When A Judgment Or Sentence Is Not Properly Recorded
If a judgment or a sentence in a criminal proceeding is not properly entered in a trial court’s record, the trial court may retroactively enter the judgment or the sentence. Such a proceeding is called a nunc pro tunc proceeding. The only limitations on the nunc pro tunc proceeding is that a new trial must not have been granted, the judgment must not have been arrested, or an appeal must not have been filed.
The words “nunc pro tunc” mean “now for then.” A nunc pro tunc proceeding is used by a trial court to make its record speak the truth by correcting the record at a later date in order to reflect what actually occurred at a trial. The proceeding is used to correct a judgment or a sentence or to enter a judgment or a sentence that was not properly recorded. The proceeding may also be used in some states to correct an unintended or an illegal sentence. However, other courts have held that nunc pro tunc proceedings may only be used to correct clerical errors and not judicial errors.
A nunc pro tunc proceeding may not be used to modify or to add additional provisions to a judgment or a sentence. For example, the proceeding may not be used to add new costs or fines or to add a provision regarding a defendant’s use of a deadly weapon in the commission of an offense. However, the proceeding may be used to correct an omission that was unfavorable to the defendant, such as adding credit for jail time that was omitted in an original judgment or sentence.
If a nunc pro tunc proceeding will change a judgment or a sentence, which change will be unfavorable to a defendant, the defendant has a right to be notified of the proceeding and to be present at the proceeding. The defendant also has a right to be represented by counsel at the proceeding.