[Cite as State v. Ritchie,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24088

v. : T.C. NO. 09TRC9549

THOMAS J. RITCHIE, JR. : (Criminal appeal from Municipal Court) Defendant-Appellant :

:

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OPINION

Rendered on the 27th day of May , 2011.

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SHAUNA HILL, Atty. Reg. No. 0074569, Assistant City Prosecutor, 335 W. Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

TERRY W. POSEY, Atty. Reg. No. 0039666, 7460 Brandt Pike, Dayton, Ohio 45424 Attorney for Defendant-Appellant

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FROELICH, J.

{¶ 1} Thomas J. Ritchie, Jr. appeals from a Nunc Pro Tunc Entry of the Dayton

Municipal Court, which held that, due to a clerical error, prior charges against him for

operating a motor vehicle while intoxicated and failure to control had been erroneously

dismissed with prejudice; the nunc pro tunc entry dismissed the charges without prejudice. 2

For the following reasons, the judgment of the trial court will be reversed.

{¶ 2} On May 18, 2009, Ritchie was charged with operating a motor vehicle while

intoxicated and failure to control after being involved in a traffic accident. Ritchie filed a

motion to suppress evidence, which was overruled. After several continuances, a trial was

set for March 22, 2010. A key witness for the State failed to appear on that date, and the

State requested a continuance. On the record, the court implicitly denied the State’s request

for a continuance, stating that “the Court will enter a dismissal of the case.” In its

handwritten judgment entry, which was journalized and signed by the judge the same day,

the trial court stated: “Motion to continue denied. State unable to proceed. The Court

hereby dismisses all charges with prejudice.” This was a final appealable order. R.C.

2505.02(B)(1); Estate of Hards v. Shore, Cuyahoga App. No. 86103,

.

See, also, State v. Brown, Cuyahoga App. No. 84229,

.

{¶ 3} The State did not appeal from the dismissal, as permitted under R.C.

2945.67.1 On March 29, 2010, the State refiled the charges against Ritchie.2

{¶ 4} On May 7, 2010, the trial court, perhaps acting in response to Ritchie’s

request for a pre-trial hearing on the refiled charges, filed a nunc pro tunc entry holding that

the dismissal of the prior charges had been without prejudice. The entry stated that, “[u]pon

reviewing the case record, the Court finds that this notation was a clerical error that does not

1 In its brief, the State asserts that the court “did not provide [the State] with a copy of the entry” and that the State did not become aware of the nature of the dismissal until the period for filing an appeal had passed. 2 The charges were “refiled,” apparently by submitting new traffic citations, but under the same case number. 3

accurately reflect the Court’s Dismissal on the Record.” Ritchie filed a motion to dismiss

the refiled charges against him and to dismiss the nunc pro tunc entry. Before the trial court

ruled on his motion to dismiss, Ritchie filed a notice of appeal from the May 7 entry.

{¶ 5} Ritchie raises one assignment of error on appeal:

{¶ 6} “THE TRIAL COURT ERRED IN VACATING THE DISMISSAL

WITHOUT PREJUDICE.”

{¶ 7} Ritchie argues that the trial court erred in using a nunc pro tunc entry to

modify its prior judgment that the charges against him had been dismissed with prejudice

and that the City was not permitted to refile the charges against him.

{¶ 8} Courts possess inherent authority to correct errors in judgment entries so that

the record speaks the truth. In re Cook’s Estate (1969),

; Crim.R.

36. A court’s use of a nunc pro tunc judgment entry, which means “now for then,” indicates

its intent that the judgment have legal effect from an earlier date. Id.; Garner, A Dictionary

of Modern Legal Usage (1987), 383-384. Nunc pro tunc entries are limited in proper use,

however, to reflecting what the court actually decided but failed to properly include in its

judgment, “its sole function being that of correcting a clerical error in the execution of a

ministerial act.” Helle v. Public Utilities Commission (1928),

, 439; Webb v. Western Res.

Bond & Share Co. (1926),

. “Therefore, a nunc pro tunc

order is a vehicle used to correct an order previously issued which fails to reflect the

trial court’s true action.” State v. Bumgardner (Dec. 3, 1999), Greene App. No.

99 CA 75, citing State v. Greulich (1988),

. See, also, State

v. Breedlove (1988),

(“[T]he function of a nunc pro tunc 4

order is, essentially, clerical.”); Berdine v. Berdine (Aug. 15, 1997), Greene App.

No. 96-CA-156 (“The sole function of an order nunc pro tunc is to correct a clerical

error in the execution of a ministerial act.”)

{¶ 9} The court used a nunc pro tunc entry in this case to establish that it

intended to dismiss the charges against Ritchie without prejudice, although the

original judgment stated that the charges were dismissed with prejudice. This May

7 entry was a final appealable order because it had the effect of vacating a

judgment (i.e., the March 22 judgment dismissing the case with prejudice). R.C.

2505.02(B)(3).

{¶ 10} The power to enter nunc pro tunc orders does not extend to correction

of errors made in consequence of mistake, neglect, omission, or inadvertence.

Caprita v. Caprita (1945),

; Leis v. Leis (Sept. 20, 1995), Miami

App. No. 94 CA 54, citing Brown v. L.A. Wells Construction Co. (1944),

. As discussed above, its use is limited to placing on the record evidence of

a judicial action that was actually taken, and it cannot be used to add relief not

granted in the earlier entry. Berdine, supra. “The function of nunc pro tunc is not

to change, modify, or correct erroneous judgments, but merely to have the record

speak the truth.” Ruby v. Wolf (1931),

. A nunc pro tunc

entry cannot be used to change something that was deliberately done. Dentsply

Internatl., Inc. v. Kostas (1985),

.

{¶ 11} In this case, the record contains a handwritten entry of March 22 in

which the judge stated that the case was dismissed with prejudice. The meaning

of such an entry is clear, and the transcript of the hearing, at which the judge simply 5

stated that the case would be dismissed, does not contradict the entry. The trial

court might have mistakenly indicated in its judgment that the case would be

dismissed with prejudice, or the court might have subsequently determined that it

should not have dismissed the case with prejudice. However, because the trial

judge had clearly expressed his intention to dismiss the case with prejudice in a

judgment entry, any error in resolving the case in this manner was not a clerical or

ministerial one, but was a result of mistake or inadveterence. As such, it could not

be corrected by use of a nunc pro tunc entry.

{¶ 12} The State contends that the trial court erred in dismissing the charges

with prejudice because Ritchie “had not been deprived of any constitutional or

statutory right that would bar further prosecution.” It also asserts that the court “did

not provide [the parties] with a copy of the entry,” that it did not realize, before the

charges were refiled, that the case had been dismissed with prejudice, and that we

should recognize “plain error” because its rights were “compromised” by the trial

court’s actions. Even assuming that all of these arguments are true, the trial court

was not permitted to correct its error through a nunc pro tunc entry. The State’s

remedy was to appeal from the judgment of dismissal, seeking a reversal or

modification of the court’s judgment.

{¶ 13} We acknowledge the State’s argument that it did not realize the

nature of the trial court’s dismissal before the time for filing a notice of appeal had

passed. However, App.R. 4 provides that the notice of appeal must be filed within

thirty days of the entry of the judgment; in a criminal case, it does not require

service on the parties. Accord, App.R. 5(C). Thus, it appears that the State was 6

charged with knowledge of the trial court’s decision through the court’s journal.

Pursuant to App.R. 5(A), only a defendant may file a motion for delayed appeal

after the expiration of the thirty-day period.

{¶ 14} Ritchie’s assignment of error is sustained.

{¶ 15} The nunc pro tunc judgment of the trial court is reversed.

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GRADY, P.J., concurs.

HALL, J., concurring in part and dissenting in part:

{¶ 16} Because I would reverse and remand the case for the trial court to

define the nature of the “clerical error” it found, and to give the defendant the

opportunity to be heard opposing the “clerical error” determination, I concur in the

reversal, but would remand for further proceedings.

{¶ 17} The majority opinion indicates that because the trial judge had

expressed his intention to dismiss the case with prejudice in the March 22, 2010

written entry, that any error was not clerical but an error of mistake or inadvertence.

I believe it is possible that this was a clerical error. If it was, then it should be

subject to correction. However, the record does not reveal the nature of the “clerical

error” that was made. And, there is no indication that the defendant had the

opportunity to be heard in opposition to the court’s determination that there had

been an error at all.

{¶ 18} Accordingly, I would reverse and remand the matter to the trial court

to express the precise nature of the clerical error with the defendant having an

opportunity to be heard in opposition. 7

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Copies mailed to:

Shauna Hill Terry W. Posey Hon. Christopher D. Roberts