STATE OF MISSOURI, Plaintiff-Respondent v. CORY JAMES SMITH , 577 S.W.3d 906 ( 2019 )

STATE OF MISSOURI, )
)
Plaintiff-Respondent, )
)
v. ) No. SD35378
) Filed: August 1, 2019
CORY JAMES SMITH, )
)
Defendant-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY
Honorable Alan Blankenship, Associate Circuit Judge
REMANDED WITH DIRECTIONS
Cory Smith (Defendant) appeals from a judgment convicting him of two counts of
the class B felony of child molestation in the first degree. See § 566.067.1 The trial court
sentenced Defendant as a prior offender to serve ten years in prison on each count. The
court orally pronounced that the ten-year sentences were “to run concurrently with each
other and with the sentence imposed that he’s currently being incarcerated for.” (Emphasis
added.) The written judgment, however, incorrectly stated that the ten-year terms were to
run consecutively. In Defendant’s single point, he contends his case should be remanded
1
All statutory references are to RSMo Cum. Supp. (2013). All rule references are
to Missouri Court Rules (2019).
with directions for the trial court to correct the written judgment to conform to the oral
pronouncement. We agree.
The State concedes this case should be remanded. At the sentencing hearing, the
State recommended “ten- to twelve-year sentences on each [count], to run concurrent.”
The trial court followed the State’s recommendation during the oral pronouncement of
Defendant’s sentences, and the court’s pronouncement is unambiguous. See Johnson v.
State, 446 S.W.3d 274, 276 (Mo. App. 2014) (“formal oral pronouncement controls if it is
unambiguous”). The failure of the written judgment to accurately record Defendant’s
sentences as running concurrently was a clerical error correctable via nunc pro tunc order.
Id. at 277; see State v. Liker, 537 S.W.3d 405, 413 (Mo. App. 2018); State v. Woods, 357
S.W.3d 249, 256 (Mo. App. 2012); see also Rule 29.12(c) (permitting a trial court to
correct such clerical errors in the judgment that obviously are a result of oversight or
omission). “Remand is appropriate.” Liker, 537 S.W.3d at 413; State v. Sanders, 481
S.W.3d 907, 912 (Mo. App. 2016). Defendant’s point is granted.
We, therefore, remand to the trial court for the sole purpose of entering a nunc pro
tunc order to correct the written judgment to reflect that Defendant’s sentences are to run
concurrently with each other and with the other sentence Defendant was serving at the time
of sentencing.
JEFFREY W. BATES, C.J. – OPINION AUTHOR
DANIEL E. SCOTT, P.J. – CONCUR
MARY W. SHEFFIELD, J. – CONCUR
2