State of Missouri v. Demetrius C. Nelson , 2016 Mo. App. LEXIS 1336 ( 2016 )

In the
Missouri Court of Appeals
Western District
STATE OF MISSOURI, )
)
Respondent, ) WD79226
)
v. ) OPINION FILED:
) December 27, 2016
DEMETRIUS C. NELSON, )
)
Appellant. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Charles H. McKenzie, Judge
Before Division Four: Mark D. Pfeiffer, Chief Judge, Presiding, Thomas H. Newton,
Judge and 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
1
All rule references are to Missouri Supreme Court Rules (2016).
2
All statutory references are to the Revised Statutes of Missouri 2000 as currently supplemented, unless
otherwise indicated.
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
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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
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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 principles supporting the decision in McCauley are
straightforward.
• In criminal cases "[t]here is no right to an appeal without statutory
authority." State v. Sturdevant, 143 S.W.3d 638, 638 (Mo. App. E.D. 2004).
• In criminal cases, appeal lies only from a final judgment, § 547.070, which
occurs "only when a sentence is entered." State v. Famous, 415 S.W.3d 759,
759 (Mo. App. E.D. 2013).
• "Orders entered in criminal cases after the judgment has become final which
deny motions requesting various types of relief are not appealable." State v.
Payne, 403 S.W.3d 606, 607 (Mo. App. S.D. 2011) (collecting cases).
Id. at 594.
The Southern District's decision held that we do not have the authority to hear an
appeal from the denial of a nunc pro tunc motion under Rule 29.12(c) as appeals in criminal
cases may only be from a final judgment rendered upon indictment or information, section
547.070. As a nunc pro tunc judgment, and the refusal by the court to issue such a
judgment, creates no new judgment from which there is a statutory right to appeal under
section 547.070, this Court does not have the authority to entertain an appeal therefrom.
Id. This result aligns with numerous other holdings that rulings in criminal cases after
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judgment and sentence are not appealable, including orders denying probation, jail-time
credit, motions for early release, etc. See McCauley, 496 S.W.3d at 595 (listing non-
appealable rulings in criminal cases following judgment and sentence).
Nelson argues this Court does have the authority to decide this appeal and cites in
support a number of cases decided before McCauley that did not explicitly address whether
this Court has the authority to decide an appeal from the denial of a nunc pro tunc motion
but rather assumed such authority. See McArthur v. State, 428 S.W.3d 774, 781 (Mo. App.
E.D. 2014); State v. Lawrence, 139 S.W.3d 573, 576 (Mo. App. E.D. 2004); State v. Currie,
454 S.W.3d 903 (Mo. App. S.D. 2014). As these cases were decided prior to McCauley
and failed to address the issue actually decided by McCauley that is dispositive of this
appeal, it is unnecessary to distinguish them individually. Insofar as these cases are
contrary to McCauley's holding that this Court does not have the authority to decide an
appeal from the denial of a nunc pro tunc motion under Rule 29.12(c) in a criminal case,
they should not be followed.
Nelson is not, however, without any avenue for relief if the alleged clerical error
actually infringes upon his rights. "[W]rit and perhaps other remedies are adequate to
protect the narrowly-limited right" that Nelson asserts on appeal. McCauley, 496 S.W.3d
at 596; see also State v. Williams, 871 S.W.2d 450, 452 n.2 (Mo. banc 1994) (writs of
prohibition or of habeas corpus are remedies available where terms and conditions of
probation are not subject to direct appellate review); (Mazur v. State, 285 S.W.3d 820, 822
n.2 (Mo. App. S.D. 2009) (remedy for seeking jail time credit under section 558.031 is by
declaratory judgment or extraordinary writ).
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Conclusion
The appeal is dismissed.
__________________________________
Gary D. Witt, Judge
All concur
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