1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38887

STATE OF IDAHO , Plaintiff-Respondent ,

v.

TOMMY GENE FITE , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2012 Unpublished Opinion No. 331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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Richar d 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.

________________________________________________ Before LANSING, Judge; GUTIERREZ, Judge; and MELANSON, Judge

PER CURIAM Tommy Gene Fite pled guilty to a ggravated 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 a n aggregate unified sentence of thirty years, with fifteen years determinate: On Count I , aggravated assault on a police officer, Fite was
sentenced to a d eterminate term of ten years; and o n 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 a n aggregate unified sentence of thirty yea rs, with five years determinate: For Count I, a unified senten ce 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 the2 sentence in Count I. Eight years later, and one month before Fite’s scheduled parole eligibility
hearin g , the district court amended the written judgment to correct the sen tence 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. W atts , 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 an y 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 brie fing and a h earing 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 contenti on that basic fairness precluded the d istrict court from correcting the judgment. I t 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 ig norant of his true in eligibility for parole, detrimentally relied on the erroneous sentencing order, and had successfully reintegrated himself into the community.) Based on the above, w e cannot say the district court erred in amending the judgment of
conviction

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