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State v. Nelson

Court of Appeals of Missouri, Western District, Fourth Division

December 27, 2016

STATE OF MISSOURI, Respondent,
v.
DEMETRIUS C. NELSON, Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Charles H. McKenzie, Judge

          Before: Mark D. Pfeiffer, Chief Judge, Presiding, Thomas H. Newton, Judge and Gary D. Witt, Judge.

          Gary D. Witt, Judge.

         Demetrius C. Nelson ("Nelson) appeals from the denial by the Circuit Court of Jackson County of his Motion for an Order Nunc Pro Tunc ("Motion") under Rule 29.12(c).[1] Nelson was previously convicted after trial of attempted forcible sodomy, section 566.060, [2] first-degree assault, section 565.050, first-degree burglary, section 569.160, and attempted second-degree robbery, section 569.030. In his Motion, Nelson alleged that the trial court's judgment finding him guilty of attempted forcible sodomy mistakenly included that the court found Nelson had physically injured the victim. We dismiss the appeal for lack of statutory authority to hear the issues presented.

         Factual Background

         Nelson was charged by information in lieu of indictment of one count of attempted forcible sodomy, one count of first-degree assault, one count of first-degree burglary, and one count of robbery in the second degree. As relevant to Nelson's Motion, the basis for the charge of attempted forcible sodomy was the allegation that Nelson "on or about the 6th day of September, 2009 [ . . . ] put his hands on [Victim's] vagina, and such conduct was a substantial step toward the commission of the crime of forcible sodomy, and was done for the purpose of committing such forcible sodomy."

         The cause was heard by the court, and the court found Nelson guilty of all charges. The verdict form stated the following with respect to the charge of attempted forcible sodomy: "Count 1 - the Court finds the defendant Demetrius C. Nelson, guilty of Attempted Forcible Sodomy, a Felony." The judgment issued by the court stated that Nelson was guilty of "Atmpt-Forc Sodmy- w physical inj."

         Nelson's Motion argued that the written judgment issued by the court was inconsistent with the actual verdict as a result of a clerical mistake. Nelson alleges that as a result of the inclusion of the "physical injury" language in the verdict he is required to serve a minimum prison term of eighty-five percent of the sentence imposed for the count of attempted forcible sodomy. His Motion requested that the court enter an order correcting the alleged clerical error in the judgment by deleting the language stating that the attempted forcible sodomy included physical injury to the victim. The Motion was denied by the court. Nelson now appeals.

         Analysis

         Although the State fails to take a position in briefing regarding this Court's authority to decide this appeal, this Court must do so sua sponte. State v. Lilly, 410 S.W.3d 699, 701 (Mo. App. W.D. 2013). "The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists." Id. (quoting Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011)). "If this Court lacks jurisdiction to entertain an appeal, the appeal must be dismissed." Id. (quoting Walker v. Brownel, 375 S.W.3d 259, 261 (Mo. App. E.D. 2012)).

         Nelson appeals from the denial by the circuit court of his Motion for an Order Nunc Pro Tunc under Rule 29.12(c). Nunc pro tunc motions under Rule 29.12(c) have a very limited purpose.

Nunc pro tunc emerged as a common law power to allow a court that has lost jurisdiction over a case to maintain jurisdiction over its records to correct clerical mistakes in the judgment arising from either scrivener's errors or from omissions that are indicated in the record but are not recorded in the original judgment. Pirtle v. Cook, 956 S.W.2d 235, 240 (Mo. banc 1997). The court retains jurisdiction over its records so that it may "amend its records according to the truth, so that they should accurately express the history of the proceedings which actually occurred prior to the appeal." DeKalb Cnty. v. Hixon, 44 Mo. 341, 342 (Mo. 1869).

McGuire v. Kenoma, LLC, 447 S.W.3d 659, 663 (Mo. banc. 2014). As such, "a nunc pro tunc judgment is not a 'judicial declaration of the parties' rights' but merely a judicial power to ensure the accuracy of its own records." Id. (quoting Pirtle, 956 S.W.2d at 242). The relief that may be afforded by a nunc pro tunc judgment "is so narrowly prescribed and so strictly confined to the record that it creates no new judgment, but relates back to the original judgment." See State v. McCauley, 496 S.W.3d 593, 595 (Mo. App. S.D. 2016) (citing McGuire, 447 S.W.3d at 663-64, Pirtle, 956 S.W.2d at 241-42; State v. Lawrence, 139 S.W.3d 573, 576 (Mo. App. E.D. 2004)).

         Recently, the Southern District of this Court held that this Court does not have the authority to consider the appeal of the denial of such a motion in a criminal case. See McCauley, 496 S.W.3d 593. The ...


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