400 S.W.3d 11
Mo. Ct. App.2013Background
- Appellant Neal Ricker appeals pro se from a Buchanan County Circuit Court denial of a nunc pro tunc motion to correct the written sentence and judgment for 1994 convictions of first-degree assault and armed criminal action.
- The written sentence incorrectly states a § 558.019 persistent-offender finding and minimum term, though the record shows a sentence as a prior and persistent offender.
- Ricker alleged the clerical error stemmed from entering § 558.019 instead of § 558.016, and that he was never charged or found as a persistent offender under § 558.019 at trial.
- On February 8, 2012, the court issued a Corrected Judgment and Order denying relief, finding the record did not support nunc pro tunc relief because findings were made at trial and reflected in the ruling.
- The appellate court dismissed the appeal for failure to provide transcripts of the 1994 trial and sentencing, which prevented review of whether a clerical error occurred or whether the written judgment diverged from the oral pronouncement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can the clerical-error claim be reviewed without the trial transcripts? | Ricker contends there was a clerical error (§ 558.019 vs § 558.016) affecting his sentence. | Court findings and the written judgment align with a persistent-offender designation, and relief requires proper record. | Appeal is dismissed for lack of transcripts to review the issue. |
Key Cases Cited
- State v. Johnson, 220 S.W.3d 377 (Mo.App. E.D.2007) (clerical discrepancies regarding judgment can be addressed by nunc pro tunc under Rule 29; but record must be complete)
- State v. Prosser, 161 S.W.3d 848 (Mo.App. E.D.2005) (appellant must provide complete record on appeal per Rule 81.12)
