Opinion
No. 2000-KA-01027-COA.
November 27, 2001. Rehearing Filed December 21, 2001.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. ROBERT H. WALKER, DATE OF TRIAL COURT JUDGMENT: 03/27/2000.
DISPOSITION: AFFIRMED WITH MODIFICATION
ATTORNEY FOR APPELLANT: JIM DAVIS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS JR.
DISTRICT ATTORNEY: CONO A. CARANNA II
BEFORE KING, P.J., BRIDGES, AND IRVING, JJ.
¶ 1. 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.
¶ 2. 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 1972 as amended." We find that the included language was surplusage with no legal effect and that Norwood's sentence should be affirmed but that the restrictive language should be stricken.
FACTS
¶ 3. 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."
¶ 4. 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" 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.
Although the order was entitled "3rd Corrected Order," our examination of the record indicates that it was the third order but only the second corrected order.
¶ 5. 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
¶ 6. 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.
¶ 7. 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. Therefore, 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.
As stated, by his various motions, Norwood sought to correct a scrivener's error in the order entered on March 29, 2000. However, in the criminal context, there is no counterpart to Rule 60 of Mississippi Rules of Civil Procedure which allows correction of clerical mistakes at any time prior to transmission of the record to the appellate court.
¶ 8. 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.
¶ 9. The dissent 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 dissent 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 dissent'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 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.
¶ 10. The dissent 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 dissent 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.
¶ 11. The dissent also cites a number of pre-Post-Conviction Collateral Relief Act cases 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." 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).
¶ 12. 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.
¶ 13. 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 things, then there was no need to file an additional motion. In any event, a corrected order was entered on April 11, 2000. In this corrected order, as stated, the portion of the initial sentencing order defining Norwood's status as a habitual offender was stricken, but the portion defining the sentence as being without parole or probation was left in. Norwood did not appeal from this order. Instead, he filed a second motion on April 19, 2000.
¶ 14. As we have already pointed out, in this second motion, Norwood attacked the trial court's authority to include the "without hope of parole or probation" provision in the sentencing order. We conclude that the second motion was a successive PCR motion barred by the provisions of Mississippi Code Annotated § 99-39-23 (Rev. 2000). However, when fundamental rights are at stake, the procedural bar may be waived. Ivy v. State, 731 So.2d 601, 603 (¶ 13) (Miss. 1999). We conclude that the allegation that the trial court exceeded its authority in the sentencing process implicates a fundamental right. Therefore, we will address Norwood's contention that the trial court was without authority to include the "without hope of parole or probation" provision in the sentencing order.
¶ 15. We agree with Norwood that the trial court should not have included the restrictive language in the sentencing order since the grant or denial of parole for the offenses to which Norwood pleaded is governed by statute to be administered by the parole board. Miss. Code Ann. § 47-7-3 (1) (b) (Rev. 2000). While we find that it was improper for the trial court to include the restrictive language in Norwood's sentencing order, we also find that the language was surplusage because Mississippi Code Annotated § 47-7-3 (1) (b) (Rev. 2000) prohibits parole for anyone, over nineteen years of age, convicted of a sex crime. Based on our review of the record, Norwood was more than nineteen years old at the time he committed the offenses. Nevertheless, based on the suggestion of our supreme court in Temple v. State, 671 So.2d 58, 59 (Miss. 1996), we strike as surplusage the provision, "without hope of parole or probation," from Norwood's sentence.
¶ 16. In Temple, the appellant pleaded guilty to robbery. The written sentencing order sentenced him to fifteen years in the Mississippi Department of Corrections. "At the plea hearing, the judge stated, in addition to the 15-year sentence set out in the written order, that it would be the order of the court that Temple not be paroled inside the state of Mississippi or any other state where the victim was residing." Id. at 58. After he was sentenced, Temple filed a post-conviction relief motion to correct the sentence; the motion was denied. On appeal, our Supreme Court said:
It is not necessary to address the propriety of the banishment conditions imposed on Temple. These conditions are unenforceable because they are not contained in the written judgment entered with the clerk, and if they were part of the judgment, this Court would be inclined to strike such conditions.
* * * *
The admonition to the parole board regarding banishment is at best advice to the board and is at worst surplusage in regards to the sentence.
Id. at 59. (emphasis added).
¶ 17. The dissent recognizes that the trial judge, by including the restrictive language, cannot tie the hands of the parole board. Nevertheless, the dissent says it was proper for the trial judge to include the questioned language because inclusion of the language did not make the sentence illegal. We do not hold or suggest that inclusion of the restrictive language in the second corrected order made the sentence illegal, just that it was not the province of the trial court to address the propriety of parole in the sentencing order. However, the inclusion and specific placement of the restrictive language in the initial order and in the first corrected order refutes any contention that the trial court had the authority to enter such an order. In the initial order and in the first corrected order, by the placement of the restrictive language, the trial judge ordered the sentence for kidnaping served without the benefit of probation or parole. One convicted of kidnaping is not precluded from being paroled.
¶ 18. In striking the restrictive language, however, we do not hold or intimate that Norwood is entitled to parole for the sex offenses. He certainly is not. All we hold is that the matter of his parole is governed by statute to be administered by the parole board in accordance with the dictates of the statute. Accordingly, we reverse and render only that portion of the sentencing order which provides that the sentence is to be served "without hope of parole or probation."
¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF ATTEMPTED RAPE IN CAUSE NO. B1-98-1012 AND SENTENCE OF TEN YEARS; COUNT II, CAUSE NO. B1-99-295, KIDNAPING, AND SENTENCE OF TWENTY-TWO YEARS; COUNT III, ATTEMPTED FORCIBLE SEXUAL INTERCOURSE AND SENTENCE OF TEN YEARS IS AFFIRMED WITH SENTENCE FOR ATTEMPTED RAPE TO RUN CONSECUTIVELY TO SENTENCE IN COUNT III; THESE SENTENCES SHALL RUN CONCURRENTLY WITH SENTENCE IN COUNT II FOR A TOTAL OF TWENTY-TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. THE PROVISION REQUIRING THE SENTENCE TO BE SERVED WITHOUT HOPE OF PAROLE OR PROBATION IS STRICKEN AS SURPLUSAGE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY. KING, P.J., BRIDGES, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
SOUTHWICK, P.J., DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J., THOMAS AND LEE, JJ.
¶ 20. The majority finds that the defendant after his guilty plea was given a sentence whose terms included surplusage. Successive motions to correct the sentence were not totally successful. While the motions were being considered, the time for taking an appeal expired. The majority converts the motions into requests for post-conviction relief, finds that the appeal from the denial of such relief was timely brought, and orders the removal of the surplusage.
¶ 21. With great respect for the opinion of my brethren, the motions filed immediately after the guilty plea that were seeking a correction of the sentence should not be shifted into the regime for post-conviction relief. Norwood was just trying to get his sentence phrased correctly. Though there are precedents in which certain motions have been converted into post-conviction relief motions, I believe it is inappropriate to do so here. This effectively blocks Norwood from later utilizing post-conviction procedures for a one-time consideration of all issues that might be appropriate to raise. Such an inadvertent waiver of post-conviction rights should not lightly be exacted.
¶ 22. Secondly, I find that most of the language in the sentence should not be stricken anyway.
¶ 23. I would dismiss the appeal for its failure to be brought in a timely fashion.
1. Procedure for considering motions to correct sentence
¶ 24. Norwood was sentenced on March 29, 2000. On April 7 he filed a motion to correct, which was granted in part on April 11. Norwood filed his second motion on April 20, which again was granted in part on June 2. Both motions were attempting to remove references to the unavailability of parole or probation. The notice of appeal was then filed on June 23, 2000.
¶ 25. We must analyze this appeal in light of various precedents that have permitted trial judges to correct sentences that as originally pronounced were beyond the court's authority. For example, when it was discovered that a statute permitting a harsher sentence for sale of marijuana was not yet in effect at the time that the defendant committed his offense, the supreme court held that the trial judge had the authority to correct it:
When sentences are imposed in excess of statutory authority, such sentences should be corrected by the trial courts on motion to correct sentence which may be filed and heard in term time or in vacation.
King v. State, 304 So.2d 650, 651 (Miss. 1974). In that case, the Supreme Court encouraged trial courts to make the corrections when brought to their attention and not require "the expense and delay occasioned by an appeal to this Court." Id.
¶ 26. Just as pointedly, the Court held that the "`power to correct a judgment rendered at a former term of the court, so as to strike out the judgment erroneously entered by mistake of the clerk and substitute for it the wholly different judgment actually entered by the court, is a power inherent in every court, and is not derived from statute.'" Bynum v. State, 222 Miss. 632, 640, 76 So.2d 821, 825 (1955), quoting Wilson v. Town of Handsboro, 99 Miss. 252, 54 So. 845, 847 (1911). A more recent decision held that "undoubtedly there are circumstances wherein a court does retain the authority to correct clerical errors in its orders. . . ." Sisson v. State, 483 So.2d 1338, 1339 (Miss. 1986). In addition, a trial "court does have inherent power to correct judgments obtained through fraud, accident or mistake, which is reviewable though a writ of error coram nobis." Harrigill v. State, 403 So.2d 867, 869 (Miss. 1981).
¶ 27. What these cases hold is that there is inherent authority for a trial judge to correct both clerical and more significant errors that appear in a criminal judgment. The only case that named a specific procedure that should be followed was Harrigill, which stated the writ of error coram nobis was appropriate. If Harrigill canvassed the authorities and properly identified the sole procedure, then it is quite relevant that the later-adopted post-conviction relief statutes explicitly displaced the writ of habeas corpus and the writ of error coram nobis. Miss. Code Ann. § 99-39-3 (1) (Rev. 2000). Those writs were abolished and the "relief formerly accorded by such writs may be obtained by an appropriate motion under" the post-conviction relief statutes. Id. The statutes were enacted in 1984 and prior caselaw on altering sentences is suspect. 1984 Miss. Laws ch. 378.
¶ 28. Consistent with the interpretation that a trial court's inherent authority in this area is now explicitly channeled through the post-conviction relief statutes are the numerous precedents that have condemned the practice of trial courts' modifying sentences months if not years after they were entered. Quite firmly, the Court has held that there is no inherent power to alter or amend a sentence. Mississippi Commission on Judicial Performance v. Russell, 691 So.2d 929, 944 (Miss. 1997). The practice being criticized in that and related cases is for a judge months after a valid sentence has been entered to reduce and even suspend that sentence. Russell, 691 So.2d at 932; Mississippi Commission on Judicial Performance v. Sanders, 708 So.2d 866, 872 (Miss. 1998); Harrigill, 403 So.2d at 868-69.
¶ 29. In none of those cases do I find that the original sentence was illegal. Instead, the trial court was acting as a quasi-parole board to determine whether a reduction was justified. Still, the Supreme Court has held that once the term of court expires in which the original sentence was entered, the authority to alter the sentence is extinguished. Kennedy v. State, 732 So.2d 184, 186 (Miss. 1999). What is crucial is that a motion to correct a sentence be filed prior to the end of the court term; it can then be ruled upon in due course even if the term has expired. Miss. Code Ann. § 11-1-16 (Rev. 1991); Presley v. State, 792 So.2d 950, 954 (Miss. 2001).
¶ 30. There are a few contrary indications in the caselaw. The Court has occasionally emphasized that there is no right to modify a sentence when the sentence is a lawful one, suggesting there may be authority when the sentence is unlawful. Mitchell v. State, 561 So.2d 1037, 1039 (Miss. 1990). In Mitchell, the State and trial judge erroneously believed that the original sentence had been illegal. The trial judge had stated at the original sentencing hearing that the defendant would be barred from receiving parole, but the actual sentencing order did not contain that limitation. Therefore, though that limitation would have been illegal, it was not in the sentence. Mitchell, 561 So.2d at 1038-39.
¶ 31. Another contrary indication is that the post-conviction relief statutes likely are unnecessary to attack an illegal sentence. Correction of an improper sentence is a fundamental right and cannot be restricted by the successive motion or statute of limitation rules of the post-conviction relief statutes. Sneed v. State, 722 So.2d 1255, 1257 (Miss. 1998). If such a claim is allowed to proceed regardless of specific prohibitions in the post-conviction statutes, then arguably the prisoner's right to bring a claim is independent of whatever might be said statutorily about procedure.
¶ 32. Nonetheless, the most reasonable interpretation of the precedents is that once all motions have been resolved that were filed in the term of court in which sentencing occurred, the proper means to complain of sentencing error is through the post-conviction relief statutes. The exact procedural mechanism during the term of court is not altogether clear. There are precedents that hold that the right for a defendant to file a motion for new trial within ten days does not include filing a motion for reconsideration of a sentence. URCCC 10.05 (criminal defendant has 10 days to file for a new trial); Dickerson v. State, 731 So.2d 1082, 1085 (Miss. 1998) (Rule 10.05 inapplicable for resentencing), denied on other grounds in Presley, 792 So.2d at 953. Whatever the procedure, the cited precedents reveal that trial judges have the authority to modify during the court term.
¶ 33. Now I look at the application of these principles to what Norwood attempted to do. Harrison County has monthly terms of court. Mississippi Secretary of State, Judiciary Directory Court calendar 27 (2001). It appears that the first motion filed, which was on April 7 after Norwood's sentencing on March 29, was seeking relief from a sentence after the term ended. Regardless, his last motion on June 2 certainly was beyond the term of court.
¶ 34. The majority takes this defect and corrects it by fitting Norwood's motions within post-conviction relief procedures. The filings did not have the form of motions under those statutes. For example, the April 19 motion contains four paragraphs. They described the previous motions and orders on sentencing, explained why counsel believed that is for the Department of Corrections to determine parole and probation eligibility, and requested that the language be removed. Had this been a motion under the post-conviction relief statutes, various assertions needed to be made about facts within and outside Norwood's knowledge, and Norwood himself was to verify the motion under oath. Miss. Code Ann. § 99-39-9 (Rev. 2000). That form and verification are absent.
¶ 35. Through the post-conviction relief motion, prisoners have a "procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal." Miss. Code Ann. § 99-39-3 (2) (Rev. 2000). What Norwood instead was attempting was to correct something that had occurred at trial and which was properly reviewable on appeal. The illegality of a sentence is appealable despite a guilty plea. Berry v. State, 722 So.2d 706, 707 (Miss. 1998).
¶ 36. When a motion with a different title has been transformed into a post-conviction relief motion, it has usually been obvious that the prisoner was actually seeking such relief but was avoiding or was ignorant of the proper designation. Williams v. Castilla, 585 So.2d 761, 763 (Miss. 1991) (habeas corpus); Grubb v. State, 584 So.2d 786, 788 (Miss. 1991) (sought to escape successive writ bar by using label "habeas corpus"); Moore v. Ruth, 556 So.2d 1059, 1061 (Miss. 1990) (habeas corpus). In an earlier precedent, however, the court held that a petition requesting a writ of mandamus to the Parole Board should have been dismissed without prejudice to the prisoner's bringing a post-conviction relief motion. Bobkoskie v. State, 495 So.2d 497, 499 (Miss. 1986). The Supreme Court did nonetheless address whether the appeal, if considered as an appeal from denial of post-conviction relief, had any merit. It found that it did not. Id.
¶ 37. When courts reconfigure proceedings it is in order to further a sufficient interest such as judicial efficiency without sacrificing any rights of the parties:
With regard to their claim of ineffective assistance of counsel and, as well, their specific claim that they were denied their right of allocution before the Circuit Court, the Jaco brothers asked in the alternative that their papers be treated as an application for post-conviction relief. Common sense, judicial efficiency and long-standing precedent suggest we ought allow such a process.
Jaco v. State, 574 So.2d 625, 635 (Miss. 1990).
¶ 38. I find no reason to recast the motions here into post-conviction relief papers. To do so prejudices Norwood should he later wish a broader consideration of the issues that arose from his plea. The majority states that no authority is stated for the proposition and that Norwood made the choice. Actually, Bobkoskie is such authority. So is Jaco, in which the Supreme Court said the court's power to convert one proceeding into a different one should be exercised when common sense, judicial efficiency and precedent suggest it is appropriate. Further, the choice being made is solely by this Court. Nor The trial court and the parties did not consider the motions under those statutes. I especially find no reason to do so when the problematic language in the sentence is only surplusage. If any of it is incorrect, it would be stricken anyway as I describe below.
2. The parole and probation language is proper
¶ 39. I do not agree with the majority as to the problem with the sentence. It appears that the majority holds that it is improper for a sentence to include the language "without hope of parole or probation." That surely is incorrect when by statute a prisoner is barred from receiving either. What I believe the majority is applying is caselaw that the parole board and not the trial court has jurisdiction over parole. E.g., Shanks v. State, 672 So.2d 1207, 1208 (Miss. 1996). Yet that does not mean that when a person is ineligible for parole, that the sentence must be silent about that fact.
¶ 40. The difference between a trial court's improper attempt to use discretion to remove eligibility for parole and the court's referring to statutory ineligibility should not be confused:
Brown claims that the wording of the sentencing order turned his twenty (20) year sentence on the rape conviction into a mandatory sentence, thereby revoking his parole eligibility. However, exclusive power over the granting and revoking of parole is vested in this State's parole board. Generally, a trial court has no authority to remove or a revoke a prisoner's parole eligibility. Certain statutes specify that a trial court may or must impose a sentence "without the possibility of parole." But this sentencing authority is separate and distinct from the parole board's authority to grant or revoke parole. Here the trial court's sentencing options upon a conviction of rape did not include imprisonment without parole. Therefore, the trial court had no authority to revoke or limit Brown's parole eligibility.
Brown v. State, 731 So.2d 595, 598-599 (Miss. 1999) (citations omitted; emphasis added). The Court went on to say "that where the trial court has no statutory authority to limit parole, language purporting to do so is without legal effect. Language contained in a sentencing order which amounts to conditions which the trial court has no authority to impose `would be treated as surplusage and would not affect the enforcement of the valid portion of the sentence.' Cain v. State, 337 So.2d 935, 936 (Miss. 1976)." Brown, 731 So.2d at 599.
¶ 41. Quite obviously, the language in the sentence regarding the ineligibility for parole is something that the trial judge did have authority to impose; indeed, it is mandatory. When "the trial court has no statutory authority to limit parole, language purporting to do so is without legal effect." Id. I can find no precedent that referring to parole is illegal if by statute the person is ineligible for parole because of the kind of crime that he has committed. The trial judge cannot tie the Parole Board's hands. The legislature can, however, and a sentence can reflect that statutory restraint.
¶ 42. There are several situations in which a sentence should be written to refer to probation and parole. For a sentencing order to provide for life imprisonment without the possibility of probation or parole for capital murder when a jury assesses that penalty is not illegal; it simply states the accurate sentence. Miss. Code Ann. § 99-19-101 (1) (Rev. 2000). One of the habitual offender statutes provides for no probation or parole. Miss. Code Ann. § 99-19-83 (Rev. 2000). There too the sentencing order itself should indicate the proper statutory sentence and not omit part.
¶ 43. I find no precedent, statute or reason to prohibit the inclusion of language barring parole in the sentencing order if in fact the sentence actually and properly received bars parole. I therefore look at Norwood's crimes. He was not an habitual offender, and thus the statute that barred parole or probation to such an offender was inapplicable. Miss. Code Ann. § 99-19-81 (Rev. 2000) (a person sentenced under this section cannot have his sentence reduced or suspended "nor shall such person be eligible for parole or probation"). The kidnapping charge should not have barred parole or probation. For the sex offenses that Norwood committed, he was in fact ineligible for parole. Miss. Code Ann. § 47-7-3 (1)(b) (Rev. 2000). The sentence should state that fact for the sake of proper notice to the prisoner as well as to corrections and parole authorities.
¶ 44. The issue of barring probation is a different matter. It depends on what the definition of "probation" is. The prohibition on parole for those convicted of sex crimes does not refer to probation. A separate statute provides that someone convicted of a sex crime is not eligible for "earned time allowance," an allowance that is part of the "85 percent law." Miss. Code Ann. §§ 47-5-138 (5) 47-5-139 (1)(d) (Rev. 2000). When someone is released early because of this allowance, he is "placed under earned-release supervision until the expiration of the term of sentence . . . [which] shall be conducted in the same manner as a period of supervised parole." Miss. Code Ann. § 47-5-138 (6). I do not find that the word "probation" has much meaning in Norwood's sentence, but at most it could be considered suggestive that he is ineligible for earned-release.
¶ 45. In any event, there is no error in Norwood's sentence that affects fundamental rights or that requires or even should encourage us to remove the procedural barriers to modify the sentence at this time.
3. Dismissal of Appeal
¶ 46. Regardless of the question of the proper procedural mechanism to file for a correction of a sentence even during the term of court in which the first sentence was pronounced, Norwood never received the relief that he wanted. Once the term of court ended and any motion pending at that time was ruled upon, then Norwood had thirty days to file a notice of appeal. M.R.A.P. 4(a). Norwood did not file his notice of appeal until it was too late. Therefore, I would dismiss the appeal.
¶ 47. Were we to dismiss, and if any correction to the sentence needs to be made, nothing we do here would prejudice that relief from being acquired.
McMILLIN, C.J., THOMAS AND LEE, JJ., JOIN THIS SEPARATE WRITTEN OPINION.