State v. Read, 58458

• Citation: 544 So.2d 810
• Decision Date: 03 May 1989
• Docket Number: No. 58458,58458
• Parties: STATE of Mississippi v. Cathy READ.
• Court: United States State Supreme Court of Mississippi

Page 810

544 So.2d 810

STATE of Mississippi v. Cathy READ.

No. 58458.

Supreme Court of Mississippi.

May 3, 1989.

Mike Moore, Atty. Gen. by Marvin L. White, Jr., Asst. Atty. Gen., and Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellant.

Richard H. Wilson, Brandon, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the Court:

Cathy Read petitioned the County Court of Rankin County on April 21, 1987, for a Writ of Habeas Corpus. Following an evidentiary hearing, Judge James W. Smith, Jr., granted the petition, and issued an order on May 22, 1987, directing the Parole Board to immediately release Read from the custody of the Mississippi Department of Corrections.

The State of Mississippi appealed this order on June 5, 1987, pursuant to § 99-39-25(1) of the Mississippi Post-Conviction Collateral Relief Act. When the Parole Board failed to take action, Read filed a Motion for Contempt on July 28, 1987. Following hearing on the Motion for Contempt on August 7, 1987, the County Court of Rankin County ordered Read released on $5,000.00 bail pending appeal of the original writ of habeas corpus.

The case is now before this Court on appeal of the State, and the following issues are presented:

1. Did the County Court of Rankin County have jurisdiction to entertain this cause 2. Did the lower court err in finding that the State of Florida lost jurisdiction of the petitioner; and

3. Did the lower court err in ordering the Parole Board to grant the immediate release of petitioner.

Cathy Read was convicted on June 4, 1981, in the Circuit Court of Jackson County, Mississippi, of possession of a controlled substance with intent to deliver. She was sentenced to serve ten (10) years in the custody of the Mississippi Department of Corrections. Read promptly appealed this conviction to the Mississippi Supreme Court, and was released on bond during the pendency of this appeal.

While out on her appeal bond, Read was arrested in Escambia County, Florida, for drug related charges on or about January 27, 1983. She remained incarcerated in Escambia County Jail without benefit of bail, and she subsequently entered a plea of nolo contendere to the charges and was sentenced on July 13, 1983, to serve a term of five (5) years in the custody of the Florida Department of Corrections. This sentence was to run consecutively with Read's Mississippi sentence.

Meanwhile, on March 23, 1983, Read's conviction was affirmed on direct appeal by the Mississippi Supreme Court. Read v. State, 430 So.2d 832 (Miss.1983)

On or about July 29, 1983, while still in Escambia County Jail, Read was released to the custody of a bail bondsman by the name of George Hitt. Hitt obviously was liable on Read's appeal bond in Mississippi. Read was released without benefit of extradition or other hearing, and returned by Hitt to the Jackson County Detention Center. On this day, Read began serving her original ten year sentence in the custody of the Mississippi Department of Corrections.

Following her release from Escambia County, Florida, the State of Florida lodged a detainer against Read here in Mississippi. Subsequent to this time, on or about August 28, 1985, and on several occasions thereafter, Read was offered parole on the condition that she waive extradition to the State of Florida pursuant to that State's detainer. She refused each time to waive extradition and the offer of parole was accordingly withdrawn.

Around February 13, 1986, the State of Florida instituted extradition proceedings with the State of Mississippi in regard to Read. However, Read's first notice of these proceedings was at the hearing below. The extent of these proceedings is not shown by either the briefs or record.

Following her transfer to the Rankin County facility, Read petitioned for, and was granted, a writ of habeas corpus by the County Court of Rankin County on May 22, 1987. The State appealed, and in response to the Parole Board's failure to release Read, Read filed a motion for contempt. On August 7, 1987, the county court ordered Read released on $5,000.00 bail pending the State's appeal.

Following this action, the State filed in this Court a Motion for emergency relief under Rule 32 on August 12, 1987, alleging in essence that the Rankin County Court had no jurisdiction to entertain the writ of habeas corpus because the petition was in reality a motion under the Post-Conviction Collateral Relief Act. Thus, the State complained of extreme emergency in the alleged unlawful release of Read. This motion for emergency relief was denied on August 14, 1987.

I. DID THE COUNTY COURT OF RANKIN COUNTY HAVE JURISDICTION TO ENTERTAIN THIS CAUSE?

The jurisdictional question is controlled by the Mississippi Post-Conviction Collateral Relief Act, Miss.Code Ann. § 99-39-1, et seq. (Supp.1988), effective April 17, 1984. First by implication and then expressly, this Court has held that it will adhere to the provisions of that Act. See McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989). The Act rendered the County Court of Rankin County without jurisdiction to entertain Read's petition.

Read filed with the County Court of Rankin County a pleading styled "Petition for a Writ of Habeas Corpus," on April 21, 1987, more than three years after the effective date of the Post-Conviction Relief Act. Although Read was convicted in 1981, and that conviction affirmed on direct appeal in 1983, the substantive portions of the collateral relief act are applicable to Read's petition. See Irving v. State, 498 So.2d 305, 308-09 (Miss.1986); Bobkoskie v. State, 495 So.2d 497, 499 (Miss.1986); McDonall v. State, 465 So.2d 1077, 1078 (Miss.1985). Furthermore, the waiver and procedural bar provisions of the act are applicable even though Read was tried and convicted prior to the effective date of the act. Dufour v. State, 483 So.2d 307, 308 (Miss.1985).

Our acceptance of the Post-Conviction Collateral Relief Act effectively supplants the prior statutory and rule versions of the writ of habeas corpus. See Unif.Crim.R.Cir.Ct.P. 8.07; Miss.Code Ann., § 11-43-3 (Supp.1988); Miss.Code Ann., § 99-39-3(1) (Supp.1988); Miss.Sup.Ct.R. 22. Insofar as the Act affects today's case, it introduces nothing new into our jurisprudence. Hence, retroactivity is permissible.

Applying the act presently, it is clear that Read's petition in the County Court of Rankin County should be treated as a motion under Mississippi Code Annotated, § 99-39-5(1)(g) (Supp.1988). That section authorizes a post-conviction motion in the nature of collateral review by Read since she was in custody under a Mississippi conviction and claims that she is "unlawfully held in custody." In addition, the issue raised by Read's petition is not procedurally barred since it could not "in practical reality ... have been raised at trial or on direct appeal," and the issue is not otherwise waived. Miss.Code Ann., §§ 99-39-3(2), -21 (Supp.1988).

Having established that Read's so called Petition for Writ of Habeas Corpus is to be treated as a motion under Section 99-39-5(1)(g) of the Act, we next address the jurisdiction of the county court to entertain the motion. Section 99-39-7 absolutely requires that Read's motion first have "been presented to a quorum of the Justices of the Supreme Court of Mississippi ... and an order granted allowing the filing of such motion in the trial court." This rule applies because Read's case was appealed and affirmed by this Court on direct appeal.

Furthermore, the State appealed the initial judgment ordering the release of Read pursuant to Section 99-39-25(1), and by virtue of Section 99-39-25(2), perfection of appeal by the State operates as supersedeas and an automatic stay of the trial court judgment. Thus, while the County Court of Rankin County not only improperly entertained Read's initial Petition for Writ of Habeas Corpus, it also improperly entertained Read's subsequent Motion for Contempt which was brought on account of the Parole Board's failure to immediately release Read pursuant to the initial court order. While Section 99-39-25(3) authorizes the trial court to release the prisoner on bail in accordance with Rule 7.02, Uniform Criminal Rules of Circuit Court Practice, this section obviously proceeds on the assumption that the post-conviction relief proceedings are founded upon adequate jurisdiction.

Therefore, the orders of the County Court of Rankin County granting Read a Writ of Habeas Corpus, and subsequently allowing her release on bail pending appeal by the State would ordinarily be reversed.

However, even though the county court had no jurisdiction, the case is here, and in the interest of judicial economy, we will treat Read's petition as though it were filed originally with this Court under Section 99-39-7 of the Post-Conviction Collateral Relief Act.

II. DID THE LOWER COURT ERR IN FINDING THAT THE STATE OF FLORIDA LOST JURISDICTION OF THE PETITIONER?

In granting Read a writ of habeas corpus, the county court judge held, "that the State of Florida absolutely and unequivocally waived its right and lost jurisdiction of [Read] when they voluntarily, without authority or otherwise ... turned [Read] over to some one who really wasn't even an agent of the State of Mississippi at the time." Thus, he ordered the immediate release of Read, thereby ignoring the Florida detainer, the existing extradition proceedings, and Read's valid conviction and sentence in the State of Florida. The county court judge determined that Florida's failure to provide Read with an extradition or other hearing before releasing her to the custody of a Mississippi bail bondsman caused that sovereign to lose all jurisdiction over Read.

The State argues that the Mississippi Courts cannot adjudicate the question of whether Florida had unequivocally surrendered Read to Mississippi under circumstances amounting in effect to a pardon or commutation of sentence. This...