RULE 36. CLERICAL
MISTAKES ERROR 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 court orders.
Rule 36 was amended, effective____________.
Rule 36 is adapted from and contains language identical to Fed.R.Crim.P. 36. The
Rule rule is also similar to N.D.R.Civ.P. 60(a) and provides for correction of clerical error ""at any time ".
Rule 36 is limited in scope to the correction of
"clerical mistakes" or "errors arising from 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 arising from 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, only the sentencing court may correct clerical error. (Accardi v. Blackwell, 412 F.2d 911 (5th Cir. 1969).)
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. 1961).) See 8A Moore's, supra, at ¶36.03, p. 36-4.).
Rule 36 was amended, effective ______________, 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, pages ___; December 11-15, 1972, pages 24-25; September 26-27, 1968, pages 18-19;
18 U.S.C.A., 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).