585’s provision for non violent offenders to seek parole

Last year the legislature passed a two hundred page bill affecting many areas of criminal law.  One of the few provisions that applies to persons sentenced prior to the effective date of the bill (July 1, 2014) is MCA Sect. 47-7-3(1)g(iii):

iii)  Notwithstanding the provisions of paragraph (1)(a) of this section, any nonviolent offender who has served twenty-five percent (25%) or more of his sentence may be paroled if the sentencing judge or if the sentencing judge is retired, disabled or incapacitated, the senior circuit judge, recommends parole to the Parole Board and the Parole Board approves.

I haven’t heard much on how this provision is faring in the trial courts.  An appeal filed the other day allows us to see at least how one inmate came out. Juan Perez was sentenced by Judge Kosta Vlahos to fifteen years without parole for possession of cocaine with intent to distribute.   He filed a petition seeking to have the senior circuit judge recommend him for parole and has attached various paperwork attesting to his good behavior while incarcerated.  The judge, Roger T. Clark,  denied it writing  as follows:

The legislature has chosen to make this extraordinary relief available, but the Court finds that troublesome.  Particularly as a successor Judge, this Court has no information or insight into the offender’s history leading up to his conviction or his record as an inmate.  Regardless parole decisions should remain solely in the hands of the Parole Board.  Trial Court Judges already shoulder substantial burdens which accompany the processing of felonies and the sentencing of offenders. Perez was sentenced as an habitual offender. “The purpose of habitual offender acts is to punish not only for the immediate offense, but to punish for a pattern of criminal conduct.” Berry v. State, 907 So.2d 1011, 1013 (par. 10) (Miss.Ct.  App. 2005).  This State’s legislature, as a matter of public policy, has a history of still penalties for drug offenders as well as habitual offenders, See, e.g., Stromas v. State, 618 So.2d 116 (MIss. 1993).  It is therefore ORDERED AND ADJUDGED, that the Petitioner’s Parole Recommendation is denied.

Juan Perez’s appeal can be found here.  The order starts at p. 18.

Does anyone else have any experience with a similar petition?  It would be useful to know what other judges are doing around the state.  Since this is all new, I have no idea what the courts will do with these on appeal but it does seem to be error for the trial court to just flat out refuse to entertain these petitions on the grounds that “they are not my job.”

16 thoughts on “585’s provision for non violent offenders to seek parole

  1. I personally have a seen a couple of cases that the Judge did agree for the inmate to have a parole hearing. On one person it looks like they are out but on the other person they are still inmates at mdoc. I know one person that got the Judge to sign but the parole board did nothing on it. The Attorney General says that this cannot be done with anyone who has enhanced penalty or habitual.

  2. Just got a report from an attorney that Judge Robert Chamberlin in Tallahatchie County denied a request finding that the defendant, sentenced to fifteen years for conspiracy to manufacture meth, was not eligible because he was sentenced an as habitual and given an enhancement for a second drug offense.

    Eads was not only convicted as a habitual offender, but he also was convicted of an enhanced crime, being a second offender. Miss. Code Ann. Sect. 47-7-3(1)(g)(iii) uses the term “nonviolent offender” but does not specifically define a violent offender as is done in subsection (1)(g)(i) by mentioning Section 07-3-2. Paragraph (f) of the same statute states for purposes of that paragraph, “nonviolent crime” means a felony other than certain crimes including felonies with enhanced penalties.

    Here’s the AG op.

    • Is there any thing that can be done if Judge does sign order stating inmate can have parole hearing but the parole board ignores order?

  3. I am convicted of DUI DEATH in 1999, I want to petition my sentencing judge for parole…is that a non violent crime?

  4. Is DUI DEATH a crime of violence?,,,I was sentenced in 2000 to 20 yrs for DUI DEATH…. I AM CONSIDERING petitioning my sentencing judge for parole. Is this possible?

  5. Last year the legislature passed a law setting forth which crimes are crimes of violence. DUI manslaughter (MCA Sect. 63-11-30) is not in the list. I don’t see any Mississippi cases on that issue and courts in other states and federal circuits appear to be split on the issue.
    § 97-3-2. Crimes of violence
    (1) The following shall be classified as crimes of violence:
    (a) Driving under the influence as provided in Sections 63-11-30(5) and 63-11-30(12)(d);
    (b) Murder and attempted murder as provided in Sections 97-1-7(2), 97-3-19, 97-3-23 and 97-3-25;
    (c) Aggravated assault as provided in Sections 97-3-7(2)(a) and (b) and 97-3-7(4)(a);
    (d) Manslaughter as provided in Sections 97-3-27, 97-3-29, 97-3-31, 97-3-33, 97-3-35, 97-3-39, 97-3-41, 97-3-43, 97-3-45 and 97-3-47;
    (e) Killing of an unborn child as provided in Sections 97-3-37(2)(a) and 97-3-37(2)(b);
    (f) Kidnapping as provided in Section 97-3-53;
    (g) Human trafficking as provided in Section 97-3-54.1;
    (h) Poisoning as provided in Section 97-3-61;
    (i) Rape as provided in Sections 97-3-65 and 97-3-71;
    (j) Robbery as provided in Sections 97-3-73 and 97-3-79;
    (k) Sexual battery as provided in Section 97-3-95;
    (l) Drive-by shooting or bombing as provided in Section 97-3-109;
    (m) Carjacking as provided in Section 97-3-117;
    (n) Felonious neglect, abuse or battery of a child as provided in Section 97-5-39;
    (o) Burglary of a dwelling as provided in Sections 97-17-23 and 97-17-37;
    (p) Use of explosives or weapons of mass destruction as provided in Section 97-37-25;
    (q) Statutory rape as provided in Section 97-3-65(1), but this classification is rebuttable on hearing by a judge;
    (r) Exploitation of a child as provided in Section 97-5-33;
    (s) Gratification of lust as provided in Section 97-5-23; and
    (t) Shooting into a dwelling as provided in Section 97-37-29.
    (2) In any felony offense with a maximum sentence of no less than five (5) years, upon conviction, the judge may find and place in the sentencing order, on the record in open court, that the offense, while not listed in subsection (1) of this section, shall be classified as a crime of violence if the facts show that the defendant used physical force, or made a credible attempt or threat of physical force against another person as part of the criminal act. No person convicted of a crime of violence listed in this section is eligible for parole or for early release from the custody of the Department of Corrections until the person has served at least fifty percent (50%) of the sentence imposed by the court.

  6. Hi, my husband was sentenced to five years without the possibility of parole for statory rape. I looked at his papers and it said nothing about being violent. Would there be anyway to petition the judge for parole?

    • Crimes of violence are listed in 97-3-2.
      Listed as a crime of violence is “(q) Statutory rape as provided in Section 97-3-65(1), but this classification is rebuttable on hearing by a judge.”

      Looks like he could petition a judge to declare that his crime was nonviolent and, thus, eligible for parole.

  7. i am serving 3 mandatory years for possession of firearm. was charged as habitual offender because it was my 3 felony. I got a burglary and entering auto when I was 19. I went 13-14 yrs without getting in trouble never did any prison time and live in different state of original felonies. Is this legal for them to charge me like this. How much are lawyers charging for this petition an do you know the success rate for Judge Clark of Harrison Co. and one more civil rights question: are they allowed to strip search me in a room with camera recording? thank you for your help

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