Decisions – Miss.Ct.App. – May 27, 2014

Scott v. State –  pcr from guilty plea – Scott pleaded guilty to murder and was sentenced to life.  Thirty years later he filed a motion for post conviction relief alleging that the indictment was defective and that he received ineffective assistance of counsel.  The circuit court dismissed the petition as time barred.   The Ct. of Appeals affirms on the grounds that the motion is time barred and he has not raised any issue  affecting fundamental constitutional rights.  

Brooks v. State pcr from guilty plea –  Brooks  was charged with the murder and conspiracy to murder  his father along with co-defendant Nicholas Brooks.  In 2006 he pleaded guilty to manslaughter and conspiracy to commit murder and was sentenced to ten years for the conspiracy (with 5 to serve) and twenty for manslaughter to run consecutively.  Seven years later he filed a motion for pcr alleging illegal sentences and double jeopardy.   Brooks claims the maximum sentence for conspiracy is five years.   But sect. 97-1-1(3) provides that the maximum sentence for conspiracy to commit capital murder or murder is twenty years.  And it does not violate double jeopardy to charge someone with a substantive offense and a conspiracy to commit the substantive offense.

Ainsworth v. Ainsworthfinancial issues related to divorce – The parties were granted an id divorce.  On appeal, Donald asserts that the chancellor erred in 1) dividing the marital estate; 2)  in considering other income for purposes of child support; 3) in ordering the parties to be responsible for one half of the children’s extracurricular activities and 4) in awarding Melanie the tax exemption for the children.  The Ct. of App. affirms.  As for the first issue, both parties contributed to the acquisition of marital property and both worked during the marriage.  However, Donald racked up $150,000 in debt gambling in the futures market.   When Melanie found out, they paid off a large part of it by selling off property and obtaining a home equity loan.  Donald managed to rack up another $80,000 and his father paid that off.  Donald used a lot of the marital property as collateral. In dividing the marital estate, the chancellor analyzed the Ferguson factors and was not manifestly wrong in his final decision.  Donald then alleges that the chancellor erred in considering his bonus and the proceeds from the sale of a vehicle in determining income available for child support.   The chancellor determined Donald’s gross monthly income to be $4,562 based on salary, bonuses and profits from vehicle sales.   He then ordered Donald to pay $912.40 per month ( 20%) of his income in child support.  Donald admitted that he planned to continue to sell autos  even though he did not report the income therefrom on his 8.05 or in calculating his taxes.  For this reason, the chancellor did not err in using that income to determine child support. As for the extracurriculars and the tax credit, Donald did not raise either issue in his motion for reconsideration and, therefore, he is barred from raising them now. 

Beals v. Statedenial of parole eligibility – Beals was found guilty of rape in 1979 and sentenced to life.  He was paroled several times and kept violating his parole.  After the latest violation, MDOC informed him he was no longer eligible for parole.  However, since Beals filed his petition, MDOC has  changed Beal’s classification status showing that he is eligible for parole.  The case, then, is dismissed as moot.  

Joiner v. Stateappeal from conviction of sexual battery –  Joiner was found guilty of having had sex with his eleven-year-old cousin.  He appealed arguing that there was no physical evidence and almost no police investigation.    Unfortunately for him, the first instance was witnessed by the child’s nine-year-old cousin (who was with them in the car) so the Court was not altogether sympathetic to Joiner’s issues.

Speyerer v. Madison County –  zoning –  the Speyerers are next door neighbors to property owned by the Bozeman  Family Limited Partnership.  The Bozemans applied to have their 17 acres rezoned from special use top commercial.  The Speyerers joined by 37 other homeowners objected  arguing that the area did not need more fast food restaurants or gas stations and that this would increase crime.   The Board voted in favor of rezoning and the Speyerers appealed. In this case, the Bozemans did not argue that the original rezoning was a mistake.  Thus, they had the burden of proving by clear and substantial evidence that the character of the neighborhood had changed.  At a minimum, the party asking for the rezoning should include a map showing the circumstances of the area, the changes in the neighborhood, statistics showing a public need, and such further matters of proof so that a rational board can make an informed judgment.  Here there was no such evidence.  While the Board’s action carries with it a presumption of validity, there still must be sufficient evidence.  That evidence was lacking here and the rezoning decision is reversed and rendered.      

Cockrell v. Cockrellalimony –  Carl and Joyce were divorced in 1989 after 35 years of marriage.  Joyce was awarded $750 a month in alimony.    In 2011, Carl became ill with myelodysplastic syndrome and began chemotherapy.   He got behind in alimony and Joyce filed a petition for contempt.  Carl counterclaimed asking for a downward modification.  The trial court, relying on Spalding v. Spalding, 691 So.2d 435 (Miss. 1997),    credited Carl with Joyce’s receipt of $557 per month from Carl’s Social Security and ordered that he now pay her only $193. The court affirms.

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