RULE 36. CLERICAL
Clerical mistakes in judgments, orders, or other parts After giving any
notice it considers
appropriate, the court may at any time correct a clerical error in a judgment, order, or other
part of the record and errors , or correct an error 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
Rule 36 was amended, effective March 1, 2006.
Rule 36 is adapted from and contains language identical to Fed.R.Crim.P. 36. The
is also similar to N.D.R.Civ.P. 60(a) and provides for correction of clerical error
Rule 36 is limited in scope to the correction of
"clerical mistakes" or "errors arising
oversight or omission." (As to the difference between "oversight" and "clerical error", see
Nicholson v. United States, 303 F.2d 161 (9th Cir. 1962) clerical errors or errors
oversight or omission. The Rule rule does not apply to the
correction of errors of substance,
such as a sentence or a conviction improperly obtained. A clerical mistake
error involves a
failure to record accurately a statement made or action taken by the court or one of the
parties. (See 8A Moore's Federal Practice, /P 36.02 (Cipes,2dEd. 1970).)
Under Rule 36, clerical errors may be corrected by the court on its own initiative or on
motion of one of the parties.
(See 8A Moore's, supra, at /P 36.03.) However,
sentencing court may correct clerical error. (Accardi v. Blackwell, 412 F.2d 911 (5th
The evidentiary basis for correction under this
Rule rule may be
derived from various
sources, such as the official transcript, judge's notes, probation report, clerk's notes, and
docket entries (Kennedy v. Reid, 249 F.2d 492 (D.C. Cir. 1957)). The
recollection of the trial
judge is also a basis for correction (Fitzgerald v. United States, 296 F.2d 37 (5th Cir.
See 8A Moore's, supra, at ¶36.03, p. 36-4.).
Rule 36 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
SOURCES: Joint Procedure Committee Minutes of January 27-28, 2005, page 32;
December 11-15, 1972, pages 24-25; September 26-27, 1968, pages 18-19;
Fed.R.Crim.P. Rule 36 , page 137; Wright, Federal Practice and
Procedure: Criminal, §
§ 611-612 (1969); 8A Moore's Federal Practice, Chapter 36 (Cipes, 2d Ed. 1971);
Barron, Federal Practice and Procedure: Criminal, §§ 2311-2312 (1951).
STATUTES AFFECTED: None
CROSS REFERENCE: N.D.R.Civ.P. 60 (Relief from Judgment or Order).