Teasley v. Commonwealth

• Decision Date: 11 October 1948
• Parties: TEASLEY. v. COMMONWEALTH.
• Court: Virginia Supreme Court

188 Va. 376

49 S.E.2d 604

TEASLEY.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Oct. 11, 1948.

Error to Circuit Court, Hanover County; Leon M. Bazile, Judge.

Junius Teasley was convicted and sentenced to the penitentiary. On habeas corpus the order of sentence and commitment were held defective and defendant was remanded to the sheriff for further action. A nunc pro tunc order Was entered supplying the omission in the order of sentence and commitment, and defendant was again sentenced and remanded to the penitentiary, and he brings error.

Affirmed.

Before HUDGINS, C J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

W. A. Hall, Jr., of Richmond, for plaintiff in error.

J. Lindsay Almond, Jr., Atty. Gen., and Ballard Baker, Sp. Asst. to Atty. Gen., for the Commonwealth.

BUCHANAN, Justice.

On October 16, 1945, on an indictment charging him and Eugene Lewis with burglary, Teasley, the appellant, was sentenced to eighteen years in the penitentiary by the Circuit Court of Hanover county. This was the order showing the sentence:

"This day came the Attorney for the Commonwealth, and the accused Eugene Lewis and Junius Teasley, being led to the bar in the custody of the Sheriff, and being represented by Counsel, being arraigned, plead not guilty to the indictment, and they each having elected to be tried by the Judge and not by a jury, and the Attorney for the Commonwealth not requiring a jury, the Court with the consent of both proceeded to hear the case without the intervention of a jury, and there being nothing offered or alleged in delay thereof it is the judgment of the Court that the accused Eugene Lewis and Junius Teasley be confined in the State Penitentiary for the term of eighteen (18) years, each. Said term to begin as of August 11th, 1945, the day they were confined to jail awaiting trial. And the prisoners are remanded to jail."

Afterwards, on December 3, 1947, Teas-ley, by his next friend, filed in the Hustings Court of the city of Richmond, Part II, his petition for a writ of habeas corpus, alleging that his sentence was a nullity and that he was unlawfully imprisoned because this order did not show (1) that the Commonwealth's attorney consented to the waiver of a jury, and (2) that the judge found the defendant guilty before sentencing him. He also alleged that the sentence was excessive.

The superintendent of the penitentiary filed an answer conceding that the order was fatally defective in failing to show a finding of guilty, and consenting that the writ of habeas corpus should issue. On December 30, 1947, the Hustings Court entered its order holding that the order and commitment of October 16, 1945, was defective, and directing that the superintendent of the penitentiary release Teasley from custody under said order and remand him to the custody of the sheriff of Hanover county "for such further action as the Commonwealth may be advised."

On May 17, 1948, the Circuit Court of Hanover county, on motion of the Commonwealth's attorney, after notice, in the presence of the prisoner and his counsel, entered a nunc pro tunc order supplying the alleged omissions in the order of October 16, 1945, on the basis of that order and without hearing any other evidence. The nunc pro tunc order states that "it was and is the judgment of the Court that the accused is guilty of burglary as charged in said indictment and he was and is found guilty of said offense." He was again sentenced and remanded to the penitentiary "to finish the service of his sentence therein "

Appellant contends, first, that it was error to enter that order because his discharge on habeas corpus was a final disposition of the case unless reversed on appeal. The answer to that contention is clear.

Section 5853 of the Code, Michie, 1942, provides that the court hearing a petition for habeas corpus shall either discharge or remand the petitioner, or admit him to bail; and section 5857 of that Code provides that the judgment, entered of record, shall be conclusive unless the same be reversed. The judgment of the Hustings Court was, as noted, that the order of October 16, 1945, was defective, and that the prisoner be released from the penitentiary and remanded to the sheriff of Hanover county for further action. The further action contemplated was, of course, the curing of the admitted defect in the order of sentence. Whether it was necessary to remand the prisoner to the Circuit Court of Hanover county to correct that defect is now beside the point. See Annotation, 10 A.L.R. at page 543; 30 Am.Jur., Judgments, § 95, p. 867; Ex parte Mattox, 137 Tex.Cr.R. 380, 129 S.W.2d 641. At any rate, the judgment of the Hustings Court was not contested and the proceedings that followed were as per mitted by that judgment, not contrary to it or in any way disregarding or overruling it.

The appellant contends, second, that there is nothing upon which the nunc pro tunc order could be properly entered.

The power of courts to enter orders nunc pro tunc, to correct clerical, as distinguished from judicial, errors is too firmly established to be questioned. It is an inherent power, existing independently of statute. Gagnon v. United States, 193 U.S. 451, 24 S.Ct. 510, 48 L.Ed. 745; Chaney v. State Compensation Com'r, W. Va., 33 S.E.2d 284; 30 Am.Jur., Judgments, § 96, p. 867; 49 C.J.S., Judgments, § 236, p. 448. Myriad examples of its use in both civil and criminal cases may be seen in annotations in 5 A.L.R. page 1127; 10 A.L.R. page 526; 67 A.L.R. page 828 and 126 A.L.R. page 956.

The power is limited to the correction of clerical or formal errors, to make the record speak the truth; but it extends to mistakes apparent on the record, whether made by the clerk or by the court, if not made in the exercise of the judicial function. If the mistake is one committed in the exercise of the judgment or discretion of the court, a judicial error, it cannot be corrected by nunc pro tunc order after the judgment has become final. 49 C.J.S., Judgments, §§ 237, 238, pp. 449-454; Annotations, A. L.R., supra.

The use of the order extends also to supplying, in proper cases, matter which was properly part of the judgment, and so intended, but negligently or inadvertently omitted therefrom. 49 C.J.S., Judgments, § 240, p. 455; 30 Am.Jur., Judgments, § 108, p. 874.

The holdings of this court have been in accord with these general rules. In Weatherman v. Commonwealth, 91 Va. 796, 799, 800, 22 S.E. 349, 350, 351, we said:

"The power of the courts to make entries of judgments and orders nunc pro tunc, in proper cases, and in furtherance of the ends of justice, has been recognized and exercised from the earliest times; and the period in which the power may be exercised is not limited. * * * And this power may be exercised as well in criminal prosecutions as in civil cases. * * * "

But in applying the principle we have put a narrower limitation on the evidence required as a basis for the order than do perhaps a majority of the courts. In some jurisdictions the correction may be made on any competent extrinsic evidence. In Virginia, however, it can only be made when there is something in the record by which it can be safely made. In Barnes v. Commonwealth, 92 Va. 794, 800, 23 S.E. 784, 786, we held:

"Whether the authority of the courts in this state to amend their records after the term at which a final judgment has been entered be derived solely from our statute, or from both the common law and the statute, it is clear that under our statutes, decisions, and practices, whatever may be the rule in other jurisdictions, they can only make amendments in cases in which there is something in the record by which they can be safely made, and that amendments cannot be made upon the individual recollection of the judge, or upon proofs aliunde."

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