State v. Davis
| Decision Date | 16 July 1996 |
| Docket Number | No. COA95-1056,COA95-1056 |
| Citation | 472 S.E.2d 392,123 N.C.App. 240 |
| Parties | STATE of North Carolina v. Curtis Lee DAVIS. |
| Court | North Carolina Court of Appeals |
Attorney General Michael F. Easley by Associate Attorney General Teresa L. Harris, for the State.
John D. Bryson, High Point, for defendant-appellant.
Defendant was indicted for felonious breaking or entering, felonious larceny and felonious possession of property stolen pursuant to the breaking or entering. By a separate indictment pursuant to G.S. § 14-7.3, he was charged with having committed the foregoing offenses while being an habitual felon. A jury returned verdicts finding defendant guilty of felonious breaking or entering, felonious larceny and felonious possession of property stolen pursuant to a breaking or entering. Defendant then admitted his status as an habitual felon. The record reflects the entry of a written order providing, in pertinent part, as follows:
Motion is made by the State to Arrest Judgment as to Felonious Breaking and Entering, Larceny, and Possession of Stolen Goods due to double jeopardy, being the defendant pled Guilty to being a Habitual Felon. Motion is allowed.
It is therefore ORDERED by the Court to Arrest Judgment as to Felonious Breaking and Entering, Larceny, and Possession of Stolen Goods and the Court in its discretion will sentence the defendant on the Habitual Felon charge.
The trial court then entered a judgment and commitment sentencing defendant to a twenty-five year term of imprisonment as an habitual felon. Defendant gave notice of appeal.
Defendant served the proposed record on appeal upon the State, containing a single assignment of error that the trial court had committed error by sentencing defendant as an habitual felon after arresting judgment as to the underlying felonies. The State objected to the inclusion of the above quoted portion of the trial court's order arresting judgment in the record on appeal. The trial court conducted a hearing to settle the record on appeal and found that the order arresting judgment and the judgment and commitment "do not accurately reflect the Court's judgment as delivered in open Court on 21 February 1995." The trial court entered an amended judgment, providing in pertinent part, as follows:
The Jury returns into open court with its verdict and finds the defendant Guilty of Felonious Breaking and Entering, Larceny, and Possession of Stolen Goods.
Motion is made by the State to Arrest Judgment as to Possession of Stolen Goods. Motion is allowed.
IT IS THEREFORE ORDERED by the Court to Arrest Judgment as to Possession of Stolen Goods.
The trial court entered an amended judgment and commitment in cases 94 CRS 9213 and 94 CRS 20109 sentencing defendant to a twenty-five year term of imprisonment for felonious breaking or entering and felonious larceny while being an habitual felon. The amended judgment and amended judgment and commitment were ordered to be made a part of the record on appeal.
The record on appeal was filed and docketed in this Court on 20 September 1995. Thereafter, defendant moved to amend the record to assert a second assignment of error and his motion was allowed.
Initially, we consider defendant's second assignment of error, by which he asserts the trial court had no jurisdiction, while the case was on appeal, to amend the original order arresting judgment or to amend the judgment and commitment from which he appealed. The assignment of error has merit.
The general rule is that the jurisdiction of the trial court is divested when notice of appeal is given, except that the trial court retains jurisdiction for matters ancillary to the appeal, including settling the record on appeal. N.C. Gen.Stat. § 15A-1448(a)(3); N.C. Gen.Stat. § 15A-1453; N.C.R.App. P. 11; Bowen v. Hodge Motor Co., 292 N.C. 633, 234 S.E.2d 748 (1977); Lawing v. Lawing, 81 N.C.App. 159, 344 S.E.2d 100 (1986). In addition, a court of record has the inherent power to make its records speak the truth and, to that end, to amend its records to correct clerical mistakes or supply defects or omissions therein. State v. Cannon, 244 N.C. 399, 94 S.E.2d 339 (1956). 19 Strong's N.C. Index 4th Judgments § 92 (1989). In doing so, however the court is only authorized to make the record correspond to the actual facts and cannot, under the guise of an amendment of its records, correct a judicial error or incorporate anything in the minutes except a recital of what actually occurred.
Cannon, 244 N.C. at 404, 94 S.E.2d at 342.
Our review of the trial transcript in this case reveals no motion by the State to arrest judgment as to the charge of possession of stolen property, and no indication that the court did so ex mero motu. Indeed, the judgment of the court, as rendered in open court, indicates that the court did not arrest judgment as to any of the three felonies for which defendant was convicted by the jury. After the court accepted the jury's verdicts, defendant admitted the existence of prior convictions necessary to establish his status as an habitual felon. The trial court then entered judgment as follows:
Stand up, please, Mr. Davis.
In this case, the Court would find that, in addition to these three convictions which comprise the habitual felon charge, you have also other convictions that would be aggravating factors outweighing any mitigating factors. And it's the judgment of the Court you should be confined to the Department of Correction for a period of 25 years.
Thus, we must conclude that the amended judgments do not accurately reflect the actual proceedings and, therefore, were not a proper exercise of the court's inherent power to make its records correspond to the actual facts and "speak the truth." To the contrary, it appears that the amended judgments impermissibly corrected a judicial error. Though the original judgment clearly does not reflect the intentions of the trial court, the court was without jurisdiction to amend the judgments in the course of settling the record on appeal; accordingly, they must be vacated.
Because the amended judgments must be vacated, the trial court's original order arresting judgment remains in effect, and we must...
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