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Harvey v. State5/24/2005
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 05/24/2005
BEFORE KING, C.J., IRVING AND BARNES, JJ.
. 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
. 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," he 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.
. The written sentencing and probation order, however, did not conform with the sentence pronounced in open court as it made no reference to a ten-year sentence:
he recommendation of the 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, . . . .
. 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 revocation 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 sentencing 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.
. At the revocation hearing, 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
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