Opinion
No. 2018-TS-00659
10-03-2018
NATHANIEL COOPER A/K/A NATHANIEL U. COOPER A/K/A NATHANIEL URAIL COOPER Appellant v. STATE OF MISSISSIPPI Appellee
Serial: 220598 ORDER
This matter is before the Court, en banc, on the Court's own motion to dismiss the appeal. Copper filed his fourth motion seeking a parole recommendation in the Circuit Court of Rankin County. The circuit court denied the motion by Order entered April 4, 2018. Cooper appealed to this Court, and on May 3, 2018, the Clerk of this Court issued a Show Cause Notice to Cooper, seeking a response as to why the appeal should not be dismissed for lack of an appealable judgment. Having duly considered Cooper's response and the facts of the case, the Court finds the circuit court's order fails to implicate an appealable judgment. Accordingly, the Court concludes the this 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. NATHANIEL COOPER A/K/A NATHANIEL U. COOPER A/K/A NATHANIEL URAIL COOPER 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/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. 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.