                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-CT-00608-SCT

PATRICK FLUKER a/k/a PATRICK DANTRE
FLUKER a/k/a PATRICK D. FLUKER

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          03/26/2013
TRIAL JUDGE:                               HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                 FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    PATRICK FLUKER (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: ELLIOTT GEORGE FLAGGS
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 06/11/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    Patrick Fluker filed a motion for post-conviction relief (PCR) in the Circuit Court of

Forrest County. The circuit court found his motion to be procedurally barred as a successive

pleading and dismissed it. Fluker appealed, and this Court assigned his appeal to the Court

of Appeals. The Court of Appeals affirmed the dismissal of the motion for PCR. This Court

granted Fluker’s petition for certiorari. We affirm the judgments of the Court of Appeals and

the Circuit Court of Forrest County, but clarify and correct the analysis of the law provided

by the Court of Appeals.
                                           FACTS

¶2.    A grand jury indicted Fluker for one count of armed robbery. As the result of plea

bargaining, Fluker entered a guilty plea to robbery. The circuit court sentenced him to the

maximum of fifteen years with three years to serve, twelve years suspended, and four years

on post-release supervision.

¶3.    Fluker was incarcerated until March 14, 2005, when he was placed on earned-release

supervision. On April 18, 2005, Fluker was discharged from earned-release supervision. The

Mississippi Department of Corrections (MDOC) officially released him from its custody on

April 23, 2005, and he was placed on post-release supervision. On May 5, 2005, Fluker was

arrested and charged with armed robbery and being a felon in possession of a weapon. On

June 23, 2005, the circuit court found that he had violated the terms of his post-release

supervision. The court revoked Fluker’s post-release supervision and imposed his suspended

sentence, ordering him to serve twelve years.

¶4.    Fluker filed his first motion for PCR, pro se, on January 10, 2007. Fluker v. State, 2

So. 3d 717, 719 (Miss. Ct. App. 2008). In it, Fluker argued that, because his sentence

exceeded the maximum sentence for robbery, it was illegal and the revocation of his post-

release supervision also was illegal. Id. He also argued that the circuit court should have

given him credit for the time he had spent on post-release supervision. Id. at 720. The circuit

court dismissed his motion for PCR, and the Court of Appeals affirmed. Id. at 719, 720. The

Court of Appeals found that, because Fluker’s sentence did not exceed the maximum

sentence for robbery, it was a legal sentence and the revocation of his post-release



                                              2
supervision was not illegal. Id. at 719-20. The Court of Appeals also found that, because a

probationary period is not counted as time served, the circuit court did not err by failing to

give Fluker credit for the few days he had spent on post-release supervision. Id. at 720.

¶5.    Fluker filed his second motion for PCR on July 25, 2012. In this pro se motion, Fluker

argued that, at the time of his armed-robbery arrest on May 5, 2005, he was on earned-release

supervision and subject to the exclusive jurisdiction of the MDOC. He argued that, because

he was not on post-release supervision, the circuit court lacked jurisdiction to revoke his

conditional release and impose his suspended sentence. Fluker also argued that, because he

claimed an illegal sentence, his motion for PCR should be excepted from the procedural bars

of the Uniform Post-Conviction Collateral Relief Act (UPCCRA).

¶6.    The circuit court dismissed the motion for PCR as a successive pleading, and the

Court of Appeals affirmed. Fluker v. State, 2014 WL 2723882, at *4 (Miss. Ct. App. June

17, 2014). The Court of Appeals held that Fluker’s illegal-sentence claim was without merit

because the record showed that Fluker had been discharged from earned-release supervision

and was on post-release supervision at the time of his arrest. Fluker, 2014 WL 2723882, at

*2. The Court of Appeals also held that, because this was Fluker’s second motion for PCR

challenging the revocation of his post-release supervision, it was barred by res judicata.

Fluker, 2014 WL 2723882, at *3. The Court of Appeals also found Fluker’s motion for PCR

was barred by the general three-year statute of limitations under Mississippi Code Section

15-1-49. Fluker, 2014 WL 2723882, at *4.

                               STANDARD OF REVIEW



                                              3
¶7.    A motion for PCR may be summarily dismissed “[i]f it plainly appears from the face

of the motion, any annexed exhibits and the prior proceedings in the case that the movant is

not entitled to any relief . . . .” Miss. Code Ann. § 99-39-11(2) (Rev. 2007). This Court will

reverse the summary dismissal of a motion for PCR if the motion presents “a claim

procedurally alive ‘substantial[ly] showing denial of a state or federal right.’” Smith v. State,

149 So. 3d 1027 (quoting Gable v. State, 748 So. 2d 703, 704 (Miss. 1999)).

                                        DISCUSSION

¶8.    The Court of Appeals correctly found that Fluker’s motion for PCR was procedurally

barred, but it erred in its analysis of the procedural bars. Both the time bar and the

successive-pleadings bar of the UPCCRA have exceptions for claims that the movant’s

conditional release was unlawfully revoked. Mississippi Code Section 99-39-5(2), which

prescribes the time for filing a motion for PCR, states:

       A motion for relief under this article shall be made within three (3) years after
       the time in which the petitioner’s direct appeal is ruled upon by the Supreme
       Court of Mississippi or, in case no appeal is taken, within three (3) years after
       the time for taking an appeal from the judgment of conviction or sentence has
       expired, or in case of a guilty plea, within three (3) years after entry of the
       judgment of conviction. Excepted from this three-year statute of limitations are
       those cases in which the petitioner can demonstrate either:

              (a)(i) That there has been an intervening decision of the
              Supreme Court of either the State of Mississippi or the United
              States which would have actually adversely affected the
              outcome of his conviction or sentence or that he has evidence,
              not reasonably discoverable at the time of trial, which is of such
              nature that it would be practically conclusive that had such been
              introduced at trial it would have caused a different result in the
              conviction or sentence; or




                                               4
              (ii) That, even if the petitioner pled guilty or nolo contendere, or
              confessed or admitted to a crime, there exists biological
              evidence not tested, or, if previously tested, that can be
              subjected to additional DNA testing that would provide a
              reasonable likelihood of more probative results, and that testing
              would demonstrate by reasonable probability that the petitioner
              would not have been convicted or would have received a lesser
              sentence if favorable results had been obtained through such
              forensic DNA testing at the time of the original prosecution.

              (b) Likewise excepted are those cases in which the petitioner
              claims that his sentence has expired or his probation, parole or
              conditional release has been unlawfully revoked. Likewise
              excepted are filings for post-conviction relief in capital cases
              which shall be made within one (1) year after conviction.

Miss. Code Ann. § 99-39-5(2) (Supp. 2014) (emphasis added). Section 99-39-23(6), which

bars successive pleadings, states that “any order dismissing the petitioner’s motion or

otherwise denying relief under this article is a final judgment and shall be conclusive until

reversed. It shall be a bar to a second or successive motion under this article.” Miss. Code

Ann. § 99-39-23(6) (Rev. 2007). Section 99-39-23(6) contains an exception to the

successive-pleadings bar for “those cases in which the petitioner claims that his sentence has

expired or his probation, parole or conditional release has been unlawfully revoked.” Id.

¶9.    Fluker’s first motion for PCR attacked the circuit court’s revocation of his post-release

supervision, a form of conditional release. Fluker’s second motion for PCR also challenged

the revocation decision, although on different grounds. The Court of Appeals held that

Section 99-39-23(6) excepted the second motion for PCR from the successive-pleadings bar,

but that common-law res judicata nonetheless prevented the relitigation of the revocation

issue. Fluker’s claim that the circuit court illegally revoked his post-release supervision and



                                               5
imposed his suspended sentence was a claim of an illegal sentence. In Smith v. State, 149

So. 3d 1027, 1032 (Miss. 2014), this Court held that the common-law doctrine of res judicata

does not apply to post-conviction claims of constitutional dimensions. Rather, res judicata

concerns attendant to a successive motion for PCR are governed by the statutory successive-

pleadings bar. Id. at 1031. Therefore, this issue is properly resolved by applying the statutory

successive pleadings bar, not res judicata.

¶10.   The Court of Appeals’ decision failed to recognize other decisions of the Court of

Appeals holding that a second or subsequent challenge to the same revocation decision is

barred as a successive motion under Section 99-39-23(6). In Gibson v. State, the Court of

Appeals held that a second motion for PCR that reiterated the same challenge to a revocation

decision as a former motion for PCR was statutorily barred as a successive motion. Gibson

v. State, 49 So. 3d 1164, 1166 (Miss. Ct. App. 2010). In Lyons v. State, addressing a second

motion for PCR that challenged the same revocation decision as a former motion, the Court

of Appeals stated:

       [w]e do not find that the exception in section 99-39-23(6) allows an inmate to
       relitigate the issue that was already decided. To the contrary, we have
       previously stated, “[t]he exceptions under Mississippi Code Annotated Section
       99-39-23(6) only allow the filing of a successive writ if the argument
       presented within the writ falls under one of the exceptions and has not been
       previously argued and a decision rendered on the merits by the trial court.”

Lyons, 990 So. 2d 262, 265 (quoting Retherford v. State, 749 So. 2d 269, 273-74 (Miss. Ct.

App. 1999)). We find this reasoning to be sound and hold that Fluker’s second post-

conviction challenge to the same revocation decision that he attacked in his first motion for

PCR was barred as a successive pleading under Section 99-39-23(6).

                                               6
¶11.   We turn to Fluker’s claim that his motion for PCR implicates the fundamental-rights

exception to the procedural bars. Although “errors affecting fundamental constitutional rights

are excepted from the procedural bars of the UPCCRA,” Rowland v. State, 42 So. 3d 503,

506 (Miss. 2010), “merely asserting a constitutional-right violation is insufficient to

overcome the procedural bars.” Means v. State, 43 So. 3d 438, 442 (Miss. 2010). “There

must at least appear to be some basis for the truth of the claim before the [procedural bar]

will be waived.” Means, 43 So. 3d at 442 (quoting Crosby v. State, 16 So. 3d 74, 79 (Miss.

Ct. App. 2009)). As the Court of Appeals correctly held, Fluker’s claim that the circuit court

lacked jurisdiction to revoke his post-release supervision because he was on earned-release

supervision is belied by the record showing he was on post-release supervision on the day

of his arrest. Therefore, Fluker has not made a showing sufficient to implicate the

fundamental-rights exception to the successive-pleadings bar.

¶12.   The Court of Appeals also erred in its analysis of the limitations period applicable to

Fluker’s second motion for PCR. This motion for PCR was filed more than seven years after

the revocation decision. The Court of Appeals correctly found that, because Fluker claimed

that his conditional release had been unlawfully revoked, his motion for PCR was excepted

from the time bar. Fluker, 2014 WL 2723882, at *4 (citing Miss. Code Ann. § 99-39-5(2)).

But the Court of Appeals went on to state that “Section 99-39-5(2) does not allow an

unlimited period of time for Fluker to file for post-conviction collateral relief.” Fluker, 2014

WL 2723882, at *4. The Court of Appeals held that, although Section 99-39-5(2) provides

an exception to the time bar for a claim that conditional release was unlawfully revoked, “[i]t



                                               7
does not provide Fluker an exception to the three-year statute of limitations in Mississippi

Code Annotated section 15-1-49 (Rev. 2012). Otherwise, any prisoner who claims that his

conditional release has been unlawfully revoked has no statute of limitations and can bring

his claims decades after revocation.” Fluker, 2014 WL 2723882, at *4.

¶13.      The Court of Appeals erred by finding that the general, catch-all, three-year statute

of limitations for civil claims applies to a motion for PCR. Mississippi Code Section 15-1-49

states:

          (1) All actions for which no other period of limitation is prescribed shall be
          commenced within three (3) years next after the cause of such action accrued,
          and not after.

          (2) In actions for which no other period of limitation is prescribed and which
          involve latent injury or disease, the cause of action does not accrue until the
          plaintiff has discovered, or by reasonable diligence should have discovered,
          the injury.

          (3) The provisions of subsection (2) of this section shall apply to all pending
          and subsequently filed actions.

Miss. Code Ann. § 15-1-49 (Rev. 2012). Section 15-1-49 states that it applies to “[a]ll actions

for which no other period of limitation is prescribed.” Id. The UPCCRA prescribes a three-

year statute of limitations for motions for PCR. Miss. Code Ann. § 99-39-5(2) (Rev. 2007).

It is true that, because the UPCCRA excepts certain claims from this three-year statute of

limitations, those claims have no statutory limitations period. But the UPCCRA is the

“exclusive and uniform procedure for the collateral review of convictions and sentences.”

Miss. Code Ann. § 99-39-3(1) (Rev. 2007). In enacting the UPCCRA, the Legislature crafted

exceptions to the three-year limitations period for certain claims. Due to the exclusivity of



                                                8
the UPCCRA, these exceptions cannot be defeated by the general, three-year statute of

limitations. To so hold would subvert the Legislature’s enactment of “an exclusive and

uniform procedure for the collateral review of convictions and sentences.” Miss. Code Ann.

§ 99-39-3(1). The Court of Appeals erred by finding that Fluker’s claim was barred by

Section 15-1-49.

                                      CONCLUSION

¶14.   The analytical errors by the Court of Appeals do not require the reversal of its

decision. Fluker’s motion for PCR was barred as a successive pleading and did not implicate

the fundamental-rights exception to the successive-pleadings bar. Due to the exclusivity of

the UPCCRA, Fluker’s motion for PCR was not subject to the general, three-year statute of

limitations. We affirm the judgment of the Court of Appeals and the judgment of the Circuit

Court of Forrest County.

¶15.   AFFIRMED.

    WALLER, C.J., RANDOLPH, P.J., PIERCE AND COLEMAN, JJ., CONCUR.
KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
DICKINSON, P.J., AND KING, J. LAMAR, J., NOT PARTICIPATING.

       KITCHENS, JUSTICE, DISSENTING:

¶16.   I respectfully dissent for two reasons. First, I do not agree that Fluker’s claims before

this Court are barred by either the statutory successive pleadings bar or common law res

judicata. Second, this Court’s approval of the summary dismissal of Fluker’s due process

claim is premature, because the record before us is silent with regard to the question of




                                               9
whether the revocation of Fluker’s conditional release comported with federal and state due

process requirements.

¶17.   At the outset, the majority recognizes that Fluker’s second challenge to the revocation

of his post-release supervision articulated “different grounds” from his prior motion for post-

conviction relief (PCR). Maj. Op. ¶ 9. Yet the majority finds, pursuant to the successive

pleadings bar of Mississippi Code Section 99-39-23(6) (Rev. 2007), that Fluker’s “challenge

to the same revocation decision that he attacked in his first motion for PCR was barred . . .

.” Maj. Op. ¶ 10. Section 99-39-23(6) provides that an order denying a prisoner’s request for

PCR “is a final judgment and shall be conclusive until reversed” and that “[i]t shall be a bar

to a second or successive motion . . . .” Miss. Code Ann. § 99-39-23(6) (Rev. 2007).

Excepted from the successive pleadings bar “are those cases in which the petitioner claims

that his sentence has expired or his probation, parole, or conditional release has been

unlawfully revoked.” Id.

¶18.   The majority disagrees with the analysis of the Court of Appeals for the purpose of

noting that “the common-law doctrine of res judicata1 does not apply to post-conviction

claims of constitutional dimensions. Rather, res judicata concerns attendant to a successive

motion for PCR are governed by the statutory successive-pleadings bar.” Maj. Op. ¶ 9 (citing

Smith v. State, 149 So. 3d 1027, 1031-32 (Miss. 2014)). And the majority holds, based on

decisions from our Court of Appeals, that the exception found in Section 99-39-23(6) does

       1
        The Court of Appeals found that Fluker’s second claim was excepted from the
statutory successive pleadings bar under Section 99-39-23(6), but that it was barred under
the doctrine of common law res judicata. Fluker v. State, 2014 WL 2723882, *3 (Miss. Ct.
App. Jun. 17, 2014).

                                              10
not apply when a prisoner files a second PCR motion alleging the same claim. See Gibson

v. State, 49 So. 3d 1164, 1166 (Miss. Ct. App. 2010) (Successive motions for PCR are

prohibited under Mississippi Code Section 99-39-23(6) where “[b]oth motions contain

identical requests for post-conviction relief.”); Lyons v. State, 990 So. 2d 262, 265 (Miss.

Ct. App. 2008) (“We do not find that the exception in section 99-39-23(6) allows an inmate

to relitigate the issue that was already decided.”); Retherford v. State, 749 So. 2d 269, 273-

74 (Miss. Ct. App. 1999) (“The exceptions under Mississippi Code Annotated Section 99-39-

23(6) only allow the filing of a successive writ if the argument presented within the writ falls

under one of the exceptions and has not been previously argued and a decision rendered on

the merits by the trial court.”).

¶19.   Neither common law res judicata nor the statutory successive pleadings bar applies

here, since Fluker raised two distinct issues in each of his petitions for PCR. In his first, filed

in January 2007, Fluker argued that “the trial court lacked authority to impose the original

sentence because it exceeded the maximum authorized sentence for robbery” and, therefore,

“his post-release supervision was unlawfully revoked.” Fluker v. State, 2 So. 3d 717, 719

(Miss. Ct. App. 2008). The trial court summarily dismissed the motion, and the Court of

Appeals affirmed, holding that Fluker was “misguided in his belief that the time he spent on

post-release supervision should be construed as additional time on his total sentence.” Id. at

719, 720. In the present case, Fluker argues that he was deprived of due process of law. He

claims to have been on Earned-Release Supervision (ERS), not Post-Release Supervision

(PRS), at the time of the revocation. Therefore, Fluker claims that the circuit court lacked



                                                11
jurisdiction to revoke his conditional release pursuant to Mississippi Code Section 47-5-138.2

The Circuit Court of Forrest County summarily dismissed Fluker’s second PCR petition, and

the Court of Appeals affirmed, finding “that res judicata prevents the relitigation of this

issue.” Fluker v. State, 2014 WL 2723882, at *3.

¶20.   The doctrine of res judicata “bars all issues that might have been (or could have been)

raised and decided in the initial suit, plus all issues that were actually decided in the first

cause of action.” Little v. V & G Welding Supply, Inc., 704 So. 2d 1336, 1337 (Miss. 1997)

(citing Estate of Anderson v. Deposit Guaranty Nat’l Bank, 674 So. 2d 1254, 1256 (Miss.

1996)). We have held that four “identities” must be present in order for the doctrine to

operate as a bar against future claims: “(1) identity of the subject matter of the action; (2)

identity of the cause of action; (3) identity of the parties to the cause of action; and (4)

identity of the quality or character of a person against whom the claim is made.” Little, 704

So. 2d at 1338 (citing Dunaway v. W.H. Hopper & Assocs., Inc., 422 So. 2d 741, 751 (Miss.

1982)). Even though Fluker challenged the revocation of his conditional release in both of



       2
              Any inmate, who is released before the expiration of his term of
              sentence under this section, shall be placed under earned-release
              supervision until the expiration of the term of sentence. The
              inmate shall retain inmate status and remain under the
              jurisdiction of the department. The period of earned-release
              supervision shall be conducted in the same manner as a period
              of supervised parole. The department shall develop rules, terms
              and conditions for the earned-release supervision program. The
              commissioner shall designate the appropriate hearing officer
              within the department to conduct revocation hearings for
              inmates violating the conditions of earned-release supervision.

Miss. Code Ann. 47-5-138(6) (Rev. 2011).

                                              12
his petitions for PCR, it is clear that not all identities are present, because Fluker’s claims

regarding the revocation of his conditional release were not identical.

¶21.   In similar fashion, the majority errs today in finding that Fluker’s challenge to the

revocation decision was barred as a successive pleading. Fluker did not collaterally attack

the revocation of his conditional release in the same way in both of his petitions for PCR.

Fluker’s petitions, therefore, cannot be said to have been successive, because the claims

were not identical. See Gibson, 49 So. 3d at 1166; Lyons, 990 So. 2d at 265.

¶22.   I do not agree that either common law res judicata or the statutory successive pleading

bar prevents Fluker from raising his claim of unlawful revocation in his second PCR.

¶23.   I write also to address the majority’s rejection of Fluker’s claim that his petition for

PCR meets the fundamental rights exception to the procedural bars of the UPCCRA. As the

majority recognizes, this Court has held that “errors affecting fundamental constitutional

rights are excepted from the procedural bars of the UPCCRA.” Rowland v. State, 42 So. 3d

503, 506 (Miss. 2010). But “[t]here must at least appear to be some basis for the truth of the

claim before the [procedural bar] will be waived.” Means v. State, 43 So. 3d 438, 442 (Miss.

2010) (quoting Crosby v. State, 16 So. 3d 74, 79 (Miss. Ct. App. 2009)) (emphasis added).3




       3
        The requirement from this Court’s opinion in Means, 43 So. 3d at 442, that the
prisoner present “some basis for the truth of the claim” in order to trigger the application of
the fundamental-rights exception to the procedural bar is informed by opinions of the Court
of Appeals which predate Rowland and Smith. See Rowland, 42 So. 3d at 506; Smith, 149
So. 3d at 1031 (“Because Smith’s second motion for PCR alleges a violation of his
fundamental right not to be convicted while incompetent, we will address the merits of his
argument.”).

                                              13
¶24.    In Means, for instance, conditional release had been revoked by the trial court,

because Means admitted having violated the condition of his release requiring that he remain

100 miles away from the Forrest County Courthouse for the entire twenty-five years of his

suspended sentence. Means, 43 So. 3d at 440, 441. Means claimed on successive PCR that

“the trial court was not authorized to order the banishment without placing him on probation,

that the court was limited to imposing a five-year term of probation, and that his twenty-five-

year banishment, without probation, was thus unenforceable.” Id. at 441. The trial court

summarily dismissed Means’s PCR motion, the Court of Appeals affirmed, and this Court

granted Means’s petition for writ of certiorari. Id. This Court reversed and remanded,

finding that, based on the record before the Court at the time, “we cannot discern whether

the banishment comported with the due-process requirements regarding proper banishments

. . . .” Id. at 447.

¶25.    In the present case, Fluker claims to have been on Earned-Release Supervision (ERS),

not Post-Release Supervision (PRS), at the time of the revocation. Therefore, Fluker claims

that the circuit court lacked jurisdiction to revoke his conditional release pursuant to

Mississippi Code Section 47-5-138, which creates an administrative revocation hearing

procedure “for inmates violating the conditions of earned-release supervision.” He claims

that this deprived him of due process of law. All persons have a fundamental right under both

the United States Constitution and the Mississippi Constitution to due process of law. See

U.S. Const. amend. XIV, § 1; Miss. Const. art. 3, § 14.




                                              14
¶26.   This Court has noted the “minimum due process requirements of parole-revocation

procedure.” Riely v. State, 562 So. 2d 1206, 1210 (Miss. 1990) (citing Morrissey v. Brewer,

408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). The U.S. Supreme Court requires

both a preliminary and final revocation hearing to satisfy the minimum due process

requirements of parole revocation. Riely, 562 So. 2d at 1210 (citing Gagnon v. Scarpelli, 411

U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)). See Presley v. State, 48 So. 3d 526,

529 (Miss. 2010). For the preliminary hearing, the United States Supreme Court requires:

       (1) “that some minimal inquiry [or preliminary hearing] be conducted at or
       reasonably near the place of the alleged . . . violation or arrest and that as
       promptly as convenient after arrest while information is fresh and sources are
       available”; (2) that “the determination that reasonable ground exists for
       revocation . . . should be made by someone not directly involved in the case”
       and that the decision maker “need not be a judicial officer”; (3) that the
       defendant “should be given notice that the hearing will take place and that its
       purpose is to determine whether there is probable cause to believe that he has
       committed a . . . violation”; (4) that “[t]he notice should state what . . .
       violations have been alleged”; (5) that “[a]t the hearing the [defendant] may
       appear and speak in his own behalf [and] he may bring letters, documents, or
       individuals who can give relevant information to the hearing officer”; (6) that
       “[o]n request of the [defendant], persons who have given adverse information
       on which . . . revocation is to be based are to be made available for questioning
       in his presence”; (7) that “the hearing officer shall have the duty of making a
       summary, or digest, of what occurs at the hearing in terms of the responses of
       the [defendant] or evidence given in support of the [defendant’s] position”; (8)
       that “[b]ased on the information before him, the hearing officer should
       determine whether there is probable cause to hold the [defendant] for the final
       decision” regarding revocation; (9) that the decision maker “should state the
       reasons for his determination and indicate the evidence he relied on . . . but it
       should be remembered that this is not a final determination calling for formal
       findings of fact and conclusions of law.

Riely, 562 So. 2d 1206 at 1210 (citing Morrissey, 408 U.S. at 485-87). “The purpose of a

preliminary revocation hearing is to determine that reasonable grounds exist for revocation



                                              15
by someone not directly involved in the case and to determine if probable cause exists to

believe that a violation has been committed.” Presley, 48 So. 3d at 529 (citing Berdin v.

State, 648 So. 2d 73, 76 (Miss. 1994), overruled on other grounds by Smith v. State, 742 So.

2d 1146 (Miss. 1999)). A final revocation hearing, likewise, must provide the following:

       (a) written notice of the claimed violations of [probation or] parole; (b)
       disclosure to the [probationer or] parolee of evidence against him; (c)
       opportunity to be heard in person and to present witnesses and documentary
       evidence; (d) the right to confront and cross-examine adverse witnesses (unless
       the hearing officer specifically finds good cause for not allowing
       confrontation); (e) a “neutral and detached” hearing body such as a traditional
       parole board, members of which need not be judicial officers or lawyers; and
       (f) a written statement by the factfinders as to the evidence relied on and
       reasons for revoking [probation or] parole.

Riely, 562 So. 2d at 1210 (quoting Gagnon, 411 U.S. at 786).

¶27.   In the present case, in Fluker’s second petition for PCR, Fluker argued that “the

revocation proceedings and the resulting twelve (12) years suspended sentence imposed was

in violation of his Due Process Rights . . . .” According to Fluker, “[a]t the time of

Petitioner’s arrest for the unrelated charge on May 4, 2005, and at the time of the revocation

hearing on June 23, 2005, Petitioner was still under the guidelines of the E.R.S. Program and

the jurisdiction of M.D.O.C.” He claims never to have been notified that he was no longer

classified under the Earned-Release Supervision program: “because of this lack of notice, on

May 4, 2005, and June 23, 2005, when Petitioner was arrested and at his Revocation Hearing,

he was still on E.R.S. and under the exclusive jurisdiction of M.D.O.C.” He claims not to

have seen the April 18, 2005, Discharge Certificate which stated that he was discharged to

serve four years of Post-Release Supervision. More than one month later, May 3, 2005, the



                                             16
day before Fluker’s arrest, a field officer presented and obtained Fluker’s signature on a

document entitled “Statement Of Conditions Under Which This Earned Release Supervision

Is Granted.” So Fluker’s confusion may have been warranted.

¶28.   Nevertheless, the record is silent regarding whether Fluker’s revocation hearing (or

hearings) comported with the due process requirements articulated by this Court and the

United States Supreme Court in the context of revocation of conditional release. The trial

court summarily dismissed Fluker’s PCR, finding his due process claims to have been

procedurally barred. The Court of Appeals agreed, and this Court today affirms. But, as in

Means, we cannot discern from the record whether the revocation of Fluker’s conditional

release comported with federal and state due process requirements. See Means, 43 So. 3d at

447.

¶29.   I would remand this case to the Circuit Court of Forrest County for a consideration

of whether Fluker was afforded due process of law in the revocation of his conditional

release.

       DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.




                                            17
