This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Malissa Joy Strack,


Filed April 29, 2003


Minge, Judge


Morrison County District Court

File No. K600226


Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Conrad I. Freeberg, Morrison County Attorney, Morrison County Government Center, 213 First Avenue Southeast, Little Falls, MN 56345 (for respondent)


Gregory K. Larson, Larson Law Office, 111 First Avenue Southeast, Little Falls, MN 56345 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge, and Minge, Judge.



U N P U B L I S H E D  O P I N I O N


MINGE, Judge

            Due to a jail-credit computation error, the district court amended appellant’s criminal judgment and warrant of commitment to extend her incarceration.  Appellant claims that the district court did not have the authority to amend the sentence and that the amendment violates her due process rights.  We affirm.



Appellant was committed to the Commissioner of Corrections for 21 months, with 14 months imprisonment followed by seven months of supervised release.  The court directed that appellant receive credit for jail time already served and said “we’ll double check with probation and the sheriff’s department to see exactly what credit she gets for time served.” 

The jail reported the wrong amount of time served to the court, resulting in a 372-day credit rather than the 212 days to which appellant was actually entitled.  As a result, appellant would only be required to serve 54 additional days. 

On March 8, 2002, the corrections department called the county attorney advising that appellant was scheduled for release on March 11, 2002.  The county attorney immediately notified the court of the mistake and appellant’s imminent release.  The court directed the county attorney to schedule a motion.  Appellant was released on March 11.  The county attorney’s motion was heard on May 29, 2002.  On June 29, 2002, the district court amended the criminal judgment and warrant of commitment to reflect 212 days served.  The court found:

Due to clerical or administrative error, the January 16, 2002 Criminal Judgment Warrant of Commitment gave Defendant jail credit of 12 months and 7 days.  In fact, the Defendant had served 212 days of local jail time * * * .[1] 


The district court accordingly ordered appellant to serve the rest of her sentence, a period of 145 days,[2] in the Morrison County Jail.  Appellant challenges the district court’s amendment of the criminal judgment and warrant of commitment.                    



Our standard of review is de novo.  Questions of authority and jurisdiction of the district courts are legal issues subject to de novo review.  State v. Pflepsen, 590 N.W.2d 759, 763 (Minn. 1999).  To the extent this appeal involves interpretation of rules of criminal procedure, the standard of review is also de novo.  State v. Nerz, 587 N.W.2d 23, 24 (Minn. 1998).


The first issue we consider is whether the district court had the authority to amend the warrant of commitment to reflect the correct amount of jail credit. 

The rules of criminal procedure allow a court to correct clerical mistakes in orders as follows:

Clerical mistakes in judgments, orders, or other parts of the record or 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.


Minn. R. Crim. P. 27.03, subd. 8.  The term “clerical error” as used in the rule has been defined as an error “which cannot reasonably be attributed to the exercise of judicial consideration or discretion.”  Pflepsen, 590 N.W.2d at 768 n.4 (quoting Wilson v. City of Fergus Falls, 181 Minn. 329, 332, 232 N.W. 322, 323 (1930)).  Other errors are covered by subdivision 9 of the same rule:

The court at any time may correct a sentence not authorized by law.  The court may at any time modify a sentence during either a stay of imposition or stay of execution of sentence except that the court may not increase the period of confinement.


Minn. R. Crim. P. 27.03, subd. 9.  This court has distinguished clerical errors from other mistakes by noting:

[A] motion [to correct a clerical error] can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what originally was pronounced.


State v. Walsh, 456 N.W.2d 442, 443 (Minn. App. 1990) (alteration in original) (quotation omitted).

            The facts of this case meet the requirements of the clerical error rule.  The judge executed the 21-month sentence and allowed appellant credit for time already served.  The judge did not know how much time appellant had already served, so the judge relied on the jail to report the amount of time served.  Here, the district court is not using its correction to “say something other than what originally was pronounced.”  Instead, the correction was made to correct a clerical error and to ensure that appellant served the sentence as it was originally pronounced. 


Next we consider appellant’s argument that the issuance of the amended criminal judgment is fundamentally unfair and violates due process.  In determining whether appellant’s due process rights have been violated, we rely on State v. Calmes, 632 N.W.2d 641 (Minn. 2001).  In Calmes, the court noted that “due process may be violated when a defendant’s sentence is enhanced after the defendant has developed a crystallized expectation of finality in the earlier sentence.”  Id. at 646 (quotation omitted).  The court in Calmes recognized that it is only in the “extreme case” that a correction or modification will be so unfair as to violate a prisoner’s due process rights and that “a defendant does not automatically acquire a vested interest in an erroneous sentence.”  Id. at 647 (citation omitted).

To determine whether a prisoner’s due process rights have been violated by the correction or modification of a sentence, the court in Calmes relied on several factors.  Id. at 647-49.  Those factors include:

the lapse of time between the original mistaken sentence and the attempted increase, whether the defendant contributed to the mistake, the reasonableness of the defendant’s expectations, the prejudice of the sentencing change to the defendant, and the diligence exercised by the state in seeking the change. 


Id. at 647.

            The first factor is the lapse of time between the original sentence and the increase.  In this case the lapse is 51 days.  The reason for the lapse is not fully explained in the record.  The computational error apparently happened shortly after the January 16, 2002 hearing when the sheriff’s office provided the time-served calculation to the court administrator.  The mistake does not appear to have been discovered by any of the court officials until it was brought to the attention of the county attorney on March 8, 2002, almost three months later.  The lapse-of-time factor is not helpful in deciding this case.

Appellant did not contribute to the mistake.  There is no indication of any misrepresentation on her part or that of her attorney.

Analyzing the facts of this case under the other Calmes factors leads us to conclude that appellant’s due process rights were not violated.  We focus on the reasonableness of appellant’s expectations and whether the amendment was prejudicial.  Although the calculation of jail credit involves some complexities, anyone close to the case should have known something was amiss.  Serving 54 days rather than 199 days is a dramatic difference; it was too good to be true.  Appellant or her attorney should have been aware of a mistake of this magnitude at an early date.  Any expectation of such an early release would not have been reasonable.  

            The next factor addressed in Calmes is the prejudice of the sentencing change to the defendant.  Id. at 647.  Here, the increase was due to a computational error.  Aside from the additional jail time, which was to be expected, there is nothing in the record that reflects a specific prejudice to appellant.  Appellant stresses how the additional jail time places her life on hold and disregards the substantial psychological preoccupation inmates have with their release date and the devastating impact of any change in that date.  We are not insensitive to appellant’s expectation of a date certain for her release from jail or to the harshness of appellant’s having to return to jail more than a year after being released and the disruption that this causes in family and employment relationships.  However, the mistake was raised prior to her release and the appellant should not have a favorable result on appeal simply because she challenged the motion for amendment by the county attorney or pursued this appeal.

The final factor addressed in Calmes is the diligence exercised by the state in seeking the change.  Id.  As discussed above, as soon as the office of the county attorney was made aware of the mistake, it promptly contacted the court.  Upon contacting the court, the county attorney followed the court’s direction and scheduled a motion.  The state exercised diligence in seeking to correct the error.  Appellant does not claim any lack of diligence by the county attorney or the court.  In fact, part of the delay in holding the district court hearing was the request for continuance by counsel for the appellant.

The clerical error should have been obvious.  The appellant should not have had a crystallized expectation of finality, and the appellant has not provided specific evidence of the type of prejudice from the delay that is sufficiently serious to qualify for relief under the due process principles.  Conversely, the error was a clerical computation mistake and the state was diligent in seeking the change in the warrant of commitment.  Though we agree that there are clerical errors that may be so egregious that their correction may constitute a due process violation, that is not the situation in this case.    


[1] There was also a nine-day credit for sentence-to-serve time.  The record does not disclose how this time affects the overall computations.


[2] We note that the difference between the time with which appellant was credited (372 days) and the time she should have been credited (212 days) is 160 days, not 145 days.  It appears from the record that the 15-day difference is due to a “good time” deduction.