Timothy Lattimore v. Emmitt Sparkman
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-01544-COA
TIMOTHY LATTIMORE
APPELLANT
v.
EMMITT SPARKMAN
APPELLEE
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
8/12/2002
HON. W. ASHLEY HINES
SUNFLOWER COUNTY CIRCUIT COURT
GEORGE T. KELLY
OFFICE OF THE ATTORNEY GENERAL
BY: JANE L. MAPP
CIVIL - STATE BOARDS AND AGENCIES
DENIED AND DISMISSED
AFFIRMED - 11/4/2003
BEFORE SOUTHWICK, P.J., MYERS AND CHANDLER, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1.
Timothy Lattimore filed a petition in the Circuit Court of Sunflower County to have made what he
considered to be a correction to his parole eligibility date. The circuit judge denied any relief. We find that
the court properly interpreted the statute on parole. We affirm.
STATEMENT OF FACTS
¶2.
In September 1991, Lattimore was convicted of armed robbery when he was sixteen years old.
He was given a fifteen year sentence, which was suspended conditioned upon his successful completion
of the Regimented Inmate Discipline program. Lattimore completed the program. A few months later
while on supervised probation, Lattimore was charged and convicted of the sale of cocaine. His probation
was revoked and his fifteen year sentence for armed robbery was imposed. On the new charges, Lattimore
was sentenced to thirty years' imprisonment for the sale of cocaine and five years for conspiracy. The
sentences were to run concurrently with each other. However, these sentences were consecutive to the
earlier fifteen year sentence.
¶3.
While in prison, Lattimore received sentence computation sheets that indicated a parole eligibility
date of April 15, 2002. He was later notified that this date had been changed to October 2004. Lattimore
first contested this change within the prison system through the administrative remedies program. His
request to change his parole eligibility date back to 2002 was denied. Lattimore then filed what he called
a "Petition for Writ of Habeas Corpus and/or Other Relief" in the Sunflower County Circuit Court.
¶4.
A hearing was held on the petition. The assistant director of records at the Parchman Prison
testified that there had been an error concerning the actual date of Lattimore's imprisonment. She testified
that Lattimore had mistakenly been given more credit for time served on probation than he should have
received. She stated that this error was discovered when the prison updated its records and an audit was
performed. The court denied any relief, and Lattimore appealed.
DISCUSSION
1. Jurisdiction
¶5.
The State argues that this case should have been dismissed on the basis that the circuit court lacked
jurisdiction. Lattimore first pursued relief under the internal prison grievance procedure, but then did not
timely appeal. Miss. Code Ann. § 47-5-801-807 (Rev. 2000). If the final result of the grievance
procedure is unsatisfactory to the inmate, he has thirty days to seek judicial review. Miss. Code Ann. § 472
5-807 (Rev. 2000). More than thirty days passed after the resolution of his administrative grievance before
Lattimore filed his petition in the circuit court. The circuit court refused to dismiss, saying only that
Lattimore "will not be held" to the time limit.
¶6.
The appellate courts have previously been confronted with inmates who have sought judicial review
of the length of their sentence and the proper date for parole. See, e.g., Hill v. State, 838 So. 2d 994,
997-98 (¶11) (Miss. Ct. App. 2002). In Hill we noted that there were precedents that allowed inmates to
have judicial review of whether their sentences contained proper credits for earned time that would cause
reductions in their sentences. Wilson v. Puckett, 721 So. 2d 1110, 1111-12 (Miss. 1998); Williams v.
Puckett, 624 So. 2d 496, 497 (Miss. 1993). These were brought as habeas corpus suits directly in circuit
court. The Supreme Court did not discuss whether the administrative remedy program should have been
utilized.
¶7.
An administrative remedy is available for situations "arising from policies, conditions, or events
within the Department of Corrections" that affect an inmate personally. MISS. DEP'T. CORR. ADMIN.
REMEDY PROGRAM PROCEDURES 1. Listed in the Department's explanation of the program is the right to
seek review of such matters as lost property claims, staff conduct, conditions of confinement, policy and
procedure, incidents, reprisals for using this process, mail and packages; and classification (to include
discipline). Id. Parole eligibility is not listed, but we do not suggest that it would be improper for an inmate
to pursue a change to his parole eligibility date by using the internal grievance procedure. We find though,
in light of the case law that we have briefly discussed and which was more thoroughly reviewed in Hill, that
an inmate may contest matters such as this as an original action in circuit court.
2. Interpretation of statute on date of parole eligibility
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¶8.
Lattimore argues that the statute concerning parole eligibility has been incorrectly interpreted. The
principal ambiguity is whether the statute requires that a person with a thirty year sentence such as
Lattimore to serve at least ten years of that sentence before he is eligible for parole, or need only serve onefourth of the sentence, which is seven and a half years. Here is the statute:
Every prisoner who has been convicted of any offense against the State of Mississippi, and
is confined in the execution of a judgment of such conviction in the Mississippi State
Penitentiary for a definite term or terms of one (1) year or over, or for the term of his or
her natural life, whose record of conduct shows that such prisoner has observed the rules
of the Penitentiary, and who has served not less than one-fourth (1/4) of the total of such
term or terms for which such prisoner was sentenced, or, if sentenced to serve a term or
terms of thirty (30) years or more, or, if sentenced for the term of the natural life of such
prisoner, has served not less than ten (10) years of such life sentence, may be released on
parole as hereinafter provided. . . .
Miss. Code Ann. § 47-7-3(1) (Rev. 2000).
¶9.
The problem is obvious enough. In the tradition of statutes, this contains one long sentence with
many dependent and independent clauses. The statute provides as the usual rule that an inmate serve one
fourth of the sentence before parole eligibility. Then the statute provides two caveats: "or, if sentenced" to
thirty years or more, "or, if sentenced" to a life term, and "has served not less than ten (10) years of such
life term," the inmate may be considered for parole. Both of these situations -- a sentence of at least thirty
years or a life sentence -- are written as alternatives to what has been stated earlier in the statute Yet
oddly, when the ten year minimum is stated, it literally applies only to "such life term" without any stated
application to sentences of thirty years or more. From this, Lattimore argues that the one-fourth rule must
apply.
¶10.
The statute has the feel of one that has been amended and the pieced-together new version does
not fit together seamlessly. We examined the early amendment history of the parole statute.
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¶11.
The earliest version of this statute was adopted in 1944. It provided that any inmate sentenced to
a year or more in the state penitentiary, "who has served not less than one-third of the total of such term
or terms for which such prisoner was sentenced, or, if sentenced for the term of the natural life of such
prisoner, has served not less than ten years of such life sentence," may be released on parole. 1944 Miss.
Laws ch. 334, § 2. Therefore, the 1944 statute only provided two categories -- an inmate had to serve
one-third of a sentence of a specific term of years, and had to serve ten years of a life sentence.
¶12.
Just two years later, the legislature decided that certain longer sentences needed to be treated
differently. As in the present statute, three categories of sentences were discussed:
Every prisoner who . . . is confined . . . in the Mississippi state penitentiary, for a definite
term, or terms, of one year or over . . ., who has served not less than one-third of the total
of such term . . ., or, if sentenced for the term of the natural life of such prisoner, or if
sentenced for a period of thirty years or more, and has served not less than ten years of
such life sentence or ten years of such sentence of thirty years or more, may be
released on parole . . . .
1946 Miss. Laws ch. 486, § 2 (emphasis added). Here the legislature was clear even if wordy. An inmate
was required to serve ten years of a life sentence or ten years of a sentence of thirty years or more before
becoming eligible for parole.
¶13.
Today's ambiguity crept into the statute with the next amendment, which was in 1950. The statute
withdrew parole eligibility from anyone who had been convicted three times of a felony and added a
requirement that any sex offender first be examined by a psychiatrist to determine if he was "of a normal
and sound mind." 1950 Miss. Laws ch. 524, § 4. The language that concerns us was essentially
unchanged, except it was shortened into the present confusion: a prisoner "who has served not less than
one-third of the total of such term or terms . . . , or, if sentenced to serve a term or terms of thirty years or
more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten years of
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such life sentence, may be released on parole. . . ." Id. Why the phrase "or ten years of such sentence of
thirty years or more" was dropped is a mystery. It could have been an oversight as this cumbersome
language was revised to include the new considerations about multiple felonies and sex crimes. It could
have been a draftsman's belief that the language was redundant, though it was not. However, if an effort
was being made to make the one-third rule apply to those serving long sentences of a specific number of
years when previously and conclusively the ten year minimum had applied, there was no language adopted
to reflect such a change.
¶14.
Before the 1950 amendment, someone with a sentence of thirty years or more clearly had to serve
ten years before being eligible for parole. After the amendment, we find no reasonable manner to interpret
the statute differently. The present statute requires serving one-fourth of sentences of less than thirty years,
but the operative language otherwise is the same.
¶15.
The statute is ambiguous. There are two categories of exceptions to the requirement of serving
one-fourth of a sentence, but the statute explicitly gives a minimum length sentence prior to parole eligibility
for only one of the two categories. Nonetheless, this review of the history of the statute is convincing
evidence that ambiguity but not change occurred in 1950.
¶16.
In addition, Parchman's assistant director of records stated that during her lengthy career at the
prison, serving ten years has been the minimum for sentences greater than thirty years. This is a sufficiently
settled interpretation at the agency entrusted with applying this statute as to allow deference to be given to
it. Miss. Gaming Comm'n v. Six Elec. Video Gambling Devices, 792 So. 2d 321, 328-29 (Miss. Ct.
App. 2001).
¶17.
The statute requires Lattimore to serve at least ten years of his thirty year sentence prior to being
eligible for parole. We affirm the denial of any relief.
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¶18. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS
AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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