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JOHN M. TILLER v. STATE OF MISSISSIPPI

NOVEMBER 09, 1983

JOHN M. TILLER
v.
STATE OF MISSISSIPPI



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I.

John M. Tiller has petitioned for leave to withdraw a guilty plea entered to an indictment for armed robbery. Among other things, he alleges that he entered his plea in reliance upon advice from his attorney that he would be eligible while in custody to earn "good time" toward early release as would any other prisoner.

 In this state persons convicted of armed robbery have a limited right to earn good time. Such is the result of a legislative enactment effective January 1, 1977. For four years thereafter, however, the Mississippi Department of Corrections (MDC) continued across the board to allow persons convicted of armed robbery to earn good time the same as others. This administration policy was in effect on September 19, 1979, the day Tiller entered his plea.

 On January 5, 1981, MDC changed its good time policy. John M. Tiller has been advised that he must serve some two years eight months more than was required under the MDC administrative policy in effect on the day Tiller committed his crime. The advice he alleges he received prior to entering his plea and upon which he alleges he relied, is now seen to have been erroneous. If he can prove what he has alleged, Tiller's plea as a matter of law was involuntary. We reverse and remand

 for a hearing on the merits of Tiller's application.

 II.

 A.

 This matter is before us upon appeal from the Circuit Court's summary dismissal of Tiller's application. We glean our facts from a combined reading of Tiller's application and the State's brief filed in this Court - indeed, we do not understand the state to contest Tiller's factual allegations.

 John M. Tiller was indicted in the Circuit Court of Hinds County, Mississippi, for the crime of armed robbery committed February 4, 1979. Subsequent thereto he and his attorney entered into plea bargain negotiations with the State.

 At that time, under an administrative policy of the Mississippi Department of Corrections, "good time" was allowed prisoners convicted of the crime of armed robbery (as well as to prisoners convicted of most other crimes). Good time in a nutshell is a system under which a prisoner by exemplary behavior earns a reduction in his sentence, month by month. *fn1

 Against this backdrop, a plea bargain was struck. Under the agreement, Tiller was to waive his right to trial by jury and the other rights constitutionally afforded those accused of criminal acts and enter a guilty plea. In exchange, Tiller was to receive a sentence of 25 years, the first eight to be served and the final seventeen to be suspended. At the conclusion of the eight years of confinement, Tiller was to be released on probation for the next five years.

 On September 19, 1979, the plea bargain agreement was consummated. Tiller appeared in the Circuit Court of the First Judicial District of Hinds County, Mississippi, the Honorable William F. Coleman, Circuit Judge, presiding. Judge Coleman explained to Tiller that, because his crime was armed robbery, he would not be eligible for parole or work release. The subject of the good time program, sometimes referred to as earned time, was never mentioned during the plea hearing.

 It is uncontradicted in the record, however, that (a) at that time persons convicted of armed robbery were in fact participating in the good time program; (b) Tiller had been correctly advised of this fact by

 his attorney; and (c) Tiller relied upon eligibility for good time in entering his plea.

 Tiller's "time" began to run on February 4, 1979, the date of his arrest. On June 6, 1980, he received a memorandum from the Mississippi Department of Corrections (MDC) advising him, in effect, that if he continued his good behavior he would ultimately earn 1532 days (four years, 71 days) of good time. His eight unsuspended years would be reduced thereby, making him eligible for discharge on September 25, 1983.

 Approximately seven months later, on January 5, 1981, to be specific, MDC modified its good time policy. Acting pursuant to an opinion released by the Attorney General of the State of Mississippi, the MDC determined that persons convicted of armed robbery would not be eligible to earn good time until they had served their entire sentence or ten years, whichever was the lesser.

 On June 20, 1981, Tiller was advised in an official MDC memorandum that he was eligible for no more good time. His release date was extended from September 25, 1983, to May 31, 1986. Significantly, Tiller was allowed to keep the 554 days of good time he had earned between June 15, 1979, and January 5, 1981. He was simply not eligible for any further good time credits.

 On October 7, 1982, John M. Tiller filed in the Circuit Court of Hinds County, Mississippi, his pro se petition, denominated "Notice of Application to Withdraw Guilty Plea" and "Petition for Writ of Error Coram Nobis" . In his petition, Tiller set forth the essence of what we have recited above and asked that the Circuit Court "either permit withdrawal of the [guilty] plea or grant specific enforcement of the plea agreement, as appropriate" .

 On November 4, 1982, the Circuit Court dismissed Tiller's petition summarily. Insofar as the record reflects, no hearing of any sort was held. In the brief two paragraph order ...


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