272 So. 3d 132
Miss. Ct. App.2019Background
- In 2008 Montalto pled guilty to aggravated assault and kidnapping (victim under 18) and was sentenced to 20 years with 5 years supervised probation; he was ordered to register as a sex offender.
- He filed two prior PCR motions that were dismissed and affirmed on appeal; he did not directly appeal his conviction because he pled guilty.
- While incarcerated Montalto earned credits and was released on earned-release supervision (ERS) in December 2014; he registered as a sex offender as ordered.
- MDOC issued a Rule Violation Report, held an administrative hearing, revoked his ERS, reclassified him, and returned him to prison after concluding his kidnapping was a sex offense making him ineligible for ERS.
- Montalto exhausted MDOC administrative remedies, sought habeas in federal court (dismissed for failure to exhaust), then filed a third PCR in circuit court; the circuit court dismissed for lack of jurisdiction under Miss. Code §99-39-7.
- The Mississippi Supreme Court subsequently noted Montalto never directly appealed his conviction, and the Court of Appeals reversed the circuit court, holding the circuit court had jurisdiction to hear the PCR on the ERS revocation and remanded for merits consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether circuit court lacked jurisdiction under Miss. Code §99-39-7 to hear a third PCR | Montalto: §99-39-7 leave-to-file requirement applies only when there was a direct appeal; he never directly appealed so no leave required | State: PCR should be barred unless leave granted because prior appeals affirmed convictions | Court: Jurisdiction exists; because Montalto never directly appealed, he need not seek supreme-court leave and circuit court erred in dismissing for lack of jurisdiction |
| Whether MDOC's administrative revocation of ERS may be attacked via PCR | Montalto: ERS revocation and loss of earned time are subject to collateral attack in circuit court via PCR | State: Implicitly treated MDOC administrative actions as separate and sought dismissal based on procedural requirements | Court: Circuit court has exclusive original jurisdiction to consider merits of the PCR (remanded for consideration) |
| Merits: eligibility for ERS and due process in MDOC proceedings | Montalto: ERS revocation was unlawful and procedural defects violated due process | State/MDOC: Revocation valid because kidnapping of a minor is a sex offense making him ineligible for earned time/ERS; administrative process proper | Court: Decision remands for circuit-court consideration; majority does not resolve merits (concurring judge emphasizes established precedent that sex-offense convictions bar earned time, suggesting merits likely fail) |
Key Cases Cited
- Montalto v. State, 119 So.3d 1087 (Miss. Ct. App.) (prior appeal of Montalto's earlier PCRs)
- Graham v. State, 85 So.3d 847 (Miss.) (circuit court has exclusive original jurisdiction over PCR motions)
- Thomas v. Mississippi Department of Corrections, 248 So.3d 786 (Miss.) (earned-time/ERS ineligibility for sex-offense convictions)
- Culbert v. Epps, 120 So.3d 983 (Miss. Ct. App.) (inmate convicted of sex offense cannot legally earn time; nothing was taken)
- Adams v. Epps, 900 So.2d 1210 (Miss. Ct. App.) (earned-time removal for sex-offense convictions upheld)