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Smith v. State

Court of Appeals of Mississippi

July 23, 2019

DONALD E. SMITH APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/23/2018

          FORREST COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH TRIAL JUDGE

          ATTORNEY FOR APPELLANT: DONALD E. SMITH (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN

          BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

          McCARTY, J.

         ¶1. Donald Smith filed a motion in the Forest County Circuit Court for release from incarceration, believing he was eligible to be released on parole. The circuit court denied the request, finding that he had not served sufficient time. Although Smith is eligible for parole, it is beyond the reach of this Court to order his release. We affirm the circuit court's conclusion that the petition should be denied.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Smith is an inmate at the Central Mississippi Correctional Facility. His appeal today stems in part from a guilty plea made in 1973, when he admitted to committing murder, and in turn received a life sentence. He also pled guilty to robbery and kidnapping, adding forty- five and thirty years to his life sentence. Forty years ago the Mississippi Supreme Court held that these sentences would be served consecutively, rebuffing Smith's request to serve them concurrently. Smith v. State, 477 So.2d 259, 260 (Miss. 1985).

         ¶3. Before the end of the 1970s, Smith was also convicted for aggravated assault, adding two more years to run consecutively to his 1973 sentences; another instance of aggravated assault, with twenty more years; and two counts of aggravated assault, this time of police officers and with a weapon, each of which earned twenty more years of time.

         ¶4. In the past forty years Smith has filed multiple requests for legal relief in both the state and federal courts.[1] Over time his focus has shifted to parole. The appeal before us stems from a 2017 pleading in Forrest County styled a "Petition for Release under Mississippi Code Ann. § 47-5-139," a law that sets out the parameters of parole. Smith asked the circuit court "to enter an Order releasing him from incarceration" based upon his calculation that he was eligible for parole.

         ¶5. The circuit court denied the request, ruling that Smith "has not served the mandatory time required for parole eligibility for the conviction of murder, robbery or kidnaping," and determined that "by plain statutory language, Smith is not entitled to the relief he seeks . . . ." The circuit court denied a request to reconsider the ruling, and the case traveled to our Court for review. Although the petitioner is eligible for parole-a legal reality even the State concedes before us-we do not have the power to order his release from incarceration, as that is reserved to the Parole Board. Accordingly, we affirm for different reasons.

         DISCUSSION

         ¶6. The relief Smith requested was for the Judiciary to order his release from incarceration based upon his parole eligibility. Yet it is the Parole Board, not the courts, that has exclusive authority over the grant or denial of parole. Willard v. Miss. State Parole Bd., 212 So.3d 80, 83 (ΒΆ10) (Miss. Ct. App. 2016). Our Legislature has vested the determination of the grant of parole with the Parole Board: "An offender shall be placed on parole only when . . . the board believes ...


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