321.1Sentencing Errors and Corrections
- The judge has inherent authority to modify a sentence during the same session of court.
- The judge also has authority after the session ends to correct certain types of errors in judgments, but the scope of that authority depends on: (i) what type of error it is – clerical vs. legal; (ii) whether the session of court has ended; and (iii) whether the case has been appealed.
The trial judge generally has the authority to modify a sentence during the same session of court in which he or she imposed the original sentence. See State v. Jones, 27 N.C. App. 636 (1975); State v. Ransom, 74 N.C. App. 716 (1985); State v. Oakley, 75 N.C. App. 99 (1985); see also State v. Trent, 359 N.C. 583 (2005); citing to Capital Outdoor Adver., Inc. v. City of Raleigh, 337 N.C. 150 (1994) (noting that “the use of ‘term’ has come to refer to the typical six-month assignment of superior court judges, and ‘session’ to the typical one-week assignments within the session”). The judge also has broad authority after the session ends to correct errors in the judgment, although the scope of this authority depends on the type of error and the status of the case, as described below.
The court has inherent authority to amend its records and correct any clerical errors before the session ends. The court also may correct clerical errors after the session ends, as long as the case has not been appealed. If the case has been appealed, a motion to amend the judgment should be made in the appellate division by the party seeking to make the change. See State v. Dixon, 139 N.C. App. 332 (2000); State v. Davis, 123 N.C. App. 240 (1996).
A “clerical error” is an incorrect recording of what actually happened or was actually decided, as opposed to an error in legal reasoning or determination. See State v. Cannon, 244 N.C. 399 (1956) (stating that “[I]t is universally recognized that a court of record has the inherent power and duty to make its records speak the truth. It has the power to amend its records, correct the mistakes of its clerk or other officers of the court, or to supply defects or omissions in the record, and no lapse of time will debar the court of the power to discharge this duty.”); State v. Mohamed, 205 N.C. App. 470 (2010) (correcting incorrect file number); State v. Brooks, 148 N.C. App. 191 (2001) (correcting judgment that mistakenly indicated mitigating factors outweighed aggravating, instead of the reverse); State v. Hendricks, 138 N.C. App. 668 (2000) (judgment listed wrong offense as dismissed); State v. McKinnon, 35 N.C. App. 741 (1978) (correcting mistaken statutory reference); State v. Lawing, 12 N.C. App. 21 (1971) (term of imprisonment written on judgment did not correctly state what judge announced in court). But see State v. Jarman, 140 N.C. App. 198 (2000) (stating that “[a]lthough a court of record has the inherent power to make its records speak the truth and, to that end, to amend its records to correct clerical mistakes or supply defects or omissions therein, . . . it cannot, under the guise of an amendment of its records, correct a judicial error.”).
The court may modify the judgment and correct any "legal errors" before the session ends – even if the defendant has already given notice of appeal. See State v. Jones, 27 N.C. App. 636 (1975). A legal error is one that involves judicial reasoning or determination. See, e.g., State v. Ransom, 74 N.C. App. 716 (1985) (sentence imposed exceeded the maximum permitted by law); State v. Davis, 123 N.C. App. 240 (1996) (defendant sentenced only on habitual status, underlying felony was dismissed); State v. Yow, 204 N.C. App. 203 (2010) (noting legal error where defendant was only sentenced to 10 years satellite-based monitoring, but judge’s finding that defendant was a recidivist mandated lifetime monitoring).
If the session has ended and the legal error was to the disadvantage of the defendant, the trial judge has statutory authority to correct the error on its own motion through a Motion for Appropriate Relief under G.S. 15A-1411 to 1422. See State v. Oakley, 75 N.C. App. 99 (1985).
If the session has ended and the legal error was to the advantage of the defendant, the trial court nevertheless retains “inherent authority” to correct the invalid judgment. See State v. Branch, 134 N.C. App. 637 (1999) (upon notification from Department of Corrections that sentences were improperly combined, trial judge had authority to resentence defendant, resulting in a longer sentence).
If a judgment failed to give the defendant proper credit for pretrial confinement, the judge may, upon petition, re-determine the amount of credit due and forward an order to the custodian of the institution directing that defendant receive such credit. See G.S. 15-196.4; AOC-CR-906M (Order Providing Credit Against Service of Sentence).