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Harvey v. State5/24/2005
ime Harvey violated parole, he was "give 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. When asked by the court whether he had " 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 ten-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. Section 47-7-37 of the Mississippi Code provides that upon violation of the terms of post-release supervision, the court "may . . . revoke all of any part of the . . . suspension of sentence or may cause the sentence imposed to be executed . . . ." Harvey had already served eighteen months of his ten-year sentence; therefore, the maximum term remaining on Harvey's sentence which could be reinstated by the court was eight years and six months. Accordingly, the trial court erred in sentencing Harvey to a full ten years upon the second violation of post-release supervision.
. The Mississippi Supreme Court has long held that courts "'have inherent power to correct clerical errors at any time, and to make the judgment entry correspond with the judgment rendered. This power exists in criminal prosecutions as well as in civil cases.'" See Kitchens v. State, 253 Miss. 734, 737, 179 So. 2d 13, 14 (1965) (quoting Turner v. State, 212 Miss. 590, 55 So. 2d 228 (1951)). We find that the circuit court's correction of Harvey's written sentencing order to reflect the sentence rendered in open court was in accordance with this "inherent power" and did not constitute an improper enhancement of his sentence. We affirm the correction of Harvey's original sentencing order, but reverse in part and revise Harvey's sentence to reflect a remaining term of eight years and six months.
. 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.
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