05/27/2004 - Hand Down and published opinions in WordPerfect/ZIP format

Smith, James W.
X  2003-KM-01077-SCT

Melissa Baker Wyatt v. City of Pearl, Mississippi; Rankin Circuit Court; LC Case #: 14265; Ruling Date: 04/10/2003; Ruling Judge: William Chapman, III; Majority Opinion: Smith, C.J. Disposition: Conviction of Driving Under the Influence, First Offense, Affirmed. Appellant taxed with costs of appeal. Votes: Waller and Cobb, P.JJ., Easley, Carlson, Graves, Dickinson and Randolph, JJ., Concur. Diaz, J., not participating.

In Re: The Rules of Civil Procedure; Disposition: On the Court's own motion, Rule 58 of the Mississippi Rules of Civil Procedure and the Comment thereto is amended as set forth in Exhibit "A" attached to this order. The Clerk of this Court shall spread this order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Second Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court. Diaz and Graves, JJ., not participating. Order entered.

In Re: Mississippi Rules of Evidence; Disposition: Petition of Professor Deborah H. Bell for Amendment of Rule 503 of the Mississippi Rules of Evidence is granted. Rule 503 of the Mississippi Rules of Evidence and the Comment thereto are amended as set forth in Exhibit "A" attached to this order. The Clerk of this Court shall spread this order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Second Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court. Diaz and Graves, JJ., not participating. Order entered.

In Re: Mississippi Rules of Evidence; Disposition: Petition of Supreme Court Advisory Committee on Rules for Amendment to the Comment to Rule 801 of the Mississippi Rules of Evidence is granted. The Comment to Rule 801 of the Mississippi Rules of Evidence is amended as set forth in Exhibit "A attached to this order. The Advisory Committee's updating of the Advisory Committee Historical Notes is approved as set forth therein. The Clerk of this Court shall spread this order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Second Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court. Diaz and Graves, JJ., not participating. Order entered.

In Re: Rules of Discipline for the Mississippi Bar; Disposition: On the Court's own motion, the amendments made by the Supreme Court to Rule 8 of the Rules of Discipline for The Mississippi Bar, originally to be effective September 1, 2003 and suspended by order of August 8, 2003, are reinstated to full force, effective October 1, 2004. As reinstated, Rule 8 shall read as set forth in Exhibit "A" attached to this order. The Clerk of this Court shall spread this order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Second Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court. Diaz and Graves, JJ., not participating. Order entered.

In Re: Mississippi Commission on Judicial Performance Rules; Disposition: Petition of the Commission on Judicial Performance Seeking Amendment to Rule 11 of the Rules of the Commission is granted. Rule 11 of the Rules of the Commission on Judicial Performance is amended as set forth in Exhibit "A" attached to this order. The Clerk of this Court shall spread this order upon the minutes of the Court and shall forward a true certified copy hereof to West Publishing Company for publication in the next edition of the Mississippi Rules of Court and in the Southern Reporter, Second Series, (Mississippi Edition). Diaz, Easley and Graves, JJ., not participating. Order entered.

In Re: Advisory Committee on Rules; Disposition: On the Court's own motion, the membership of the Advisory Committee shall be sixteen in number appointed by the Supreme Court for terms and upon nominations of organizations as indicated: "Chief Judge of the Court of Appeals - one member for a three year term; Conference of Circuit Judges - two members, each for three year terms; Conference of Chancery Judges - two members, each for three year terms; Conference of County Court Judges - one member for a three year term; The Mississippi Bar - two members, each for three year terms; Mississippi Trial Lawyers Assn. - two members, each for three year terms; Mississippi Defense Lawyers Assn. - two members, each for three year terms; Dean of University of Mississippi School of Law, or his designee - permanent, during tenure as dean; Dean of Mississippi College School of Law, or his designee - permanent, during tenure as dean; Mississippi Prosecutors Assn. - one member for three year term; and Mississippi Public Defenders Assn. - one member for three year term. Within thirty days following the issuance of this order, the Chief Judge of the Court of Appeals shall submit to the Chief Justice of the Supreme Court his nominee as a member of the Advisory Committee. The initial term of the appointee shall run from the date of appointment by order of the Chief Justice through December 31, 2006. The original order entered in this cause creating the Advisory Committee and all other orders dealing with the organization, regulation and membership of the Committee shall remain in full force and effect, except to the extent that they are inconsistent with the provisions hereof, and to the extent that they are so inconsistent, they shall be and are superseded by this order. A certified copy of this order shall be sent to each judge of the Court of Appeals and to the Chairman of the Rules Advisory Committee of the Supreme Court. Diaz, J., not participating. Order entered.

In Re: Rules of Professional Conduct; Disposition: Rules 7.2 and 7.5 of the Mississippi Rules of Professional Conduct are amended. The prior amendments to Rules 7.1 and 8.5 thereof, originally to be effective September 1, 2003 and suspended by order of August 8, 2003, are reinstated to full force. Such additional and reinstated amendments shall be effective October 1, 2004. Rules 7.1, 7.2, 7.5 and 8.5 shall read as set forth in Exhibit "A" attached to this order. The Clerk of this Court shall spread this order upon the minutes of the Court and shall forthwith forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Second Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court. Diaz and Graves, JJ., not participating. Order entered.

In Re: Mississippi Rules of Appellate Procedure; Disposition: On the Court's own motion, Rules 28 and 32 of the Mississippi Rules of Appellate Procedure are amended as set forth in Exhibits "A" and "B" attached to this order. The Clerk of this Court shall spread this order upon the minutes of the Court and shall forward a true certified copy hereof to West Publishing Company for publication in the next edition of the Mississippi Rules of Court and in the Southern Reporter, Second Series, (Mississippi Edition). Diaz and Graves, JJ., not participating. Order entered.

In Re: Mississippi Rules of Appellate Procedure; Disposition: On the Court's own motion, Rule 46(b) of the Mississippi Rules of Appellate Procedure is amended as set forth in Exhibit "A" attached to this order. The Clerk of this Court shall spread this order upon the minutes of the Court and shall forward a true certified copy hereof to West Publishing Company for publication in the next edition of the Mississippi Rules of Court and in the Southern Reporter, Second Series, (Mississippi Edition). Diaz and Graves, JJ., not participating. Order entered.

Leroy Lynch v. State of Mississippi; Bolivar Circuit Court 2nd District; LC Case #: 8338; Ruling Date: 06/05/1998; Ruling Judge: Kenneth Thomas; Majority Opinion: Smith, C.J. Disposition: Conviction of Capital Murder and Sentence of Death by Lethal Injection, Affirmed. Bolivar County taxed with costs of appeal. Votes: Waller and Cobb, P.JJ., Easley, Carlson, Dickinson and Randolph, JJ., Concur. Graves, J., Concurs in Result Only. Diaz, J., not participating.

Larry Matthew Puckett v. State of Mississippi; Forrest Circuit Court; LC Case #: 18729; Ruling Date: 08/07/1996; Ruling Judge: Richard McKenzie; Disposition: Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief, denied. See Opinion of this Court handed down this date. Diaz, Graves and Dickinson, JJ., not participating.

Larry Matthew Puckett v. State of Mississippi; Forrest Circuit Court; LC Case #: 18729; Ruling Date: 08/07/1996; Ruling Judge: Richard McKenzie; Majority Opinion: Smith, C.J. Disposition: Leave to Seek Post-Conviction Relief, Denied. Forrest County taxed with costs of appeal. Votes: Waller and Cobb, P.JJ., Easley, Carlson and Randolph, JJ., Concur. Diaz, Graves and Dickinson, JJ., not participating.

Scott Milburn, Top Bail Bond, Albert A. Milburn, ABC and Hampton Gardner d/b/a The Hampton Company v. Vergie Vinson; Smith Circuit Court; LC Case #: 97-0261; Ruling Date: 12/22/1999; Ruling Judge: Robert Evans; Disposition: Petition for writ of certiorari filed by the appellants was granted by order of this Court on July 17, 2003. After consideration, the Court finds that the petition was improvidently granted. The petition for writ of certiorari filed by appellants is dismissed as improvidently granted. To Dismiss: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson, Graves, Dickinson and Randolph, JJ. Not Participating: Diaz, J. Cobb, P.J., for the Court. Order entered.

Willie Jerome Manning a/k/a "Fly" v. State of Mississippi; Oktibbeha Circuit Court; LC Case #: 13202; Ruling Date: 11/08/1994; Ruling Judge: Lee Howard; Disposition: Petition for review of Lower Court's Order Denying Motions for Expert Assistance, Discovery and Inspection of Evidence filed by counsel for Willie Jerome Manning is denied. Diaz, Easley and Randolph, JJ., not participating. Order entered.

Willie Jerome Manning a/k/a "Fly" v. State of Mississippi; Oktibbeha Circuit Court; LC Case #: 13202; Ruling Date: 11/08/1994; Ruling Judge: Lee Howard; Disposition: Petitioner's Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief and Notice of Stay of Proceedings Taken in the Trial Court, granted in part and denied in part. See Opinion of this Court handed down this date. Diaz, Easley and Randolph, JJ., not participating.

Willie Jerome Manning a/k/a "Fly" v. State of Mississippi; Oktibbeha Circuit Court; LC Case #: 13202; Ruling Date: 11/08/1994; Ruling Judge: Lee Howard; Disposition: Petitioner's Motion to File Post-Conviction Relief Petition Nunc Pro Tunc to Comply with the Federal Habeas Corpus Statute, granted in part and denied in part. See Opinion of this Court handed down this date. Diaz, Easley and Randolph, JJ., not participating.

Willie Jerome Manning a/k/a "Fly" v. State of Mississippi; Oktibbeha Circuit Court; LC Case #: 13202; Ruling Date: 11/08/1994; Ruling Judge: Lee Howard; Majority Opinion: Waller, P.J. Disposition: Petition for Post-Conviction Relief, Granted in Part and Denied in Part; Judgment of Conviction of Capital Murder (Two Counts) and Sentence of Death, Vacated; and Case Remanded for a New Trial. Oktibbeha County taxed with costs of appeal. Votes: Smith, C.J., Cobb, P.J., Carlson, Graves and Dickinson, JJ., Concur. Diaz, Easley and Randolph, JJ., not participating.

Titan Indemnity Company, United States Fidelity and Guaranty Company and St. Paul Fire and Marine Insurance Company v. Carroll V. Hood, Hico, Inc. and Old South Insurance Group, Inc.; Copiah Circuit Court; LC Case #: 99-0400; Ruling Date: 03/30/2001; Ruling Judge: Mike Smith; Disposition: On the Court's own motion, the Court Administrator shall forthwith on behalf of the Court notify the Governor of the State of Mississippi that, the parties to this action have been unable to agree upon members of the bar to serve, two special justices are needed and to request that the Governor commission two persons of law knowledge to serve as special justices in the consideration and decision of this case. Cobb, P.J., Easley and Graves, JJ., Dissent. Diaz, J., not participating. Order entered.

Titan Indemnity Company, United States Fidelity and Guaranty Company and St. Paul Fire and Marine Insurance Company v. Carroll V. Hood, Hico, Inc. and Old South Insurance Group, Inc.; Copiah Circuit Court; LC Case #: 99-0400; Ruling Date: 03/30/2001; Ruling Judge: Mike Smith; Disposition: An order was issued in this matter which inadvertently failed to reflect the fact that Justice Carlson did not participate in the decision represented by that order. The present order is now issued to correct that error. Otherwise, the previous order shall remain unchanged. On the Court's own motion, the Court Administrator shall forthwith on behalf of the Court notify the Governor of the State of Mississippi that, the parties to this action have been unable to agree upon members of the bar to serve, two special justices are needed and to request that the Governor commission two persons of law knowledge to serve as special justices in the consideration and decision of this case. Cobb, P.J., Easley and Graves, JJ., Dissent. Diaz, and Carlson, JJ., not participating. Amended Order entered.

Lincoln E. Warren, Sr., by Lincoln E. Warren, Jr., Conservator v. Jack L. Glascoe and Margaret C. Glascoe; Hinds Circuit Court 1st District; LC Case #: 251-99-347CIV; Ruling Date: 08/07/2001; Ruling Judge: W. Yerger; Disposition: Combined Motion to Dismiss for Lack of Jurisdiction and Memorandum Brief filed by counsel for respondents is denied. This Court's review of this matter on the grant of certiorari shall continue. Not Participating: Waller, P.J., and Diaz, J. Order entered.

James C. Arendale v. Balkamp, Inc. and The Travelers Insurance Company; Leflore Circuit Court; LC Case #: 2001 018 CI; Ruling Date: 09/24/2001; Ruling Judge: Richard Smith; Disposition: On the Court's own motion and by the Court's authority under M.R.A.P. 2(c) to suspend the rules, the time for consideration of the petition for writ of certiorari filed by James C. Arendale is extended until July 9, 2004. A final decision on whether to grant or deny the petition shall be entered on or before July 9, 2004. Order entered.

Michael J. Johnson v. State of Mississippi; Rankin Circuit Court; LC Case #: 12183; Ruling Date: 11/14/2000; Ruling Judge: Samac Richardson; Disposition: On the Court's own motion and by the Court's authority under M.R.A.P. 2(c) to suspend the rules, the time for consideration of the petition for writ of certiorari filed by Michael J. Johnson is extended until July 9, 2004. A final decision on whether to grant or deny the petition shall be entered on or before July 9, 2004. Order entered.

Katina Quinn v. State of Mississippi; Marion Circuit Court; LC Case #: K00-0084P; Ruling Date: 12/14/2001; Ruling Judge: R. Prichard, III; Disposition: Petition for writ of certiorari filed by Katina Quinn is denied. To Deny: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson, Graves, Dickinson and Randolph, JJ. Not Participating: Diaz, J. Order entered.

Shelia Dupree, Individually, and as Conservator of the Person and Estate of Annie Sanders v. Plantation Pointe, L.P. d/b/a The Windsor Place; Lauderdale Circuit Court; LC Case #: 01-CV-00007(R); Ruling Date: 02/12/2002; Ruling Judge: Larry Roberts; Disposition: On the Court's own motion and by the Court's authority under M.R.A.P. 2(c) to suspend the rules, the time for consideration of the petition for writ of certiorari filed by Plantation Pointe, L.P. d/b/a The Windsor Place is extended until July 9, 2004. A final decision on whether to grant or deny the petition shall be entered on or before July 9, 2004. Order entered.

Freddie Walker v. State of Mississippi; Hinds Circuit Court 1st District; LC Case #: 01-0-238; Ruling Date: 02/08/2002; Ruling Judge: W. Yerger; Majority Opinion: Waller, P.J. Disposition: Reversed and Remanded. Hinds County taxed with costs of appeal. Votes: Smith, C.J., Carlson, Graves and Dickinson, JJ., Concur. Easley, J., Dissents with Separate Written Opinion Joined in Part by Cobb, P.J. Randolph, J., Dissents with Separate Written Opinion Joined by Cobb, P.J., and Easley, J. Diaz, J., not participating. Dissenting Opinion: Easley, J. Votes: Cobb, P.J., Joins this Opinion in Part. Dissenting Opinion: Randolph, J. Votes: Cobb, P.J., and Easley, J., Join This Opinion.

Anita H. Linton and Husband, Harley Linton v. Frank L. Cross and Fredna S. Cross; Lauderdale Chancery Court; LC Case #: 99-950-M; Ruling Date: 02/01/2002; Ruling Judge: Jerry Mason; Disposition: On the Court's own motion and by the Court's authority under M.R.A.P. 2(c) to suspend the rules, the time for consideration of the petition for writ of certiorari filed by counsel for Anita H. Linton and Husband, Harley Linton is extended until July 1, 2004. A final decision on whether to grant or deny the petition should be entered on or before July 1, 2004. Order entered.

Brian Anthony Young v. State of Mississippi; Jackson Circuit Court; LC Case #: 2000-10,509(2); Ruling Date: 04/12/2002; Ruling Judge: Kathy Jackson; Majority Opinion: Cobb, P.J. Disposition: Conviction of Murder and Sentence of Life Imprisonment in the Custody of the Mississippi Department of Corrections, Affirmed. Jackson County taxed with costs of appeal. Votes: Smith, C.J., Waller, P.J., Easley, Carlson, Graves, Dickinson and Randolph, JJ., Concur. Diaz, J., not participating.

Lawrence Branch v. State of Mississippi; Carroll Circuit Court 1st District; LC Case #: 2001-0003CR1; Ruling Date: 05/23/2002; Ruling Judge: C. Morgan, III; Majority Opinion: Carlson, J. Disposition: Conviction of Capital Murder and Sentence of Death by Lethal Injection, Affirmed. Carroll County taxed with costs of appeal. Votes: Smith, C.J., Waller and Cobb, P.JJ., Easley, Dickinson and Randolph, JJ., Concur. Diaz and Graves, JJ., not participating.

Melissa Baker Wyatt v. City of Pearl, Mississippi; Rankin Circuit Court; LC Case #: 14265; Ruling Date: 04/10/2003; Ruling Judge: William Chapman, III; Disposition: Appellant's Motion to Certify Constitutional Question is dismissed as moot. Diaz, J., not participating. Order entered.

The Mississippi Bar v. Kathleen L. Caldwell; Majority Opinion: Waller, P.J. Disposition: Based on Rule 13 of the Mississippi Rules of Discipline, disciplinary action is warranted against Kathleen L. Caldwell and the imposition of a 90-day suspension against Caldwell is appropriate. Because she has completed the 90-day suspension, she may petition for reinstatement. Before she can petition for reinstatement Caldwell must present proof to The Mississippi Bar that she has completed the conditions imposed on her by the Tennessee Bar as set out above. The Clerk of the Court shall send, via certified mail, copies of this order to Caldwell and to The Mississippi Bar. Kathleen L. Caldwell taxed with costs of appeal. Votes: Smith, C.J., Cobb, P.J., Graves, Dickinson and Randolph, JJ., Concur. Diaz, Easley and Carlson, JJ., not participating.

Mississippi Commission on Judicial Performance v. Larry McPhail; LC Case #: 2002-125/169; Ruling Date: 11/14/2003; Ruling Judge: C. Morgan, III; Disposition: Larry McPhail, Lamar County Justice Court Judge, shall be publically reprimanded and suspended for thirty (30) days without pay and pay the costs of this proceeding in the amount of $401.04. See Opinion of this Court handed down this date. Diaz, Easley and Graves, JJ., not participating.

Mississippi Commission on Judicial Performance v. Larry McPhail; LC Case #: 2002-125/169; Ruling Date: 11/14/2003; Ruling Judge: C. Morgan, III; Majority Opinion: Smith, C.J. Disposition: Larry McPhail, Lamar County Justice Court Judge, shall be publically reprimanded and suspended for thirty (30) days without pay and pay the costs of this proceeding in the amount of $401.04. Larry McPhail taxed with costs of appeal. Votes: Waller and Cobb, P.JJ., Carlson, Dickinson and Randolph, JJ., Concur. Diaz, Easley and Graves, JJ., not participating.

Mississippi Commission on Judicial Performance v. Justice Court Judge Robert C. Fortenberry; Disposition: Petition for Interim Suspension filed by the Mississippi Commission on Judicial Performance is granted. Lawrence County Justice Court Judge Robert C. Fortenberry is suspended from all duties as Justice Court Judge until such time as the criminal charges now pending against him and the Formal Complaint before the Mississippi Commission on Judicial Performance have been fully resolved, or until further order of this Court. The Clerk of this Court is hereby directed to forthwith deliver true certified copies of this order to the Chancery Clerk of Lawrence County and the Clerk of the Lawrence County Justice Court. Diaz and Easley, JJ., not participating. Order entered.