IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00878-COA STATE OF MISSISSIPPI APPELLANT

v. JOE FRANK HARDIN A/K/A JOE HARDIN APPELLEE
DATE OF JUDGMENT: 06/02/2016 TRIAL JUDGE: HON. JOSEPH H. LOPER JR. COURT FROM W HICH APPEALED: CHOCTAW COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN ANTHONY LOUIS SCHMIDT JR. ATTORNEY FOR APPELLEE: JOE FRANK HARDIN (PRO SE) NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: REVERSED AND RENDERED: 08/15/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND GREENLEE, JJ. FAIR, J., FOR THE COURT: ¶1. In 1995, Joe Hardin was convicted o f two counts of m urd e r a n d s e n t e n ced to two consecutive lif

e sentences. I n 2015, Hardin was denied parole, and the M ississippi Parole Board “set o f

f ” 1 h i s case f

or another hearing in three y e ars. Hardin then f i led the instant

m otion f o r post-conviction relief

, claim ing that, under the 2014 am endm ents to Mississippi Code Annotated sections 47-7-3.1 and 47-7-18(6), he is entitled to an annual hearing and a

case plan to identif

y c orrective a ctions he needs to take to prepare him f or parole. The circuit

1 “A ‘set o f

f ’ is th e p e rio d o f

tim e an in m ate w h o h as b een d en ied p aro le m u st w ait b ef o r e h is p aro le is reco n sid e red .” Wa y v. M iller , 9 1 9 S o . 2 d 1 0 3 6 , 1 0 3 8 n . 1 (M iss. C t. A p p . 2 0 0 5 ) (citatio n o m itted ).court agreed with Hardin, and the State has appealed. 2

¶2. On appeal, the S tate c ontends that the circuit c o urt should have dism i ssed Hardin’s

com plaint, s ince the Mississip p i P a r o l e Board was not nam ed as a party or served with process. W e agree. As this Court has explained: [ T]he lower court should have d ism issed the case because of [ the petitioner’s] f ailure to i nclude the Parole Board as a party to the com plaint, which i s in the nature of a civil suit a nd not a petition f or post-conviction relief

. In McClurg [ v. State , 8 70 So. 2d 681, 682 (¶6) (Miss. Ct. A p p . 2004)], this Court f ound that the com

p laint of an inm ate who f

iled an a ction r egarding the calculation of his sentenced tim e to serve and parole e l igibility was a civil a ction and not a petition f

or post-conviction reli e f, a n d t h eref ore should have been “dism issed f or f ailure to properly nam e and serve the actual parties in i nterest, nam ely the Parole Board a nd Departm ent of Corrections.” As in McClurg , the petition in the present case was f

iled only against the State of Mississippi, and not against the Departm ent o f Corrections or the Parole Board. Theref ore, the circuit court should h a v e d ism issed the petition f o r . . . f ailure to f

ile against the proper parties. Mack v. State , 9 4 3 So. 2d 73, 75-76 (¶7) (Miss. Ct. App. 2006); see also State v. W i llard , 217 So. 3d 779, 780 (¶4) (Miss. Ct. App. 2017). ¶3. Moreover, w hen the circuit c ourt d ecid ed this case on the m erits, the Mississippi Suprem e Court h a d n o t y et r uled on the issue. Since then, it has held that the 2014

am endm ents t o t h e p a r ole statute are not retroactive and thus d o not a pply t o prisoners adm itted p rior to the am endm ent’s ef f ective date. Fisher v. Drankus , 204 S o. 3d 1232, 1235-
36 (¶¶7-14) (Miss. 2016). And s i nce the 2014 a m endm ents are not retroactive, they do not

2 T h e c ircu it c o u rt r en d e r ed its d ecisio n p rio r to th e M ississip p i S u p rem e C o u rt’s d ecisio n i n F

ish er v
. D ra n ku s , 2 0 4 S o . 3 d 1 2 3 2 (M iss. 2 0 1 6 ), w h ere it w a s h eld th at th e am en d ed statu te d id n o t ap p ly to p riso n ers co n v icted an d sen ten c ed p rio r to Ju ly 1 , 2 0 1 4

. 2create a liberty interest tha t p e r mi t s c ircuit courts to exercise j urisdiction over what is

ef f ectively an appeal f

rom the denial of parole. Drankus v. Miss. Parole Bd. , No. 2 015-CP01049-SCT, 2017 W L 449621, at *2 ( Miss. Feb. 2 , 2017). See also C otton v. Miss. Parole Bd. , 863 So. 2d 917, 921 (¶11) (Miss. 2003) ( trial courts have no j urisdiction to g rant or deny parole). Hardin was theref ore entitled to neither a m odif ied set of f date nor a case plan, as he was adm itted to the custody of the Mississippi Departm ent of Corrections long bef ore the ef f ective date of the 2014 am endm ents to the parole s tatute. S ee Drankus v. S

tate , 215 So. 3d 1000, 1001 (¶¶7-8) (Miss. Ct. App. 2017). ¶4. W e reverse the circuit court’s judgm ent and render a d i s m issal f o r want of jurisdiction. ¶5. REVERSED AND RENDERED. LEE, C.J., IRVING AND GR I F F I S , P.JJ., BARNES, I SHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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