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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38887

STATE OF IDAHO,

Plaintiff-Respondent,

v.

TOMMY GENE FITE,

Defendant-Appellant.

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2012 Unpublished Opinion No. 331

Filed: January 23, 2012

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin 

Falls County. Hon. G. Richard Bevan, District Judge. 

Amended judgment of conviction and sentence, affirmed.

Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney 

General, Boise, for respondent. 

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Before LANSING, Judge; GUTIERREZ, Judge;

and MELANSON, Judge

PER CURIAM

Tommy Gene Fite pled guilty to aggravated assault on a peace officer, Idaho Code §§ 

18-905 and 18-915, and unlawful use of a bomb or destructive device, Idaho Code § 18-3320. 

At sentencing, the district court orally pronounced an aggregate unified sentence of thirty years,

with fifteen years determinate: On Count I, aggravated assault on a police officer, Fite was 

sentenced to a determinate term of ten years; and on Count II, unlawful use of a bomb or 

destructive device, Fite was sentenced to a unified term of twenty years, with five years 

determinate, to run consecutive to the sentence in Count I. Contrary to the oral judgment, the 

written judgment erroneously stated an aggregate unified sentence of thirty years, with five years 

determinate: For Count I, a unified sentence of ten years, with zero years determinate; and for 

Count II, a unified term of twenty years, with five years determinate, to run consecutive to the 
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sentence in Count I. Eight years later, and one month before Fite’s scheduled parole eligibility 

hearing, the district court amended the written judgment to correct the sentence to the term orally 

pronounced. Fite appeals, contending the district court’s amended judgment resulted in an unjust 

outcome.

Under Idaho law, “the only legally cognizable sentence in a criminal case is the ‘actual 

oral pronouncement in the presence of the defendant.’ The legal sentence consists of the words 

pronounced in open court by the judge, not the words appearing in the written order of 

commitment.” State v. Allen, 144 Idaho 875, 877-78, 172 P.3d 1150, 1152-53 (Ct. App. 2007)

(quoting State v. Wallace, 116 Idaho 930, 932, 782 P.2d 53, 55 (Ct. App. 1989)). Where there is 

a disparity between the oral pronouncement and written order, the oral pronouncement controls. 

State v. Watts, 131 Idaho 782, 786, 963 P.2d 1219, 1223 (Ct. App. 1998). 

Clerical mistakes in judgments arising from oversight or omission may be corrected by 

the court at any time. Idaho Criminal Rule 36; Allen, 144 Idaho at 878, 172 P.3d at 1153. “If an 

order of commitment does not accurately represent the court’s oral sentence pronouncement that 

constitutes the judgment, it is manifestly proper to correct the error under Rule 36 so the written 

expression is consistent with that judgment.” Wallace, 116 Idaho at 932, 782 P.2d at 55. The 

district court may correct the judgment when there is sufficient information in the record to show 

that a clerical mistake has been made. Id. (citing State v. Stormoen, 103 Idaho 83, 645 P.2d 317 

(1982)).

After briefing and a hearing on the matter, the district court found the written judgment of 

conviction was erroneous and subject to correction by the court at any time. There is nothing in 

the record to support Fite’s contention that basic fairness precluded the district court from 

correcting the judgment. It is undisputed that Fite was present for his sentencing and aware of 

his sentence orally pronounced by the judge in court. Although Fite had a parole eligibility 

hearing, he had not been released on parole. Cf. Johnson v. Williford, 682 F.2d 868 (9th Cir. 

1982) (upholding erroneous sentencing order that failed to preclude parole under equitable 

estoppel and due process principles fifteen months after defendant was released on parole where 

the defendant was ignorant of his true ineligibility for parole, detrimentally relied on the 

erroneous sentencing order, and had successfully reintegrated himself into the community.)

Based on the above, we cannot say the district court erred in amending the judgment of 

conviction. Therefore, Fite’s amended judgment of conviction and sentence are affirmed.