Segarra v. State

• Decision Date: 13 April 1983
• Docket Number: No. 54116,54116
• Citation: 430 So.2d 408
• Parties: Clista U. SEGARRA v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 408

430 So.2d 408

Clista U. SEGARRA v. STATE of Mississippi.

No. 54116.

Supreme Court of Mississippi.

April 13, 1983.

Clista U. Segarra, pro se.

Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before BROOM, PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

Clista U. Segarra brings this appeal from the Circuit Court's denial of habeas corpus relief. She argues that time spent out of prison while on parole should count as time served toward completion of her original sentence. This should be so, she says, even though her parole was lawfully revoked before completion of its term and she was recommitted to the Mississippi State Penitentiary (MSP).

The Circuit Court held that the time Segarra spent on parole should not be considered to diminish the time she must serve on her original sentence. Rather, release on parole tolled her sentenced service of which she resumed upon revocation. The Circuit Court accordingly denied relief. We affirm.

II.

On September 19, 1978, Clista U. Segarra was convicted in the Circuit Court of Lincoln County, Mississippi of the crime of burglary of a dwelling. Miss.Code Ann. (1972) Sec. 97-17-19. On the same date she was sentenced to serve a term of three years in MSP and within the custody of the Mississippi Department of Corrections (MDC).

On August 30, 1979, Segarra was released on parole. While on parole Segarra was subject to the control and supervision of the Mississippi State Parole Board. Just over 14 months later, on November 7, 1980, Segarra was arrested in Pike County on an unrelated criminal charge of burglary of an automobile. Miss.Code Ann. (1972) Sec. 97-17-33. Her parole was in due course revoked and she was returned to MSP. ¹ She was advised that she was required by law to commence service of the almost 26 months remaining on her original three year sentence.

On May 18, 1982, Segarra brought the instant habeas corpus proceedings in the Circuit Court of Sunflower County, Mississippi. In her petition, Segarra charged that she should be given credit for the period from August 30, 1979, until November 7, 1980, on her first three year burglary sentence. Under her interpretation, that sentence expired on September 19, 1981, and all time served after that date must be credited toward her second three year sentence.

Upon consideration of the matter, the Circuit Court held that Segarra was entitled to no relief. The Court stated

"The law provides that time spent on parole, if revoked, shall not be taken into account to diminish the time for which the offender was originally sentenced, Section 47-7-27, Mississippi Code of 1972, as amended. Consequently, Petitioner may not be given credit for time on parole against time otherwise unserved on her sentence."

Segarra's habeas corpus petition, accordingly, was dismissed. This appeal has followed.

III.

The Courts of this state are available to one incarcerated at the Mississippi State Penitentiary raising questions such as that presented here regarding the term or duration of his or her confinement. See, e.g., Watts v. Lucas, 394 So.2d 903 (Miss.1981); Hill v. State, 388 So.2d 143, 146 (Miss.1980); Davis v. State, 429 So.2d 262 (Miss. No. 54,115 decided April 6, 1983, not yet reported). Rule 8.07 of the Uniform Criminal Rules of Circuit Court Practice provides a procedure which may be invoked by prisoners seeking such relief. Segarra has employed a procedural device available to her. Having been denied relief in the Circuit Court, she has timely and properly perfected her appeal to this Court.

IV.

A.

(1)

Segarra argues that her release on parole on August 30, 1979, marked a change only in the form of her custody. She continued to be restrained of her liberty. True, Segarra was removed from the walls of confinement at the MSP. She points, however, to the conditions of her parole and correctly observes that she lived under not inconsiderable restrictions after August 30, 1979. These restrictions ², she argues, had the legal effect of keeping the clock ticking on her three year sentence.

The mere passage of days with one's liberty in fact restricted does not necessarily count as time served on one's sentence. What is and what is not a criminal's expiating punishment is a creation of law. Which days count, and which days do not is likewise determined by law. The fact of restriction, no matter how real, counts for nothing unless the law says otherwise. ³

The law in this instance unequivocally provides that, in cases such as this,

"... the offender shall serve the remainder of the sentence originally imposed, and the time the offender was out on parole shall not be taken into account to diminish the time for which he was sentenced." Miss.Code (1972) Sec. 47-7-27.

No doubt persons on parole have been deemed in custody for other purposes. See, e.g., Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1962) (persons on parole are "in custody" and may file petition for writ of habeas corpus). Had she while on parole presented a bona fide complaint regarding her sentence on parole restrictions, Segarra would under controlling principles have had standing to proceed. Yet "custody" for purposes of running the clock on one's sentence and "custody" for purposes of the standing doctrine are entirely different matters. That "custody" may be defined and have a legal effect different in one context than is true in another is nothing more than a reflection that one context has no functional or juridical connection with the other.

(2)

A more troublesome point is the suggestion that credit is allowed for time spent on work release and that work release and parole are functionally and juridically similar. Here we note our recent decision in Ivory v. State, 403 So.2d 1284 (Miss.1981).

Ivory concerned a claim of credit for time spent by one released under the Supervised Earned Release Program (SER). Ivory had been released under the SER Program but was returned to the MSP for violation of a SER Rule. This Court held that he should not automatically be denied credit on his sentence for the time spent on SER.

In distinguishing the SER case from parole, the Ivory Court wrote

"Although release under parole and the SER Program place many identical and very similar restrictions upon the convict, there are differences...."

"Mississippi Code Annotated Sec. 47-7-27 (Supp.1980) clearly provides that a parolee, whose parole has been revoked, is not entitled to credit on his sentence for the time he was out on parole. [Quoting statute] The SER Program contains no such penalty for a person who is apprehended or whose release is terminated for violation of the terms of his release." 403 So.2d at 1286.

The "differences" found, to be sure, are differences in law, not in fact. They may even seem arbitrary or irrational. They are nonetheless within the legislature's power to enact and our duty to enforce.

(3)

How other states handle this matter may serve only to reflect the lack of novelty in Mississippi's approach. That Segarra may not think that she would have received more lenient treatment had her encounters with the criminal law been in another state, we call her attention to Hall v. Bostic, 529 F.2d 990 (4th Cir.1975), cert. den. 425 U.S. 954, 96 S.Ct. 1733, 48 L.Ed.2d 199 (1976). In Hall the United States Court of Appeals for the Fourth Circuit observed

"There is nothing unusual in the denial by North Carolina law of credit for probation or parole time against a prison sentence. It is common to both state and federal probation and parole systems. ⁴ The validity of such denial has been universally recognized both in federal and state decisions....

* * *

The United States Court of Appeals for the Fifth Circuit has spoken to the point in the context of a case arising under the Federal Parole Commission and Reorganization Act. See Lambert v. Warden, United States Penitentiary, 591 F.2d 4 (5th Cir.1979). In Lambert the Court described as "well settled" the

"[r]ule that once the appellant's release [parole] was revoked ... the U.S.P.C. [United States Parole Commission] had the authority to forfeit appellant's ... credit for time spent on conditional release." 591 F.2d at 8.

Were there constitutional or other legal infirmity in such a rule, we are confident the Fifth Circuit would have noted it.

We are not unaware that the corrections community is less than unanimous in its support of the rule we approve here. Strong criticism has been directed toward prohibitions of credit for "street time" where the parole is later revoked. ⁴ A few states have enacted statutes which expressly require credit for parole time upon revocation. ⁵ Such an approach has been recommended by the American Law Institute, Model Penal Code Sec. 305.17(1); National Council on Crime and Delinquency, Standard Probation and Parole Act Sec. 27 (1955); National Advisory Commission on Criminal Justice Standards and Goals, Report on Corrections Sec. 16.15(3) (1973). Were the legislature of this state to amend section 47-7-27 to adopt Segarra's approach, we would cheerfully enforce it. For the present, however, a thoughtful consideration of these points merely undergirds the fundamental premises of our decision today, that Segarra's arguments would be more properly addressed to the Mississippi Legislature, not this Court.

B.

Segarra next argues that, by denying her credit against her sentence for the almost fifteen months she spent on parole, the State has deprived her of rights secured under the double jeopardy clause in the Fifth Amendment to the Constitution of the United States, made applicable to the states via the Fourteenth Amendment.

On September 19, 1978, Segarra received her original sentence of three years. Effective April 7, 1981 the state in effect changed--and enhanced--her sentence to three years of imprisonment plus over 14 months of supervised parole. Segarra argues that she has...