Arizona Supreme Court holds that courts lack authority to enter a retroactive order modifying a criminal sentence unless there is clerical error or mistake in the record.

In 1994, a jury convicted a defendant of first-degree murder. The judge in that case sentenced the defendant to “25 years without the possibility for release until those years have been served.”  Under the governing statutes, the only way that the defendant could be released is through an executive pardon or commutation of sentence.

Later, in 2019, the Department of Corrections certified the defendant as parole eligible and then the Board of Clemency unanimously granted his request to be released on house arrest. The Department then later decided that its decision to certify the defendant as parole eligible was in error and requested the Board to rescind its order. The Board later reconsidered its order, but in light of evidence from the sentencing judge, the Board decided that the defendant was parole eligible under the terms of his sentencing order and should still be released on parole. The Department filed a lawsuit seeking declaratory relief against the Board, arguing that it lacked authority under the governing statutes to order the defendant released.

The defendant filed a counterclaim and preliminary injunction requesting immediate reinstatement of his release order. In light of a stipulation between the State and the defendant, the trial court entered a nunc pro tunc order pursuant to Rule 24.4 of the Arizona Rules of Criminal Procedure amending his sentence to clarify that parole was an intended possibility of release.

The superior court granted the defendant’s request for a preliminary injunction, holding that the defendant’s sentence in light of the nunc pro tunc order authorized him to be released on parole. The Arizona Court of Appeals affirmed that decision, holding that even if the trial court lacked authority to modify the sentence, that sentence was no longer appealable and was therefore final.

The Arizona Supreme Court reversed the decision of the Court of Appeals. It held that the trial court lacked authority to enter a nunc pro tunc order modifying the criminal sentence. It explained that those orders are available only where a judgment was not recorded through inadvertence or mistake. The Supreme Court then held that the order amending the sentence was void because the Court exceeded its authority and lacked jurisdiction to modify the order under Rule 24.4.  The Court remanded the decision to the trial court to reconsider the request for preliminary injunction without that amended order.

Justice Lopez authored the opinion for the unanimous Court.

Disclosure: Osborn Maledon attorneys participated in this case.

Posted by: John Bullock