Court splits 5-4 over Tishomingo probation case

By PATSY R. BRUMFIELD/Daily Journal

JACKSON – A Tishomingo County circuit court case split the Mississippi Supreme Court over whether a man’s revoked supervised probation was right or wrong.
The 5-4 court dismissed a Tishomingo County circuit court appeal by Jay McCalpin.
In 2000, McCalpin pleaded guilty to one count of fondling and two counts of sexual battery on a child under the age of 14. Circuit Judge James L. Roberts Jr. sentenced him to 15 years, with 10 suspended and five years supervision after his release.
Across the years, his supervision was revoked twice, with his suspended sentence reinstated.
McCalpin asked for a circuit court hearing but was denied. He appealed, the Mississippi Court of Appealed affirmed the decision, then he was granted a hearing by four supreme court justices.
Thursday, five justices said McCalpin did not comply with its rules and was late seeking a rehearing.
The majority justices were Ann Lamar, William Waller Jr., Randy Pierce, Michael Randolph and Josiah Coleman.
They said they disagreed with the dissent of their four fellow justices – Leslie King, Jess Dickinson, Jim Kitchens and David Chandler – and declined to suspend the rules to consider the appeal.
They also said probation can be revoked when “it is more likely than not” that it’s been violated, which they said McCalpin did by harassing a teenage girl.
The dissenters agreed McCalpin was “unjustly deprived of his liberty” when his supervision was revoked because the state could not show that he more likely than not violated its terms when he was accused of stalking, which requires repeated harassment.