Ex Parte Bailey
We granted Marcus Bailey‘s petition for a writ of certiorari to determine whether the Court of Criminal Appeals erred in affirming the ruling of the trial court that a notice of appeal mooted Bailey‘s motion, in effect, for the trial court to correсt a Rule 29, Ala.R.Crim.P., “error arising from oversight or omission” in its written sentencing order. We reverse and remand.
Pursuant to a plea agreement, Marcus Bailey pleaded guilty to two counts of unlawful distribution of marijuana in violation of
On July 20, 1998, 41 days after the trial court sentenced Bailey, defense counsel filed a “Motion to Set Aside Plea or in the Alternative to Clаrify the Court‘s Order so that the Department of Corrections Can Properly Reflect it on the Defendant‘s `Time Sheet‘” (hereinafter referred to as the “motion tо set aside plea or to clarify order“). In this motion, defense counsel alleged that the Department of Corrections (DOC) interpreted the trial court‘s written sentencing order improperly to read that each of the two 10-year enhancements was to run consecutively with each other as well as consecutively with the two concurrent 15-year sentences. On the samе day that defense counsel filed the “motion to set aside plea or to clarify order,” Bailey filed a pro se notice of appeal. Thus, the trial court dismissed the “motion to set aside plea or to clarify order” as “moot.” Upon Bailey‘s appeal, the Court of Criminal Appeals held, in an unpublished memorandum, that, because defense counsel filed the “motion to set aside plea or to clarify order” more than 30 days after the date of sentencing, the trial court did not have jurisdiction to consider the motion. Bailey v. State, (No. CR-97-2171), 744 So.2d 965 (Ala.Crim.App. 1998) (table). The Court of Criminal Appeals reasoned that Bailey‘s motion was comparable to a motion for new trial, which must be filed within the 30-day-after-sentence jurisdictional time limit imposed by
At the sentencing hearing, the trial court orally sentenced Bailey as follows:
“In accordance with the State‘s recommendation, on each of your convictions,
I sentence you to serve 15 years in the state penitentiary, plus an additional five years for the enhancement for the sale having occurred within three miles of a public housing project, plus an additional five years for the sale having ocсurred within three miles of a public school. That is as to each count, the total sentence is 25 years. And the 25 year sentence under each count will run concurrent with one another, and also concurrent with the sentence you‘re already serving out of Morgan County.”
(R. 14.) Thereafter, the trial court issued a written sentencing order stating:
“Pursuant to a negotiated plea agreement and upon the State‘s recommendation, the defendant is sentenced to 15 years in thе State Penitentiary of Alabama on each conviction to run concurrent plus each of the 10-year enhancements shown below to run consecutive.
“In addition the foregoing sentence, the defendant is sentenced to 5 years’ imprisonment pursuant to
Section 13A-12-250, [Ala.] Code , and to 5 years’ imprisonment pursuant toSection 13A-12-270, [Ala.] Code , resulting in a total sentence of 25 years’ imprisonment on each conviction.“Said sentence is to run concurrent with the case which the defendant is currently serving for attempted murder.”
(C.R. 25-26.) DOC interpreted this sentencing order to mean that Bailey serves his two 15-year sentences concurrently and serves his two 10-year enhancements consecutively with each other after his two concurrent 15-year sentences, for a total of 35 years’ imprisоnment.
The State contends that DOC‘s interpretation of the sentencing order is correct because “under the plea agreement, each of the four 5-year enhancements would run consecutively.” However, there is no written plea agreement to support the State‘s contention. In fact, the transсript of the guilty plea proceedings refutes the State‘s contention. Indeed, during the guilty plea proceedings, the prosecutor stated:
“Your Honor, [Bailey‘s] going to plead guilty to two of the counts of sale. Not all three that he is charged under. We are going to recommend a sentence of 25 years in each one of those counts, to run concurrent with one another and concurrent with any other sentence he may presently be serving. That 25 years in each count includes two five year enhancements in each count.”
(R. 3-4.)
Therefore, the record proves that the parties and the trial court intended for Bailey to rеceive a 25-year sentence for each conviction and for his sentences for each count to run concurrently. Although the trial court‘s oral sentence clearly reflects the sentence the trial court intended to impose, the portion of the trial court‘s written sentencing order stating, “the defendant is sentenсed to 15 years in the State Penitentiary of Alabama on each conviction to run concurrent plus each of the 10- year enhancements shown belоw to run consecutive,” is not as clear.
“Clerical mistakes in judgments, orders, or other parts of the record, and errors arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any pаrty and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court.”
(Emphasis added.) A trial court may correct a judgment or order in a manner to speak the truth only, not to change what the trial court originally intended and pronounced. See H. Maddox, Alabama Rules of Criminal Procedure, § 29.1, p. 888 (3d ed. 1999). The Committee Comments to
“The term `clerical errors’ is not limited solely to errors by the clerk in transcription. It can also include errors by others, such as a jury foreman, counsel, a party, or the judge himself. When a correction is based upon the recollection of the court it is not subject to contest.”
(Emphasis in original.) (Citations omitted.) Applying the rationale of Continental in Ex parte Dollar, 687 So.2d 209 (Ala. 1996), this Court held that a trial court could amend a restitution order 45 days after issuance to include restitution to be paid to a party whom the trial court omitted in its original restitution order.
In a factually similar criminal case, the Court of Criminal Appeals held that, pursuant to
Likewise, the trial court in this case had the authority, at any time, even after 30 days following the date of sentencing, to clarify its written sentencing order to show that Bailey is to serve 15 years’ imprisonment plus an additional 10 years, pursuant to the schoolyard and public housing enhancement statutes, for each conviction, and that his sentences for the two convictions are to run concurrently — for a total of 25 years’ imprisonment. Consequently, the judgment of the Court of Criminal Appeals is reversed and this cause is remanded for that court to permit the trial court to clarify its written sentencing order consistently with this opinion.
REVERSED AND REMANDED.
Hooper, C.J., and Maddox, Houston, Cook, See, Lyons, and
England, JJ., concur.
Brown, J., recuses herself.*