OF JUDGMENT: 04/27/2018
COUNTY CIRCUIT COURT. HON. WILLIAM E. CHAPMAN III Judge.
ATTORNEY FOR APPELLANT: STEPHEN MONTALTO (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY BY: DARRELL C.
J. WILSON, P.J., McCARTY AND C. WILSON, JJ.
Stephen Montalto appeals the circuit court's dismissal of
his motion for post- conviction relief (PCR). We find the
circuit court erred in finding that it lacked jurisdiction,
so we reverse and remand.
AND PROCEDURAL HISTORY
After pleading guilty to aggravated assault and kidnapping
charges in 2008, Montalto was sentenced to serve twenty years
in the custody of the Mississippi Department of Corrections
(MDOC) followed by five years of supervised probation. The
kidnapping offense involved a young child, so he was also
ordered to register as a sex offender.
Because Montalto pled guilty, he did not directly appeal his
conviction and sentence. Montalto later filed two PCR
motions, which the circuit court dismissed. Montalto v.
State, 119 So.3d 1087, 1089 (¶1) (Miss. Ct. App.
2013). Montalto appealed both dismissals, asserting (1) that
his due-process rights were violated and (2) that he received
ineffective assistance of counsel. Id. at 1092-93
(¶9). This Court found Montalto's claims lacked
merit and affirmed the circuit court's dismissals.
Id. at 1097 (¶26).
The record indicates that while incarcerated, Montalto served
in several jobs as a "trusty" and took advantage of
self-improvement opportunities offered by MDOC, such that
MDOC allowed him to earn credit toward his twenty-year
sentence. On December 20, 2014, MDOC released Montalto from
incarceration and placed him on earned-release supervision
(ERS). As part of this process, Montalto
registered as a sex offender as previously ordered by the
Approximately three weeks after Montalto's release, a
field officer filed a Rule Violation Report (RVR) with MDOC
asserting Montalto's residence did not meet the sex
offender registration requirements. Following an
administrative hearing on the RVR, MDOC revoked
Montalto's ERS for failure to abide by ERS conditions.
Montalto was reclassified and returned to prison.
Montalto appealed the ERS revocation through MDOC's
administrative remedy program (ARP). On March 17, 2015, MDOC
noted that Montalto's "[f]ailure to complete the
conditions of ERS ha[d] been investigated" and concluded
that because his kidnapping conviction was statutorily
classified as a sex offense, he had actually never been
eligible for ERS. As a result, MDOC denied Montalto's
appeal and request for ERS reinstatement.
In April 2015, Montalto filed a writ of habeas corpus in
federal court and claimed his revocation and reclassification
were unlawful. The federal court dismissed the writ due to
Montalto's failure to exhaust his state court remedies.
Montalto v. Miss. Dep't of Corrections, ...