Court of Appeals of Missouri, Western District, Fourth Division
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.
D. Witt, Judge.
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). Nelson was previously convicted after
trial of attempted forcible sodomy, section 566.060,
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.
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."
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."
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
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)).
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)).
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 ...