Bobkoskie v. State, 57270
| Decision Date | 01 October 1986 |
| Docket Number | No. 57270,57270 |
| Citation | 495 So.2d 497 |
| Parties | Edward BOBKOSKIE v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Edward Bobkoskie, pro se.
Edwin Lloyd Pittman, Atty. Gen. by H.M. Ray, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, C.J., and PRATHER and SULLIVAN, JJ.
Edward Bobkoskie filed a Petition for Writ of Mandamus in the Circuit Court of Sunflower County, Mississippi, to compell B.C. Ruth as Chairman of the Mississippi Parole Board to either return Bobkoskie from Colorado to Mississippi for parole revocation hearing or to hold a hearing in his absence. The Circuit Court of Sunflower County found that the Mississippi Parole Board had held a hearing in Bobkoskie's absence and dismissed his petition for writ of mandamus. Aggrieved by that action, Bobkoskie appeals to this Court and assigns six errors:
1. That the circuit court erred in dismissing his original petition based upon its ruling that Bobkoskie's rights were not violated;
2. That the circuit court erred in its ruling that the Morrissey standards did not apply to this case;
3. That the circuit court erred by failing to order the parole board to provide Bobkoskie with a meaningful parole revocation hearing;
4. That the parole violation hearing provided to Bobkoskie was held in violation of Bobkoskie's right to due process of law;
5. That the circuit court erred in its ruling the parole board had provided Bobkoskie with a meaningful parole revocation hearing; and
6. That the circuit court erred by failing to order the parole board to comply with Mississippi statutes pertaining to revocation of parole.
Bobkoskie was sentenced to concurrent terms of five (5) years in the Circuit Court of Jackson County on February 2, 1983. On June 21, 1984, Bobkoskie was released on conditional parole to Jackson County, following his agreement to certain specified conditions including, inter alia, his agreement to "live and remain at liberty without violating the law." On June 27, 1984, Bobkoskie was issued a travel permit to move to Colorado Springs, Colorado, and reside there pending acceptance by the Colorado Parole authorities. This acceptance took place in July of 1984. On October 30, 1984, Bobkoskie was arrested on two counts of burglary and one count of theft in the State of Colorado. On February 25, 1985, Bobkoskie was sentenced to serve a term of four (4) years in the Colorado Department of Corrections on one count of burglary and also sentenced to serve a term of six (6) years in the Colorado Department of Corrections on another count of burglary. The sentences are to run consecutively.
On March 25, 1985, Bobkoskie was served with a copy of a warrant for parole violation from the Mississippi Parole authority and an amended detainer was lodged against Bobkoskie with the Colorado Department of Corrections.
On July 5, 1985, Bobkoskie filed a pleading entitled "Petition for Writ of Mandamus" in which he sought to either be returned to Mississippi for parole revocation hearing or that the hearing be held in his absence.
Thereafter on August 1, 1985, Bobkoskie filed amendments to his petition for writ of mandamus again asking that he be returned to Mississippi for parole hearing or that the hearing be held in his absence and asking for the same relief that he had requested in his original petition. The Circuit Court of Sunflower County directed the penal authorities to respond to Bobkoskie's petition for writ of mandamus and this was done.
On September 24, 1985, B.C. Ruth, Chairman of the Mississippi Parole Board filed with the court below a supplemental response. The response showed, among other things, that the Mississippi Parole Board met at its regular scheduled meeting on September 29, 1985, and considered the parole revocation of Bobkoskie; reviewed the findings of the pre-revocation hearing held on or about November 23, 1984; considered the certified copies of convictions in the State of Colorado; and voted to discontinue Bobkoskie on parole in the State of Mississippi, on the ground that he had violated condition No. 5 of his parole agreement which provided that, "I will live and remain at liberty without violating the law." The parole board contended that Bobkoskie had been given a pre-revocation hearing and a revocation hearing before the full parole board. Furthermore, the Board found that Bobkoskie had not disputed the fact that he had been convicted in the State of Colorado. Based upon these findings, the board then moved the court to dismiss the cause as a matter of law.
Bobkoskie filed a response to this supplemental response and alleged that he was never notified as to the date of the parole hearing nor was he presented with an opportunity to present evidence, witnesses, or documentation nor was he permitted to appear before the parole board for the hearing.
On April 8, 1986, the Circuit Court of Sunflower County entered an order denying and dismissing Bobkoskie's petition for mandamus.
On May 8, 1986, an order was entered granting Bobkoskie permission to appeal to this Court in forma pauperis.
I.
The petition for writ of mandamus filed by Bobkoskie in the Circuit Court of Sunflower County is an attempt to appeal the parole revocation proceedings and an order revoking parole is not appealable. Pipkin v. State, 292 So.2d 181 (Miss.1974). The petition should have been dismissed without prejudice to Bobkoskie's instituting a post-conviction relief action under the Uniform Collateral Post-Conviction Relief Act. Mississippi Code Annotated, Sec. 99-39-1, et seq. as Amended (Supp.1985).
Mississippi Code Annotated, Sec. 99-39-5(1)(g), (Supp.1985), authorizes among other things suit by "Any prisoner in custody under sentence of a court of record of the State of Mississippi who claims ..." that his parole was unlawfully revoked.
Bobkoskie is in the custody of the Department of Corrections of the State of Colorado and not presently in custody under sentence of the court of records of the State of Mississippi.
If we treat Bobkoskie's petition for writ of mandamus as a petition for writ of mandamus, it is apparent on the face of the record that the mandamus will not lie and...
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