      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2015-KA-01416-COA

JIMMY T. BROWN A/K/A JIMMY BROWN                        APPELLANT

v.

STATE OF MISSISSIPPI                                     APPELLEE

DATE OF JUDGMENT:                07/07/2015
TRIAL JUDGE:                     HON. GERALD W. CHATHAM SR.
COURT FROM WHICH APPEALED:       DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:         JEANINE M. CARAFELLO
                                 ROSS R. BARNETT JR.
ATTORNEY FOR APPELLEE:           OFFICE OF THE ATTORNEY GENERAL
                                 BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:               JOHN W. CHAMPION
NATURE OF THE CASE:              CRIMINAL - FELONY
TRIAL COURT DISPOSITION:         CONVICTED OF COUNT I, FONDLING BY
                                 A PERSON IN A POSITION OF TRUST OR
                                 AUTHORITY, AND SENTENCED TO TEN
                                 YEARS, WITH ALL TEN YEARS
                                 SUSPENDED, AND TEN YEARS OF
                                 POSTRELEASE SUPERVISION, WITH FIVE
                                 OF THOSE YEARS REPORTING AND FIVE
                                 NONREPORTING, AND TO PAY $1,000 IN
                                 RESTITUTION TO THE MISSISSIPPI
                                 CHILDREN’S TRUST FUND; AND COUNT
                                 II, FONDLING, AND SENTENCED TO FIVE
                                 YEARS; WITH THE SENTENCES TO RUN
                                 CONSECUTIVELY, ALL IN THE CUSTODY
                                 OF THE MISSISSIPPI DEPARTMENT OF
                                 CORRECTIONS
DISPOSITION:                     AFFIRMED AND REMANDED - 04/25/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.

     ISHEE, J., FOR THE COURT:
¶1.    In November 2013, Jimmy T. Brown was indicted for one count of fondling his

granddaughter when she was under the age of eighteen, in violation of Mississippi Code

Annotated section 97-5-23(2) (Rev. 2014), and one count of fondling his granddaughter

when she was under the age of sixteen, in violation of section 97-5-23(1). Brown proceeded

to trial in the DeSoto County Circuit Court, where a jury found him guilty on both counts.

On Count I, Brown was sentenced to a ten-year suspended sentence, with ten years of post-

release supervision, to run consecutively to the sentence for Count II. On Count II, Brown

received a sentence of five years in the custody of the Mississippi Department of Corrections

(MDOC). Brown was ordered to pay $1,000 in restitution to the Mississippi Children’s Trust

Fund. He now appeals.

             STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    V.B.1 is the granddaughter of Brown, and was twenty-one years of age at the time of

trial. When V.B. was approximately three years old, her parents divorced, resulting in her

living with her mother and father separately at different times in her life. She first went to

live with her father in DeSoto County, Mississippi, when she was around seven years old.

V.B. spent a great deal of time with her grandfather during the time she lived with her father.

At trial, V.B. testified that on multiple occasions, when she was between the ages of eight

and thirteen, Brown digitally penetrated her when she and Brown were alone at Brown’s

home. She further testified that sometime around the age of thirteen, she moved to

Oklahoma to live with her mother. V.B. moved back to live with her father, however, when

       1
          Because V.B. was a minor at the time that she became a victim of sexual abuse,
initials will be used to protect her anonymity.

                                              2
she was sixteen years old. At that time, V.B. explained that the sexual abuse resumed, and

continued to take place until the last incident occurred when she was nineteen years old.

¶3.    V.B. testified that when she was either sixteen or seventeen years old, Brown

penetrated her with his penis. V.B. also elaborated on other instances regarding what Brown

did to her, and where the specific acts took place. While V.B. knew that the abuse took place

between the ages of eight and thirteen, and again between the ages of sixteen and nineteen,

she could not provide specific dates due to the recurring nature of the sexual acts. It was not

until July 2013 that V.B. confided in her brother that she had been sexually abused by Brown.

Her brother then informed V.B.’s mother regarding the information, which led V.B. to

eventually report the abuse to the DeSoto County Sheriff’s Department.

¶4.    Detective Jerry Owensby of the sheriff’s department began an investigation into the

matter. During the course of his investigation, Owensby interviewed V.B., V.B.’s mother,

and other family members. At trial, V.B.’s mother corroborated V.B.’s testimony regarding

the timeline of abusive events. Her mother also explained that she worked with authorities

to help further corroborate V.B.’s allegations. In doing so, V.B.’s mother placed a phone call

to Brown in the presence of Owensby, and the phone call was recorded. The phone call was

played in the presence of the jury, and included Brown confirming that he had made

inappropriate contact with V.B. at his home while Brown’s wife was at work. Though

Brown initially denied having sexual intercourse with V.B., he eventually admitted that he

had done so to V.B.’s mother.

¶5.    Following the phone call, Brown was taken into custody by Owensby and interrogated



                                              3
at the sheriff’s department. Brown was properly read his Miranda2 rights, acknowledged that

he understood those rights, and waived them. Brown offered to tell Owensby whatever he

needed to avoid arrest, but Owensby repeatedly told Brown to tell him the truth. Ultimately,

Brown stated that V.B. had pulled her pants down, that she revealed her private parts to him,

and that he touched those parts of V.B. Brown claimed V.B. was approximately seventeen

or eighteen years of age at that time, and that he informed his wife afterwards. Brown

additionally admitted to touching V.B.’s vagina at least four or five times total, all while

being in a position of trust and authority over her. Brown, however, denied ever having sex

with V.B. to Owensby.

¶6.    Brown proceeded to trial, and was convicted by a jury on two counts of gratification

of lust. Brown filed posttrial motions for a judgment notwithstanding the verdict (JNOV)

or, in the alternative, a new trial. The circuit court denied Brown’s motions. Brown now

appeals. Finding no error, we affirm.

                                        DISCUSSION

¶7.    On appeal, Brown asserts that the indictment failed to adequately notify him of the

nature and cause of the accusations, rendering it defective; that the State failed to prove the

essential elements of the crimes charged; that the circuit court erred in denying his motion

to suppress; and that he received ineffective assistance of counsel. We disagree.

       I.       The indictment provided Brown with sufficient notice of the
                charges against him.

¶8.    Brown asserts that his indictment was defective, as it did not contain specific dates,

       2
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                              4
and thus, did not sufficiently notify him of the charges against him. “The question of

whether an indictment is defective is an issue of law and therefore deserves a relatively broad

standard of review, or de novo review, by [an appellate c]ourt.” Tapper v. State, 47 So. 3d

95, 100 (¶17) (Miss. 2010). Under Uniform Circuit and County Court Rule 7.06, “[t]he

indictment upon which the defendant is to be tried shall be a plain, concise and definite

written statement of the essential facts constituting the offense charged and shall fully notify

the defendant of the nature and cause of the accusation.” Expanding on Rule 7.06, the

Mississippi Supreme Court has held that an indictment must contain: (1) the essential

elements of the offense charged; (2) sufficient facts to fairly inform the defendant of the

charge against which he must defend; and (3) sufficient facts to enable him to plead double

jeopardy in the event of a future prosecution for the same offense. Berry v. State, 996 So.

2d 782, 786 (¶8) (Miss. 2008) (quoting Gilmer v. State, 955 So. 2d 829, 836-37 (Miss.

2007)).

¶9.    The indictment that Brown now challenges reads as follows:

       Count I: That JIMMY T. BROWN, Late of the County and State aforesaid,
       between the dates of July 1, 2009[,] and June 30, 2011, and within the
       jurisdiction of this Court, did willfully, unlawfully and feloniously, for the
       purpose of gratifying his lust or indulging his depraved licentious sexual
       desires, handle, touch or rub with his hands or any part of his . . . body or any
       member thereof, [V.B.], a child under the age of eighteen (18) years and not
       the spouse of []BROWN; and the said []BROWN being at the time a person
       above the age of eighteen (18) years and occupying a position of trust or
       authority over the said [V.B.], in direct violation of Section 97-5-23(2),
       Mississippi Code 1972 Annotated . . . .

       Count II: That JIMMY T. BROWN, Late of the County and State aforesaid,
       between the dates of July 1, 2001[,] and June 30, 2007, and within the
       jurisdiction of this Court, did willfully, unlawfully and feloniously, for the

                                               5
       purpose of gratifying his lust or indulging his depraved licentious sexual
       desires, handle, touch or rub with his hands or any part of his . . . body or any
       member thereof, [V.B.], a child under the age of sixteen (16) years and not the
       spouse of []BROWN; and the said []BROWN being at the time a person above
       the age of eighteen (18) years and occupying a position of trust or authority
       over the said [V.B.], in direct violation of Section 97-5-23, Mississippi Code
       1972 Annotated . . . .

Brown alleges that the identical language and time spans set forth in each count deprived him

of establishing “any defense other than denial.” Brown also asserts that the charges were

“indistinguishable.” We find no merit to these arguments.

¶10.   In each count, the State alleged that Brown, being a person over the age of eighteen

and in a position of trust or authority over V.B., fondled V.B. when she was under the age

of eighteen, and that Brown also did so when V.B. was under the age of sixteen. The

indictment included the dates V.B. lived in Mississippi, which are the times in which Brown

had access to V.B. Thus, the indictment informed Brown that he was being charged with

fondling his granddaughter when she was between the ages of sixteen and seventeen, and

again when she was between the ages of eight and thirteen. The State needed only to prove

that Brown inappropriately fondled V.B. at least once during the time spans alleged.

¶11.   Generally, an indictment tracking the language of the criminal statute is sufficient to

inform the defendant of the charged crime. Batiste v. State, 121 So. 3d 808, 836 (¶43) (Miss.

2013). And as Brown concedes, a specific date is not required so long as the defendant is

fully and fairly informed of the charges against him. Morris v. State, 595 So. 2d 840, 842

(Miss. 1991). Therefore, “it is important that a defendant be given the specific date or dates

of the alleged acts if at all possible.” Wilson v. State, 515 So. 2d 1181, 1183 (Miss. 1987)



                                              6
(emphasis added). Failure to provide specific dates alone, however, does not render the

indictment defective. Morris, 595 So. 2d at 842. Here, the State could not provide exact

dates as V.B. herself could not recall specific dates due to the recurring nature of the abusive

acts. Furthermore, specific dates of the alleged sexual abuse are not essential elements of the

crime charged—rather, the victim’s age is. Even so, the exact age of the victim is not

required. In this regard, the indictment specified that V.B. was under the ages of eighteen

and sixteen, respectively, as required by the statute. Thus, as “[t]he primary purpose of an

indictment is to give a defendant fair notice of the crime charged,” we find that Brown’s

indictment sufficiently tracks the language of sections 97-5-23(1) and 97-5-23(2), fully

notifying him of the nature and cause of the charges against him. Williams v. State, 169 So.

3d 932, 935 (¶9) (Miss. Ct. App. 2014). This issue is without merit.

       II.    The State provided sufficient evidence to prove each essential
              element of the crimes charged, and the verdict is not against the
              overwhelming weight of the evidence.

¶12.   Brown asserts that the State put forth no evidence of V.B.’s age during any of the

alleged acts, or even of what alleged acts took place, thus failing to prove beyond a

reasonable doubt each essential element of the crimes charged. In determining whether the

State presented legally sufficient evidence to support the verdict, “the critical inquiry is

whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act

charged, and that he did so under such circumstances that every element of the offense

existed[.]’” Larry v. State, 200 So. 3d 453, 459 (¶15) (Miss. Ct. App. 2016) (quoting Bush

v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005)). If, viewing the evidence in the light most



                                               7
favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt,

that the essential elements of the crime existed, this Court will affirm the conviction. Id.

“This Court is not at liberty to reverse unless, with respect to one or more of the elements of

the charged offense, the evidence considered is such that reasonable and fair-minded jurors

could only find the accused not guilty.” Miller v. State, 982 So. 2d 995, 996 (¶4) (Miss. Ct.

App. 2008) (quoting Green v. State, 887 So. 2d 840, 845 (¶9) (Miss. Ct. App. 2004)).

“Furthermore, the jury determines the credibility of witnesses and resolves conflicts in the

evidence.” Id. (citing Evans v. State, 725 So. 2d 613, 680-81 (¶293) (Miss. 1997)).

¶13.   Under Mississippi Code Annotated section 97-5-23(1), the State was required to prove

that: (1) Brown was over the age of eighteen; (2) V.B. was under the age of sixteen; and (3)

Brown gratified his lust by touching V.B.’s body with his hands or any other part of his body.

In order to prove the essential elements of section 97-5-23(2), the State was required to prove

that: (1) Brown was over the age of eighteen; (2) V.B. was under the age of eighteen; (3)

Brown touched V.B.’s body with his hands or another part of his body for the purposes of

gratifying his lust; and (4) Brown held a position of trust or authority over V.B. at the time

of the alleged offense. We find the State presented sufficient evidence regarding each

essential element of the crimes charged beyond a reasonable doubt.

¶14.   V.B. testified to the actions taken by Brown, including Brown digitally penetrating

her, placing his mouth on her vagina, and penetrating her with his penis. V.B. further

testified to the time frames in which the repeated penetration took place, which she stated

were when she was between the ages of seven and fourteen, and again when she was between



                                              8
the ages of sixteen and seventeen. Moreover, the jury heard Brown’s admission during his

interrogation that he was in a position of authority and trust over V.B. at the time he

committed the abusive actions. Thus, we find the verdict is supported by sufficient evidence

presented by the State.

¶15.   In addition, we find that the circuit court did not err in denying Brown’s motion for

a JNOV or, in the alternative, a new trial. “[This Court] will only disturb a verdict when it

is so contrary to the overwhelming weight of the evidence that to allow it to stand would

sanction an unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18). Therefore, the Court

weighs the evidence “in the light most favorable to the verdict.” Id. If the Court disagrees

with the verdict of the jury, “the proper remedy is to grant a new trial.” Id. Brown asserts

the same arguments as above to support that he is entitled to a new trial. We do not so find.

The jury was presented with conflicting evidence, weighed that evidence, and reached a

verdict. After reviewing the record and weighing the evidence in the light most favorable

to the verdict, we cannot find that allowing the guilty verdict to stand would sanction an

unconscionable injustice. This issue is without merit.

       III.   The circuit court did not abuse its discretion by denying Brown’s
              motion to suppress.

¶16.   Brown’s argument regarding the circuit court’s denial of his motion to suppress is

two-fold. First, Brown asserts that the video-recording of his interrogation with Owensby

should have been excluded. Second, Brown asserts that the video should have been excluded

because the interrogation stemmed from a recorded phone call between him and V.B.’s

mother, which Brown alleges violated his Miranda rights and right to privacy. Ultimately,

                                             9
Brown argues that he did not knowingly, intelligently, or voluntarily waive his Miranda

rights prior to the phone call, or his interrogation. Brown, however, did not present any

argument before the circuit court regarding the exclusion of the audio-recorded phone call;

as such, we are not required to address the merits of that contention as it is procedurally

barred. See Webb v. State, 113 So. 3d 592, 602 (¶35) (Miss. Ct. App. 2012) (holding that

failure to specifically state grounds for excluding evidence waives the objection). For the

sake of thoroughness, however, we will address both of Brown’s arguments under this

heading as they pertain to fundamental rights protected by the Constitution.

¶17.   “This Court will reverse a trial court’s denial of a motion to suppress only if the ruling

is manifest error or contrary to the overwhelming weight of evidence.” Barnes v. State, 158

So. 3d 1127, 1134 (¶22) (Miss. 2015). “The circuit court sits as a fact[-]finder when

determining voluntariness of a confession, and its determination will not be reversed unless

manifestly wrong.” Walker v. State, 197 So. 3d 914, 917 (¶9) (Miss. Ct. App. 2016) (quoting

Horne v. State, 825 So. 2d 627, 639 (¶44) (Miss. 2002)). “Crucially, ‘the resolution of

conflicting testimony regarding voluntariness is a question of fact to be resolved by the trial

judge at the suppression hearing.’” Id. (quoting Chase v. State, 645 So. 2d 829, 841 (Miss.

1994)). We will address the phone-call recording first, as Brown asserts its contents

instigated Brown’s later interrogation.

              A.     Audio-Recorded Phone Call

¶18.   Brown contends that he was entitled to be warned, or Mirandized, at the outset of the

phone call between himself and V.B.’s mother on the grounds that V.B.’s mother was acting



                                              10
pursuant to the instruction of Owensby when the call was placed. Brown further asserts that

he detrimentally relied upon the belief that the phone call was of a personal nature rather than

at the behest of a law-enforcement agent, and thus, his fundamental right to privacy was

illegally violated. We disagree.

¶19.   We find that Brown had no reasonable expectation of privacy in the phone

conversation between himself and V.B.’s mother. In Bankston v. State, 4 So. 3d 377, 380-81

(¶14) (Miss. Ct. App. 2008), this Court stated:

       The Mississippi Supreme Court has held that “electronic surveillance,
       ‘bugging,’ does not tread upon the constitutional rights of the Fourth
       Amendment when the consent of one of the parties is first obtained. The
       expectation of privacy, though perhaps shaken by the mistaken belief that a
       person to whom one voluntarily confides will not reveal the conversation[,]
       does not reach constitutional proportions.” Everett v. State, 248 So. 2d 439,
       443 (Miss. 1971) (citing Hoffa v. United States, 385 U.S. 293 (1966)).

Applying this long-held principle to the present matter, the record clearly reflects that V.B.’s

mother consented to the recording of her phone conversation with Brown.                 Brown

assumed—albeit mistakenly—that V.B.’s mother would not convey the details of their

conversation to law-enforcement officers. See Everett, 248 So. 2d at 443. Therefore, we

hold that Brown did not have a reasonable expectation of privacy during his incriminating

conversation with V.B.’s mother.

¶20.   In addition, Brown was not entitled to be informed of his right to remain silent at the

outset of the phone call. As the State properly points out, “[u]nder Miranda, the accused

must be warned of the right to remain silent and the right to an attorney before any custodial

interrogation may occur.” Clark v. State, 40 So. 3d 531, 541 (¶22) (Miss. 2010) (citing



                                              11
Miranda v. Arizona, 384 U.S. 436, 479 (1966)). “To be subject to custodial interrogation,

one must be both in custody and undergoing interrogation.” Wilson v. State, 936 So. 2d 357,

362 (¶11) (Miss. 2006). Here, Brown was neither in custody nor being interrogated during

his conversation with V.B.’s mother. Therefore, Brown’s fundamental rights were not

violated, and this issue is without merit.

              B.     Video-Recorded Interrogation

¶21.   Regarding the video-recording of the interrogation, Brown argues that the admissions

he made through statements given during his interrogation were not freely and voluntarily

given, but rather the product of extreme mental and physical duress, which took place

throughout the interrogation. Brown’s trial counsel further asserted that Brown merely stated

what he thought Owensby wished to hear in order to release Brown, and on that basis,

Brown’s statements should have been excluded. The circuit court found otherwise.

¶22.   After hearing argument from both sides at the suppression hearing, and reviewing the

interrogation video in its entirety, the circuit-court judge specifically found that Brown was

in no form of distress during the interrogation. The circuit court further found that Brown

appeared to be an intelligent man, and that Owensby neither coerced Brown nor promised

him anything in exchange for his statements. Reviewing the totality of the circumstances,

the circuit court found that Brown knowingly, voluntarily, and intelligently waived his

Miranda rights before making any statements. As result, the court held that Brown’s

statements were freely and voluntarily given.

¶23.   Reviewing the record before this Court, we cannot hold that the circuit court abused



                                             12
its discretion by admitting into evidence the phone-call recording and the interrogation video,

as we find those decisions were not manifestly wrong or contrary to the overwhelming

weight of evidence. Therefore, we find no merit to this issue.

       IV.    Assistance of Counsel

¶24.   In this issue, Brown claims he received ineffective assistance from his trial counsel

because his counsel (1) did not move to suppress the telephone recording between Brown and

V.B.’s mother; (2) did not object to leading questions; and (3) did not move for a change of

venue for Brown’s trial. We decline to address this issue on direct appeal.

¶25.   Rule 22(b) of the Mississippi Rules of Appellate Procedure provides:

       Issues which may be raised in post-conviction proceedings may also be raised
       on direct appeal if such issues are based on facts fully apparent from the
       record. Where the appellant is represented by counsel who did not represent
       the appellant at trial, the failure to raise such issues on direct appeal shall
       constitute a waiver barring consideration of the issues in post-conviction
       proceedings.

And the supreme court has held:

       It is unusual for [an appellate c]ourt to consider a claim of ineffective
       assistance of counsel when the claim is made on direct appeal. This is because
       we are limited to the trial court record in our review of the claim[,] and there
       is usually insufficient evidence within the record to evaluate the claim . . . .
       [W]here the record cannot support an ineffective assistance of counsel claim
       on direct appeal, the appropriate conclusion is to deny relief, preserving the
       defendant’s right to argue the same issue through a petition for post-conviction
       relief. [An appellate c]ourt will rule on the merits on the rare occasions where
       (1) the record affirmatively shows ineffectiveness of constitutional
       dimensions, or (2) the parties stipulate that the record is adequate to allow the
       appellate court to make the finding without consideration of the findings of
       fact of the trial judge.

Wilcher v. State, 863 So. 2d 776, 825 (¶171) (Miss. 2003) (internal citations and quotations



                                              13
omitted).

¶26.   Upon review, the record does not affirmatively indicate that Brown received

ineffective assistance of constitutional dimensions.       Nor have both parties explicitly

stipulated that the record is adequate to allow us to make findings without considering a trial

judge’s findings of fact. Gordon v. State, 977 So. 2d 420, 425 (¶9) (Miss. Ct. App. 2008).

As a result, we decline to address this issue. Thus, we dismiss Brown’s claims under this

heading without prejudice to his ability to raise them in postconviction proceedings, if he

chooses to do so.

       V.     Clerical Error

¶27.   Finally, we have identified an apparent clerical error in the sentencing order and find

it necessary to remand for the circuit court to correct the error. At the sentencing hearing,

the court pronounced Brown’s sentence on Count I as “ten years in the Mississippi

Department of Corrections. That ten years will be suspended. You’ll be placed on ten years

of post-release supervision [(PRS)].” The subsequent written order tracked the PRS

sentence, but it failed to mention the (suspended) sentence of ten years’

imprisonment—stating merely that Brown was to “serve a term of zero (0) years

incarceration in [MDOC custody].” (Emphasis added). We find it apparent this omission

of the actual term of the suspended sentence (ten years) was inadvertent and a clerical error.

We remand for the circuit court to correct the sentencing order for Count I to include the term

of imprisonment of ten years in MDOC custody, with all ten years suspended for Brown to




                                              14
serve the enumerated term of PRS.3

                                      CONCLUSION

¶28.   Upon review of the record, we find no merit to any of the issues raised on appeal.

Therefore, we affirm the findings of the circuit court.

¶29. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, FONDLING BY A PERSON IN A POSITION OF
TRUST OR AUTHORITY, AND SENTENCE OF TEN YEARS, WITH ALL TEN
YEARS SUSPENDED, AND TEN YEARS OF POSTRELEASE SUPERVISION,
WITH FIVE OF THOSE YEARS REPORTING AND FIVE NONREPORTING, AND
TO PAY $1,000 IN RESTITUTION TO THE MISSISSIPPI CHILDREN’S TRUST
FUND; AND COUNT II, FONDLING, AND SENTENCE OF FIVE YEARS; WITH
THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED, AND THIS
CASE IS REMANDED FOR CORRECTION OF THE SENTENCING ORDER. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN
PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




       3
         “Where it clearly appears that the judgment as entered is not the sentence which the
law ought to have pronounced upon the facts as established by the record, the court acts
upon the presumption that the error is a clerical misprision rather than a judicial blunder[.]”
Harvey v. State, 919 So. 2d 282, 285 (¶9) (Miss. Ct. App. 2005) (citation omitted) (citing
Brown v. Sutton, 158 Miss. 78, 121 So. 835, 837 (1929)). “The Mississippi Supreme Court
has long held that courts ‘have inherent power to correct clerical errors at any time, and to
make the judgment entry correspond with the judgment rendered. This power exists in
criminal prosecutions as well as in civil cases.’” Id. at 287-88 (¶14) (quoting Kitchens v.
State, 253 Miss. 734, 737, 179 So. 2d 13, 14 (1965)); see also Brown v. State, 166 So. 3d
565, 567 (¶¶7-9) (Miss. Ct. App. 2015) (affirming and remanding for correction of the trial
court’s sentencing order where it improperly said the sentence was to be served in MDOC
custody rather than the county sheriff’s custody); accord Harvey, 919 So. 2d at 287-88
(¶¶13-14) (finding no error when, following revocation of probation, the circuit court
corrected its written sentencing order to conform to the intended sentence previously
imposed from the bench at the sentencing hearing).

                                              15
