NO. COA04-1039
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