Harvey v. State
| Decision Date | 24 May 2005 |
| Docket Number | No. 2004-CP-00627-COA.,2004-CP-00627-COA. |
| Citation | 919 So.2d 282 |
| Parties | Tyrone David HARVEY, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Supreme Court |
v.
STATE of Mississippi, Appellee.
Page 283
Tyrone David Harvey, Appellant, pro se.
Office of the Attorney General by W. Glenn Watts, attorney for appellee.
Before KING, C.J., IRVING and BARNES, JJ.
BARNES, J., for the Court.
¶ 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.
¶ 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," 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.
¶ 3. The written sentencing and probation order, however, did not conform with the sentence pronounced in open court as
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it made no reference to a ten-year sentence:
[T]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,....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 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.2
¶ 5. 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.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 petition 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
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hearing before Judge Walker, Harvey admitted that he had indeed stopped reporting to his probation officer, had not paid any of his fine, and had violated probation by using marijuana and cocaine. Based upon these admissions, Judge Walker revoked Harvey's probation and sentenced him to serve ten years under the supervision of the MDOC.
¶ 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 simply 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."
¶ 8. In order to resolve the merits of 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." Miss.Code Ann. § 99-39-11(1) (Rev.2000). When reviewing the trial court's denial of the motion, the standard of review is clear. The trial court's ruling will not be reversed unless it is clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct. App.2002). If questions of law are raised upon appeal, the standard of review is de novo. McClinton v. State, 799 So.2d 123, 126(¶ 4) (Miss.Ct.App.2001).
¶ 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...." U.S. CONST. amend. V. Similarly, section 21 of the Mississippi Constitution provides that "No person's life of liberty shall be twice placed in jeopardy for the same offense...." Miss. CONST. art. 3, § 21 (1890). While "re-sentencing of a defendant to a greater punishment than he originally received [can] imply double jeopardy" concerns, Ethridge v. State, 800 So.2d 1221, 1224(¶ 11) (Miss.Ct.App.2001), Harvey was not re-sentenced. The written sentencing order, which failed accurately to reflect the trial court's sentence, was later corrected to conform to the proceedings which occurred in open court at the sentencing hearing. The transcript of the proceedings clearly reflects that the trial court...
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