VII. JUDGMENT

217

Rule 36: Clerical Mistakes.

After giving any notice it considers appropriate, the court may at any time correct clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission. Upon filing of the corrected judgment or order, or upon the court's denial of a motion filed pursuant to this rule, the defendant or the state may initiate an appeal as of right pursuant to Rule 3, Tennessee Rules of Appellate Procedure. [As amended by order filed January 13, 2012, effective July 1, 2012; and as order filed December 21, 2016, effective July 1, 2017.]

Advisory Commission Comments.

This rule conforms to the corresponding federal rule.

Advisory Commission Comments [2012].

Tenn. R. Crim. P. 36 is amended to provide for an appeal as of right from the trial court’s filing of a corrected judgment or order. A corresponding amendment to Tenn. R. App. P. 3 is also adopted.

Tenn. R. App. P. 24(a) lists the items which must be included in the record on appeal. In an appeal as of right from the entry of a corrected judgment or order pursuant to Tenn. R. Crim. P. 36, the record on appeal should include the listed items (e.g., papers filed in the trial court, exhibits, transcript or statement of the evidence or proceedings, etc.) pertaining to the original judgment or order, as well as those items pertaining to the corrected judgment or order. As provided by Tenn. R. App. P. 24(a), however, the parties may designate that only certain items be included “[i]f less than the full record on appeal. . .is deemed sufficient to convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal[.]”

Advisory Commission Comments [2017].

The rule is amended to provide that an appeal as of right is available following the trial court's denial of a motion filed pursuant to Tenn. R. Crim. P. 36, in addition to cases in which the trial court files a corrected judgment or order. Although Tenn. R. App. P. 3 was amended in 2012 to accomplish this result, the text of Tenn. R. Crim. P. 36 was not changed at that time; additionally, the 2012 Advisory Commission Comment to Tenn. R. App. P. 3(b) and (c) failed to convey the intent behind the 2012 amendment to Tenn. R. App. P. 3. As a result, amended Tenn.

R. App. P. 3(b) and (c) were not consistent with the text of Tenn. R. Crim. P. 36. Construing the text of both rules, the Court of Criminal Appeals held that an appeal as of right still was not available in cases in which the trial court denied a Tenn. R. Crim. P. 36 motion, notwithstanding the 2012 amendment to Tenn. R. App. P. 3(b) and (c). See, e.g., State v. Ross, No. E2014-02563- CCA-R3-CD, 2015 WL 7567285, at *6 (Tenn. Crim. App. Nov. 24, 2015), appeal denied, not for citation (Tenn. Apr. 6, 2016) (stating that "[t]his court has repeatedly held that Tennessee Rule of Appellate Procedure 3(b) provides no appeal as of right from the denial of a Rule 36 motion, and this court lacks jurisdiction to entertain such an appeal" and that "[t]his outcome is not changed by any of the recent amendments to Rules 36 and 3(b)") (emphasis in original). This 2017 amendment resolves the inconsistency between the two rules and makes it clear that an appeal as of right is available regardless of whether the trial court grants or denies a Tenn. R. Crim.P.36 motion.

 

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