Decisions – Ct. of App. – April 29, 2014

Savinell v. State –  Savinell pleaded guilty to armed robbery and was sentenced to serve 20 years with eight on post release supervision. This is an appeal from his second pcr motion (a pcr from a guilty plea is filed in the trial court).  In this second pcr, he alleged that the state misrepresented the evidence, that the state failed to comply with discovery, that his plea was involuntary, that his lawyer was ineffective and that he had newly discovered evidence. The trial court denied it based on res judicata (two of the arguments were raised in the first pcr) and because it was a successive writ.  The Ct of App. agrees with the trial court: two of the issues were decided the first go round and the three others are barred because they could have been raised in the first pcr. 

Lowndes County v. McClanahan –  The County voted to close a stretch of Co-Op Road.  A group of residents complained arguing that the road had been their primary access to their properties and the alternative road was too narrow.   The circuit court reversed the decision finding that the notice of the hearing was inadequate.  On appeal, the Ct. of Appeals reverses the circuit court finding that the  residents’ appeal was not timely filed.    The original vote was taken Oct. 31, 2011.   A month later, two groups of residents filed motions to reconsider the vote.    On Feb. 17, 2012, the Board voted to amend its earlier vote to note that it was not closing the road but rather abandoning it.  The residents filed a bill of exceptions.  The Ct. of Appeals held that the ten days for filing the bill of exceptions ran from the adjournment of the Oct. 31, 2011, meeting and not later. 

Lovett v. Delta Regional Medical Center and MHA Solutions – Lovett filed two workers comp. claims – the first from a slip and fall which occurred on March 8, 2006, while she was working as a security guard at Delta Regional Medical Center.  This injured her back and knee.   The second was for a stroke that happened seven months after she returned to work.  The AJ found that she suffered a 30% loss of wage earning capacity due to the slip and fall, her stroke was non-compensable, that her treatments by Drs. Shah, Aziz and Jenkins were within the chain of referral and her employer was liable for paying them, and that treatments by her neurologist were not for work related injuries.  The Commission reversed holding that Lovett failed to establish a loss of wage earning capacity because she received an 18 cents an hour wage after she returned to work and that the medical treatments of the the doctors were outside the chain of referral.  The Commission agreed with the Aj that the stroke was non-compensable.  On appeal, the Ct. of Appeals affirmed the Commission finding that it was supported by substantial evidence. 

Davis v. Hindman and Surgery Assoc. –  In 2009, Davis sued the defendants for malpractice when Dr. Hindman performed a total thyroidectomy.  Two years later the defendants moved for summary judgment on the grounds that Davis never designated an expert, nor had she deposed the defendant doctor.  Davis filed a motion pursuant to MRCP 56(f) asking for more time to respond stating that she needed to depose Dr. Hindman.  The court denied the motion for time and granted summary judgment and Davis appeals. The Court  of Appeals affirms. 

In the Matter of the Last Will and Testament of Johnnie Jones – This will dispute centers on the deceased’s home. His will left a life estate to his wife.  However am antenuptial agreement and a quitclaim deed indicated he meant to leave it to his daughter. The chancellor awarded the house to the wife finding that neither of the daughter’s documents were legally binding.  The antenuptial agreement was expressly revoked by the later will which contained a provision that the will revoked all earlier wills and testaments.  And the quitclaim deed was not effective because it was only signed by Johnnie and not by his wife.   And the quitclaim deed was invalid because homestead property cannot be deeded to another without the signature of the spouse pursuant to MCA 89-1-29. 

Mississippi Dep’t of Public Safety v. Raybon – Olaf Raybon and James Holden were part time law enforcement officers who sought to be certified as full time officers under a provision that states that the Board may certify  part time officers  if they have 25 years of experience. MCA Sect. 45-6-11(2).  This provision was effective for only a few months and twenty part-time officers applead. The Board denied all of them certification because it felt that this would be at odds with the practice of certifying as full time officers only those persons who passed the training academy.  Raybon and Holden  appealed and the chancellor reversed the Board’s decision. The Court of Appeals reverses finding that the statute’s use of the word “may” meant that the Board had full discretion to refuse certification.  

Carr v. State – in 2005 Carr was convicted of manslaughter after having been tried for capital murder.  After he was found guilty, the state moved to amend the indictment to charge Carr as an habitual.  Carr’s attorney did not object.  Three years after Carr’s appeal was decided, the Miss.S.Ct. decided in Gowdy v. State that the state could not amend the indictment to charge the defendant as a habitual after conviction is such an indictment deprived the defendant of an opportunity to defend the charges.  Gowdy was held to apply to all convictions not yet final.  The Ct. of Appeals denies relief because Carr’s conviction was final when Gowdy was decided.  Furthermore, the Court held, there was no prejudice because Carr was being tried for capital murder wherein he could have received a sentence of lwop.  So he was already on notice that he needed to defend himself against a sentence of lwop. 

Walker v. State – In 2008Walker pleaded guilty to statutory rape and was sentenced to ten years, nine suspended and one to serve.  In 2012, his probation was revoked at which time Walker filed a pcr motion alleging that he was not guilty of a crime because the victim was over the age of 16, that when he pleaded guilty he was not aware of the are requirement for victims of statutory rape, and that the statute was unconstitutionally vague.  The trial court  dismissed the pcr motion as time-barred. On appeal, the Ct. of Appeals agrees that the motion was time barred and does not fall within an exception of the SOL.    

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