        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
                                  425 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.


1
  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




                                           -5-
