# FILED April 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1998 STANLEY HARVILLE a/k/a, ) C.C.A. NO. 01C01-9703- CC-00104 STANLEY S ALAHUDDI N, ) ) Appe llant, ) ) ) HICKMAN COUNTY VS. ) ) HON. CORNELI A A.CLARK STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Petition to C orrect Ju dgme nt)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF HICKMAN COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : GREGORY D. SMI TH JOHN KNOX WALKUP One Public Square, Ste. 321 Attorney Generaland Reporter Clarksvi lle, TN 37040 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0490 JOE D. BA UGH, JR. Distri ct Attor ney General RON ALD D AVIS Assistant Distri ct Attor ney General P.O. Box 937 Franklin, TN 37065-0937
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Petitioner, S tanley Ha rville a/k/a Stanley Sal ahuddin, appeal s the tri al court’s d enial of

his peti tion to correct his sentence wi thout a heari ng. His so le issue on appeal is that the trial court erred in summari ly dismis sing his pet ition. We affirm the ju dgme nt of the trial co urt.

The Petitioner was co nvicted on Fe bruary 23, 1987, of assault wi th intent to commit murder

in thefir

st degre e. His convict ion wa s affirmed by this Co urt i n a n opinion filed on Au gust 17 , 1989. State v. Robert Williams and Stanley Harville a/k/a S tanley S alahu ddin , C.C. A. No. 88-1 25-III, Hickm an Co unty (Tenn. Cri m. App., N ashville, Au g. 17, 198 9), perm. to appeal denied (Tenn. 1989). The Petiti oner filed his fi rst peti tion for post-convi ction rel ief on September 12, 1991. A second petit ion was fi led on December 20, 1991. The trialcou rtsumma rily dismissed the p etiti on and this Court affirmed the decision on November 18, 1992. King T .K. Sa lahud din a/k/a Stanley H arville v. State , C.C.A. No. 01C01- 9205-CC-00160, Hickma n County (T enn. Crim. A pp., Nashville, No v. 18, 1992), per m. to app eal denie d (Tenn. 1993). The Petiti oner subsequentl y fil ed a petiti on for writ of habe as co rpus, w hich w as also denie d by the tri al court an d affirmed by this Co urt. State of Ten nessee, ex r el. Kin g Salah uddin, a/k /a Stanley Harvill e v. Fred Raney , Warden , C.C.A. No. 02C01- 9405-CC-00085, Lauderda le County (T enn. Crim. A pp., Jackson , Oct. 19, 1994 ).

In his latest chall enge, the Peti tioner f iled a petiti on to correct his sentence. He argues that the sentencing court origi nally set a sentenceof twenty ye ars to-3-

run concurrently with t he sentence he was already ser ving in t he Department of Correction. The Petitioner was present at the sentencing hearing. The sentence and the correspondi ng order were ch anged that sam e day to re flect a life sentence to be served consecut ively to the sentence the Petiti oner was servi ng. He argue d that th e trial co urt imp ermis sibly alte red his sentence when he was not presenta nd asked that the sentenc e be chan ged to reflect the origina l twentyyear concurr

ent sentence. The trialcourt consi dered the petiti on, revi ewed the audio transcript of the Petitioner’s se ntencing he aring and de term ined t hat the sentencing court had m ade an erro r and had co rrected the err or to ref lec t a sentence for li fe to run con secutively to the pr ior sentence. The trial court deni ed the petit ion.

I n t his appe al, thePet it ion er i ncl udes cop ies of t wo j udgme nt f

orms completed on the day he was sentenced, a l etter i ndicati ng that ther e had been
some confusio n, and e xcerpts from the sentencing hear ing. The Peti tioner r aises his claim based on two rules of criminal procedure. Rul e 35(b) of t he Tennessee Rules of Criminal Procedure provides for t he corre ction or red uction of a sentence. Reduction of Sent ence. The trialcourt may reduce a sentence upon applicat ion filed within 120days afte r the date the sentence i s imposed or probation is revok ed. No extens ions sh all be a ll owed on t he t ime limitat ion. No otheraction s sha ll toll the runn ing of this tim e limitation. A motion for reduct ion of sentence underthis rul e may be denied by the tr ial judge without a h earing. I f the appl icatio n is denied, the de fendan t may appea l but the defendant shall not be enti tled to r elease on bond unles s the defendant i s already under bond. If the senten ce is mo dified, the sta te may appeal asotherwi se provi ded by law. A modificat ion can only be as to any sentence the court could have ori ginall y imposed.
The Petiti one r argues that the trial co urt shou ld consid er his petition to reduce his sentence despite the 120 day li mit to fil e the claim because he did not1 The Petiti oner argues that he learned of

the more leni ent sentence onl y recentl

y, but the record beli es this cont ention. The opinion on the Petitioner’s di rect appealclearl y states that th e sentence imposed was a consecuti ve lif e sentence. Thus, the Petitioner was “on noti ce” of the discrepancy

as early

as August 17, 1989. -4- discover the dis crepa ncy un til much later. The Petiti oner does not i ndicate when he discovered t he a l leged error , yet t he record ref lects he f iled hi s petiti on on December 4, 19 96. However, t he rule speci fically states t hat “no other actions shall toll the running of this time lim itation.” Furthermore, the Petit ioner cites no authority forhis “di scovery” rule proposi tion. The Petiti oner fil ed his request far beyond th e 120 d ays provided for in the rule, thus mak ing him ineligible for a reduction of

his sentence pur

suant to Rule 35( b) 1

.

The Petition er also argue s that R ule 36 of the Tennessee Rules of Cri minal Procedu re allows for a correcti on of the sentence at any ti me. “Cleri cal mistakes in judgments, orders, o r other pa rts of the recor d and errors i n the record arising from oversigh t or omission may be corr ected by the court at any time and after such notice, if any, as the court orders.”

Tenn. R. Crim. P. 36. The Pet ition er cla ims that he should have been provided a hearing to expl ore why his sentence was increased.

Howeve r, the trial court re vi ewed the complete t ranscript of the trial and sente ncin g hearing and determined that t he trialcourt made an error and corrected the judgment to reflect the intended senten ce for the P etitioner. In the order, the trial judge sta ted: The co urt has had the court reporter review the ori ginal audio tapes o f petition er’s trialand sentencing. The transcri pt page cited by the petiti oner simp ly contains an error. At the tim e of se ntenc ing the trial cou rt did find thatthe sentence s were to run co nsecutively rather t han con currently. Therefore, the amended judgment order entered by the tr ial court at that t im e is correc

t. There i s no other change t hat needs to be made.-5- Petiti oner is cur ren tl y se rvi ng a term of l if e im pri sonm e nt co nsecu tive to the prison sentence he was serving at the time the under lying crime was committed.
The trialjud ge concluded that the P etiti oner’s al legations merited no fu rther action and denied thepetiti on without a hearing. The findings of a tri al judge on factual issues have the weight of a jury verdict , and these fi ndings wil l not be set aside unless the eviden ce prep ondera tes aga inst them
. State v. W hite , 939 S.W.2 d 113 , 11 6 (Te nn. Cri m. App. 19 96); State v. T ate , 615 S.W.2d 161, 162 (Tenn. Crim. A pp. 198 1). From the evide nce be fore us o n appe al, we canno t conclude thatthe evid ence prepo ndera tes ag ainst th e trial co urt’s finding s. The record d oes no t suppo rt the Petition er’s claim for relief.

There fore, we a ffirm the jud gmen t of the trial cou rt.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ JOE G. RILE Y, J UDGE