State v. Ryan

• Decision Date: 09 December 1927
• Docket Number: 20912.
• Citation: State v. Ryan, 146 Wash. 114, 261 P. 775 (Wash. 1927)
• Parties: STATE v. RYAN.
• Court: Washington Supreme Court

261 P. 775

146 Wash. 114

STATE v. RYAN.

No. 20912.

Supreme Court of Washington

December 9, 1927

Department 2.

Appeal from Superior Court, Pierce County; Hodge, Judge.

P. J Ryan was convicted of grand larceny, and subsequently he moved the court to vacate and set aside the judgment and sentence, and substitute a new sentence in conformity with the law. From an order denying the motion, he appeals. Affirmed.

Henry Clay Agnew, of Seattle, for appellant.

John A Sorley, Bertil E. Johnson, and Edward Hofstede, all of Tacoma, for the State.

HOLCOMB J.

On March 20, 1925, appellant, having been convicted, on a plea of guilty, of the crime of grand larceny, was sentenced by one of the judges of the superior court for Pierce county to a term of not less than 10 years nor more than 15 years. No appeal was taken from that judgment and sentence, and it became final. Nothing further was done in the matter until January 29, 1927, when appellant, having procured counsel moved the court below to vacate and set aside the judgment and sentence and substitute a new sentence in conformity with the law.

This motion was denied by the lower court, for the reason that more than 1 year had expired after the entry of the judgment and sentence, and that all rights to move against the judgment and sentence and to appeal had expired, and that therefore the court was without jurisdiction to entertain the motion.

Appellant thereupon applied to this court for a writ of mandamus, directing the superior court for Pierce county to assume jurisdiction and entertain and dispose of the motion upon the merits. The petition for writ of mandamus was denied by this court on May 13, 1927. On June 8, 1927, appellant served and filed his notice of appeal from the order of the lower court denying his motion to vacate and modify the judgment and sentence, and perfected his appeal to this court.

Appellant cites the statute (Rem. Comp. Stat. § 2605), which provides that the maximum term of imprisonment shall be 15 years, but does not provide a minimum term, and cites section 2281, Rem. Comp. Stat., providing that where no minimum term of imprisonment is prescribed by law the court shall fix the same in his discretion at not less than 6 months nor more that 5 years. Appellant then contends that the portion of the judgment fixing a minimum of 10 years is void on its face, and that a court has inherent power to correct a void judgment at any time, no matter in what manner it is called to his attention.

8 R. C. L. 248, is quoted as follows:

'If an illegal sentence has been pronounced, the court has power to substitute a legal sentence, and its right to do this is not impaired by the circumstance that the illegal sentence has been partly executed, though that circumstance will undoubtedly be considered by the court in determining the extent of the defendant's punishment.'

The above text deals with nunc pro tunc entries to correct formal errors. In its introductory portion it states that:

'* * * Mere formal or clerical errors or omissions or mistakes in the entries of the clerk concerning matters of procedure in criminal cases may be corrected by nunc pro tunc orders. * * * But to enable the court to correct a mistake in a judgment entry summarily, on motion, it must appear to be a mere clerical misprision, and not an error of the court.'

A misprision in practice is defined to be a clerical error or mistake made by a clerk or other judicial or ministerial officer in writing or keeping records. Black's Law Dictionary, 784.

In 7 R. C. L. 1019, 1020, the inherent power of a court of record to correct its records is stated as follows:

'This power to correct clerical errors and misprisions extends to criminal as well as civil cases, and it would seem that no lapse of time will divest the court of its power, or absolve it from its duty, to supply deficiencies in the records of its own proceedings, where justice and truth of a case require it. A court may amend its record in the matter of clerical misprisions so as to make it conform to the truth even after the term has expired, and error brought, and where a court has amended omisions in its records which occurred at a previous term, the record thus amended stands as if it had never been defective, or as if all the entries had been made and completed at the previous term. In the exercise of this power of amendment, the court is not, however, authorized to do more than to make its records correspond to the actual facts, and cannot, under the form of an amendment of its records, correct a judicial error, or make of record an order or judgment that was never in fact given.'

In the same work, on the topic of 'Judgments,' 15 R. C. L. 622, it is said:

'The office of a judgment nunc pro tunc is to record some act of the court done at a former time which was not then carried into the record, and the power of a court to make such entries is restricted to placing upon the record evidence of judicial action which has been actually taken. It may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. If the court has not rendered a judgment that it might or should have rendered, or if it has rendered an imperfect or improper judgment, it has no power to remedy these errors or omissions by ordering the entry nunc pro tunc of a proper judgment.'

Here, the record accurately inscribed the judgment pronounced.

Appellant also quotes and relies upon 34 C.J. 220, as follows:

'Where terms of court are abolished, and the court is deemed to be continuously in session, the general rule of control during the term has no application, and relief against a final judgment may be had only in the manner and within the time provided by statute, except that judgments inadvertently

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