MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Judiciary, Division B
By: Senator(s) Tollison
AN ACT TO AMEND SECTION 97-37-5, MISSISSIPPI CODE OF 1972, TO REVISE THE PUNISHMENT FOR UNLAWFUL POSSESSION OF A WEAPON BY A CONVICTED FELON, TO MANDATE ARREST THEREFOR, AND TO PROHIBIT PLEA BARGAINING; TO AMEND SECTIONS 47-5-139, 47-5-138.1, 47-5-142 AND 47-7-3, MISSISSIPPI CODE OF 1972, TO PROHIBIT PAROLE, EARLY RELEASE OR EARNED TIME FOR UNLAWFUL POSSESSION OF A WEAPON BY A CONVICTED FELON; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-37-5, Mississippi Code of 1972, is amended as follows:
97-37-5. (1) It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the United States Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.
(2) (a) Any person
violating this section shall be guilty of a felony and, upon conviction
thereof, shall be fined not more than Five Thousand Dollars ($5,000.00), * * * and committed to the custody of the
State Department of Corrections for not less than * * * five (5) nor more than ten
(10) years * * *.
(b) A law enforcement officer shall arrest a person, with or without a warrant, when the officer has probable cause to believe that the person is a convicted felon in possession of a weapon in violation of this section.
(c) Minimum penalties under this section shall not be suspended or reduced by the court and no prosecutor shall offer any suspension or sentence reduction as part of a plea bargain.
(3) A person who has been convicted of a felony under the laws of this state may apply to the court in which he was convicted for a certificate of rehabilitation. The court may grant such certificate in its discretion upon a showing to the satisfaction of the court that the applicant has been rehabilitated and has led a useful, productive and law-abiding life since the completion of his sentence and upon the finding of the court that he will not be likely to act in a manner dangerous to public safety.
SECTION 2. Section 47-5-139, Mississippi Code of 1972, is amended as follows:
47-5-139. (1) An inmate shall not be eligible for the earned-time allowance if:
(a) The inmate was sentenced to life imprisonment; but an inmate, except an inmate sentenced to life imprisonment for capital murder, who has reached the age of sixty-five (65) or older and who has served at least fifteen (15) years may petition the sentencing court for conditional release;
(b) The inmate was convicted as a habitual offender under Sections 99-19-81 through 99-19-87;
(c) The inmate has forfeited his earned-time allowance by order of the commissioner;
(d) The inmate was
convicted of a sex crime; * * *or
(e) The inmate has not
served the mandatory time required for parole eligibility for a conviction of
robbery or attempted robbery with a deadly weapon * * *; or
(f) The inmate was convicted under Section 97-37-5 as a felon in possession of a weapon and has not served a minimum of five (5) years of the term for which he was sentenced.
(2) An offender under two (2) or more consecutive sentences shall be allowed commutation based upon the total term of the sentences.
(3) All earned time shall be forfeited by the inmate in the event of escape and/or aiding and abetting an escape. The commissioner may restore all or part of the earned time if the escapee returns to the institution voluntarily, without expense to the state, and without act of violence while a fugitive from the facility.
(4) Any officer or employee who shall willfully violate the provisions of this section and be convicted therefor shall be removed from office or employment.
SECTION 3. Section 47-5-138.1, Mississippi Code of 1972, is amended as follows:
47-5-138.1. (1) In addition to any other administrative reduction of sentence, an offender in trusty status as defined by the classification board of the Department of Corrections may be awarded a trusty-time allowance of thirty (30) days' reduction of sentence for each thirty (30) days of participation during any calendar month in an approved program while in trusty status, including satisfactory participation in education or instructional programs, satisfactory participation in work projects and satisfactory participation in any special incentive program.
(2) An offender in trusty status shall not be eligible for a reduction of sentence under this section if:
(a) The offender was sentenced to life imprisonment;
(b) The offender was convicted as an habitual offender under Sections 99-19-81 through 99-19-87;
(c) The offender was convicted of a sex crime;
(d) The offender has not served the mandatory time required for parole eligibility, as prescribed under Section 47-7-3, for a conviction of robbery or attempted robbery through the display of a deadly weapon, carjacking through the display of a deadly weapon or a drive-by shooting;
(e) The offender was
convicted of possession with the intent to deliver or sell a controlled
substance under Section 41-29-139; * * *
(f) The offender was
convicted of trafficking in controlled substances under Section 41-29-139 * * *; or
(g) The offender was convicted under Section 97-37-5 as a felon in possession of a weapon and has not served a minimum of five (5) years of the term for which he was sentenced.
SECTION 4. Section 47-5-142, Mississippi Code of 1972, is amended as follows:
47-5-142. (1) In order to provide incentive for offenders to achieve positive and worthwhile accomplishments for their personal benefit or the benefit of others, and in addition to any other administrative reductions of the length of an offender's sentence, any offender shall be eligible, subject to the provisions of this section, to receive meritorious earned time as distinguished from earned time for good conduct and performance.
(2) Subject to approval by the commissioner of the terms and conditions of the program or project, meritorious earned time may be awarded for the following: (a) successful completion of educational or instructional programs; (b) satisfactory participation in work projects; and (c) satisfactory participation in any special incentive program.
(3) The programs and activities through which meritorious earned time may be received shall be published in writing and posted in conspicuous places at all facilities of the department and such publication shall be made available to all offenders in the custody of the department.
(4) The commissioner shall make a determination of the number of days of reduction of sentence which may be awarded an offender as meritorious earned time for participation in approved programs or projects; the number of days shall be determined by the commissioner on the basis of each particular program or project.
(5) * * * The
commissioner shall not award meritorious earned time to:
(a) * * * An offender assigned to the
maximum security facilities for disciplinary purposes * * *; or
(b) An offender was convicted under Section 97-37-5 as a felon in possession of a weapon and has not served a minimum of five (5) years of the term for which he was sentenced.
(6) All meritorious earned time shall be forfeited by the offender in the event of escape and/or aiding and abetting an escape.
(7) Any officer or employee of the department who shall willfully violate the provisions of this section and be convicted therefor shall be removed from office or employment.
(8) An offender may forfeit all or any part of his meritorious earned-time allowance for just cause upon the written order of the commissioner or his designee. Any meritorious earned-time allowance forfeited under this section shall not be restored nor shall it be re-earned by the offender.
SECTION 5. Section 47-7-3, Mississippi Code of 1972, is amended as follows:
47-7-3. (1) Every prisoner who has been convicted of any offense against the State of Mississippi, and is confined in the execution of a judgment of such conviction in the Mississippi Department of Corrections for a definite term or terms of one (1) year or over, or for the term of his or her natural life, whose record of conduct shows that such prisoner has observed the rules of the department, and who has served not less than one-fourth (1/4) of the total of such term or terms for which such prisoner was sentenced, or, if sentenced to serve a term or terms of thirty (30) years or more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten (10) years of such life sentence, may be released on parole as hereinafter provided, except that:
(a) No prisoner convicted as a confirmed and habitual criminal under the provisions of Sections 99-19-81 through 99-19-87 shall be eligible for parole;
(b) Any person who shall have been convicted of a sex crime shall not be released on parole except for a person under the age of nineteen (19) who has been convicted under Section 97-3-67;
(c) No one shall be eligible for parole until he shall have served one (1) year of his sentence, unless such person has accrued any meritorious earned time allowances, in which case he shall be eligible for parole if he has served (i) nine (9) months of his sentence or sentences, when his sentence or sentences is two (2) years or less; (ii) ten (10) months of his sentence or sentences when his sentence or sentences is more than two (2) years but no more than five (5) years; and (iii) one (1) year of his sentence or sentences when his sentence or sentences is more than five (5) years;
(d) (i) No person shall be eligible for parole who shall, on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm until he shall have served ten (10) years if sentenced to a term or terms of more than ten (10) years or if sentenced for the term of the natural life of such person. If such person is sentenced to a term or terms of ten (10) years or less, then such person shall not be eligible for parole. The provisions of this paragraph (d)(i) shall also apply to any person who shall commit robbery or attempted robbery on or after July 1, 1982, through the display of a deadly weapon. This paragraph (d)(i) shall not apply to persons convicted after September 30, 1994;
(ii) No person shall be eligible for parole who shall, on or after October 1, 1994, be convicted of robbery, attempted robbery or carjacking as provided in Section 97-3-115 et seq., through the display of a firearm or drive-by shooting as provided in Section 97-3-109. The provisions of this paragraph (d)(ii) shall also apply to any person who shall commit robbery, attempted robbery, carjacking or a drive-by shooting on or after October 1, 1994, through the display of a deadly weapon;
(e) No person shall be eligible for parole who, on or after July 1, 1994, is charged, tried, convicted and sentenced to life imprisonment without eligibility for parole under the provisions of Section 99-19-101;
(f) No person shall be eligible for parole who is charged, tried, convicted and sentenced to life imprisonment under the provisions of Section 99-19-101;
(g) Notwithstanding the provisions of subsection (1)(c), a person who is convicted of aggravated domestic violence shall not be eligible for parole until he shall have served one (1) year of his sentence;
(h) No person shall be eligible for parole who is convicted or whose suspended sentence is revoked after June 30, 1995, except that an offender convicted of only nonviolent crimes after June 30, 1995, may be eligible for parole if the offender meets the requirements in subsection (1) and this paragraph. In addition to other requirements, if an offender is convicted of a drug or driving under the influence felony, the offender must complete a drug and alcohol rehabilitation program prior to parole or the offender may be required to complete a post-release drug and alcohol program as a condition of parole. For purposes of this paragraph, "nonviolent crime" means a felony other than homicide, robbery, manslaughter, sex crimes, arson, burglary of an occupied dwelling, aggravated assault, kidnapping, felonious abuse of vulnerable adults, felonies with enhanced penalties, the sale or manufacture of a controlled substance under the Uniform Controlled Substances Law, felony child abuse, or exploitation or any crime under Section 97-5-33 or Section 97-5-39(2) or 97-5-39(1)(b), 97-5-39(1)(c) or a violation of Section 63-11-30(5). An offender convicted of a violation under Section 41-29-139(a), not exceeding the amounts specified under Section 41-29-139(b), may be eligible for parole. In addition, an offender incarcerated for committing the crime of possession of a controlled substance under the Uniform Controlled Substances Law after July 1, 1995, shall be eligible for parole.
(i) No prisoner convicted under Section 97-37-5 as a felon in possession of a weapon shall be eligible for parole.
(2) Notwithstanding any other provision of law, an inmate shall not be eligible to receive earned time, good time or any other administrative reduction of time which shall reduce the time necessary to be served for parole eligibility as provided in subsection (1) of this section; however, this subsection shall not apply to the advancement of parole eligibility dates pursuant to the Prison Overcrowding Emergency Powers Act. Moreover, meritorious earned time allowances may be used to reduce the time necessary to be served for parole eligibility as provided in paragraph (c) of subsection (1) of this section.
(3) The State Parole Board shall, by rules and regulations, establish a method of determining a tentative parole hearing date for each eligible offender taken into the custody of the Department of Corrections. The tentative parole hearing date shall be determined within ninety (90) days after the department has assumed custody of the offender. Such tentative parole hearing date shall be calculated by a formula taking into account the offender's age upon first commitment, number of prior incarcerations, prior probation or parole failures, the severity and the violence of the offense committed, employment history, whether the offender served in the United States Armed Forces and has an honorable discharge, and other criteria which in the opinion of the board tend to validly and reliably predict the length of incarceration necessary before the offender can be successfully paroled.
(4) Any inmate within twenty-four (24) months of his parole eligibility date and who meets the criteria established by the classification board shall receive priority for placement in any educational development and job training programs. Any inmate refusing to participate in an educational development or job training program may be ineligible for parole.
SECTION 6. This act shall take effect and be in force from and after July 1, 2013.