State v. Dixon
| Decision Date | 01 August 2000 |
| Docket Number | No. COA99-721.,COA99-721. |
| Citation | 533 S.E.2d 297,139 NC App. 332 |
| Parties | STATE of North Carolina v. Jermaine Earl DIXON. |
| Court | North Carolina Court of Appeals |
Attorney General Michael F. Easley, by Assistant Attorney General Daniel S. Johnson, for the State.
Assistant Public Defender Dean P. Loven for defendant-appellant. TIMMONS-GOODSON, Judge.
Jermaine Earl Dixon ("defendant") appeals from the judgment revoking his probation and activating his twenty-one to twenty-six-month prison sentence.
The State presented the following evidence at the revocation hearing. On 1 September 1998, defendant pled guilty pursuant to an Alford plea to one felony count of indecent liberties with a minor. The trial court sentenced defendant to a suspended sentence of twenty-one to twenty-six months in prison and imposed thirty-six months of supervised probation with special conditions, which included in pertinent part:
On 29 December 1998 at 10:00 a.m., in response to an anonymous tip, Officer J.L. Cuddle ("Cuddle") of the Charlotte Mecklenburg Police Department knocked on the door of room 2205 of the Ramada Inn located on Freedom Drive. The victim opened the door. Also present in room 2205 was defendant's brother, Nate Cathcart. When Cuddle asked defendant to show himself, defendant emerged from the bathroom area of room 2205. The victim was fifteen years old at the time.
Cuddle left a message with defendant's probation officer, James Donahue ("Donahue"), regarding a possible violation of the terms of defendant's probation. Donahue met with the victim who told him that she had been with defendant and his brother on 29 December 1998. Based on the 29 December 1998 incident, Donahue submitted a probation violation report dated 6 January 1999 alleging that defendant had violated special conditions 19 and 30(b) of his probation.
Additionally, the victim stated that she had been alone with defendant on 2 January 1999 and had engaged in sexual intercourse with him on that occasion. Donahue submitted an addendum to violation report which was dated 5 February 1999 pertaining to the events of 2 January 1999. In the addendum, Donahue alleged that defendant had violated conditions 30(b) and 30(c) of his probation. Defendant presented no evidence at the revocation hearing.
Following the presentation of evidence and the arguments of counsel, the trial court ruled in open court as follows:
The typed "Judgment and Commitment upon Revocation of Probation," dated 11 February 1999, contained the following finding:
3. The condition(s) violated and the facts of each violation are as set forth ... in paragraph(s) 5, 6 in the Violation Report or Notice dated 02-05-1999.
Defendant gave notice of appeal to the North Carolina Court of Appeals in open court on 11 February 1999 and the record on appeal was filed on 14 June 1999.
On 2 August 1999, the State filed a motion for a correction of judgment in the Superior Court, Mecklenburg County, alleging that the recorded judgment contained a clerical error. According to the State, the trial court's "Finding 3" in the typed judgment was inconsistent with the ruling of the trial court in open court, in that the typed judgment referred to the allegations of the 5 February 1999 addendum report. In contrast, in open court, the trial court purported to validate the allegations of the 6 January 1999 report.
Defendant petitioned the North Carolina Court of Appeals for a Writ of Prohibition to prevent the trial court from holding a hearing on the State's motion for correction of judgment. Defendant's petition was denied.
Following a telephone hearing involving Judge Noble, appellate counsel for the State, defendant, and an assistant district attorney, the trial court entered an order on the State's motion for correction of judgment dated 4 August 1999. The order stated in pertinent part:
The trial court granted the State's motion for correction of judgment, ordering that the judgment and commitment be corrected and amended to delete the existing "Finding 3" and to insert the following new "Finding 3": "The condition violated and the facts of the violation are as set forth in paragraph 5 in the Violation Report or Notice dated January 6, 1999."
The State moved in this Court to amend the record on appeal to add the trial court's order. Defendant filed a motion to deny the State's motion to amend the record on appeal and in the alternative to amend the record to include additional assignments of error. This Court granted the State's motion to amend the record on appeal, denied defendant's motion to prevent amendment to the record, and granted defendant's motion to add an additional assignment of error. Defendant's appeal is now ripe for disposition.
The issues on appeal are whether the trial court erred by: (I) amending and correcting its judgment and commitment upon revocation of probation based on the State's motion for correction made after the record on appeal was filed; (II) admitting unreliable hearsay evidence and concluding the defendant violated his probation based on that evidence; (III) denying defendant's continuance request; and (IV) determining that defendant willfully violated his probation.
(I)
While defendant concedes that the 11 February 1999 recorded judgment did not reflect the judgment rendered by the trial court in open court, defendant argues that the trial court lacked jurisdiction to correct its judgment after defendant had given notice of appeal and the record on appeal had been filed with this Court. We agree.
As a general rule, the trial court is divested of jurisdiction when a party gives notice of appeal, and pending the appeal, the trial judge is functus officio. State v. Davis, 123 N.C.App. 240, 242, 472 S.E.2d 392, 393 (1996)
. However, "the trial court retains jurisdiction [over] matters ancillary to the appeal, including settling the record on appeal." Id. (citing inter alia N.C. Gen.Stat. § 15A-1448(a)(3); N.C. Gen.Stat. § 1453; N.C.R.App. P. 11). Furthermore, "[i]t is universally recognized that a court of record has the inherent power and duty to make its records speak the truth[,] ... to amend its records, correct the mistakes of its clerk or other officers of the court, or to supply defects or omissions in the record[.]" State v. Old, 271 N.C. 341, 343, 156 S.E.2d 756, 757-58 (1967) (citations omitted).
It is the duty of every court to supply the omissions of its officers in recording its proceedings and to see that its record truly sets forth its action in each and every instance; and this it must do upon the application of any person interested, and without regard to its effect upon the rights of parties, or of third persons; and neither is it open to any other tribunal to call in question the propriety of its action or the verity of its records, as made.
State v. Cannon, 244 N.C. 399, 403, 94 S.E.2d 339, 342 (1956) (quoting Walton v. Pearson, 85 N.C. 34, 48 (1881)). It follows that corrections of the official minutes from the superior court must be made in the superior court. State v. Accor and State v. Moore, 276 N.C. 567, 570, 173 S.E.2d 775, 778 (1970).
No lapse of time will divest the trial court of the power to make its record speak the truth, State v. Cannon, 244 N.C. at 403, 94 S.E.2d at 342, and it may amend its record for this purpose either in or out of term, State v. McKinnon, 35 N.C.App. 741, 743, 242 S.E.2d 545, 547 (1978). When a court amends its records to accurately reflect the proceedings, the amended record "stands as if it had never been defective, or as if the entry had been made at the proper time." State v. Warren, 95 N.C. 674, 676 (1886). In other words, the amended order is a nunc pro tunc entry.
However, once the case has been docketed in the appellate court, the appellate court acquires jurisdiction over the record. Lawing v. Lawing, 81 N.C.App. 159, 171, 344 S.E.2d 100, 109 (1986)...
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State v. Pennell
...been filed with this Court and whether the trial court erred by denying the defendant's request to continue, State v. Dixon, 139 N.C.App. 332, 337, 533 S.E.2d 297, 301 (2000); whether jurisdiction lay in superior court or Court of Appeals, whether the defendant should have received credit f......
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In re J.L.B.M., COA05-500.
...filed with an appellate court, the trial court is divested of jurisdiction to correct a clerical error. See State v. Dixon, 139 N.C.App. 332, 337, 533 S.E.2d 297, 301 (2000). Accordingly, we remand to the trial court with instructions to correct the clerical error on the commitment The juve......
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...court is required to amend its records to correct technical errors, and may do so either in or out of term. See State v. Dixon, 139 N.C.App. 332, 338, 533 S.E.2d 297, 302 (2000); State v. McKinnon, 35 N.C.App. 741, 743, 242 S.E.2d 545, 547 (1978). "When a court amends its records to accurat......
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State v. Coronel
...number four in both 1 November 1999 orders, thus allowing the record to speak the truth. See N.C.R.App. P. 9(b)(4); State v. Dixon, 139 N.C.App. 332, 533 S.E.2d 297 (2000). In sum, we affirm the 1 November 1999 orders but remand the case in part for the limited purpose of correcting finding......