McGovern v. Miss. Dep't of Corrections
| Docket Number: | 2010-CP-01116-COA Linked Case(s): 2010-CP-01116-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-06-2011 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Post-conviction relief - Parole eligibility - Section 41-29-139(a) - Section 47-7-3(1)(h) Judge(s) Concurring: Lee, C.J., Griffis, P.J., Myers, Barnes, Ishee, Maxwell and Russell, JJ. Concur in Part, Concur in Result 1: Irving, P.J. Concurs in Result Only: Carlton, J. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 06-21-2010 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: MOTION TO DETERMINE PAROLE ELIGIBILITY DISMISSED Case Number: 251-10-146 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Peter McGovern |
PRO SE |
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| Appellee: | Mississippi Department of Corrections | OFFICE OF THE ATTORNEY GENERAL: R. STEWART SMITH JR. |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Parole eligibility - Section 41-29-139(a) - Section 47-7-3(1)(h) |
| Summary of the Facts: | Peter McGovern was convicted of selling amphetamines. He unsuccessfully sought to be declared eligible for parole through the Administrative Remedy Program. After exhausting his administrative remedies, McGovern appealed to circuit court, which found no merit to his argument. McGovern appeals. |
| Summary of Opinion Analysis: | McGovern is currently serving the previously suspended portion of his sentence for selling amphetamines in violation of section 41-29-139(a). Section 47-7-3(1)(h) states that McGovern is eligible for parole if he had been convicted of a “nonviolent crime.” The statute further states that the sale of a controlled substance is not a “nonviolent crime” for the purposes of parole eligibility. Nevertheless, pursuant to section 47-7-3(1)(h), McGovern may still be eligible for parole if the controlled substance that he sold did not exceed “the amounts specified under [Mississippi Code Annotated section] 41-29-139(b) [(Rev. 2009)].” McGovern was convicted of selling amphetamines – not marijuana. None of the provisions of section 41-29-139(b) pertain to selling an amount of a controlled substance other than marijuana. They do not apply to an offender convicted of selling amphetamines. Because McGovern is incarcerated for selling amphetamines, he is not eligible for parole. |
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