OF JUDGMENT: 06/02/2016
COUNTY CIRCUIT COURT HON. JOSEPH H. LOPER JR. TRIAL JUDGE.
ATTORNEYS FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL BY:
DARRELL CLAYTON BAUGHN ANTHONY LOUIS SCHMIDT JR.
ATTORNEY FOR APPELLEE: JOE FRANK HARDIN (PRO SE)
IRVING, P.J., FAIR AND GREENLEE, JJ.
In 1995, Joe Hardin was convicted of two counts of murder and
sentenced to two consecutive life sentences. In 2015, Hardin
was denied parole, and the Mississippi Parole Board "set
off" his case for another hearing in three
years. Hardin then filed the instant motion for
post-conviction relief, claiming that, under the 2014
amendments to Mississippi Code Annotated sections 47-7-3.1
and 47-7-18(6), he is entitled to an annual hearing and a
case plan to identify corrective actions he needs to take to
prepare him for parole. The circuit court agreed with Hardin,
and the State has appealed.
On appeal, the State contends that the circuit court should
have dismissed Hardin's complaint, since the Mississippi
Parole Board was not named as a party or served with process.
We agree. As this Court has explained:
[T]he lower court should have dismissed the case because of
[the petitioner's] failure to include the Parole Board as
a party to the complaint, which is in the nature of a civil
suit and not a petition for post-conviction relief. In
McClurg [v. State, 870 So.2d 681, 682
(¶6) (Miss. Ct. App. 2004)], this Court found that the
complaint of an inmate who filed an action regarding the
calculation of his sentenced time to serve and parole
eligibility was a civil action and not a petition for
post-conviction relief, and therefore should have been
"dismissed for failure to properly name and serve the
actual parties in interest, namely the Parole Board and
Department of Corrections." As in McClurg, the
petition in the present case was filed only against the State
of Mississippi, and not against the Department of Corrections
or the Parole Board. Therefore, the circuit court should have
dismissed the petition for . . . failure to file against the
Mack v. State, 943 So.2d 73, 75-76 (¶7) (Miss.
Ct. App. 2006); see also State v. Willard, 217 So.3d
779, 780 (¶4) (Miss. Ct. App. 2017).
Moreover, when the circuit court decided this case on the
merits, the Mississippi Supreme Court had not yet ruled on
the issue. Since then, it has held that the 2014 amendments
to the parole statute are not retroactive and thus do not
apply to prisoners admitted prior to the amendment's
effective date. Fisher v. Drankus, 204 So.3d 1232,
1235-36 (¶¶7-14) (Miss. 2016). And since the 2014
amendments are not retroactive, they do not create a liberty
interest that permits circuit courts to exercise jurisdiction
over what is effectively an appeal from the denial of parole.
Drankus v. Miss. Parole Bd., No. 2015-CP-01049-SCT,
2017 WL 449621, at *2 (Miss. Feb. 2, 2017). See also
Cotton v. Miss. Parole Bd., 863 So.2d 917, 921
(¶11) (Miss. 2003) (trial courts have no jurisdiction to
grant or deny parole). Hardin was therefore entitled to
neither a modified set off date nor a case plan, as he was
admitted to the custody of the Mississippi Department of
Corrections long before the effective date of the 2014
amendments to the parole statute. See Drankus v.
State, 215 So.3d 1000, 1001 (¶¶7-8) (Miss. Ct.
We reverse the circuit court's judgment and render a
dismissal for want of jurisdiction.
REVERSED AND RENDERED.
C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,