IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CA-01487-SCT

CODY WAYNE DICKERSON

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 10/16/97

TRIAL JUDGE: HON. KOSTA N. VLAHOS

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: DALE ROBINSON

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: BILLY L. GORE

DISTRICT ATTORNEY: CONO CARANNA

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

DISPOSITION: AFFIRMED - 01/21/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE SULLIVAN, P.J., BANKS AND ROBERTS, JJ.

ROBERTS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. On February 27, 1996, the Appellant, Cody Wayne Dickerson (hereinafter "Dickerson"), entered a

voluntary plea of guilty to sexual battery in the Circuit Court of Harrison County, Mississippi, the Honorable

Kosta N. Vlahos presiding. As a result, Dickerson was sentenced on May 29, 1996 to serve 15 years in

the Mississippi Department of Corrections with seven (7) years suspended and eight (8) years to serve.

Two (2) days later, Dickerson filed a motion for reconsideration of the sentence and requested a hearing.

After reserving the issue of jurisdiction, the circuit judge conducted two (2) post-guilty plea hearings on

August 9, 1996 and October 7, 1996. On October 7, 1996, the judge issued a ruling from the bench resentencing Dickerson to 15 years with 10 suspended and five (5) years to serve. However, an order was

never entered reflecting this bench ruling.

¶2. A year later, on October 8, 1997, Judge Vlahos declared his earlier bench ruling a nullity, thereby

reinstating Dickerson's original May 29, 1996, sentence of 15 years with seven (7) suspended and eight (8)

to serve. On October 16, 1997, the judge entered an order denying Dickerson's motion to enter a correct

sentencing order and/or to correct sentencing order. The judge found that the term of court at which the
defendant was originally sentenced had ended and the court was powerless to alter his sentence.

¶3. Aggrieved by the circuit judge's decision, Dickerson appeals to this Court raising the following issues:

I. DUE TO A CONFLICT AND/OR AMBIGUITY BETWEEN THE MISSISSIPPI

STATUTES, THE MISSISSIPPI RULES OF COURT AND THE APPLICABLE CASE

LAW, THE LENITY RULE SHOULD BE APPLIED.

II. DICKERSON IS ENTITLED TO RELIEF AS HE ENDEAVORED TO OBTAIN

RELIEF FROM A FINAL JUDGMENT BEFORE THE EXPIRATION OF 10 DAYS.

III. THE CIRCUIT JUDGE ERRONEOUSLY FAILED TO ENTER A NEW

SENTENCING ORDER REFLECTING HIS BENCH RULING WHICH LESSENED

DICKERSON'S SENTENCE.

IV. PROCEDURAL RULES SHOULD BE DISREGARDED WHERE SUCH IS

NECESSARY TO AVOID A MISCARRIAGE OF JUSTICE.

¶4. Judge Vlahos' original sentencing order denying Dickerson's motion for reconsideration of sentence was

proper. Therefore, the decision of the court below is affirmed.

STATEMENT OF FACTS

¶5. During the February 1996 Term of the Circuit Court of Harrison County, on February 27, 1996, Cody

Wayne Dickerson, a seventeen-year-old, single, white male and resident of Biloxi , Mississippi, waived

indictment and entered a voluntary plea of guilty to sexual battery. Dickerson admitted to having

participated in some manner of oral sex with a six-year-old boy in Biloxi. Sentencing was deferred until a

pre-sentence report could be compiled by the Mississippi Department of Corrections. That report was filed

on April 19, 1996.

¶6. Approximately three (3) months following Dickerson's guilty plea, on May 29, 1996, Judge Vlahos

entered a final sentencing order which read in relevant part:

Ordered that the defendant is hereby sentenced to Fifteen (15) Years, suspend Seven (7) Years,

leaving Eight (8) Years to serve in the custody of the Mississippi Department of Corrections in

accordance with Section 47-7-3 (b) of the Mississippi Code of 1972. Accordingly, the defendant

shall not be released on parole.

¶7. On May 31, 1996, Dickerson filed a "Motion for Reconsideration of Sentencing."

¶8. On or about July 3, 1996, a "Notice of Criminal Disposition" was forwarded to the MDOC by the

Circuit Clerk of Harrison County.

¶9. An evidentiary hearing was conducted on August 9, 1996, during which several witnesses testified on

behalf of Dickerson. The record does not reflect why the motion was not heard before the end of the June

and July terms of court. During this hearing, Judge Vlahos specifically stated:

I'm going to go ahead and let them testify and I'll decide after they testify whether or not I even have

any jurisdiction in the event that I so desire to change the previous sentence.
¶10. On October 7, 1996, at the conclusion of a further hearing on the motion to reconsider the sentence,

Judge Vlahos issued from the bench the following ruling:

In reviewing the matter, and this has weighed heavily on the Court, because as I pointed out I'm not

Solomon, I'm not perfect, the number of years may be somewhat excessive. And so what I will do is

I'll keep the 15 years, but I'll suspend 10 and give him 5 years to serve. That will be the

final order from which you can make any appeal that you wish to make. But instead of eight

years you'll have five years to serve, and that will be the ruling of the court. The motion to reconsider

is I guess affirmed in part and denied in the major part. I've reconsidered that sentence and given him

five years to serve. I don't think by any stretch of the imagination it should be probation.

(emphasis added). An amended sentencing order reflecting the above bench ruling was never entered.

¶11. Dickerson submitted a final Sentencing Order to Judge Vlahos on June 2, 1997, which requested that

if the order ". . . meets with your approval, please sign same and file it with the clerk of court."

¶12. Nearly three (3) months later, on August 20, 1997, Dickerson filed a pleading styled "Motion to Enter

Correct Sentencing Order and/or Correct Sentencing Order, Suggestion of Law, and Appropriate Relief."

¶13. Judge Vlahos conducted a hearing on October 8, 1997, for the purpose of litigating the merits of

Dickerson's motion to enter a corrected order. During this hearing, the judge declared, ". . . whatever

bench ruling that I made modifying the sentence at a later time is a nullity." On October 16, 1997, Judge

Vlahos entered a two (2) page order denying Dickerson's motion to enter correct sentencing order and\or

to correct sentencing order. It stated, in its pertinent parts, the following:

The only statutory authority to resentence the movant is the Post Conviction Relief Act. This act

establishes the criteria which must be present before the court acquires jurisdiction to consider

resentencing a criminal. In this case, there is no filing under the Post Conviction Relief Act, the term of

court at which the defendant was sentenced had ended, and, the defendant had begun to serve his

sentence, therefore the court is powerless to alter or vacate movant's sentence. To hold otherwise

would serve to continue the judicial problems revealed in the Russell case, supra.

¶14. Taking exception with the lower court's denial of his motion, Dickerson now appeals to this Court.

DISCUSSION OF THE ISSUES

I. DUE TO A CONFLICT AND/OR AMBIGUITY BETWEEN THE MISSISSIPPI

STATUTES, THE MISSISSIPPI RULES OF COURT AND THE APPLICABLE CASE

LAW, THE LENITY RULE SHOULD BE APPLIED.

¶15. Dickerson first argues that a conflict exists in Mississippi between the case law, statutes and

procedural rules, upon which Judge Vlahos relied, regarding the sentencing of a criminal defendant.

Dickerson asserts that this ambiguity should be resolved in his favor. according to the Lenity Rule. Black's

Law Dictionary defines the Lenity Rule as follows: "[t]his rule provides that where there is ambiguity in the

language of a statute concerning multiple punishment, ambiguity should be resolved in favor of lenity in

sentencing." BLACK'S LAW DICTIONARY 902 (6th ed. 1990).
¶16. Judge Vlahos' decision to deny Dickerson's motion was based on our holding in Mississippi

Commission on Judicial Performance v. Russell, 691 So. 2d 929 (Miss. 1997); See also Denton v.

Maples, 394 So. 2d 895 (Miss. 1981); Harrigill v. State, 403 So. 2d 867 (Miss. 1981); Griffin v.

State, 565 So. 2d 545 (Miss. 1990).

¶17. In Russell we upheld a decision by the Commission on Judicial Performance to sanction a circuit

court judge for releasing state prisoners from jail without authority to do so. We held specifically in Russell

that:

This Court has held "[i]n the absence of some statute authorizing such modification, and presently

there is none, once the case has been terminated and the term of court ends, a circuit court is

powerless to alter or vacate its judgment." Harrigill v. State, 403 So. 2d 867, 868-869 (Miss.

1981). The language utilized by this Court in Harrigill is clear that there is no inherent authority to

alter or vacate a judgment, but rather legislation is required

. . . .

In light of our precedent, there is no indication that circuit court judges have inherent authority to

modify sentences after the end of the term of court during which the sentence [was] given.

Russell, 691 So. 2d at 943-44.

¶18. This Court holds that a judge may not alter or vacate a sentence once the term of court in which the

defendant was sentenced has ended.

¶19. The record reflects that the learned judge agonized over his original decision to send Dickerson to

prison for eight (8) years. There was evidence to suggest that Dickerson's behavior was an isolated incident

and that he posed little threat of future pedophilia. Once the initial public outcry subsided and some of the

mitigating factors surrounding the incident began to surface, Judge Vlahos, perhaps began to believe that his

original sentence was too severe. The bench ruling decreasing Dickerson's sentence was a manifestation of

this belief.

¶20. However, once the term of court expired wherein Judge Vlahos issued the May 29, 1996 sentence of

eight (8) years, his jurisdiction to alter or vacate said sentence was likewise extinguished. When Judge

Vlahos issued the October 8, 1997 bench ruling decreasing Dickerson's sentence, he was operating outside

of his boundary of authority as a circuit judge. However, Judge Vlahos realized little more than a week later

that his ruling was in error. He subsequently corrected this error when he denied Dickerson's motion in his

October 16, 1997 order.

¶21. In light of the clear mandate that this Court has established in Russell and its predecessors, no

ambiguity is present and thus application of the Lenity Rule in unwarranted and unavailable. Thus, this claim

is denied.

II. DICKERSON IS ENTITLED TO RELIEF AS HE ENDEAVORED TO OBTAIN

RELIEF FROM A FINAL JUDGMENT BEFORE THE EXPIRATION OF 10 DAYS.

¶22. Dickerson next argues that his motion to reconsider sentence was properly before the court as it was
filed within ten (10) days after the final order issuing Dickerson's sentence. Dickerson complains that the

judge did not consider the motion until after the June and July terms of court had expired. In support of his

position, Dickerson cites Uniform Circuit and County Court Rule 10.05 which governs motions for new

trials.

¶23. Rule 10.05(6) says in relevant part:

A motion for a new trial must be made within ten days of the entry of judgment. The trial judge may

hear and determine a motion for new trial at any time and in any county or judicial district within the

trial judge's jurisdiction.

The court may, with the consent of the defendant, order a new trial of its own initiative before the

entry of judgment and imposition of sentence. . . .

URCCC 10.05(6) (emphasis added).

¶24. In Dyer v. State, 300 So. 2d 788, 789 (Miss. 1974), this Court stated:

A trial judge is not charged with knowledge of every paper filed with the court clerk. It is not the duty

of the judge, ex mero motu, to search out and bring up such matters. On the other hand, the

affirmative duty rests upon a party filing a motion to follow up this action by bringing it to the attention

of the judge and by requesting a hearing upon it.

¶25. In the case at bar, Dickerson filed his motion for reconsideration on May 31, 1996. This motion was

not called up until August 9, 1996, when a hearing was conducted. During the final hearing on October 8,

1997, the prosecutor pointed out that the June and July terms of court came and went while Dickerson

made no attempt to bring his motion up for a hearing. As stated above, it was not Judge Vlahos'

responsibility to ensure that the motion was heard during the term. Dickerson had an affirmative obligation

to bring his motion to the attention of the judge to ensure that it was considered before the term expired and

the onus for failure to do so necessarily falls on the Dickerson.

¶26. Further, Dickerson misapplies Rule 10.05. Rule 10.05 governs motions for new trials, not motions for

reconsideration of the sentence imposed following conviction. Rule 10.05 is inapplicable here because

Dickerson never went to trial, but instead entered a voluntary plea of guilty. Judge Vlahos correctly stated

that

[w]e're not talking about a motion for a new trial, we're not talking about any of the other civil

motions, we're talking about a decision that I think judges have to make coldly and objectively, and I

think I did that on the first day that I sentenced him.

¶27. Despite the timely filing of Dickerson's motion, he failed to bring it to the attention of the judge before

the end of the court. As a result, this claim is denied.

III. THE CIRCUIT JUDGE ERRONEOUSLY FAILED TO ENTER A NEW

SENTENCING ORDER REFLECTING HIS BENCH RULING WHICH LESSENED

DICKERSON'S SENTENCE.

¶28. As mentioned above, Judge Vlahos' bench ruling was improper as it was issued after the term of court
in which Dickerson was sentenced had ended. If Judge Vlahos had entered an order reflecting his bench

ruling, such entry would likewise have been erroneous.

¶29. Therefore, Judge Vlahos' failure to enter the new sentencing order and decision to deny Dickerson's

motion were proper.

IV. PROCEDURAL RULES SHOULD BE DISREGARDED WHERE SUCH IS

NECESSARY TO AVOID A MISCARRIAGE OF JUSTICE.

¶30. Dickerson finally asserts that strict adherence to the rules of procedure in this case would create a

miscarriage of justice regarding his sentence. This Court finds the argument unpersuasive.

¶31. If Dickerson believes that his sentence is improper, the statutory provisions for vacating a sentence

contained in the Post-Conviction Relief Act, Miss. Code Ann. § 99-39-3, et. seq., provide an adequate

remedy. In that regard, Mississippi Code Annotated § 99-39-5 (1994) states

(1) Any prisoner in custody under sentence of a court of record of the state of Mississippi who

claims:

(i) That the conviction or sentence is otherwise subject to collateral attack upon any grounds. . .may

file a motion to vacate, set aside or correct judgment or sentence, . . ."

Dickerson is free to pursue his claim under this provision.

¶32. Thus, the application of the appropriate procedural rules produced no miscarriage of justice in this

case.

CONCLUSION

¶33. The original sentencing order issued by Judge Vlahos denying Dickerson's motion for reconsideration

of sentence was proper. Therefore, the decision of the court below is affirmed.

¶34. LOWER COURT'S DENIAL OF POST CONVICTION RELIEF AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, SMITH, MILLS AND

WALLER, JJ., CONCUR.