MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 2/14/2017

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1 MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 2/14/2017 KENNEDY v. CLAIBORNE COUNTY, NO CA COA Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Contract - Employment contract - Minutes of Board - Public board - Breach of contract - Property right in continued employment - Denial of motion for partial summary judgment HON. LAMAR PICKARD CLAIBORNE COUNTY CIRCUIT COURT CHUCK R. MCRAE, SETH C. LITTLE, CHRISTOPHER A. BAMBACH SILAS W. MCCHAREN, BARBARA M. BLACKMON, EDWARD BLACKMON JR., PETER J. MCKELROY Presiding Judge Griffis Affirmed. Facts: Analysis: In 2012, Claiborne County, through its Board of Supervisors, took control of the Claiborne County Hospital, acting as the Board of Trustees for the Hospital. The Claiborne County Hospital Board of Trustees held regular meetings to discuss the business of the Hospital. The Board selected Jerry Kennedy as Hospital Administrator. The Board approved Kennedy s salary of $20,000 per month. The Board agreed to give Kennedy a 5 year contract with incentives. In 2013, the Board informed Kennedy he did not have a valid contract because there was never one reflected in the minutes. The Board offered Kennedy a one-year contract and presented the one-year contract for approval. Kennedy responded that his contract was a five-year contract and he did not have a one-year contract. Kennedy refused the one-year contract. Kennedy was terminated as Hospital Administrator. Kennedy filed a complaint in circuit court against Claiborne County, by and through its Board of Supervisors, the Hospital, the Claiborne County Board of Trustees, and John Does The complaint asserted claims for breach of contract, deprivation of civil rights, conspiracy to interfere with civil rights, and specific performance. Kennedy filed a motion for partial summary judgment and claimed that his five-year contract was approved by the Board and sufficiently spread across the minutes. Thus, he argued the contract was valid and enforceable. Claiborne County responded and filed a cross-motion for summary judgment and claimed that the contract was not valid and enforceable, and Kennedy was lawfully terminated. The circuit court denied both motions. After a bench trial, the court found that the minutes were not sufficient to create a valid and enforceable contract for a term of five years between Kennedy and the Board. The circuit court further found that Kennedy failed to prove he was unlawfully terminated and failed to establish Claiborne County violated his constitutional rights. Kennedy appeals. Issue 1: Minutes of Board Kennedy argues that his five-year contract was attached to the minutes and is therefore Page 1 of 16

2 enforceable. A public board speaks and acts only through its minutes. Kennedy relies on the trial testimony of Annie Odom, the Board s secretary. Odom testified that when Kennedy gave her the contract in 2012, she put the contract in a folder with Kennedy s name on it, and put it in her desk drawer. Odom specifically stated the contract was not in the minute book at that time. Odom further testified it was not until March 2013 when she put the contract in the side pocket of the minute book. However, simply placing a contract in a drawer or in the side pocket of the minute book at some later date is insufficient to meet the minutes requirement. Thus, the court s finding that a copy of the contract was not attached to the minutes was not clearly erroneous. Kennedy also argues that even if the contract was not attached to the minutes, the minutes sufficiently evidence a five-year contract of employment. A contract with a public board may be enforced if enough of the terms and conditions of the contract are contained in the minutes for determination of the liabilities and obligations of the contracting parties without the necessity of resorting to other evidence. The minutes show Kennedy was named hospital administrator at a salary of $20,000 per month and $240,000 per year. While the minutes reflect Kennedy was to be given a 5 year contract with incentives, the minutes do not contain enough terms and conditions of the contract to determine the incentives, or other liabilities and obligations such as benefits and termination. The only minutes that reference a five-year contract are the minutes from September 25, 2012, which reflect a 5 year contract with incentives. However, the September 25, 2012 minutes were not adopted by the Board until a meeting held on October 4, Additionally, the contract on which Kennedy relies was dated and entered October 4, Yet the minutes from October 4, 2012, were not introduced at trial and are, therefore, not included in the record. Thus, there is no evidence to show what, if any, action was taken by the Board on October 4, 2012, regarding the contract. Kennedy had a clear and well-established duty to ensure that sufficient terms of his contract with the hospital were spread upon the Board s minutes. Kennedy failed to fulfill this duty. Issue 2: Breach of contract Kennedy s breach-of-contract claim is based on the assumption that a valid and enforceable contract of employment exists. The circuit court determined that the Board could terminate Kennedy s employment with or without cause because Kennedy did not have a valid and enforceable contract stating otherwise. Because there was no valid and enforceable contract between the parties, there was no breach of contract by Claiborne County. Issue 3: Property right Kennedy argues that his termination without cause and without notice constituted a deprivation of a property right in continued employment without due process. Without a valid contract, Kennedy did not have a constitutionally protected property interest in continued employment. Thus, his constitutional rights were not violated when he was terminated. Issue 4: Motion for partial summary judgment Kennedy s argument that the circuit court erred in denying his motion for partial summary judgment is moot. Appeals from the denial of a motion for summary judgment are interlocutory in nature and are rendered moot by a trial on the merits. Page 2 of 16

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4 STASHER v. PERRY, NO CA COA Civil Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Real property - Adverse possession - Existence of fence - Adverse or hostile possession HON. CYNTHIA L. BREWER MADISON COUNTY CHANCERY COURT SANDRA STASHER JAMES M. CREWS III Presiding Judge Griffis Affirmed. Facts: Analysis: In 1983, Fulton Cannon executed a warranty deed to Charles and Sarah Stasher, which conveyed certain real property located in Madison County. The Stashers built a fence shortly after purchasing the property. From 1983 to 1992, Cannon and the Stashers were neighbors. In 1992, following the death of Cannon, Cannon s wife, along with others, conveyed their interest in the Cannon property to John Wilson. Following Wilson s death, the property was devised to Ben Wilson, Stephen Wilson, and Gregory Wilson. In 2005, Stephen Wilson executed a warranty deed, which conveyed to Randy Archie Springer an undivided 83.34% interest in the property. In 2006, Rosa Lee Milton executed a warranty deed, which conveyed to Springer the remaining 16.66% undivided interest in the property. The Springer property adjoins and is immediately east of the Stasher property. The fence built by the Stashers in 1983 was actually constructed east of and parallel to the true west line of the Stasher property. As a result, the fence is located on property formerly owned by Cannon but, through the previously described conveyances, is now owned by Springer. In 2007, Springer filed a complaint for adverse possession and to confirm and quiet title. The Stashers filed an Answer and Counterclaim to Remove Cloud on Title and to Quiet and Confirm Title by Adverse Possession. After a bench trial, the chancery court granted Springer s complaint, denied the Stashers counterclaim, found Springer to be the exclusive owner of the disputed property, and confirmed and quieted title in Springer. The Stashers appeal. The existence of a fence is one of the strongest indications of adverse possession. However, the mere existence of a fence near the actual boundary line does not establish that the fence is the accepted boundary between the parties. The adverse possessor must hold the property without the permission of the true title owner since permission defeats adverse possession. At trial, Charles Stasher admitted the fence was constructed in its location with Cannon s permission. Charles acknowledged that Cannon continued to reside on what later became the Springer property, and that Cannon continued to own what Springer ultimately purchased. Moreover, Charles admitted he did not intend and was not trying to take any more land from Cannon than what was described in the deed. Charles s wife, Sarah, also testified at trial but denied the fence was built with permission. However, Sarah acknowledged that Cannon selected the location of the fence and that Cannon continued to own the land that Springer later purchased. Because the Stashers failed to show their possession or occupancy of the disputed property was adverse or hostile, the chancellor did not err in finding that the Stashers cannot claim adverse possession from The chancellor also found that, by 2003, the fence was no longer in good repair sufficient to put Page 4 of 16

5 the Wilsons on notice of the Stashers claim of ownership. The testimony supports the chancellor s findings. The Stashers claim that in addition to the construction of the fence, they exerted other acts of possession over the disputed property. Specifically, the Stashers assert they ran cattle, planted grass, hunted, and cut timber on the property. However, these acts do not amount to adverse possession. Although the testimony indicates the Stashers ran cows and planted grass on the property until 1998, neither act was continuous and uninterrupted for a period of ten years. Following his purchase of the property in 2005, Springer paid the property taxes. Additionally, Springer posted the property, cut firewood, conducted wildlife management, and planted food plots for deer. Thus, the chancellor did not err in finding Springer s and his predecessors actions were sufficient to establish adverse possession. DISSENT WITHOUT SEPARATE OPINION Presiding Judge Irving Page 5 of 16

6 WRIGHT v. STATE, NO CP COA Criminal Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Post-conviction relief - Ineffective assistance of counsel - Improper extradition - Recusal of judge - Waiver of conflict of interest HON. CHRISTOPHER LOUIS SCHMIDT HARRISON COUNTY CIRCUIT COURT RONALD DAVID WRIGHT (PRO SE) OFFICE OF THE ATTORNEY GENERAL: KAYLYN HAVRILLA MCCLINTON, JASON L. DAVIS Judge Greenlee Affirmed. Facts: Analysis: Ronald Wright pled guilty to sexual battery and was sentenced to twenty-five years, with ten years suspended and fifteen years to serve. He filed a motion for post-conviction relief which the court denied. He appeals. Issue 1: Ineffective assistance of counsel Wright argues that his plea was not knowingly and intelligently made due to his attorney s failure to investigate his case. An attorney s decision not to investigate can be reasonable when a defendant s strategy is to pursue a plea deal rather than defend at trial. Here, Wright and his counsel elected to pursue a plea strategy. Wright has failed to demonstrate how his counsel s alleged failure to investigate was unreasonable or that, but for his attorney s conduct, he would have gone to trial, and the outcome would have been different. Issue 2: Extradition Wright argues that his extradition from Ohio was improper due to the absence of a request from Mississippi s executive that he be extradited. It appears possible from the documents attached to Wright s motion that Mississippi s executive never requested Wright s extradition, and that a governor s warrant was never issued by the executive of Ohio. Regardless, once physically present in Mississippi, Wright was subject to arrest and prosecution for crimes committed within the state. Additionally, Wright waived any challenge to his extradition by entering a guilty plea and raising the issue for the first time on a motion for PCR. Issue 3: Recusal of judge Wright argues that the judge who accepted his guilty plea should have recused himself because he had been an assistant district attorney in Harrison County at the time Wright was indicted, and that the judge demonstrated bias against Wright by imposing a twenty-five-year sentence, with fifteen years to serve, rather than the State s recommended twenty years, with twelve years to serve. Disqualification is required where the judge may have been of counsel. However, conflicts that would normally require disqualification can be waived by the consent of the judge and of the parties. At Wright s plea hearing, the judge informed Page 6 of 16

7 Wright that he had been an assistant district attorney at the time of Wright s indictment, but that he had not worked on Wright s case. He further informed Wright that three different judges were available to preside if Wright preferred. Wright stated that he wished to go forward with the plea. Thus, Wright waived any conflict of interest and moreover has not demonstrated that he was subject to bias from the sentencing judge. Page 7 of 16

8 Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Transfer of controlled substance - Confrontation Clause - Testimonial statement - Ineffective assistance of counsel - M.R.A.P. 22(b) OFFICE OF STATE PUBLIC DEFENDER: GEORGE T. HOLMES Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: BARBARA BYRD, JASON L. DAVIS Author: Holding: SANDERS v. STATE, NO KA COA HON. THOMAS J. GARDNER III LEE COUNTY CIRCUIT COURT Judge Ishee Affirmed. Criminal Facts: Analysis: Marterius Sanders was convicted of one count of transfer of a controlled substance. Sanders was sentenced to eight years as a nonviolent habitual offender. He appeals. Issue 1: Confrontation Clause Testimonial statements of a witness who does not testify at trial are inadmissible unless the witness is unavailable, and the defendant had a prior opportunity for cross-examination. In this case, White met the agent at a designated spot to discuss the transaction and to turn over the crack cocaine acquired as part of the operation. White made a testimonial statement that a man named G sold him the drugs. White s statement, coupled with additional investigation by the agent, identified Sanders as the man who sold White the 1.65 grams of crack cocaine. White s declaration identifying Sanders as the man who sold him drugs is a testimonial statement. When the statement was made, there was no ongoing police emergency. Further, the purpose of the statement was clearly to establish or prove past events potentially relevant to later criminal prosecution. Prior to trial, White was killed, and Sanders never had a previous opportunity to cross-examine him about the statement. Because White s statement was testimonial, and Sanders never had the opportunity to cross-examine White, the circuit court erred when it admitted White s statement in violation of the Confrontation Clause of the Sixth Amendment. However, admission is harmless. The visual footage from the video recording, the still photographs, and the identification by a police officer overwhelmingly establish that Sanders was the man who transferred the crack cocaine to White. Issue 2: Ineffective assistance of counsel Sanders argues that his trial counsel s performance was deficient. Pursuant to M.R.A.P. 22(b), an appellate court will rule on the merits on the rare occasions where the record affirmatively shows ineffectiveness of constitutional dimensions, or the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. Here, the record does not affirmatively indicate that Sanders received ineffective assistance of constitutional dimensions. Nor have the parties stipulated that the record is adequate to allow the Court to make findings without considering a trial judge s findings of fact. Thus, this claim is dismissed without prejudice to Sanders Page 8 of 16

9 ability to raise them in post-conviction proceedings, if he chooses to do so. Page 9 of 16

10 WHITE v. STATE, NO KA COA Criminal Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Gratification of lust & Statutory rape - Authentication of electronic evidence - Social media posts - M.R.E. 404(b) - Other crimes' evidence - M.R.E Prosecutorial misconduct HON. JANNIE M. LEWIS YAZOO COUNTY CIRCUIT COURT RICHARD T. STARRETT OFFICE OF THE ATTORNEY GENERAL: ALICIA MARIE AINSWORTH Judge Ishee Reversed and remanded. Facts: Analysis: Curtis White was convicted of two counts of gratification of lust and one count of statutory rape. White was sentenced to serve eight years for each count of gratification of lust and thirty years for the statutory-rape charge. White appeals. Issue 1: Authentication of electronic evidence White sought to use social-media posts purported to be from one of the victims to establish the defense s theory that the victim was lying and that the alleged events never took place. White sought to introduce the electronic communications and testimony under M.R.E. 404(b). The circuit court refused to allow the defense the opportunity to even attempt to authenticate the evidence. Electronic evidence may be authenticated by the traditional means, and is adequately covered by the current rules of evidence, but the circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium. Because social-media posts are subject to fabrication, something more than the account owner s name and photograph is required to authenticate the posts. Here, the circuit court s ruling was an abuse of discretion. At minimum, the circuit court should have allowed the defense the chance to proffer the authenticity of the evidence with the court, outside the presence of the jury. Because the nature of these types of child-victim cases inherently involves circumstantial, word-of-mouth evidence, evidence supporting the victim s motive to lie is relevant. Issue 2: Other crimes evidence In pretrial hearings and on appeal, the State argued that a nine-year-old, uncharged statutory rape committed by White as part of an extramarital affair was admissible in his trial for the forcible statutory rape in this case. The circuit court denied White s motion in limine and trial objections regarding this evidence. However, it is clear that White s affair is not probative of his plan, motive, intent, or opportunity in regard to the victim in this case. The person with who White had the affair testified that her affair with White was based on a mutual flirtation and that White was never forceful with [her]. Further, at the time of the affair, White was approximately twenty-four years old, while the woman was between fifteen and seventeen years old. In this case, White was accused of being a thirty-three-year-old uncle who repeatedly forcibly raped his eleven-year-old niece for several years. The two Page 10 of 16

11 scenarios are not factually similar. Additionally, the circuit court failed to make a detailed finding on the record explaining its decision to allow such evidence to be heard by the jury. The circuit court did not cite any permitted use under M.R.E. 404(b) in its decision, but merely parroted the generalized and blanketed argument made by the district attorney that the evidence was admissible under such rule. When the trial court admits other bad acts evidence under Rule 404(b), it should make an on-the-record M.R.E. 403 finding that the probative value is not substantially outweighed by the danger of unfair prejudice. Admission of the highly prejudicial and minimally probative nine-year old, uncharged statutory-rape evidence constituted reversible error. As part of the same motion in limine, defense counsel sought to exclude testimony from an adult woman who asserted vague allegations that White made sexual advances on her. As is shown from the record, the circuit court wholly failed to conduct any type of balancing test required under Rule 403 in regard to this testimony. Further, evidence of White making sexual advances on an adult woman is completely devoid of any relevance or probative value to White s charges of illegal sexual conduct with an underage female. For the same reasons, the circuit court abused its discretion in admitting evidence of bad acts that occurred in Humphreys County that were part of a separate indictment in that county. The incidents were two years apart, in two separate counties, and consisted of different sets of facts. Because such evidence is neither necessary to fully tell a story nor integrally related in time, place, or fact, the circuit court erred in admitting such prejudicial evidence. Issue 3: Prosecutorial misconduct Throughout White s trial, the district attorney made numerous prejudicial, inflammatory, and improper comments. While the comments may not be reversible standing alone, the cumulative effect of the otherwise harmless errors warrants reversal. For one, the district attorney expressed her personal belief of the defendant s guilt. The district attorney s blatant projection of guilt onto White, in the presence of the jury, is so inflammatory, unfairly prejudicial, and extremely improper that in this circumstance defense counsel s lack of objection an does not bar the issue from our consideration on appeal. The district attorney later made additional prejudicial comments during her cross-examination of White. An additional error was made during the cross-examination of White when the circuit court admitted irrelevant and inadmissible character evidence. There was also a litany of prejudicial comments by the State in its closing argument. The district attorney and the assistant district attorney repeatedly remarked on the credibility of witnesses and the veracity of their statements at trial. A prosecutor is forbidden from interjecting his personal beliefs regarding the veracity of witnesses during closing argument. In perhaps the most egregious and prejudicial instance of prosecutorial misconduct, the assistant district attorney called White a pedophile three times during her rebuttal closing argument. In addition to the assistant district attorney s distressing comments, the district attorney called White a child molester during her closing argument as well. In a criminal case, the district attorney should be careful not to indulge in personal abuse or vilification of the defendant and should not appeal to passion and prejudice. It is clear that the district attorney s and assistant district attorney s repeated vilification of White during their closing arguments served no other purpose than to inflame the passion and prejudice of the jury against White. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Chief Judge Lee and Judges Barnes and Fair DISSENT Presiding Judge Griffis joined by Presiding Judge Irving and Judge Carlton and in part by Judge Wilson Page 11 of 16

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13 FRIDAY v. STATE, NO KA COA Criminal Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Sexual battery & Fondling - Independent DNA examination - Funding for expert - Tender years' exception - M.R.E. 803(25) HON. GERALD W. CHATHAM SR. DESOTO COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: ERIN ELIZABETH BRIGGS OFFICE OF THE ATTORNEY GENERAL: ABBIE EASON KOONCE Judge Barnes Affirmed. Facts: Analysis: Frank Friday was convicted of three counts of sexual battery and two counts of fondling. He was sentenced to o twenty years with five years suspended for Count III (sexual battery), ten years for Count IV (fondling), ten years for Count V (fondling), twenty years with five suspended for Count VI (sexual battery), and twenty years with five suspended for Count VII, followed by five years of reporting post-release supervision and five years of nonreporting post-release supervision. Friday appeals. Issue 1: Independent DNA examination Friday argues that the trial court deprived him of a fair trial by refusing to grant funding to obtain his own DNA examination and/or expert, who he claims would provide independent verification of the validity of the Mississippi Crime Laboratory s DNA test results. The State must take steps to assure that the indigent defendant has a fair opportunity to present his defense, and a trial court must provide expert assistance to an indigent defendant when denial of such assistance would render the trial fundamentally unfair. A defendant must demonstrate a substantial need in order to justify the trial court expending public funds for an expert to assist the defense. Here, Friday has failed to present any specific reason given why this request would have significantly aided his defense. At trial the defense attorney had the opportunity to cross-examine the State s DNA expert. None of her testimony called into question the accuracy of the DNA test results, practices, or procedures. In addition, there was other strong evidence of guilt as well. Thus, there is no error. Issue 2: Tender years exception Friday argues that the trial court erred in failing to conduct a tender-years hearing under M.R.E. 803(25), thereby allowing inadmissible hearsay testimony from the victims mother and the forensic interviewer, concerning the victims statements of the sexual abuse. To determine whether a young declarant s out-of-court statement is admissible under the tenderyears exception, the court must determine that the declarant is a child of tender years and that the time, content, and circumstances of the statement provide substantial indicia of reliability. Here, one victim was fourteen and one was twelve. Therefore, the tender-years presumption would not apply, and the trial court should have made a finding on the record as to whether the child was of tender years, but did not. However, the error is harmless. There was testimony by both victims at trial concerning the sexual abuse. Moreover, there was no Page 13 of 16

14 objection to the admission of the victim s forensic interview, and there was DNA evidence of Friday s sperm in the victim s vagina. The weight of the evidence of guilt outweighed any harm done by allowing admission of hearsay statements. CONCUR IN RESULT ONLY WITHOUT SEPARATE OPINION Judge Westbrooks Page 14 of 16

15 MEADOWS v. STATE, NO KA COA CONSOLIDATED WITH NO KA COA Criminal Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Manslaughter - Youth court jurisdiction - Section Transfer of jurisdiction HON. DAL WILLIAMSON JONES COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: ERIN ELIZABETH BRIGGS OFFICE OF THE ATTORNEY GENERAL: JOSEPH SCOTT HEMLEBEN Judge Carlton Reversed and remanded. Facts: Analysis: Timothy Meadows and Alex Crews was convicted of manslaughter and each sentenced to twenty years, with fifteen years to serve, five years suspended, and five years on post-release supervision. Crews and Meadows appeal. Crews and Meadows argue that circuit court lacked jurisdiction over their case because the youth court possessed original jurisdiction over this proceeding. The State concedes that the circuit court lacked jurisdiction due to the State s failure to follow the statutory procedure for transferring cases from youth court. Both defendants were seventeen years old at the time of the offense. A youth-court transfer order or transcript from a hearing on the matter does not appear in the record. The statutory youth court transfer procedure is comprehensive and must be followed. As a result, the circuit court lacked trial jurisdiction over this case since there was not a transfer of jurisdiction to the circuit court from the youth court as required by section Therefore, the case is reversed and remanded to the circuit court with instructions to vacate the convictions and sentences of Crews and Meadows and immediately dismiss the proceeding without prejudice and forward all documents pertaining to this cause to the Jones County Youth Court for further proceedings. Page 15 of 16

16 STATE v. WILLARD, NO CA COA Criminal Topics: Trial Judge: Trial Court: Attorney(s) for Appellant: Attorney(s) for Appellee: Author: Holding: Post-conviction relief - Denial of parole - Failure to properly serve Parole Board HON. JANNIE M. LEWIS HUMPHREYS COUNTY CIRCUIT COURT ANTHONY LOUIS SCHMIDT JR., OFFICE OF THE ATTORNEY GENERAL: DARRELL CLAYTON BAUGHN BOYCE WILLARD (PRO SE) Judge Wilson Reversed and rendered. Facts: Analysis: In 1984, Boyce Willard was convicted of murder and sentenced to life imprisonment. Since 1994, the Mississippi Parole Board has repeatedly denied him parole. In 2015, Willard filed a petition for post-conviction relief. Willard s filing was in substance a lawsuit against the Parole Board, not a claim for post-conviction relief. However, Willard never requested a summons or served the Parole Board or anyone else. Without requesting a response from the Parole Board or any other state entity, the circuit court granted Willard s petition and ordered the Parole Board to provide him with a hearing date that complied with section (6). The State appeals. As the State has argued on appeal, this case should be dismissed because Willard failed to properly serve the Parole Board. Thus, the judgment is reversed and rendered as a dismissal without prejudice. Page 16 of 16