In re Moore, 95-M-00277-SCT.

• Decision Date: 24 September 1998
• Docket Number: No. 95-M-00277-SCT.,95-M-00277-SCT.
• Citation: 722 So.2d 465
• Parties: In re Attorney General Mike MOORE.
• Court: Mississippi Supreme Court

722 So.2d 465

In re Attorney General Mike MOORE.

No. 95-M-00277-SCT.

Supreme Court of Mississippi.

September 24, 1998.

Office of the Attorney General by Edward A. Snyder, Attorney for Appellant.

Frank Allison Russell, Tupelo, Attorney for Appellee.

En Banc.

ON PETITION FOR WRIT OF MANDAMUS AND/OR OTHER APPROPRIATE EXTRAORDINARY WRIT

BANKS, Justice, for the Court:

¶ 1. In this case the State of Mississippi comes before the Court requesting by petition for extraordinary relief that this Court vacate certain orders by which the Circuit Court of Monroe County had freed Robert Daniel Parham, who was incarcerated at Parchman. After consideration of the State's request and the pleadings filed by the respondents we conclude that the orders in question were entered without the authority of law and as such are void and must be vacated. It follows that Parham must be returned to the custody of the Mississippi Department of Corrections.

I.

¶ 2. Robert Daniel Parham was indicted for the murder of Cynthia Calcote by the Monroe County Grand Jury in October 1991. In December 1992, on agreed motion, Circuit Judge Frank A. Russell signed an order reducing the charge against Parham to manslaughter. Parham, represented by counsel, pled guilty to manslaughter shortly thereafter. On January 8, 1993, Judge Russell sentenced Parham to a term of twenty years in MDOC

"with ten (10) years suspended pending future good behavior of the defendant. Further ordered to make restitution of $10,000.00 to Onnie Calcote for the use and benefits of the child of the deceased, Priscilla Calcote. Defendant further ordered to pay the court cost of $168.00. Both restitution and court cost to be paid in full today. The Court reserves the right of judicial review."

This language reserving to the circuit court the right of judicial review was also included on the prisoner commitment report.

¶ 3. On June 2, 1994, Robert Parham was considered for parole by the Parole Board and denied. Further consideration was continued for eighteen months. The reasons for denial were provided as follows: "Serious nature of offense; prior misdemeanor conviction(s); further investigation required; insufficient time served; the Board believes the ability of willingness to fulfill the obligations of a law-abiding citizen is lacking, pursuant to Section 47-7-17 of the Mississippi Code Annotated as amended."

¶ 4. On July 19, 1994, Judge Russell entered an order in which he stated that Parham had paid restitution and court costs in full. Judge Russell further stated that he had received a report from MDOC on Parham which was favorable as far as Parham's behavior and future prognosis. Judge Russell ordered that the balance of Parham's sentence be suspended pending Parham's good behavior and that Parham be placed on supervised probation for five years. Judge Russell ordered that Parham be released from MDOC immediately, and Parham was released on July 27, 1994. On August 5, 1994, Circuit Judge Barry Ford entered a similar order concerning Parham. Judge Russell states that this was done simply to accommodate Judge Russell as Judge Ford was physically present in Monroe County "on the date that Defendant Parham reported from the MDOC for further orders in regard to probation" while Judge Russell was elsewhere in the district. Judge Russell states that Judge Ford was merely assisting him "by carrying out the intent and instruction" of the July 19 order, but "was not involved in any respect" with that order.

¶ 5. On February 15, 1995, the Attorney General's Office filed a Petition to Vacate Void Orders in Monroe County Circuit Court. The State alleged that Judge Russell and Judge Ford were without authority to review and alter Parham's sentence as they had done. Petitioner asked that the judges revoke and vacate the orders in question and that a bench warrant issue for Parham so that he might be taken into custody. On March 14, 1995, Judge Ford denied the petition as to his order.

¶ 6. The Attorney General's Office filed its Petition for Writ of Mandamus and/or Other Appropriate Extraordinary Writ with this Court on March 17, 1995. Petitioner stated that Judge Russell had scheduled a hearing on the petition as to his order for March 29, 1995. Petitioner asked that this Court stay the March 29 hearing scheduled before Judge Russell, including any requirement that MDOC comply with a subpoena duces tecum that Judge Russell had issued, and order that Judge Russell and Judge Ford vacate or rescind the challenged orders and allow Robert Parham to be taken into custody by the MDOC. The hearing scheduled for March 29 did not take place. In September 1995 this Court denied the Attorney General's petition and ordered that a hearing on the Petition to Vacate Void Orders take place in the circuit court within sixty days.

¶ 7. On January 24, 1996, the circuit court held a hearing on the Petition to Vacate Void Orders filed by the Attorney General. Two witnesses were called: Susie Steiger, a case manager supervisor at Parchman, and William David Robbins, a field officer for the MDOC. Both testified that the release of inmates was not being handled within the time requirements of Miss.Code Ann. § 47-7-47. Judge Russell entered his order denying the petition on February 5, 1996.

¶ 8. On April 5, 1996, the Attorney General filed a Notification of Results of Hearing Ordered by Supreme Court and Motion to Supplement Petition for Writ of Mandamus in this Court. The Petition asserted that the relief originally requested by the Attorney General was proper as Judge Russell had decided the petition filed in the circuit court. Judge Russell and Judge Ford filed a Motion to Dismiss and for Sanctions in this Court, alleging that the Attorney General's pleading was frivolous. The matter was considered by this Court en banc. By order dated January 13, 1997, this Court denied Judge Russell and Judge Ford's Motion to Dismiss and for Sanctions and granted Robert Daniel Parham leave to intervene.

II.

¶ 9. The issues presented have been clarified by this Court's decision in Mississippi Commission on Judicial Performance v. Russell, 691 So.2d 929 (Miss.1997). Judge Russell cites three cases in his Brief Opposing Writ of Mandamus: Smith v. State, 580 So.2d 1221 (Miss.1991); Wigginton v. State, 668 So.2d 763 (Miss.1996); and Russell. Both Smith and Wigginton were cited and discussed in Russell in a manner that is dispositive for this petition.

¶ 10. Judge Russell argues that Miss.Code Ann. § 47-7-47 is patently ambiguous and conflicting on its face. He relies on this Court's comments in Smith v. State, 580 So.2d 1221, 1222 (Miss.1991), where Smith, who pled guilty to house burglary and drug possession charges, was sentenced under the terms of § 47-7-47 and where the trial judge "reserve[d] the right to amend or modify this sentence if within 180 days the Defendant properly completes the RID Program." Smith was accused of a rules violation before completing the RID program, and as a result was placed in the general prison population without having his sentence amended or being placed on earned probation. He alleged that this removal from RID without a hearing denied his due process rights. This Court quoted the trial judge, who stated that

[i]n practice, this somewhat awkward language has been considered authorization for the RID program to which some offenders are assigned by [the] MDOC, sometimes at the express direction or recommendation of the sentencing judge. There is no expression of MDOC `advice and consent' at the time of [initial] sentencing. Success in RID determines whether [the] MDOC will recommend earned probation. In the inst[ant] case the sentencing order[s] expressly provided that Smith successfully complete RID.

....

Section 47-7-47 contains no objective standards or criteria for determining whether the Department of Corrections should either grant or withhold a recommendation of probation to the court. Nor does it contain objective standards or criteria for determining whether the court should accept the advice and recommendations made by the MDOC. Rather, the statute vests absolute discretion in both the MDOC and the court.

Smith, 580 So.2d at 1224, 1226. As to Smith, this Court stated in Russell, 691 So.2d at 938:

Judge Russell argues, citing Smith v. State, 580 So.2d 1221 (Miss.1991) that § 47-7-47 contains "awkward language." While the language contained in this statute is not the epitome of clear drafting; it is obvious that some indication must be made at the time of the original sentencing. Moreover, each of the original sentencing orders in Smith contained the language "in the custody of the Miss. Dept. of Corrections under the terms and conditions of Miss.Code Ann., Sec. 47-7-47 (shock probation)...." Id. at 1222.

¶ 11. Judge Russell also continues to rely on Wigginton v. State, 668 So.2d 763 (Miss. 1996). This Court stated the following in Russell, 691 So.2d at 940-41, as to Wigginton:

Judge Russell argues that this Court's decision in Wigginton v. State, 668 So.2d 763 (Miss.1996) provides authority for his actions. Judge Russell interprets Wigginton to stand for the proposition that "a circuit judge has jurisdiction over a sentence, despite the fact that the 180 days described in § 47-7-47 has expired." Further, Judge Russell invites this Court to clarify the "conflict" between Wigginton and earlier cases which suggest that a circuit judge has no such authority after the defendant has been sentenced. See Denton v. Maples, 394 So.2d 895 (Miss. 1981)

; Harrigill v. State, 403 So.2d 867 (Miss.1981).

A close review of Wigginton and our prior cases reveals no conflict. In Wigginton, we were called upon to consider the plight of Bryan Scott Wigginton, an inmate originally sentenced pursuant to § 47-7-47. At the time of sentencing, the circuit judge reserved the right to review Wigginton's sentence for a period not exceeding 180-days, and upon the recommendation of MDOC,

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