The opinion of the court was delivered by: Sullivan, Presiding Justice
DATE OF JUDGMENT: 04/17/97
TRIAL JUDGE: HON. JOHN LESLIE HATCHER
COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
MOTION FOR REHEARING FILED:
¶1. This appeal arises from Kendrick Berry's conviction and sentence for the crime of robbery in the Circuit Court of Coahoma County, Mississippi. Berry alleges that the trial court erred in denying his motion to withdraw his guilty plea. By our December 12, 1997, Order, we denied the State's motion to dismiss Berry's appeal for lack of jurisdiction, finding that this case involves "an appeal from the sentencing order and not an appeal from the entry of the plea itself. . . ." We find that Berry's five-year sentence, being within the statutory guidelines, is valid and therefore affirm his conviction and sentence in this case.
¶2. Berry was indicted for armed robbery, but agreed to plead guilty at the close of the State's case in exchange for the State's recommendation that he be sentenced to a ten-year suspended sentence. Circuit Court Judge John Leslie Hatcher accepted Berry's guilty plea and orally sentenced him to a suspended term of ten years in the custody of the Mississippi Department of Corrections.
¶3. Between the sentencing hearing and entry of the sentencing order in the trial court minutes, the State discovered that Berry had a prior felony conviction in Shelby County, Tennessee. The State filed a motion on February 20, 1997, to re-sentence Berry in accordance with Miss. Code Ann. § 47-7-33, because the court has no authority to render a suspended sentence when the defendant has already been convicted of a felony. Berry filed a motion to have his guilty plea set aside on March 13, 1997.
¶4. The trial court conducted a hearing on the two motions and denied the motion to set aside the guilty plea, finding that Berry's guilty plea was valid and was entered freely, voluntarily, knowingly, and intelligently. The trial Judge further found that the oral sentence was invalid, because Berry had a prior felony conviction, the oral sentence was void ab initio, and the court did not reduce the oral sentence to a written judgment of sentence, nor was it filed or entered in the minutes of the court. After ordering a presentence report, the trial court sentenced Berry on April 17, 1997, to serve a term of five years in the custody of the Mississippi Department of Corrections for the crime of robbery.
¶5. Berry maintains that the trial court erred in not allowing him to withdraw his guilty plea. This Court does not have jurisdiction on direct appeal when only a guilty plea is being challenged. Miss. Code Ann. § 99-35-101 (1994). Instead a defendant must file a motion for post conviction relief pursuant to Miss. Code Ann. § 99-39-5 (1994). However, in Burns v. State, 344 So. 2d 1189 (Miss. 1977), we held that a habeas corpus appeal based on the issue of sentencing was properly before the Court. Burns, 344 So. 2d at 1190. In Trotter v. State, 554 So. 2d 313 (Miss. 1989), we further held that this Court has jurisdiction in matters that involve a direct appeal ...