What Constitutes “Clerical Error”; Also, Civil Rule Provides Trial Court Narrower Window to Correct Clerical Error in Appealed Judgment than Criminal Rule
A recent decision of the Kentucky Supreme Court centered on the issue of correcting clerical errors in judgments. Though the decision did not have reason to address the matter, it called to mind an interesting difference between the Kentucky Rule of Criminal Procedure governing correction of judgments, RCr 10.10, and the corresponding and nearly identical Rule of Civil Procedure, CR 60.01.
Machniak v. Com., 351 S.W.3d 648 (2011), a 4-3 opinion authored by Justice Abramson, dealt with a criminal judgment in which the trial court imposed on the record at the sentencing hearing but did not include in the written judgment an enhanced sentence in the event the defendant violated his probation. The term that was omitted from the written judgment – a term that the defendant had agreed to in a plea agreement and at sentencing – was that in the event of a probation violation the multiple probated sentences would run consecutively rather than concurrently. After the defendant violated probation, the trial court revoked probation and imposed the enhanced consecutive sentence without having corrected the clerical omission in the first judgment.
In discussing what constitutes a clerical error in a judgment that is subject to correction by the trial court, the Court reviewed examples from prior cases and held that clerical mistakes subject to correction, as opposed to judicial errors, are errors or omissions that are not the result of the exercise of “judicial reasoning and determination” or “the judicial function.” Ultimately, the Court concluded that (i) procedurally, the judgment was not corrected properly since the trial court never entered a corrected judgment and, once the matter was on appeal, leave of the appellate court was not sought to correct the error, and, (ii) substantively, it was improper for the trial court to impose a sentence for a probation revocation that was greater than that originally imposed.
The notable (and indeed the only) difference between CR 60.01 and RCr 10.10, both of which provide that a clerical error in a judgment may be corrected “at any time,” is that under CR 60.01, leave of the appellate court is required to correct a clerical error once an appeal is pending and the appeal is “docketed,” while under RCr 10.10 leave of the appellate court is not required until the appeal is “perfected.” Under CR 79.06(3), an appeal is considered “docketed” once the appellate clerk receives copies of the notice of appeal and the judgment appealed from and a receipt for the appellate filing fee from the lower court clerk. An appeal is “perfected,” on the other hand, under CR 76.02(1) after the lower court clerk’s notice of completion and certification of the record is transmitted to the appellate court clerk and after the appellant’s brief is filed. The time between the docketing of an appeal and the perfecting of the appeal is normally at least 3 to 4 months, and often longer. Thus, it would appear that under the Rules the window for correcting a clerical error in a judgment without the approval of the appellate court while the case is on appeal is somewhat longer in a criminal case than in a civil case.
Justice Venters’ dissent in Machniak raised an interesting issue relating to the use of the phrase “at any time” in RCr 10.10, suggesting the majority opinion would preclude correction of a judgment once an appeal is concluded. One would assume that procedurally, had the majority not held substantively that the enhanced sentence was improperly imposed, either the trial court or the Commonwealth could have sought the Supreme Court’s leave to correct the judgment. Needless to say, attempting to correct a judgment after the appellate process has been concluded would raise numerous substantive and procedural issues (more than I care to attempt to address in an already long blog post) in any event.
Though such errors are a fairly rare occurrence, practitioners should be vigilant in reviewing judgments to verify that they accurately reflect the decisions of the trial court and/or the verdict of the jury. When an error is discovered, prompt action should be taken to have it corrected using the appropriate rule, with leave obtained from all appropriate courts.
Note: The foregoing post includes commentary reprinted from the forthcoming 2012 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer and Todd V. McMurtry, with permission of the authors and publisher. Copyright (c) 2012Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-litigation-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.
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