Eric Wallace v. State of Mississippi

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Serial: 221219 IN THE SUPREME COURT OF MISSISSIPPI No. 2018-TS-01002 ERIC WALLACE Appellant v. STATE OF MISSISSIPPI Appellee ORDER This matter is before the Court, en banc, on the Court’s own motion. Eric Wallace filed a Petition for Extraordinary Relief to the Senior Judge for Recommendation to the Parole Board and/or Time Reduction, pursuant to Miss. Code Ann. § 47-7-3, in the Circuit Court of Warren County. By order dated April 23, 2018, the circuit court denied Wallace’s petition. On May 17, 2018, Wallace filed a notice of appeal. On July 19, 2018, the Clerk of this Court issued a Show Cause Notice to Wallace regarding “why this appeal should not be dismissed for lack of appealable judgment.” Wallace filed no response. Having duly considered the facts of this case, the Court finds the circuit court’s order fails to implicate an appealable judgment. Accordingly, the Court concludes the appeal should be dismissed. See Gamage v. State, 2015-CP-00593 (En Banc Order - Oct. 8, 2015). IT IS THEREFORE ORDERED the appeal shall be dismissed upon the entry of this order. Costs of the appeal, if any, are taxed to Appellant. SO ORDERED, this the 3rd day of October, 2018. /s/ James D. Maxwell II JAMES D. MAXWELL II, JUSTICE FOR THE COURT AGREE WITH ORDER: WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ. KING, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN STATEMENT JOINED BY WALLER, C.J., KITCHENS, P.J., AND ISHEE, J. 2 IN THE SUPREME COURT OF MISSISSIPPI No. 2018-TS-01002 ERIC WALLACE v. STATE OF MISSISSIPPI KING, JUSTICE, SPECIALLY CONCURRING WITH THE ORDER WITH SEPARATE WRITTEN STATEMENT: ¶1. This Court, without explanation, enters an order saying, “the circuit court’s order fails to implicate an appealable judgment.” I agree that this case fails to present an appealable issue. However, I write separately to state why I believe this case fails to present an appealable judgment. ¶2. Pursuant to the provisions of Mississippi Code Section 47-7-3(1)(g)(iii) (Rev. 2015), an inmate may ask the sentencing judge or the senior judge to recommend that he or she be paroled. This Court’s summary quotation of the language used in Gamage v. State, No. 2015-CP-00593-SCT (Miss. Oct. 8, 2015) (en banc order), that the denial of a recommendation to the parole board for an early release “fails to implicate an appealable judgment,” implies that no denial of a recommendation to the parole board for early release may be appealed. The decision to recommend or not to recommend parole is purely a discretionary power and is not subject to appellate review unless exercised for constitutionally impermissible reasons, such as race or gender. Courts in this State have a duty “to hear and adjudge cases concerning constitutional issues despite a statutory mandate.” Cotton v. Miss. Parole Bd., 863 So. 2d 917, 921 (Miss. 2003). 3 ¶3. The present submission before this Court provides no factual basis to suggest that the circuit court predicated its decision on a constitutionally impermissible reason. For this reason, I agree that this matter should be dismissed. WALLER, C.J., KITCHENS, P.J., AND ISHEE, J., JOIN THIS SEPARATE WRITTEN STATEMENT. 4

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