Harvey v. StateHarvey v. State
¶ 1. Tyrone David Harvey appeals denial of his motion for post-conviction relief, raising one issue before this Court: whether his sentence was unlawfully extended. We affirm in part and reverse and render in part the order of the Circuit Court of Harrison County denying post-conviction relief.
STATEMENT OF FACTS AND PROCEEDINGS IN THE COURT BELOW
¶ 2. Tyrone David Harvey was indicted on May 8, 1997 for the burglary of a dwelling. On October 31, 1997, Harvey entered a guilty plea in the Circuit Court of Harrison County. The transcript of the proceedings reflects that the state recommended Harvey receive ten years, to be suspended for participation in the Regimented Inmate Discipline(RID) program, followed by three years’ probation and a $1,500 fine. However, Judge Robert Walker announced that while he was “going to generally follow the recommendation of the state,” hе was “not going to sentence [Harvey] to RID. I‘m just going to sentence [Harvey] to a term of incarceration. . .” Thereafter, Judge Walker “technically sentence[d Harvey] to ten years,” suspended all but 18 months of that sentence, fined Harvey $1,500 plus court costs, and placed him on three years’ post-release supervision. The proceedings concluded with the following exchange:
Mr. Harvey, I‘m going to technically sentence you to ten years. But I‘m going to suspend all of that time but 18 months. You understand?
THE DEFENDANT: Yes, sir.
¶ 3. The written sentencing and probation order, however, did not conform with the sentence pronounced in open court as
[T]he recommendation of thе State would not be followed and the said Tyrone David Harvey, be and is hereby sentenced to Eighteen (18) Months in the custody of the Mississippi Department of Corrections.... UPON RELEASE from the custody of the Mississippi Department of Corrections the defendant is hereby placed under the supervision of the Mississippi Department of Corrections for a period of THREE (3) YEARS POST RELEASE SUPERVISION 47-7-34 until the court in term, or the Judge on vacation, shall alter, extend, terminate or direct the enforcement of the above sentence,.. . .1
¶ 4. Harvey was given a Certificate of Earned Release Supervision on January 21, 1998, and was released on February 9, 1998. Shortly thereafter, on May 27, 1998, MDOC petitioned for revоcation of Harvey‘s post-release probation on grounds that he failed to report to his probation officer. Harvey was ultimately apprehended, and a revocation hearing was conducted before Judge Walker on November 12, 2002. Judge Walker directed the court reporter to review the original sеntencing conducted in open court and thereafter determined that the court had sentenced Harvey to ten years, suspended all but 18 months, followed by three years’ post-release supervision. The court directed the clerk to prepare a corrected sentencing order.2
¶ 5. At the revocation heаring, Harvey confessed to having failed to report to a probation officer but explained that upon release from MDOC, he had been immediately picked up and held in the Attala County jail for two-and-a-half months on forgery charges and that upon release from Attala County, he had been informed that he had completed his sentence. The circuit court revoked Harvey‘s probation but, giving him “the benefit of the doubt,” did not recommit him but extended his post-release supervision for two years, beginning on the date of the revocation hearing.3 When asked by the court whether he had “[a]ny questions at all,” Harvey responded, “No, sir.”
¶ 6. In April of 2003, a second рetition to revoke Harvey‘s probation was filed. The petition alleged that Harvey had tested positive for the use of marijuana and cocaine and disclosed that Harvey had stopped reporting to his probation officer and had not paid any of his fine or court costs. At the October 6, 2003, revocation
¶ 7. On December 22, 2003, Harvey filed his motion for post-conviction collateral relief claiming that his original sentence had been unlawfully extended in violation of the double jeopardy clauses of the United States and Mississippi Constitutions. Denying Harvey‘s motion, Judge Walker found that “Harvey was well aware he was not simрly sentenced to serve 18 months” and concluded that “[t]he Court never increased the ten year sentence Harvey received on October 31, 1997. It merely ordered that the previously suspended sentence be executed when Harvey elected not to abide by the terms of his probation.”
STANDARD OF REVIEW
¶ 8. In order to resolve the merits оf a motion for post-conviction relief, the trial judge must review the “original motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack.”
ANALYSIS
¶ 9. Harvey‘s sole contention is that his original sentence was unlawfully “extended” or “increased” in violation of his right to be free from double jeopardy. The Fifth Amendment to the United States Constitution states that no person “shall ... be subject for the same offence to be twice put in jeopardy of life or limb. . . .”
“Every court of record has general authority over its own records. The power of such a court to correct its records so as to make them speak thе truth is inherent.“. . . . “Where it clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced upon the facts as established by the record, the court acts upon the presumption that the error is a clerical misprision rather than a judicial blunder and sets the judgment entry right by an amendmеnt nunc pro tunc.”
Fields v. State, 840 So.2d 796, 801(¶ 10) (Miss.Ct.App.2003) (quoting Brown v. Sutton, 158 Miss. 78, 121 So. 835, 837 (1929) and Morrison & Whitlock v. Stewart, 21 Ill.App. 113 (1886), respectively).
¶ 10. In Fields, the defendant‘s two case numbers were accidently transposed
¶ 11. While the circuit court may lose jurisdiction to correct the length of a suspended sentence after the term of that sentence has “expire[d] without the occurrence of conditions justifying revocation of the suspension,” Sisson v. State, 483 So.2d 1338, 1339 (Miss.1986), such are not the facts of the case before us. The October 31, 1997 written sentencing order provided that Harvey was sentenced to 18 months’ incarceration and three years’ post-release supervision. Within seven months, Harvey had violated the terms of his release, and the MDOC had petitioned for revocation of his post-release probatiоn. It was only due to the inability to locate Harvey that the revocation hearing did not take place until 2002, and the error in the written sentencing order was not discovered. See Jackson v. State, 483 So.2d 1353, 1356 (Miss.1986) (filing petition for revocation of probation may toll running of probationary period).4
¶ 12. Harvey relies principally on Leonard v. State, 271 So.2d 445, 447 (Miss. 1973), wherein the Mississippi Supreme Court held that “once a circuit or county court exercises its option to impose a definite sentence it cannot subsequently set that sentence aside and impose a greater sentence.” His reliance is misplaced. Leonard in no way involved a sentence which was improperly recorded and subsequently corrected by the court. Instead, it cоncerned the circuit court‘s intentional attempt to set aside the original sentence and impose a term of imprisonment five times the original term upon revocation of the defendant‘s parole. See Leonard, 271 So.2d at 446. The supreme court, however, held that the statute upon which the lower court relied5 was only available
¶ 13. In the instant case, Harvey never received an enhanced sentence. On October 31, 1997, Judge Walker clearly sentenced Harvey to ten years, and Harvey acknowledged that sentence. The first time Harvey violated parole, he was “give[n] the benefit of the doubt” and a second chance. Judge Walker explained to Harvey that there had been a mistake in the written sentencing order but that Harvey‘s original sentence was, indeed, a ten-year sentence. Judge Walker again sentenced him to serve ten years but suspended all for time served, and placed him on two additional years’ post-release supervision.6 When asked by the court whether he had “[a]ny questions at all,” Harvey responded, “No, sir.” Thus, on two occasions, Harvey was clearly informed in open court that his sentence was for ten years. After being so informed, Harvey proceeded to violate the conditions of his post-release supervision in numerous ways. After Harvey twice violated the terms of his post-release supervision, the trial court finally ordered him to serve the tеn-year sentence on October 6, 2003. Rather than violating the rule laid down in Leonard, the circuit court‘s continued imposition of Harvey‘s ten-year sentence is in conformity with the court‘s ruling therein. However, the trial court‘s order sentencing Harvey to serve ten years upon his second violation of the terms of his post-release supervision did exceed the authority of the court, which was only authorized to reinstate the remainder of Harvey‘s original sentence.
¶ 14. The Mississippi Supreme Court has long held that courts “`have
¶ 15. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. HARVEY‘S SENTENCE IS REVISED TO REFLECT A REMAINING SENTENCE OF EIGHT YEARS AND SIX MONTHS. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS CHANDLER, GRIFFIS AND ISHEE, JJ., CONCUR.