Norwood v. State

• Decision Date: 27 May 2003
• Docket Number: No. 2000-KA-01027-COA.,2000-KA-01027-COA.
• Citation: Norwood v. State, 846 So.2d 1048 (Miss. App. 2003)
• Parties: Dexter Allen NORWOOD, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

846 So.2d 1048

Dexter Allen NORWOOD, Appellant, v.STATE of Mississippi, Appellee.

No. 2000-KA-01027-COA.

Court of Appeals of Mississippi.

May 27, 2003.

Jim Davis, Moss Point, attorney for appellant.

Office of the Attorney General, by Charles W. Maris Jr., attorney for appellee.

EN BANC.

ON MOTION FOR REHEARING

IRVING, J., for the court.

¶ 1.The motion for rehearing is granted, the original opinion is withdrawn, and this opinion is substituted.

¶ 2.Dexter Allen Norwood pleaded guilty to kidnaping, attempted forcible sexual intercourse, and attempted rape.He was sentenced to twenty-two years for the kidnaping and ten years each for the attempted rape and attempted forcible intercourse, with the ten years for attempted forcible intercourse to run consecutively to the ten years for attempted rape.The two ten-year terms are to be served day for day without hope of parole or probation and are to run concurrently with the twenty-two year sentence for kidnaping.

¶ 3.Feeling aggrieved, Norwood has appealed and assigns error to the trial court for including in its sentencing order language requiring that the ten-year sentences for attempted forcible intercourse and attempted forcible rape be "served day for day without the benefit of parole or probation pursuant to section 47-7-3 of the Mississippi Code of 1972as amended."We find that the included language was surplusage with no legal effect and that Norwood's sentence should be affirmed.

FACTS

¶ 4.Norwood's initial sentencing order provided that Norwood's entire sentence was to be served "under section 99-19-81, Miss.Code of 1972, as amended, said sentence being without hope of parole or probation."This order was entered on March 29, 2000.On April 7, 2000, Norwood filed a motion to correct what he called a scrivener's error.In this first motion, Norwood sought to remove from the initial sentencing order language indicating that he had been sentenced as a habitual offender under Mississippi Code Annotated § 99-19-81(Rev.2000).The trial court, by order entered on April 11, 2000, granted the motion and removed the reference to the stated code section.However, in the corrected order, the trial court retained the language indicating that the sentence was "without hope of parole or probation."

¶ 5.On April 20, 2000, Norwood filed a second motion seeking to correct what he called a scrivener's error in the "corrected order."Specifically, he objected to the inclusion of the "without hope of parole or probation" language, arguing that the determination regarding parole or probation was to be made by the Department of Corrections, not the court.On June 2, 2000, the trial court entered what it called a "3rd Corrected Order"¹ in which it corrected the sentencing order to provide that only the two ten-year sentences for the sex crimes were to be served day for day without the benefit of parole or probation.This order was in contrast to the first corrected order which provided that the entire sentence was ordered served day for day without the hope of parole or probation.It is from this last corrected order that Norwood appeals.

¶ 6.The State, in addition to filing a brief, has filed a motion to dismiss arguing that Norwood is attempting to appeal from a conviction rendered pursuant to a guilty plea.The State argues that this attempt is prohibited by Mississippi Code Annotated § 99-35-101(Rev.2000), which prohibits appeals "in any case where the defendant enters a plea of guilty."

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7.We first consider the State's contention that this appeal should be dismissed as an attempt to appeal from a conviction on a plea of guilty.The State is correct that a defendant cannot appeal from a conviction on a plea of guilty.However, while the conviction itself cannot be appealed, an illegal sentence handed down pursuant to the plea is appealable.Trotter v. State,554 So.2d 313, 315(Miss.1989).Therefore, the question is whether Norwood is attempting to appeal from a guilty plea.Since we do not find that to be the case, the State's motion to dismiss for lack of jurisdiction is not well taken and is hereby overruled.

¶ 8.Before proceeding to the merits of Norwood's argument, we note that Norwood filed his notice of appeal on June 23, 2000.The initial sentencing order was filed on March 29, 2000, and the initial corrected sentencing order was filed on April 11, 2000.The final corrected sentencing order was filed on June 2, 2000.Although the notice of appeal was filed within thirty days of the final corrected order, it was filed more than thirty days after the initial order.As stated, Norwood filed two post-trial motions, but neither of them was sufficient to toll the time for taking an appeal as specified in Rule 4(a) and (e) of Mississippi Rules of Appellate Procedure.As far as we can tell from the record, a motion for extension of time to file an appeal was not filed by Norwood in the court below.²Therefore, we conclude that when Norwood filed his notice of appeal, the time to prosecute a direct appeal from the initial sentencing order had long since expired because, as stated, his post-trial motions did not toll the running of the thirty-day appeal period.¶ 9.Only timely-filed motions for enlargement of time to file an appeal, for a new trial, and for judgment of acquittal notwithstanding the verdict can toll the running of the thirty-day appeal time.M.R.A.P. 4(e)(g).We know of no specific procedure to correct a scrivener's error in the judgment of conviction and sentence in criminal cases.In other words, Rule 60 of Mississippi Rules of Civil Procedure has no counterpart in Mississippi criminal procedure.We have no court-enacted rules of criminal procedure except as are found in the Uniform Rules of Circuit and County Court Practice; no counterpart to Rule 60 reposes in URCCC.However, we view Norwood's motions as motions for post-conviction relief even though neither the trial court nor the parties have characterized them as such.

¶ 10.The concurring opinion acknowledges precedent for converting certain post-trial motions to post-conviction relief motions but contends that this is not a proper case for such treatment.The concurring opinion does not cite any authority for this contention, that is, that in the interest of judicial economy, an appellate court is without authority to treat a trial court's ruling on a post-trial motion as a ruling on a motion for post-conviction relief.In the concurring opinion's view, the case of Bobkoskie v. State,495 So.2d 497(Miss.1986), is persuasive authority for the position that Norwood's post-trial motion should not be recast as a motion for post-conviction relief.While it is true that the Bobkoskie court said that the petition for writ of mandamus to the parole board should have been dismissed without prejudice to the prisoner's bringing a post-conviction relief motion, that was an admonition to the trial court.Id. at 499.What is significant, however, is that the Mississippi Supreme Court in Bobkoskie did just what we are doing here, that is, considered the matter under the Uniform Collateral Post-Conviction Relief Act (PCR Act).Id. at 500-01.

¶ 11.The concurring opinion argues that our treating Norwood's motions in the court below as post-conviction relief motions precludes Norwood from later "receiving the benefit that the post-conviction procedures provide for a one-time and careful consideration of all issues that might provide some relief from a guilty plea."To this assertion, we can only say that Norwood, not the court, chose to file the motion.He must bear the legal consequences.The concurring opinion also points out that a trial court has the authority, prior to the expiration of the term to modify a sentence handed down during the term.We do not disagree with this observation, and nothing in this opinion is intended to suggest that the trial court does not possess this authority.However, we point out that, according to the State of Mississippi Judiciary Directory and Court Calendar of which we take judicial notice, the March 2000 term of court of Harrison County expired on March 31, seven days prior to the filing of Norwood's first motion.

¶ 12.Additionally, the concurring opinion cites a number of pre-Post-Conviction Collateral Relief Actcases for the proposition that a trial court possesses the inherent authority or "power to correct a judgment rendered at a former term of the court."We do not disagree with this position, but the correction cannot be made in a procedural vacuum.Whatever may have been the procedure prior to the enactment of the PCR Act, it seems clear now that a motion for post-conviction relief is the vehicle for addressing errors which are not appropriately covered by a direct appeal.Miss.Code Ann. § 99-39-3(Rev.2000).

¶ 13.Mississippi Uniform Post-Conviction Collateral Relief Act is the legal vehicle for judicial redress of claims by prisoners that "the trial court was without jurisdiction to impose sentence."Miss. Code Ann. § 99-39-5(Rev.2000).Here, Norwood claims that the trial court was without statutory jurisdiction to impose the "day for day without the benefit of parole or probation" provision.Therefore, we find that the trial court possessed the authority to rule on Norwood's motions.

¶ 14.As stated, Norwood's first motion was filed on April 7, 2000.The only relief requested by Norwood in this motion was the elimination of that portion of the order which stated that he was being sentenced as a habitual offender.As stated, the initial sentencing order contained the "day for day without the benefit of parole or probation" provision, but Norwood did not attack this provision.Perhaps, he may have thought that the provision was subsumed in the habitual offender provision and that would be taken care of by getting the habitual offender provision eliminated.If that was Norwood's view of...