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State v. Montgomery

Court of Appeals of Mississippi

October 31, 2017

STATE OF MISSISSIPPI APPELLANT
v.
CHARLES MONTGOMERY, JR. A/K/A CHARLES MONTGOMERY A/K/A CHARLIE MONTGOMERY, JR. APPELLEE

          DATE OF JUDGMENT: 05/17/2016

         LAUDERDALE COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON JR. TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN ANTHONY LOUIS SCHMIDT JR.

          ATTORNEY FOR APPELLEE: CHARLES MONTGOMERY JR. (PRO SE)

          BEFORE LEE, C.J., BARNES AND CARLTON, JJ.

          CARLTON, J.

         ¶1. Charles Montgomery filed a motion to vacate, set aside, and correct the decision of the Mississippi Parole Board (Parole Board), which the Lauderdale County Circuit Court treated as a motion for postconviction relief (PCR), alleging that the Parole Board violated Mississippi Code Annotated section 47-7-18(6) (Rev. 2015) by imposing a four-year setoff until his next parole hearing. The circuit court granted Montgomery's PCR motion and referred the matter to the Parole Board to provide a parole-hearing date in accordance with section 47-7-18(6). Finding error, we reverse and render the circuit court's judgment.

         FACTS

         ¶2. In July 1982, a Lauderdale County jury convicted Montgomery of capital murder. The circuit court sentenced Montgomery to life in prison. In May 1983, a Covington County jury convicted Montgomery of two counts of forgery, for which he received two twelve-year, six-month sentences that were ordered to run consecutively. Montgomery's Mississippi Department of Corrections (MDOC) sentence-computation record reflects that the circuit court ordered that Montgomery's forgery sentences run consecutively to his life sentence for capital murder. The MDOC sentence-computation record also listed Montgomery's initial parole-eligibility date as March 28, 1998.

         ¶3. The record reflects that on March 24, 2016, the Parole Board denied Montgomery parole and set off Montgomery's next parole-eligibility hearing for four years. On May 9, 2016, Montgomery filed his motion to vacate, set aside, and correct the decision of the Parole Board in accordance with section 47-7-18(6). In his motion, Montgomery alleged that he is entitled to receive a parole hearing at least "once per year"; therefore, he argued that the Parole Board lacked authority to impose a four-year setoff.

         ¶4. On May 17, 2016, the circuit court, treating Montgomery's pleading as a PCR motion, entered an order granting Montgomery's request for relief. The circuit court acknowledged that at the time the Parole Board set off Montgomery's next parole-eligibility-hearing date, section 47-7-18(6) "had been in effect since July 1, 2014." The circuit court also recognized "that [the] Parole Board has full discretion in deciding who is eligible for parole." However, the circuit court held that

the issue in this matter is whether the [Parole] Board's four[-]year set[]off is in compliance with the applicable statute. This court is not convinced of its jurisdiction and finds that this matter should be referred to the [P]arole [B]oard for review to ensure that they provide a parole[-]hearing date that is in compliance with . . . [section] 47-7-18(6).

         ¶5. The State of Mississippi subsequently filed its notice of appeal.

         STANDARD ...


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