STATE OF MISSOURI, Plaintiff-Respondent v. CORY JAMES SMITH

577 S.W.3d 906

• Court: Missouri Court of Appeals
• Decided: August 1, 2019
• Docket: SD35378
• Status: Published

Opinion

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