Tag: PCR

Mississippi Court of Appeals Decisions of November 5, 2024 and Mississippi Supreme Court Decisions of November 7, 2024

In what was certainly the biggest new story from Tuesday, the Mississippi Court of Appeals handed down five opinions. Today, the Mississippi Supreme Court handed down one opinion and one order amending the Mississippi Rules of Civil Procedure. You can read about all below.

Mississippi Court of Appeals – November 5, 2024

Patton v. State, 2023-CP-00618-COA (Civil – PCR)
Affirming summary dismissal of PCR motion, holding that the motion was successive and untimely with no available exceptions and that the motion was meritless.
(9-0: Smith did not participate)

Slade v. City of Lumberton, 2023-CA-00830-COA (Civil – Personal Injury)
Affirming summary judgment in a MTCA personal injury case stemming from a police pursuit, holding that the trial court did not err in finding no reckless disregard based on the undisputed facts and that the trial court did not err in denying the motion to recuse based on the judge’s prior representation of the City.
(6-3: McDonald dissented, joined by Westbrooks and McCarty; Weddle did not participate)

McDill v. Scott County School District, 2023-CA-00956-COA (Civil – Personal Injury)
Reversing summary judgment in an MTCA case stemming from a student’s weightlifting injury at school, holding that the school district was not entitled to discretionary-function immunity.
(10-0)

The University of Mississippi Medical Center v. Redd, 2023-CA-00711-COA (Civil – Med Mal)
Affirming a bench trial verdict of $500,000 in a med mal case, holding that there was substantial evidence to support the trial court’s findings that the doctor breached the standard of care by not ordering lab work or further testing which, in turn, would have revealed the infection and prevented the amputation, and holding that the trial court did not abuse its discretion in admitting testimony of an orthopedic surgeon who primarily practiced in a different subspecialty than the treating doctor.
(8-1-0: Wilson concurred in part and in the result without writing; Weddle did not participate)

Morgan v. Riverboat Corporation of Mississippi, 2023-CA-00379-COA (Civil – Personal Injury)
Affirming summary judgment in a personal injury case where the plaintiff was struck by poolside cushions blowing in the wind while she was closing out her tab at the swim-up bar, holding that the trial court did not err in finding that they cushions were not an unreasonably dangerous condition and that there was no evidence of negligence on the part of the defendant.
(7-3: Westbrooks dissented, joined by McDonald and Lawrence)

Other Orders

  • Sinquefield v. The City of Ridgeland, 2022-CA-01276-COA (denying rehearing)
  • In Re Estate of Warren: Warren v. Maharrey, 2023-CA-00438-COA (denying rehearing)

Hand Down Page

Mississippi Supreme Court – November 7, 2024

Childress v. State, 2023-KA-01323-SCT (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the verdict was supported by sufficient evidence and was not against the overwhelming weight of it.
(9-0)

Other Orders

  • In Re: The Rules of Civil Procedure, 89-R-99001-SCT (amending M.R.C.P. 62 – the order states that the amendment is effective 30 days after the date of the order which was entered on October 31, 2024)

Here are the amendments to Rule 62 (subsections (c) through (h) were not altered):

  • Mississippi State University v. Zhang, 2024-M-00344-SCT (denying rehearing)
  • Hertz Jackson Three, LLC v. Sanders, 2024-M-00497-SCT (denying interloc)
  • Mississippi Baptist Medical Center, Inc. v. Butler, 2024-M-00930-SCT (denying interloc)

Hand Down Page

Mississippi Court of Appeals Decisions of October 22 and October 29, 2024

The Mississippi Court of Appeals handed down four opinions last week and seven this week. You can read summaries of the lot below.

October 22, 2024

Hampton v. State, 2023-KA-00068-COA (Criminal – Felony)
Affirming convictions of first-degree murder and using a firearm during the commission of a felony, but vacating the consecutive five-year sentence for using a firearm during the commission of a felony where he was also sentenced to life.
(9-0: Weddle did not participate)

Baur v. Ribelin, 2023-CA-00018-COA (Civil – Real Property)
Affirming on direct and cross appeal in an adverse possession action, holding that the chancellor did not err in denying the claim for adverse possession or in confirming title in the rightful owner.
(8-1-0: Wilson concurred in part and in the result without writing; Weddle did not participate)

Johnson v. SW Gaming LLC, 2023-CA-00505-COA (Civil – Personal Injury)
Affirming the circuit court’s decisions granting the defendants’ motions for summary judgment in an inadequate security case, holding that the evidence was not sufficient to establish an atmosphere of violence or actual or constructive knowledge that the assailant was a violent person and the evidence was not sufficient to establish garden variety negligence.
(9-0: Weddle did not participate)

In the Interest of A.R.H., a Minor: Malone v. Jackson County Dept. of Child Protection Services, 2023-CA-00420-COA (Civil – Custody)
Affirming the youth court’s custody order, holding that the youth court was in its discretion to find aggravated circumstances warranting bypassing reasonable efforts for reunification and that there were no evidentiary errors.
(5-4: Wilson and Westbrooks dissented without writing; McDonnald dissented, joined by Westbrooks and McCarty)

October 29, 2024

Banks v. Banks, 2023-CA-00515-COA (Civil – Domestic Relations)
Dismissing appeal for want of an appealable judgment.
(9-0: Weddle did not participate)

Ware v. State, 2023-CP-00909-COA (Civil – PCR)
Affirming summary denial of PCR motion, holding that the motion was time-barred and successive.
(9-0: Weddle did not participate)

Morland v. Morland, 2023-CA-00237-COA (Civil – Custody)
Affirming the chancellor’s rulings in a divorce matter, holding that the chancellor did not err in finding that it was in the child’s best interest to be in the mother’s exclusive custody subject to visitation, in calculation and award of child support to the mother, or in awarding the mother attorney’s fees.
(9-0: Weddle did not participate)

Mallard v. State, 2023-CP-01155-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the petitioner could not duck the successive petitions bar by proving any exceptions.
(7-1-1: Westbrooks concurred in result only without writing; McDonald concurred in part and dissented in part without writing)

Sessums v. Chicken Nugget, Inc., 2023-CA-00128-COA (Civil – Personal Injury)
Affirming summary judgment in a premises liability case where the plaintiff tripped over two parking curbs, holding that the plaintiff did not come forward with evidence to prove that two abutting parking curbs created an unreasonably dangerous condition.
(9-0: Weddle did not participate)

Scott v. State, 2023-KA-00559-COA (Criminal – Felony)
Affirming conviction of one count of child abuse and conviction of life imprisonment without eligibility for parole for a father who abused his infant child, holding (1) that the admission of the father’s prior conviction for failure to register as a sex offender was not reversible error though it was error to refer to it as “failure to register as a sex offender” instead of “failure to register” which was the actual language in the prior sentencing order, (2) that the conviction was supported by sufficient evidence, and (3) the verdict was not against the overwhelming weight of the evidence.
(4-5-0: Wilson and Smith concur in part and in the result without writing; Westbrooks, McDonald, and Lawrence concur in result only without writing; Weddle did not participate)

Tisdale v. South Central Regional Medical Center, 2023-CA-00231-COA (Civil – Med Mal)
Affirming dismissal for failure prosecute, holding that the trial court did not err in reviewing the motion under Rule 41(b) instead of Rule 37, did not miscalculate the delay and correctly found clear delay with no activity occurring to advance the case to judgment in over two years, and did not abuse its discretion in determining that anything less than a dismissal would be unjust.
(6-3: McDonald concurred in part and dissented in part without writing; Lawrence dissented, joined by McCarty, and joined in part by McDonald)

NOTE – The dissent argued that the majority discounted the impact of COVID.

Other Orders

October 22, 2024

  • Weatherly v. Weatherly, 2022-CA-00804-COA (denying rehearing)
  • Signaigo v. Grinstead, 2022-CA-01212-COA (denying rehearing)
  • Jackson v. State, 2023-KA-00201-COA (denying rehearing)
  • Neal v. Cain, 2023-CP-00625-COA (denying rehearing)
  • Washington v. State, 2024-CP-00059-COA (granting pro se motion to recall mandate and accept untimely brief)

October 29, 2024

  • Wilson v. State, 2023-CA-00070-COA (denying rehearing)
  • Shanks v. State, 2023-CP-00271-COA (denying rehearing)
  • Davis v. State, 2023-KA-00636-COA (denying rehearing)
  • Bradley v. State, 2023-CP-0764-COA (denying rehearing)

Hand Down Page – October 22, 2024

Hand Down Page – October 29, 2024

Mississippi Court of Appeals Decisions of September 24, 2024

The Mississippi Court of Appeals handed down four opinions today. Three are PCR cases and the other is a direct criminal appeal.

Walker v. State, 2023-CP-00787-COA (Civil – PCR)
Affirming dismissal of a PCR motion, holding that the trial court properly dismissed the motion for failure to first seek relief through MDOC’s ARP regarding the calculation of a sentence.
(9-0)

Farris v. State, 2023-CP-00845-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not err in finding that the trial court did not err with regarding to sentence enhancements and that there was no prejudice in the trial court no recusing sua sponte such that there was a reversible abuse of discretion.
(9-0)

Ward v. State, 2023-CA-00378-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not err in finding that the motion was time barred by the UPCCRA.
(7-1-0: Westbrooks concurred in result only without writing; Emfinger did not participate.)

Simmons v. State, 2023-KA-00518-COA (Criminal – Felony)
Affirming conviction of second-degree murder, holding that the trial court did not err in the self-defense instructions given and that there was sufficient evidence to sustain the conviction.
(9-0)

Other Orders

  • Course v. State, 2022-KA-00760-COA (denying rehearing)
  • Holt v. State, 2023-KM-00121-COA (denying motion to correct the court’s prior opinion)
  • Hamer v. State, 2023-CP-00701-COA (denying rehearing)

Hand Down Page

I had a hearing in Copiah County Circuit Court yesterday and that was my first time in the courthouse in Hazlehurst. It is a beautiful, three-story building with a central rotunda and a dome that is visible from the ground floor. I did not get a good picture of the courtroom, but it is circular with gallery seating wrapped-around on the ground floor and on a second-floor balcony. A great, small-town Mississippi courthouse!

Mississippi Supreme Court Decisions of August 22, 2024; August 29, 2024; September 5, 2024 and September 12, 2024

I have fallen behind on my summaries. Fortunately for me, this has not been a particularly prolific stretch for the Mississippi Supreme Court. Summaries from the last four weeks are below.

August 22, 2024

No Opinions

August 29, 2024

Chatman v. State, 2023-KA-00583-SCT (Criminal – Felony)
Reversing conviction of two counts of sexual battery, holding that there was uncertainty as to the unanimity of the jury’s verdict as to the sexual-battery counts but that there was no such uncertainty as to the lesser-included offense of gratification of lust for each count, and remanded for new trial on sexual-battery charges or resentencing on the lesser-included counts.
(8-0: Randolph did not participate)

McClain v. State, 2023-KA-01189-SCT (Criminal – Felony)
Affirming conviction of possession of a firearm by a convicted felony, holding that there were no issues warranting reversal based on review of counsel’s Lindsey brief and the record.
(9-0)

September 5, 2024

Johnson v. State, 2023-CA-00117-SCT (Criminal – PCR)
Affirming the trial court’s decision that the defendant should remain parole ineligible after Miller hearing, holding the defendant was not entitled to jury sentencing under section 97-3-21(2) because he was convicted before July 1, 2024, and that the application of the parole-ineligibility statute to the defendant’s life sentence was not unconstitutional.
(6-3-0: Coleman concurred in part and in the result, joined by Kitchens and King)

September 12, 2024

Archie v. Smith, 2023-EC-01149-SCT (Civil – Election Contest)
Vacating judgment on petition for judicial review of an election contest, holding that the circuit court did not consider sufficient evidence to determine whether the circuit clerk’s office was open or closed on the due date which, in turn, determined whether the petition was timely.
(8-0: Kitchens did not participate)

Fluker v. State, 2022-CT-00692-SCT (Criminal – Felony)
Reversing conviction of conspiracy to commit aggravated assault, holding that the trial court erred in denying the defendant’s request to instruct the jury on the lesser-included offense of conspiracy to commit simple assault.
(8-0: Randolph did not participate)

Other Orders

August 22, 2024

  • Patrick v. Patrick, 2021-CT-00891-SCT (denying cert)
  • MDHS v. Johnson, 2022-CT-00605-SCT (granting cert)
  • Thoden v. Hallford, 2022-CA-00835-SCT (denying rehearing)
  • Smith v. State, 2022-CT_00852-SCT (denying cert)
  • Boyett v. State, 2022-CT-01239-SCT (denying cert)
  • McNinch v. Brandon Nursing & Rehabilitation Center, L.L.C., 2023-CA-00050-SCT (denying rehearing)
  • Gleason v. State, 2023-CT-00357-SCT (denying cert)
  • Pryer v. State, 2023-M-01230-SCT (denying motion to reconsider)

August 29, 2024

  • Ronk v. State, 2021-DR-00269-SCT (denying motion to stay mandate pending cert)
  • Arnold v. State, 2021-CT-01426 (denying cert)
  • Rutland v. Regions Bank, 2022-CT-00720 (denying cert)
  • Malone v. State, 2022-CT-00958-SCT (denying cert)
  • Minor v. State, 2022-CT-00990-SCT (granting cert)
  • The Mississippi Bar v. Rogers, 2024-BD-00215-SCT (granting the Bar’s motion for reimbursement of costs and expenses)

September 5, 2024

  • Wilson v. State, 2017-M-00230 (denying pro se application for leave to proceed in the trial court, finding the filing frivolous, and warning that future frivolous filings may result in sanctions)
  • Cage v. State, 2017-M-01498 (denying pro se application for leave to proceed in the trial court, finding the filing frivolous, and warning that future frivolous filings may result in sanctions)
  • Clarksdale Public Utilities Commission v. Mississippi Department of Employment Security, 2022-CT-01085-SCT (denying cert petition as untimely)

September 12, 2024

  • Marshall v. State, 2022-CT-00541-SCT (denying cert)
  • M.H. v. L.R., 2022-CA-00922-SCT (denying motion to substitute, motion to expedite consideration, and motion to dismiss the appeal as moot, and vacating judgment terminating parental rights)

Hand Down Page – August 22, 2024

Hand Down Page – August 29, 2024

Hand Down Page – September 5, 2024

Hand Down Page – September 12, 2024

Mississippi Court of Appeals Decisions of September 3, 2024 and September 10, 2024

The Mississippi Court of Appeals handed down six opinions last week and three opinions this week. Since I was out of the office last Tuesday I included last week’s cases in this post. Between the two dates there there are a couple of service-of-process cases, a few personal injury cases, a couple of domestic relations cases, direct criminal appeals, and a two PCR cases. Appellants prevailed in all three of today’s cases.

September 3, 2024

Havard v. Hart, 2023-CA-00260-COA (Civil – Personal Injury)
Affirming dismissal for insufficient service of process, holding that there was substantial evidence supporting the trial court’s finding that the defendant had not been properly served and that the plaintiff did not have good cause for failing to timely serve process.
(8-1-0: McDonald concurred in result only without writing)

Old Hattiesburg High, L.P. v. Harris Construction Services, LLC, 2023-CA-00579-COA (Civil – Other)
Dismissing appeal of order denying a motion to reinstate an order obtaining expunging a contractor’s lien, holding that the initial order expunging the lien was not a final appealable order and that subsequent orders on motions revising the interim order were not final either.
(8-1-0: Wilson concurred in part and in the result without writing)

Hyland v. State, 2023-CA-00256-COA (Civil – PCR)
Affirming the trial court’s dismissal of PCR motion challenging his convictions and seeking an out-of-time appeal, holding that motion was time-barred and successive.
(9-0)

Fortner v. Bratcher, 2023-CP-00664-COA (Civil – Domestic Relations)
Affirming the chancellor’s findings related to motions for contempt and custody modification, holding that the chancellor did not abuse his discretion finding the father in contempt, carrying forward the parties’ agreed visitation schedule, or enjoining the parties from contacting CPS with allegations of neglect or abuse without first contacting local law enforcement.
(9-0)

Miller v. State, 2023-CP-00812-COA (Civil – PCR)
Affirming the trial court’s dismissal of a PCR motion, holding that it was barred by the UPCCRA’s statute of limitations.
(9-0)

Wilkerson v. Allred, 2023-CA-00393-COA (Civil – Personal Injury)
Reversing the trial court’s grant of summary judgment dismissing claims for emotional distress damage after the defendant shot and killed the plaintiff’s puppy in the head as it sat next to the plaintiff’s twelve-year-old sister, holding that there was a jury question on the issue of whether the plaintiff’s emotional distress injuries were reasonably foreseeable to the defendant.
(4-3-2: Wilson and McDonald concurred in part and in the result without writing; Westbrooks concurred in the result only without writing; Carlson dissented, joined by Emfinger and joined in part by McDonald.)

September 10, 2024

Bell v. State, 2023-CA-00951-COA (Criminal – Felony)
Vacating and remanding revocation of a suspended sentence, holding that the trial judge was automatically disqualified because she had previously served as the ADA for the underlying conviction.
(7-2: Barnes dissented, joined by Wilson)

Wells v. Wells, 2023-CA-00674-COA (Civil – Domestic Relations)
Reversing the chancery court’s judgment granting the wife’s petition for divorce and divesting the husband of his interest in real property, holding that there was no evidence that the husband was properly served.
(4-1-4: Emfinger concurred in part and in the result without writing; Wilson dissented, joined by Barnes, Lawrence and Smith.)

Deere v. Taylor, 2023-CA-00063-COA (Civil – Personal Injury)
Reversing the trial court’s dismissal of a personal injury lawsuit, holding that the prohibition against claim-splitting was not triggered where the plaintiff filed one lawsuit but was unable to serve the defendants and months later filed a second lawsuit asserting the same causes of action against the same parties while the first lawsuit sat stale.

Other Orders

  • Daly v. Raines, 2022-CT-00600-SCT (denying appellant’s to voluntarily dismiss this appeal)
  • McKenzie v. McKenzie, 2022-CA-01175-COA (denying rehearing)
  • Estate of Staten: Staten v. Pedersen, 2023-CA-00228-COA (denying untimely motion tor additional time to file a motion for rehearing)
  • Stewart v. State, 2024-TS-00606-COA (dismissing appeal as untimely)

September 3, 2024 Hand Down Page

September 10, 2024 Hand Down Page

Mississippi Court of Appeals Decisions of August 27, 2024

The Mississippi Court of Appeals handed down eleven opinions today. The majority are PCR cases, but there are a few direct criminal appeals, a personal injury case, and a divorce case.

Magee v. State, 2023-CP-00008-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the circuit court did not err by failing to appoint counsel to represent the petitioner at his evidentiary hearing, finding that the guilty pleas were knowing/intelligent/voluntary, or in denying the claim of ineffective assistance of counsel.
(9-0)

Haley v. State, 2023-CP-00918-COA (Civil – PCR)
Affirming dismissal of second PCR motion, holding that the circuit court did not err in finding that the motion was successive and time-barred.
(9-0)

Stacy v. Stacy, 2023-CA-00219-COA (Civil – Domestic)
Reversing the chancellor’s division of martial property and alimony award, holding that the chancellor erred by failing to address both the Ferguson factors and the Armstrong factors in the decision.
(9-0)

Harris v. State, 2023-KA-00460-COA (Criminal – Felony)
Affirming resentencing for conviction of depraved heart murder, holding that the trial court did not err in sentencing the defendant to life imprisonment and that the defendant had no liberty interest in parole.
(7-1-0: Westbrooks concurred in result only; Emfinger did not participate)

Alexander v. Metropolitan Y.M.C.A., 2022-CP-01092-COA (Civil – Personal Injury)
Affirming the trial court’s grant of summary judgment in a personal injury action arising from a swimming pool accident, holding that the trial court did not err in granting summary judgment where there was no evidence of breach or proximate cause.
(7-0: McDonald and Emfinger did not participate)

Easterling v. State, 2023-KA-00610-COA (Criminal – Felony)
Affirming conviction of possession of a controlled substance as a second or subsequent offender and habitual offender, holding that there were no grounds for reversal after reviewing counsel’s Lindsey brief and the record.
(9-0)

LaFleur v. State, 2022-KA-00500-COA, consolidated with 2022-IA-01244-COA (Criminal – Felony)
Affirming the trial court’s denial of the defendant’s motion to dismiss, holding that the trial court’s ruling granting a new trial on attempted murder did not constitute an acquittal so the Double Jeopardy Clause did not prohibit a second trial, and dismissing direct appeal because the defendant did not challenge his conviction of simple assault.

Pryer v. State, 2023-CP-00568-COA (Civil – PCR)
Reversing the trial court’s denial of a Rule 60(b)(6) motion to reconsider the denial of a PCR motion challenging the revocation of a suspended sentence, holding that it was error to deny the motion reconsider because MDOC’s petition for revocation cited only technical violations.
(9-0)

Hardy v. State, 2023-CP-00970-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the guilty plea was voluntary, that any Fourth Amendment or Sixth Amendment challenges were waived by the guilty plea.
(9-0)

Wallace v. State, 2023-KA-00071-COA (Criminal – Felony)
Affirming conviction of armed robbery, holding that the trial court did not commit plain error by proceeding with voir dire in the defendant’s absence where the defendant knew about the trial date but had transportation issues, that there was no reversible error related to the prosecutor’s statements during closing, and that the verdict was not against the overwhelming weight of the evidence.
(7-1[0]-1[2]: McDonald concurred in part and in the result without writing; Westbrooks concurred in part and dissented in part, joined by McDonald.)

Siggers v. State, 2023-CP-00324-COA (Civil – Other)
Affirming the trial court’s summary denial of a pro se “Habeas Corpus” pleading that it treated as a PCR motion, holding that the trial court erred by treating the pleading as a PCR motion but affirming denial of the “Habeas Corpus” because the issue was moot once the final revocation hearing was held, but remanding the matter to consider a subsequent PCR motion.
(6-3: McDonald concurred in part and dissented in part, joined by Barnes and Westbrooks, joined in part by McCarty)

Other Orders

  • None

Hand Down Page

Mississippi Supreme Court Decisions of August 15, 2024

The Mississippi Supreme Court handed down four opinions today. There is one direct criminal appeal, one wrongful termination case, an adoption, and a pro se PCR win.

Bradford v. State, 2023-KA-00595-SCT (Criminal – Felony)
Affirming conviction of armed robbery, finding no error after reviewing counsel’s Lindsey brief and the record.
(9-0)

Public Service Commission of Yazoo City v. Wright, 2023-IA-00020-SCT (Civil – State Boards and Prisons)
Reversing the trial court’s denial of the PSC’s motion for summary judgment in a suit alleging wrongful termination in retaliation for refusing to participate in an illegal activity, holding on interlocutory appeal that the plaintiff failed to identify any act on the part of her supervisor that warranted the imposition of criminal penalties.
(9-0)

In the Matter of the Adoption of D.A.S., a Minor: B.B. v. K.P., 2023-CA-00381-SCT (Civil – Adoption)
Affirming denial of a petition to set aside an adoption based on alleged fraudulent misrepresentations that the adoption would be “open,” holding that the petition was untimely because it was filed more than six months after the entry of the adoption decree.
(9-0)

Practice Point – Though the petition to set aside the adoption was dismissed as untimely, it was interesting that an issue in the case was notary lines that were inconsistent with the body of the adoption petition. The petitioner was seeking to have the adoption set aside based on claims of fraudulent misrepresentations that the adoption would be “open.” The body of the initial and amended petitions for adoption did not reference an “open” adoption, but the notary lines read:


A good reminder to beware of those copy-paste portions of pleadings.

Love v. State, 2021-CT-01101-SCT (Civil – PCR)
Reversing the circuit court for dismissing the petitioner’s voluntariness claim without evidentiary hearing and the Court of Appeals for affirming that dismissal, holding that the circuit court committed plain error during the plea colloquy by incorrectly stating the minimum penalty on each count to which the petitioner was pleading, that the the petitioner was not properly informed he would be sentenced as a habitual offender resulting in a blatant injustice, that the State did not establish a factual basis to support the habitual offender portion of the indictment by failing to mention the prior felony convictions, and that issues related to the petitioner’s request to withdraw his plea and his ineffective assistance claim were procedurally barred.
(9-0)

Other Orders

  • Hills v. Manns, 2022-CT-00774-SCT (denying cert)
  • Boyett v. Cain, 2022-CT-00978-SCT (granting pro se cert petition)
  • Jones v. Mississippi Department of Child Protection Services, 2022-SA-01234-SCT (denying rehearing)

Hand Down Page

Mississippi Court of Appeals Decisions of August 6, 2024

The Mississippi Court of Appeals handed down six opinions today. Four are direct criminal appeals, one is an attorney’s fees dispute in a property-line encroachment case, and the other is a PCR case.

Perkins v. State, 2023-KA-00874-COA (Criminal – Felony)
Affirming conviction of felon in possession of a firearm, holding that the verdict was supported by sufficient evidence and not against the overwhelming weight of it and that the trial court did not abuse it discretion in admitting the defendant’s unredacted prior felony conviction, in denying a motion for mistrial based on a statement heard on bodycam video during the portion of that video that the State had agreed to mute, or in limiting the defendant’s cross-exam regarding police department policies.
(7-1-1: Westbrooks concurred in result only; McDonald dissented without writing)

Corr Properties, LLC v. Proctor, 2023-CA-00782-COA (Civil – Other)
Affirming the chancellor’s award of attorney’s fees after resolving a property-line encroachment dispute, holding that the chancellor did not err in granting one party’s request and denying the other party’s request where the chancellor made specific findings and his decision was supported by substantial evidence in the record.
(9-0)

Johnson v. State, 2022-KA-00665-COA (Criminal – Felony)
Affirming conviction of murder, holding that the trial court did not err by not objecting sua sponte to improper remarks by the State during closing argument that the defendant did not object to, that the defendant’s right to a speedy trial was not violated, that the trial court did not abuse its discretion in admitting a map, in admitting a thumbdrive with materials from the defendant’s Facebook page, that the lack of error precluded reversal based on cumulative error, and that the verdict was supported by sufficient evidence and not against the overwhelming weight of it, and declining to address ineffective-assistance-of-counsel claims on direct appeal.
(9-0)

Carroll v. State, 2023-CP-00688-COA (Civil – PCR)
Affirming the trial court’s denial of a PCR motion, holding that the indictment for burglary of a dwelling was not defective for listing the incorrect owner of said dwelling.
(9-0)

Alexander v. State, 2022-KA-00977-COA (Criminal – Felony)
Affirming conviction of touching of a child for lustful purposes, holding that the State made improper “golden rule” arguments during closing but that it was harmless in the context of the evidence supporting the conviction, that the trial court did not abuse its discretion denying the defendant’s for-cause challenge to a juror, that the trial court did not abuse its discretion in denying the defendant’s simple assault instruction, and that the single harmless error regarding golden-rule arguments did not amount to cumulative error.
(4-4-0: Barnes, Wilson, and Emfinger concurred in part and in the result without writing; Lawrence concurred in result only without writing; Smith did not participate)

Simmons v. State, 2023-KA-00130-COA (Criminal – Felony)
Affirming conviction of capital murder for killing someone during the commission of a burglary, holding that the evidence was sufficient to support the conviction, the verdict was not against the overwhelming weight of the evidence, the trial court did not err by admitting gruesome autopsy photos, and the trial court did not err by refusing the defendant’s proposed reasonable-doubt instructions.
(7-2: McDonald dissented without writing; Westbrooks dissented, joined by McDonald)

Other Orders

  • Weaver v. Ross, 2022-CA-00426-COA (denying rehearing)
  • The City of Pascagoula v. Cumbest, 2022-CA-00745-COA (denying rehearing)
  • Nettles v. Nettles, 2023-CA-00041-COA (denying rehearing)

Hand Down Page

Mississippi Supreme Court Decisions of July 25, 2024

The Mississippi Supreme Court handed down just one opinion today in a direct criminal appeal. Since I had a 1:30 p.m. hearing today, I welcome the reprieve from volume.

Sheely v. State, 2023-KA-00493-SCT (Criminal – Felony)
Affirming conviction of possession of more than 0.1 gram but less than 2 grams of meth, holding that the evidence was sufficient to support the verdict and that the trial court did not abuse its discretion in denying the defendant’s proposed broken chain of custody instruction because the defendant did not overcome the presumption of regularity.
(9-0)

Other Orders

  • Hutto v. State, 2017-DR-01207-SCT (denying motion for leave to file successive petition for PCR)
  • Harper v. State, 2022-CT-00659-SCT (denying cert)

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Mississippi Court of Appeals Decisions of July 23, 2024

The Mississippi Court of Appeals handed down eleven opinions yesterday. There are several direct criminal appeal, a couple of wills and estates cases, a personal injury case dismissed for want of prosecution, and an insurance coverage case. There is also a handful of PCR cases including one denial that was reversed and another denial that was vacated because the judge was disqualified.

Brown v. State, 2023-KA-00082-COA (Criminal – Felony)
Affirming conviction of three counts of touching a child for lustful purposes and four counts of sexual battery, holding that the trial court did abuse its discretion in excluding the defendant’s mothers testimony that the victim had asked about what the repercussions would be if she lied and holding, that the indictment was legally sufficient, that the conviction was supported by sufficient evidence, and that there was no plain error affecting the defendant’s substantial rights.
(6-2-0: Wilson and Westbrooks concurred in result only without writing.)

Wren v. Zellers, 2023-CA-00152-COA (Civil – Personal Injury)
Affirming dismissal for want of prosecution, holding that the circuit court did not abuse its discretion where there was a clear record of delay over the course of four years.
(5-3-0: Wilson concurred in part and in the result without writing; Westbrooks and McDonald concurred in result only without writing; Smith did not participate)

Gibson v. State, 2023-KA-00821-COA (Criminal – Felony)
Affirming conviction of possession of a controlled substance, holding that upon review of counsel’s Lindsey brief and the record that there were no issues that warranted reversal.
(9-0)

Grayson v. State, 2023-KA-00400-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that after reviewing counsel’s Lindsey breif and the record that there were no arguable issues that required supplemental briefing and affirming the trial court.
(9-0)

Bradley v. State, 2023-CP-00763-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the trial court did not err in denying the motion as successive.
(8-1-0: Wilson concurred in part and in the result without separate written opinion)

In re the Estate of Warren, 2023-CA-00438-COA (Civil – Wills, Trusts & Estates)
Affirming the chancellor’s decision after bench trial in a will contest and contest over inter vivos transfers, holding that the chancellor did not commit clear error in finding no confidential relationship, finding no evidence of undue influence, and finding that the testator had the requisite mental competence and testamentary capacity when he made the inter vivos transfers and executed his will, and granting a motion to strike an exhibit in the record excerpts that was not included in the lower court record.
(7-2-0: Westbrooks and McDonald concurred in result only without writing)

Clark v. Alfa Ins. Co., 2022-CA-01251-COA (Civil – Insurance)
Affirming the trial court’s grant of declaratory and summary judgment in favor of an insurer, holding that the agricultural enterprise exclusion in the homeowner’s policy at issue applied to the plaintiffs’ claim against the insured after the plaintiffs’ vehicle collided with the insured’s cattle.
(9-0)

Brown v. State, 2023-CP-00171-COA (Civil – PCR)
Affirming denial of motion for PCR seeking to set aside a guilty plea, holding that the motion was time barred.
(9-0)

Norman v. State, 2023-CP-00296-COA (Civil – PCR)
Reversing denial of PCR motions, holding that the circuit court erred by not considering whether the motion was timely under the UPCCRA and remanding for that purpose.
(5-4: Emfinger dissented, joined by Carlton, Wilson, and Smith)

Price v. State, 2023-CA-00941-COA (Civil – PCR)
Vacating and remanding the dismissal of a PCR motion, holding that the circuit judge who denied the PCR motion was disqualified because she was the district attorney when the petitioner entered his guilty plea.
(9-0)

In the Matter of the Estate of Staten, 2023-CP-00228-COA (Civil – Wills, Trusts & Estates)
Affirming the chancery court’s denial of a motion to set aside a prior denial of a prior request to reopen an estate, holding that the appellant had waived her right to appeal issues that had been previously litigated and that the trial court did not abuse its discretion denying motions to set aside/reconsider.
(8-0: Smith did not participate.)

Other Orders

  • Jordan v. State, 2022-CP-00874-COA (denying rehearing)
  • Frazier v. State, 2022-KA-00896-COA (dismissing untimely motion for rehearing)
  • The Avion Group, Inc. v. The City of Oxford, 2023-CA-00169-COA (denying rehearing)
  • Weaver v. State, 2024-TS-00438-COA (dismissing utimely appeal)

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