An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-1039


Filed: 19 July 2005


         v.                        Guilford County
                                Nos. 03 CRS 75173-76

    On Writ of Certiorari from an amended judgment entered 1 April 2004 by Judge Henry E. Frye, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 13 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Margaret P. Eagles, for the State.

    Bryan Gates for defendant-appellant.

    BRYANT, Judge.

    John Thomas Robbins (defendant) appeals from an amended judgment entered 1 April 2004 requiring him to pay restitution of $12,600.00.
    On 23 June 2003, defendant pled guilty to four counts of obtaining property by false pretenses and was sentenced to four consecutive six to eight month terms. Restitution of $2,850.00 was ordered based on a Victim Impact Statement filed by Dorothy Cox.
    In 2004, it came to the attention of the district attorney that three other victims had filed Victim Impact Statements within the time required, but the statements had been misfiled and were not available during defendant's plea hearing and sentencing. On26 March 2004, the district attorney subsequently moved for entry of a civil judgment on behalf of the three additional victims as part of the original order of restitution. At a hearing on 1 April 2004, the trial court ordered defendant to pay an additional amount of restitution of $12,600.00 as a civil judgment. Defendant gave notice of appeal from the amended judgment in open court and the State moved to dismiss   (See footnote 1)  . On 22 December 2004, this Court entered an order which dismissed defendant's appeal, but treated the purported appeal as a petition for writ of certiorari and allowed the petition.

    The dispositive issue on appeal is whether the trial court had jurisdiction to amend defendant's final judgment.
    Defendant contends, and the State agrees, that the trial court erred when it amended defendant's judgment, which had originally been entered in an earlier term of the superior court. Our Supreme Court has stated that:
        the [trial] court has inherent power to amend judgments by correcting clerical errors or supplying defects so as to make the record speak the truth. The correction of such errors is not limited to the term of court, but may be done at any time upon motion, or the court may on its own motion make the correction when such defect appears. But this power to correct clerical errors and supply defects or omissions must be distinguished from the power of the court to modify or vacate an existing judgment. And the power tocorrect clerical errors after the lapse of the term must be exercised with great caution and may not be extended to the correction of judicial errors, so as to make the judgment different from what was actually rendered.

Shaver v. Shaver, 248 N.C. 113, 118, 102 S.E.2d 791, 795 (1958) (citations omitted). In State v. Stafford, 166 N.C. App. 118, 601 S.E.2d 219 (2004), this Court held the trial court erred when it amended the defendant's sentences on robbery charges eight months after the trial court entered a final judgment and the defendant filed a notice of appeal. This Court found the original sentence was proper and ordered reinstatement of the original judgments. Id. at 123, 601 S.E.2d at 223.
    Here, the trial court originally entered judgment on 23 June 2003 sentencing defendant to four consecutive six to eight month sentences and imposing restitution in the amount of $2,850.00. The trial court re-convened almost a year later, at which time the trial court entered an amended judgment increasing the restitution by $12,600.00. The State has conceded, and we agree, that the trial court's amendment of defendant's judgment made “'the judgment different from what was actually rendered.'” Id. at 121, 601 S.E.2d at 222 (quoting Shaver at 118, 102 S.E.2d at 795). Accordingly, we vacate the trial court's judgment entered 1 April 2004 and remand this case for the trial court to reinstate the judgment entered on 23 June 2003. To the extent the judgment filed 6 May 2004 is a valid judgment, we also vacate that judgment.
    Vacated and remanded.
    Judges ELMORE and GEER concur.    Report per Rule 30(e).

Footnote: 1
    We note the record at pages 43-44 contains what purports to be an amendment of the 1 April 2004 judgment relating back to 23 June 2003 and filed on 6 May 2004. However, this questionable document has no direct bearing on the decision in this matter.

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