event, we deny Jimmie’s motion to dismiss.

      . Pursuant to Mississippi Code Annotated section 93-5-11 (Rev.2004):
      If the defendant be a resident of this state, the complaint shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of the separation, if the plaintiff be still a resident of such county when the suit is instituted.

      .Other than her jurisdictional arguments, Kay based her motion to dismiss on two other concepts: (1) Jimmie failed to state a claim upon which relief can be granted, and (2) Jimmie intentionally misrepresented certain unspecified matters in his first complaint. Assuming that the chancety court had personal jurisdiction over the parties, Jimmie’s complaint for separate maintenance was certainly a claim upon which the chancery court could grant relief. Additionally, if Jimmie intentionally misrepresented something, that misrepresentation is unclear. Viewed alongside her jurisdictional arguments, it is possible that Kay was submitting that Jimmie intentionally misrepresented that the Lawrence County Chancery Court had jurisdiction over her.

      . We have been unable to find any authority by which a chancery clerk may assign a previously-used cause number to a new pleading. To the contrary, Mississippi Uniform Chancery Court Rule 9.02 sets forth the following:
      The Clerk shall place and keep all papers pertaining to each action in a separate file and all papers pertaining to the same case shall be kept in the same file. The Clerk shall place and keep the files containing the papers in a filing case in the Clerk’s office, or vault, in numerical order.

      (Emphasis added). Jimmie's second complaint for separate maintenance was not "the same case” as his first complaint for separate maintenance. For example, in his first complaint, Jimmie alleged that the date of separation was in May 2003, but in his second complaint, he alleged that the date of separation was in July 2003. Accordingly, Jimmie's second complaint should have been kept in a separate file and should have received a different cause number. The improper assignment of the same cause number exacerbated the other procedural miscues that occurred before the chancery court. Just because the parties and the chancellor proceeded with new-but-somewhat-related litigation with a previously-used cause number does not mean it was permissible or that it somehow revived Kay’s counterclaim for divorce.


author: CARLTON, J.,

text:
    Robert L. SANDERS, a/k/a Robert Louis Sanders, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00787-COA.
    Court of Appeals of Mississippi.
    Oct. 20, 2009.
    Rehearing Denied April 20, 2010.

      George T. Holmes, Leslie S. Lee, Jackson, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by: Deirdre McCrory, attorney for appellee.
    Before KING, C.J., IRVING and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Robert L. Sanders was arrested and charged with armed robbery. Following the trial, a jury found Sanders guilty of simple robbery. Sanders timely appeals and alleges that the trial court erred in denying Sanders’s motion for a new trial because the verdict is against the overwhelming weight of the evidence. Finding no error, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2. At approximately 1:00 a.m. on December 16, 2007, Dominic McNeil and Kelly Bergman were working their shifts at a Subway sandwich shop on University Avenue in Oxford, Mississippi. Around this time, a man walked into the shop. Bergman offered to take his order, but she could not understand the man’s responses. According to Bergman, “it sounded like he was asking for change....” Bergman testified that the man’s hands “were very rough looking and very gray as if he did some sort of construction [work],...” Because she could not understand what the man was saying, McNeil approached the register to try and accommodate the man, and Bergman went to the ladies’ room.

¶ 3. McNeil described what happened next as follows:

So she leaves the room[,] and it’s me and him[;] he is a little bit taller than me. He had some facial hair[,] and I noticed he had some space in his teeth[,] and he [went] to hand me some change[,] so I hit cash drop which is our no sale button basically to open up the register[,] and at that point he said give me the money in the register.
So I didn’t believe him. I thought he was just kidding. I said, no man, you are joking. He said no man give me the money in the register.... So he put[ ] his hand in the front part of his hoody, there [were] pockets in it and he ... points through his hoody with something in there and said give me the money in the register[.] And I said, man[,] it’s just your hand. You don’t want to do this. He said no[,] it’s more than just my hand. I said, all right[,] it’s not worth dying for Subway for. So I gave him the money from the register and he [went] out ...

When Bergman returned to the front, the man “was already gone” and McNeil was in the process of calling law enforcement to report the robbery.

¶ 4. The Oxford Police Department dispatched Sergeant Jimmy Williams to investigate the robbery. When he arrived, Sergeant Williams spoke with McNeil who stated that “they had been robbed.” At trial, Sergeant Williams testified that McNeil described the suspect as a black male, about six feet tall, with rough hands, and “something wrong with his teeth.” McNeil also stated that the suspect “had kind of a stutter.” Sergeant Williams testified that this information was relayed to other police units in the area.

¶ 5. The next morning, Sergeant Williams presented McNeil with a photographic lineup. However, McNeil did not identify anyone from this lineup as the man who had robbed the Subway. Within the next week, Agent Chris McAllister ■with the Mississippi Bureau of Narcotics informed Sergeant Williams that “he had a suspect that fit the description to a T of the individual [they] [were] looking for [regarding the Subway] robbery.” Ultimately, Sergeant Williams learned that this suspect was Sanders. Sergeant Williams then obtained a photograph of Sanders, assembled another photographic lineup containing Sanders’s photograph, and showed the lineup to McNeil. When presented with this new photographic lineup, McNeil immediately identified Sanders as the man who had robbed the Subway.

¶ 6. At trial, the State asked Bergman “to look around the courtroom and see if you are able to identify anybody here as the person who [robbed the Subway] that night?” Bergman responded that her “recollection [was] very vague and [that she] did not spend a lot of time looking at him....” Bergman then stated that she could not identify anyone in the courtroom with certainty as the man who had robbed the Subway.

¶ 7. The State then called McNeil to the stand. McNeil corroborated Sergeant Williams’s testimony about the photographic lineups. McNeil testified that when he looked at the second photographic lineup, he immediately identified Sanders as the robber. McNeil also identified Sanders in court as the robber. When asked whether he possessed any doubt about his identification of Sanders, McNeil answered, “No, sir.”

¶ 8. Sanders did not testify on his own behalf. The defense called one witness, Sanders’s wife, Petsey Sanders. Petsey testified that her husband was at home with her when the Subway robbery took place. Petsey also testified that her husband worked in the construction business laying concrete and that he frequently came home with concrete dust on his hands. Petsey also testified that her husband stuttered and had a missing tooth.

¶ 9. The jury found Sanders guilty of simple robbery. The trial court sentenced Sanders to fifteen years in the custody of the MDOC, with three years suspended. Sanders timely appeals and alleges that the guilty verdict is against the overwhelming weight of the evidence.

STANDARD OF REVIEW

¶ 10. This Court has articulated the following standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence:

“[Tjhis Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Collins v. State, 757 So.2d 335, 337(¶ 5) (Miss.Ct.App.2000) (quoting Dudley v. State, 719 So.2d 180, 182(¶9) (Miss. 1998)). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” [M] (quoting Dudley, 719 So.2d at 182(119)).

Carle v. State, 864 So.2d 993, 998(¶18) (Miss.Ct.App.2004).

WHETHER THE VERDICT IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE

¶ 11. Sanders asserts that this Court should reverse his conviction and remand for a new trial because the evidence failed to warrant a guilty verdict. Sanders bases this assertion on his defense theory of misidentification. In turn, the State submits that substantial proof existed to support the jury’s guilty verdict.

¶ 12. In addressing this assignment of error, we note that factual disputes at trial “are properly resolved by the jury and do not mandate a new trial.” Jones v. State, 791 So.2d 891, 895(¶ 12) (Miss.Ct.App.2001) (quoting Benson v. State, 551 So.2d 188, 193 (Miss.1989)).

¶ 13. In turning again to the facts of the ease, we note that at trial, Sergeant Williams testified that right after the robbery, McNeil told law enforcement that the man who had robbed the Subway was a tall, older black male who had gray rough hands, a gap in his teeth, and a stutter. Moreover, Petsey corroborated McNeil’s description of her husband in testifying that: he often came home with concrete dust on his hands; he had a missing tooth; and he stuttered.

¶ 14. Additionally, McNeil reiterated Sergeant Williams’s testimony about the photographic lineups. Regarding his examination of the second photographic lineup, McNeil testified that he immediately identified Sanders as the robber. McNeil also identified Sanders in court as the robber.

¶ 15. In accepting as true the evidence supporting the jury’s verdict, we cannot find that the jury’s guilty verdict is so against the overwhelming weight of the evidence as to sanction an unconscionable injustice. See Carle, 864 So.2d at 998(¶ 18). As a result, we cannot find that the trial court abused its discretion in denying Sanders’s motion for a new trial.

¶ 16. This issue lacks merit.

¶ 17. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT OF CONVICTION OF SIMPLE ROBBERY AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THREE YEARS SUSPENDED IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.

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

      . See Miss.Code Ann. § 97-3-79 (Rev.2006).

      . See Miss.Code Ann. § 97-3-73 (Rev.2006).


author: MYERS, P. J.,

text:
    Ronnie MITCHENER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CA-01750-COA.
    Court of Appeals of Mississippi.
    Nov. 3, 2009.
    Rehearing Denied Feb. 16, 2010.
    Certiorari Denied April 22, 2010.

      Stephen L. Beach, Jackson, attorney for Appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for Appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   MYERS, P. J.,

for the court.

¶ 1. Ronnie Mitchener pleaded guilty in the Lowndes County Circuit Court to one count of kidnaping, for which the circuit court sentenced Mitchener to twenty years in the custody of the Mississippi Department of Corrections. Mitchener subsequently filed a motion for post-conviction relief (PCR), which was dismissed by the circuit court. On appeal, this Court reversed and remanded for an evidentiary hearing. Following an evidentiary hearing on remand, the circuit court denied the PCR motion, and Mitchener appeals. Finding no grounds to disturb the circuit court’s findings, we affirm.

FACTS

¶ 2. Mitchener was arrested by the Ok-tibbeha County Sheriffs Department on January 8, 2004, for kidnaping Adam Lee Boterf. A short time later, he hired Jackson “Jack” Brown as defense counsel.

¶ 3. Bond was subsequently denied, and Mitchener was sent to the Mississippi State Hospital at Whitfield for a mental evaluation, where it was determined that he was competent to stand trial. Mitchener was indicted by a Lowndes County grand jury for one count of kidnaping on May 7, 2004. Mitchener was returned to Lowndes County in June 2004, where he initially entered a plea of not guilty. While there were plea negotiations, Mitchener was never offered an agreed sentence recommendation by the State. Mitchener ultimately offered an “open plea” of guilty, and the circuit court accepted it. Following a sentencing hearing, the circuit court sentenced Mitchener to twenty years’ imprisonment.

¶ 4. Mitchener testified at the PCR hearing that Brown induced him to plead guilty by repeatedly promising or guaranteeing that if he pleaded guilty, Mitchener would be sentenced to time served and probation. Mitchener testified that he believed Brown had an arrangement with the judge and that Brown had told him, “I’ve got you covered.” Mitchener testified that Brown told him to “roll[] with the flow” during the plea colloquy, specifically instructing Mitchener to deny that he had been promised a lenient sentence in exchange for his guilty plea. Mitchener also produced several witnesses who testified that Brown had either told them Mitchener would be sentenced to time served or that they had overheard Brown promise Mitchener that he would be sentenced to time served and probation.

¶ 5. The State called Brown, who denied promising or guaranteeing that Mitchener would receive time served and probation. Brown testified that he had explained to Mitchener his options regarding whether he should go to trial or plead guilty. Brown admitted that he had recommended Mitchener plead guilty; however, he stated that Mitchener understood that the circuit court would have the final decision as to his sentence. Brown further denied that he had ever promised Mitchener a sentence of time served and probation. Brown also testified that neither Mitchener nor his family had indicated to him, before or after the sentencing, that they understood Mitchener had been “promised” a lenient sentence.

¶ 6. The State also called Larry Willis, an employee of Brown and a first cousin of Mitchener. Willis testified that he had been present during numerous conversations between Brown and Mitchener, but he had never heard Brown guarantee that Mitchener would receive probation. He also testified that he had never known Brown to make promises concerning open pleas.

¶ 7. The circuit court denied Mitchener’s PCR motion, finding that his guilty plea was entered voluntarily and that Mitchener had not received ineffective assistance of counsel.

STANDARD OF REVIEW

¶ 8. Our standard of review is well settled: we may not disturb the circuit court’s factual findings unless they are clearly erroneous. Lambert v. State, 941 So.2d 804, 807(¶ 14) (Miss.2006). A finding of fact is clearly erroneous, although there is evidence to support it, when after reviewing the entire record this Court “is left with the definite and firm conviction that a mistake has been made.” Johns v. State, 926 So.2d 188, 194(¶ 29) (Miss.2006). Where questions of law are raised, however, the applicable standard of review is de novo. Lambert, 941 So.2d at 807(¶ 14).

DISCUSSION

1. Ineffective Assistance of Counsel

¶ 9. “In order to prevail on the issue of whether his defense counsel’s performance was ineffective, [the petitioner] must prove that his counsel’s performance was deficient and that he was prejudiced by counsel’s mistakes.” Kinney v. State, 737 So.2d 1038, 1041(¶8) (Miss.Ct.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “There is a strong but rebuttable presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Id. (citing Moody v. State, 644 So.2d 451, 456 (Miss.1994)). Additionally, a petitioner is required to “allege both prongs of the above test with specific detail.” Coleman v. State, 979 So.2d 731, 735(¶ 15) (Miss.Ct. App.2008) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)).

¶ 10. Mitchener argues that Brown provided ineffective assistance of counsel in two respects.

¶ 11. First, Mitchener argues that Brown was ineffective in failing to ensure that testimony at the sentencing hearing was transcribed for appellate review. This Court has previously found this argument procedurally barred as raised for the first time on appeal and without merit because Mitchener failed to identify any resulting prejudice. See Mitchener v. State, 964 So.2d 1188, 1195(¶ 21) (Miss.Ct.App.2007). Presented again, this argument is both procedurally barred and barred by the doctrine of res judicata. Furthermore, Mitchener again fails to identify any specific prejudice.

¶ 12. Second, Mitchener argues that Brown was ineffective in misrepresenting the sentence Mitchener would receive if he pleaded guilty. Mitchener testified that Brown repeatedly guaranteed or promised him probation, and that he pleaded guilty as a result. We previously held:

Mitchener’s claim that defense counsel misrepresented the length of sentence that would be imposed for a guilty plea is grounds for showing deficient performance under Strickland. And, Mitchener’s averment that he relied on the attorney’s misrepresentations and would not have pled guilty but for the assurance of receiving time served and probation states a claim under the prejudice prong of the Strickland test.

Id. at 1194 — 95(¶ 18) (citations omitted). The circuit court, however, credited Brown’s testimony over Mitchener’s, and it found that Brown had not misrepresented the sentence Mitchener would receive.

¶ 18. On appeal, Mitchener alleges that this finding was clearly erroneous. He argues that the circuit court erred in rejecting the testimony of Mitchener and his four witnesses. Mitchener argues that this testimony was more specific and detailed than Brown’s, which he characterizes as a general denial. He also asserts that one of his witnesses, an employee of Mitchener’s accountant, was more credible because she had never met Mitchener in person and had no motive to lie.

¶ 14. We find that this argument is without merit because Mitchener essentially asks this Court to re-weigh the credibility of the witnesses. This exceeds the scope of our review, because “the trial judge, sitting in a bench trial as the trier of fact, has sole authority for determining [the] credibility of the witnesses.” Johns, 926 So.2d at 194(¶ 29) (citing Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987)).

¶ 15. The circuit court, in a detailed written opinion, rejected the testimony of Mitchener and his witnesses. It is evident from the record that the circuit court found Brown’s testimony more credible only after a thorough examination of the evidence before it. We can find no basis for disturbing these findings as clearly erroneous. This issue is without merit.

2. Voluntary and Intelligent Guilty Plea

¶ 16. Mitchener argues that his guilty plea was not entered knowingly and voluntarily because it was induced by a misrepresentation of his counsel as to the sentence Mitchener would receive if he pleaded guilty. Mitchener’s argument here relies upon the same factual issues as his ineffective assistance of counsel claim, and, again, we can find no basis for disturbing the circuit court’s findings of fact. This issue is without merit.

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

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

      . Mitchener v. State, 964 So.2d 1188 (Miss.Ct. App.2007).