IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED MARCH SESSION , 1998 April 30, 1998 Cecil W. Crowson STANLEY HARVILLE a/k/a, ) Appellate Court Clerk C.C.A. NO. 01C01-9703-CC-00104 STANLEY SALAHUDDIN, ) ) Appe llant, ) ) ) HICKMAN COUNTY VS. ) ) HON. CORNELIA A. CLARK STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Petition to C orrect Ju dgme nt)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF HICKMAN COUNTY

FOR THE APPELLANT: FOR THE APPELLEE: GREGORY D. SMITH JOHN KNOX WALKUP One Public Square, Ste. 321 Attorney General and Reporter Clarksville, TN 37040 ELLEN H. POLLACK Assistant Attorney General Fifth Avenu e North Nashville, TN 37243-0490 JOE D. BAUGH, JR. District Attorney General RON ALD D AVIS Assistant District Attorney General P.O. Box 937 Franklin, TN 37065-0937

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE OPINION The Petitioner, S tanley Ha rville a/k/a Stanley Salahuddin, appeals the trial court’s denial of his petition to correct his sentence without a hearing. His so le issue on appeal is that the trial court erred in summarily dismissing his petition.

We affirm the ju dgme nt of the trial co urt.

The Petitioner was co nvicted on Fe bruary 23, 1987, of assault with intent to commit murder in the first degree. His conviction was affirmed by this Co urt in an 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. Crim. App., N ashville, Au g. 17, 198 9), perm. to appeal denied (Tenn. 1989). The Petitioner filed his first petition for post-conviction relief on September 12, 1991.

A second petition was filed on December 20, 1991. The trial court summarily dismissed the petition 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), perm. to app eal denie d (Tenn. 1993). The Petitioner subsequently filed a petition for writ of habe as co rpus, w hich w as also denie d by the trial court and affirmed by this Co urt. State of Ten nessee, ex r el. Kin g Salah uddin, a/k /a Stanley Harville 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 challenge, the Petitioner filed a petition to correct his sentence.

He argues that the sentencing court originally set a sentence of twenty ye ars to

-2- run concurrently with the sentence he was already serving in the Department of Correction. The Petitioner was present at the sentencing hearing. The sentence and the corresponding order were changed that sam e day to re flect a life sentence to be served consecutively to the sentence the Petitioner was serving.

He argue d that th e trial co urt imp ermis sibly alte red his sentence when he was not present and asked that the sentenc e be chan ged to reflect the origina l twenty- year concurrent sentence. The trial court considered the petition, reviewed the audio transcript of the Petitioner’s se ntencing he aring and de termined that the sentencing court had m ade an erro r and had co rrected the error to reflect a sentence for life to run consecutively to the prior sentence. The trial court denied the petition.

In this appeal, the Petitioner includes copies of two judgment forms completed on the day he was sentenced, a letter indicating that there had been some confusio n, and e xcerpts from the sentencing hearing. The Petitioner raises his claim based on two rules of criminal procedure. Rule 35(b) of the Tennessee Rules of Criminal Procedure provides for the corre ction or red uction of a sentence.

Reduction of Sentence. The trial court may reduce a sentence upon application filed within 120 days afte r the date the sentence is imposed or probation is revok ed. No extens ions sh all be allowed on the time limitation. No other action s sha ll toll the runn ing of this tim e limitation. A motion for reduction of sentence under this rule may be denied by the trial judge without a hearing. If the application is denied, the defendan t may appeal but the defendant shall not be entitled to release on bond unless the defendant is already under bond. If the senten ce is mo dified, the sta te may appeal as otherwise provided by law. A modification can only be as to any sentence the court could have originally imposed.

The Petitioner argues that the trial co urt shou ld consid er his petition to reduce his sentence despite the 120 day limit to file the claim because he did not -3- discover the dis crepa ncy un til much later. The Petitioner does not indicate when he discovered the alleged error, yet the record reflects he filed his petition on December 4, 1996. However, the rule specifically states that “no other actions shall toll the running of this time lim itation.” Furthermore, the Petitioner cites no authority for his “discovery” rule proposition. The Petitioner filed his request far beyond the 120 days provided for in the rule, thus mak ing him ineligible for a reduction of his sentence pursuant to Rule 35(b)1 .

The Petition er also argue s that R ule 36 of the Tennessee Rules of Criminal Procedu re allows for a correction of the sentence at any time. “Clerical mistakes in judgments, orders, o r other pa rts of the record and errors in the record arising from oversigh t or omission may be corrected by the court at any time and after such notice, if any, as the court orders.” Tenn. R. Crim. P. 36. The Petitioner claims that he should have been provided a hearing to explore why his sentence was increased.

Howeve r, the trial court reviewed the complete transcript of the trial and sente ncing hearing and determined that the trial court 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 court has had the court reporter review the original audio tapes of petition er’s trial and sentencing. The transcript page cited by the petitioner simp ly contains an error. At the tim e of se ntenc ing the trial cou rt did find that the sentence s were to run co nsecutively rather than concurrently.

Therefore, the amended judgment order entered by the trial court at that time is correct. There is no other change that needs to be made.

The Petitioner argues that he learned of the more lenient sentence only recently, but the record belies this contention. The opinion on the Petitioner’s direct appeal clearly states that the sentence imposed was a consecutive life sentence. Thus, the Petitioner was “on notice” of the discrepancy as early as August 17, 1989.

-4- Petitioner is currently serving a term of life imprisonment consecu tive to the prison sentence he was serving at the time the underlying crime was committed.

The trial judge concluded that the Petitioner’s allegations merited no further action and denied the petition without a hearing. The findings of a trial judge on factual issues have the weight of a jury verdict, and these findings will not be set aside unless the evidence prep ondera tes aga inst them . State v. W hite, 939 S.W.2d 113, 116 (Tenn. Crim. 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 cannot conclude that the evid ence prepo ndera tes ag ainst th e trial co urt’s findings. 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, JUDGE

CONCUR:

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ JOE G. RILEY, JUDGE

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