                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 1999-CA-01747-SCT
RAWDY LEE JENSEN a/k/a RAWDY LEE ROOKER
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                    09/22/1999
TRIAL JUDGE:                         HON. THOMAS J. GARDNER III
COURT FROM WHICH                     LEE COUNTY CIRCUIT COURT
APPEALED:
ATTORNEY FOR                         RICHARD DANIEL BOWEN
APPELLANT:
ATTORNEY FOR APPELLEE:               OFFICE OF THE ATTORNEY GENERAL

                                     DEWITT T. ALLRED, III
DISTRICT ATTORNEY:                   JOHN R. YOUNG

NATURE OF THE CASE:                  CIVIL - POST CONVICTION RELIEF
DISPOSITION:                         AFFIRMED IN PART AND REVERSED AND RENDERED IN
                                     PART - 02/22/2001
MOTION FOR REHEARING
FILED:
MANDATE ISSUED:                      3/15/2001



      BEFORE BANKS, P.J., SMITH AND COBB, JJ.

      COBB, JUSTICE, FOR THE COURT:

¶1. On September 23, 1998, Rawdy Lee Jensen pled guilty in the Lee County Circuit Court to possession
within intent to sell, transfer and distribute more than one kilogram of marijuana within 1500 feet of a church
building. The trial judge sentenced Jensen to 20 years in the custody of the Mississippi Department of
Corrections (MDOC) and placed him in the Intensive Supervision Program (ISP), commonly known as
house arrest, pursuant to the provisions of Miss. Code Ann. §§ 47-5-1001 to -1015 (2000).

¶2. Six months later, the correctional field officer in charge of Jensen's supervision determined that Jensen
had violated a condition of house arrest "which required him to be at work when he was not." The officer
testified that Jensen gave him "a reason to take him into custody and transfer him from his home to the
prison."

¶3. The record contains no mention of any administrative proceedings being requested or held as provided
in Miss. Code Ann. § 47-7-1003(3) and in the MDOC standard operating procedure manual. Rather
Jensen petitioned the Lee County Circuit Court for judicial review of the MDOC field officer's decision to
remove him from the ISP, asserting not only that the trial court retained jurisdiction for one year, as stated in
the sentencing order, by authority of Miss. Code Ann. § 47-7-47 (2000), but also asserting violation of his
rights of due process under the Constitutions of the United States and the State of Mississippi.

¶4. The trial court refused to rule on the constitutional challenge and ordered that Jensen serve out the
remainder of his sentence of 20 years as originally ordered. Aggrieved, Jensen has appealed to this Court,
raising the following issues:

      I. THE CIRCUIT COURT ERRED IN REFUSING TO RULE ON THE APPELLANT'S
      CONSTITUTIONAL CHALLENGE TO SECTIONS 47-5-1001 THROUGH 47-5-1015,
      MISSISSIPPI CODE ANNOTATED.

      II. THE CIRCUIT COURT'S REFUSAL TO RULE ON ISSUE NUMBER I IS
      TANTAMOUNT TO A DENIAL, AND THEREFORE, THIS COURT SHOULD ACCEPT
      JURISDICTION AND DECLARE SECTIONS 47-5-1001 THROUGH 47-5-1015
      UNCONSTITUTIONAL.

¶5. Finding that the trial court was without jurisdiction, we reverse that court's reinstatement of Jensen's 20
year sentence. Jensen's remedy was to pursue the MDOC grievance procedure rather than bypassing that
procedure and filing his petition in circuit court. Because this has not been done, we decline to address the
constitutional issues at this time.

                                        STANDARD OF REVIEW

¶6. The decision of whether a circuit court had proper jurisdiction to hear a particular matter is a question
of law and is reviewed de novo. Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1204 (Miss.
1998).

                                                  ANALYSIS

¶7. The principal issue in this case is whether the circuit court properly ruled that under Miss. Code Ann.
§ 47-7-47, it could reserve the exclusive right of judicial review at the time of initial sentencing. Section 47-
7-47 reads in pertinent part:

      (2)(a) Any circuit court or county court may, upon its own motion, acting upon the advice and consent
      of the commissioner at the time of initial sentencing only, not earlier than thirty (30) days nor later than
      one (1) year after the defendant has been delivered to the custody of the department, to which he has
      been sentenced, suspend the further execution of the sentence and place the defendant on earned
      probation....

The circuit court determined that since the initial sentencing order reserved the right of review under § 47-7-
47, that it "ha[d] full right of review and modification of any sentence given in this cause." Apparently
defense counsel, the prosecutor and the judge all failed to note, throughout this entire process, that the ISP
statute had been amended just a few months prior to Jensen's sentencing. The amendment re-wrote § 47-5-
1003, subsection (2) of the ISP statute, which had previously provided for "following the procedure and
time limits established in § 47-7-47(2)". The amendment added subsection (3) which gives "full and
complete jurisdiction" to MDOC relating to ISP violations.
¶8. As a threshold matter, the State contends that because Jensen failed to pursue administrative remedies,
neither the circuit court nor this Court have subject matter jurisdiction over this case. The State relies on this
Court's holding in Babbitt v. State, 755 So.2d 406 (Miss. 2000). There, Babbitt was also a participant in
the ISP program, and was also transferred to prison after allegedly violating one of the ISP rules. Id. at
407. An administrative hearing held after Babbitt's incarceration found him not guilty of the alleged violation,
but the circuit court judge refused to release Babbitt, holding that he still retained jurisdiction over Babbitt's
case under the terms of the order by which he sentenced Babbitt. Id. This Court reversed, noting that the
ISP statute vested jurisdiction over offenders placed in the program with the MDOC, and thus, the circuit
court could not assert jurisdiction contrary to that express language, notwithstanding the circuit court judge's
express retention of jurisdiction after sentencing. Id. at 410.

¶9. As this Court noted in Babbitt, administrative remedies do exist for a prisoner who claims that his
house arrest status was wrongfully revoked. These remedies were more fully discussed by the Court of
Appeals:

      Our holding does not mean that a person dissatisfied with the method of his removal from the house
      arrest program is without remedy. Department of Correction procedures require an internal
      disciplinary hearing before a house arrest participant can be reclassified to the general prison
      population. Further, there are procedures available to all inmates to obtain administrative review of
      complaints relating to the inmate's terms of confinement adopted pursuant to authority of Section 47-
      5-801 of the Mississippi Code. This administrative process provides a right, ultimately, to judicial
      review of the matter to protect the inmate from arbitrary or capricious treatment at the hands of prison
      officials...

Lewis v. State, 761 So.2d 922, 923 (Miss. Ct. App. 2000)(internal citations omitted).

¶10. In response to the State's reliance on Babbitt, Jensen alleges that Babbitt was never returned to the
house arrest program even though the administrative hearing found him not guilty of the alleged violation,
and concludes that MDOC's administrative review of reclassifications is inadequate and is merely a shield
against due process claims brought by inmates improperly removed from the ISP program. Jensen offers no
authority in support of this assertion, and this Court has no information before it on the ultimate disposition
of the Babbitt case after it was remanded for proper administrative review.

¶11. Jensen has not provided this Court any information by which to determine if he even pursued his
administrative remedies, there being no mention of such in either his petition for judicial review filed in the
circuit court or his brief filed with this Court. Only after all administrative remedies have been exhausted will
Jensen be entitled to petition for a judicial review of his case, and only when there is a proper record of
such proceedings can a court undertake a review of the constitutional issues. In the absence of such a
record, we find that the circuit court did not err by refusing to rule on Jensen's constitutional challenge, albeit
its ruling was for the wrong reason. However, we find that the circuit court was without jurisdiction to
reinstate Jensen's 20 year sentence, and we reverse so that Jensen may properly pursue the offender
grievance procedures as contemplated in § 47-5-1003(3) and established by MDOC. For the foregoing
reasons, the judgment of the Lee County Circuit Court is affirmed in part and reversed in part, and
judgment is rendered here regarding reinstatement so that Jensen may pursue the offender grievance
procedures provided by applicable law.

¶12. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.
PITTMAN, C.J., BANKS AND McRAE, P.JJ., SMITH, MILLS,WALLER, DIAZ AND
EASLEY, JJ., CONCUR.
