STATE OF IOWA, Plaintiff-Appellee, vs. REGINALD HENRY SALLIS, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-241 / 06-1617
Filed April 25, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
REGINALD HENRY SALLIS,
Defendant-Appellant.
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Appeal from the Iowa District Court for Dubuque County, Monica L.
Ackley, Judge.
Reginold Sallis appeals from a nunc pro tunc order amending a sentence
previously entered.
NUNC PRO TUNC ORDER VACATED; SENTENCE
VACATED; AND REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and David Adams, Assistant
State Appellate Defender.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney
General, Ralph Potter, County Attorney, and Christine Corken and Timothy
Gallagher, Assistant County Attorneys.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
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EISENHAUER, J.
Reginold Sallis appeals from a nunc pro tunc order amending a sentence
previously entered. He contends the court improperly modified the sentence in a
nunc pro tunc order. He also contends he was denied due process when he was
resentenced without the being afforded the opportunity to be heard. We review
his claims for correction of errors at law. Iowa R. App. P. 6.4.
Sallis pled guilty to third-degree sexual abuse in violation of Iowa Code
section 709.4(1) (2005) and was immediately sentenced to a term of
imprisonment not to exceed ten years. Approximately seven months later, the
district court entered a nunc pro tunc order amending the judgment and sentence
to provide that after Sallis had discharged his prison sentence, he “shall be
committed to the custody of the Director of the Department of Corrections for the
remainder of his life pursuant to Iowa Code section 903B.1.”
Sallis argues any error in his sentencing could not be corrected by a nunc
pro tunc order as such orders are available only to correct clerical errors, not an
error in judicial thinking, a judicial conclusion, or a mistake of law. See State v.
Naujoks, 637 N.W.2d 101, 113 (Iowa 2001). Iowa Rule of Criminal Procedure
2.23(3)(g) states:
Clerical mistakes in judgments, orders or other parts of the record
and errors in the record arising from oversight or omission may be
corrected by the court at any time and after such notice, if any, as
the court orders.
The purpose of rule 2.23(3)(g) is not to correct illegal sentences, but rather to
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correct clerical mistakes. State v. Suchanek, 326 N.W.2d 263, 265 (Iowa 1982).
Clerical errors in judgments may be corrected by nunc pro tunc orders. Id.
Meanwhile, a sentence that is beyond the court’s power to impose is
illegal. Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001).
Rule 2.24(5)(a)
allows a court to correct an illegal sentence at any time. In order to be “illegal”
for purposes of rule 2.24(5)(a), the sentence must be one not authorized by
statute. Tindell, 629 N.W.2d at 359.
An illegal sentence and a clerical error are not the same and we reject the
State’s contention that “[i]t makes no difference what caption the district court
placed on its order . . . .” Suchanek, 326 N.W.2d at 266 (holding an order setting
aside a sentence would itself have to be set aside because the judge “did not
have the facts before him to determine whether the judgment entry should be
corrected as an illegal sentence under rule 23(5)(a) or corrected for a clerical
error under rule 22(3)(g)”). A nunc pro tunc order was not appropriate in this
situation, where an illegal sentence needs correction.
Nevertheless, the original judgment and sentence entered by the district court is
illegal and subject to correction because it does not comport with the
requirements of section 903B.1 (Supp. 2005). See State v. Draper, 457 N.W.2d
600, 605 (Iowa 1990) (“[W]hen a sentencing court departs—upward or
downward—from the legislatively authorized sentence for a given offense, the
pronounced sentence is a nullity subject to correction, on direct appeal or later.”).
We vacate the district court’s nunc pro tunc order as well as the original sentence
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for third-degree sexual abuse and remand for resentencing. Because we are
setting aside the nunc pro tunc order we need not address Sallis’s due process
claim.
NUNC PRO TUNC ORDER VACATED; SENTENCE VACATED; AND
REMANDED FOR RESENTENCING.
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