[Edited to correct the year in the title. I am behind, but I am not a whole year behind.]
I was about snowed under last week so I am trying to catch up here a bit. The Mississippi Court of Appeals handed down four opinions on February 6 and another nine on February 13.
February 6, 2024
Porter v. State, 2023-CP-00091-COA (Civil – Other)
Vacating the trial court’s denial of a request to be reclassified as a non-habitual offender, holding that the petitioner was not a habitual offender but that his claims were filed in the wrong county so the case was remanded with instructions for the trial court to transfer to the appropriate county.
(9-0: Smith did not participate)
Gilmore v. State, 2023-CP-00527-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not err in finding that the motion was time-barred and not subject to any of the exceptions.
(9-0: Emfinger did not participate)
Ellis v. Turner-Johnson Dodge, Inc., 2022-CA-01126-COA (Civil – Contract)
Affirming the county court’s order compelling arbitration, holding that there was a valid, binding arbitration agreement and that the dispute was within the scope of the agreement.
(7-2: Westbrooks and McDonald dissented; Smith did not participate)
Practice Point – Cite the record early and often in your briefs:
Moates v. State, 2022-KA-01062-COA (Criminal – Felony)
Affirming conviction of first degree murder, burglary of a dwelling under circumstances likely to terrorize, and simple domestic violence, holding that the trial court did not err in denying a motion to sever the first-degree murder charge, that the trial court did not abuse its discretion in admitting evidence of prior bad acts, that the evidence was sufficient to support the simple domestic violence conviction, and that retroactive misjoinder argument was moot.
(10-0)
Practice Point – This is a good reminder that “prejudice” is not the test under Rule 403.
Other Orders
Gilbert v. State, 2021-KA-01265-COA (denying rehearing)
Kilcrease v. City of Tupelo, 2022-KM-00194-COA (denying rehearing)
February 13, 2024
Williams v. Bryant, 2022-CA-00630-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s decision in a will contest, holding that the chancellor did not err in determining that there was a confidential relationship but that the evidence did not show abuse or suspicious circumstances or active involvement in procurement or execution of the will that would create a presumption of undue influence.
(9-1-0: McDonald concurred in part and in the result without separate written opinion)
Allen v. State, 2022-KA-00935-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the trial court did not err in refusing to instruct the jury on the defendant’s alternative defense theory of heat-of-passion manslaughter.
(10-0)
Netherland v. State, 2022-CP-01236-COA (Civil – PCR)
Affirming the circuit court’s denial of a PCR motion, holding that the circuit court did not err in finding that the petitioner’s Fourth, Fifth, and Fourteenth Amendment rights were not violated when law enforcement recorded the petitioner selling drugs to an informant and that there was no merit to the ineffective-assistance-of-counsel claim.
(10-0)
Brooks v. State, 2022-KA-01016-COA (Criminal – Felony)
Affirming conviction of burglary of a dwelling, simple assault domestic violence, and possession of a firearm by a felon, holding that the conviction for possession of a firearm was not against the overwhelming weight of the evidence.
(8-2-0: Barnes and Westbrooks concurred in part and in the result without writing)
EEECHO Inc. v. Mississippi Dept. Env’t Quality Permit Bd, 2022-SA-01068-COA (Civil – State Boards and Agencies)
Affirming the chancery court’s decision affirming MDEQ’s Permit Board’s decision to issue water quality certifications, holding that the Permit Board did not err by not making factual findings regarding the possible storage of explosive ammunition, that the Permit Board’s failure to issue a revise public notice was not arbitrary or capricious, that the Permit Board’s decision that the subject property was preferable to the alternative project sites, and that the Permit Board’s failure to conduct an environmental justice review.
(8-2: McDonald dissented, joined by Westbrooks; Westbrooks dissented without writing)
Smith v. Smith, 2022-CA-00183-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancery court’s child custody and division or martial estate decisions, holding that the chancellor did not err or abuse his discretion in awarding custody to the father or in his visitation ruling, but that the chancellor erred by classifying one of the father’s businesses as separate property.
(10-0)
Wade v. State, 2022-CA-00370-COA (Civil – PCR)
Affirming the trial court’s denial of a PCR motion, holding that the trial court’s decision that the plea was voluntary and intelligent notwithstanding the petitioner’s low intellectual ability, that there was no merit to the ineffective-assistance-of-counsel claim, and that Miller did not apply because the felony convictions did not mandate life imprisonment.
(6-4-0: Emfinger concurred in part and in the result without writing; Carlton, Westbrooks, and McDonald concurred in result only without writing)
Hunter v. State, 2022-CP-01269-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the circuit court did not err in denying the motion as untimely.
(10-0)
Clarksdale Pub. Utilities Comm’ v. Miss. Dept. of Emp’t Sec., 2022-CC-01085-COA (Civil – State Boards & Agencies)
Affirming the circuit court’s decision affirming MDES Review Board’s decision approving unemployment benefits, holding that MDES was not collaterally estopped from making the benefits decision as a result of MDEC and CPOC having different standards and definitions of misconduct, that the ALJ did not err in refusing the admit 900 pages of exhibits that the employer offered for lack of foundation, and that there was sufficient evidence in the record to support the ALJ’s findings.
(3-2-3: Westbrooks and McCarty concurred in part and in the result without writing; Wilson concurred in the result only without writing; Greenlee concurred in part and dissented in part without writing; Carlton concurred in part and dissented in part, joined by Greenlee and Lawrence; Barnesn did not participate)
Other Orders
Bradshaw v. Bradshaw, 2017-CT-01731-COA (granting motion to seal file on appeal)
Odom v. State, 2021-KA-00676-COA (denying rehearing)
Harrison v. Harrison, 2022-CA-00274-COA (denying rehearing)
Litton v. Litton, 2022-CA-00712-COA (denying rehearing)
Johnson v. Drake, 2022-CA-00818-COA (denying rehearing)
Forrest v. State, 2022-KA-00844-COA (granting pro se letter motion to recall mandate)
Patel v. State, 2022-CA-00985-COA (denying rehearing)
Fox v. State, 2022-KA-00988-COA (granting motion to expedite mandate)
Harvey v. State, 2023-CT-00157-COA (recalling mandate sua sponte)
Clark v. State, 2023-TS-01116-COA (granting motion to proceed out of time)
Odom v. State, 2023-TS-01165-COA (granting public defender’s motion withdraw, to substitute counsel, and respond to order to show cause)
Winn Dixie Stores v. Little, 2023-WC-01177-COA (granting motion to dismiss appeal as interlocutory)
Holifiend v. State, 2023-TS-01320-COA (granting motion to proceed out of time)
Mississippi Appeals Blog 