97-025

 No. 97-025

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 74

 STATE OF MONTANA,

 Plaintiff and Respondent,

 v.

 JEFFREY DEAN WINTERROWD,

 Defendant and Appellant.

 APPEAL FROM: District Court of the Eighth Judicial District,

 In and for the County of Cascade,

 The Honorable Kenneth Neill, Judge presiding.

 COUNSEL OF RECORD:

 For Appellant:

 William Hooks, Appellate Defender, Helena, Montana

 For Respondent:

 Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,

 Assistant Attorney General, Helena, Montana

 Brant Light, Cascade County Attorney, Great Falls, Montana

 Submitted on Briefs: March 12, 1998

 Decided: April 7, 1998

 Filed:

 __________________________________________

 Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

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¶1 Appellant Jeffrey Dean Winterrowd (Winterrowd) appeals from the order of the

Montana Eighth Judicial District Court, Cascade County, requiring him to pay the 

costs of

jury selection and prosecution and the order nunc pro tunc sentencing him to six 

months

imprisonment for his misdemeanor theft conviction. We reverse and vacate the orders 

of the

District Court.

 Appellant raises the following issues:

¶2 1. Did the District Court err in ordering Winterrowd to pay the costs of jury 

selection

and prosecution?

¶3 2. Did the District Court err in sentencing Winterrowd on a misdemeanor theft

conviction by an order nunc pro tunc?

 Factual and Procedural Background

¶4 In February 1995, Winterrowd was charged by information with felony burglary and

misdemeanor theft. After determining that Winterrowd was indigent, the District 

Court

appointed counsel from the public defender's office to represent him. In August 

1995, the

public defender moved to withdraw, stating that he had been informed that Winterrowd 

had

received a $10,000 settlement from the Social Security Administration and was no 

longer

indigent. Winterrowd's counsel stated that the public defender's office would not 

reassign

counsel. No hearing was held, and the District Court granted the motion. 

¶5 The District Court continued the trial from December 13, 1995 to February 28, 

1996

to give Winterrowd the opportunity to retain counsel. On February 20, 1996, 

Winterrowd

asked the court to continue the trial because he had not been able to retain 

counsel. He stated

that he had not yet received his Social Security settlement but expected to receive 

it on or

about March 11. The State opposed this motion, arguing that Winterrowd had not

demonstrated due diligence and that his claim that he would receive the settlement 

on March

11 was unsupported by documentation. 

¶6 The District Court never ruled on Winterrowd's motion. At the start of trial on

February 28, Winterrowd again moved the District Court to continue, and the court 

denied

the motion. The trial proceeded through voir dire, but, following a break, the 

court granted

Winterrowd's motion to continue and excused the jurors. The District Court ordered

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Winterrowd to pay the costs incurred in summoning jurors and in prosecuting him.

¶7 Winterrowd obtained counsel, who filed a notice of appearance on March 12 and

moved the court to reconsider its order requiring Winterrowd to pay costs. The 

court denied

the motion, and the case proceeded to trial on August 27, 1996. A jury found 

Winterrowd

guilty of burglary and theft. The District Court sentenced Winterrowd to ten years 

in the

Montana State Prison on the felony burglary conviction. The court did not sentence 

him on

the misdemeanor theft conviction.

¶8 On October 17, 1996, Winterrowd filed a pro se notice of appeal with this 

Court. On

December 30, 1996, the District Court issued an order nunc pro tunc, noting that it 

had failed

to impose sentence on the misdemeanor theft conviction and sentencing Winterrowd to 

six

months, suspended, to be served concurrently with the sentence for burglary. 

Winterrowd,

now represented by an appellate public defender, appeals from the orders of the 

District

Court. 

 Discussion

¶9 1. Did the District Court err in ordering Winterrowd to pay the costs of jury 

selection

and prosecution?

¶10 We review a district court's discretionary rulings in criminal cases for abuse 

of

discretion. State v. Sullivan (1994), 266 Mont. 313, 880 P.2d 829. The State and

Winterrowd agree that the District Court abused its discretion by ordering 

Winterrowd to pay

the costs of jury selection and prosecution. We also agree.

¶11 The District Court granted the public defender's motion to withdraw based on an

unsupported claim that Winterrowd had received a settlement from the Social Security

Administration and refused Winterrowd's request for a continuance. Winterrowd 

informed

the court that he was unable to retain new counsel until he received his settlement 

on March

11 and, in fact, did retain counsel on March 12. The District Court continued the 

February

28 trial only after requiring Winterrowd to proceeded pro se through voir dire and 

then

assessed to him the costs of jury selection and prosecution. We hold that the 

District Court

erred in ordering Winterrowd to pay costs, and we vacate the court's order.

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¶12 2. Did the District Court err in sentencing Winterrowd on a misdemeanor theft

conviction by an order nunc pro tunc?

¶13 In this case, the District Court failed to sentence Winterrowd on his 

misdemeanor

theft conviction, in either open court or the written judgment. Four months later, 

the District

Court issued an order nunc pro tunc sentencing Winterrowd to six months 

imprisonment, the

maximum sentence for misdemeanor theft, to run concurrently with his sentence on the

burglary conviction. 

¶14 It is within a district court's power to enter an order nunc pro tunc modifying 

or

amending a judgment to remedy certain types of clerical errors. State ex rel. 

Kruletz v.

District Court (1940), 110 Mont. 36, 98 P.2d 883. However, the purpose of such an 

order

is to make the record reflect what was actually decided. Dahlman v. District Court 

(1985),

215 Mont. 470, 698 P.2d 423. Therefore, the error "must be apparent on the face of 

the

record to insure that the correction does not in effect set aside a judgment 

actually rendered

nor change what was originally intended." State v. Owens (1988), 230 Mont. 135, 

138, 748

P.2d 473, 474 (citing Kruletz, 98 P.2d at 885). 

¶15 The State contends that it was clear from the proceedings that the District 

Court

intended to sentence Winterrowd to six months on the theft conviction, analogizing 

this case

to Owens, 748 P.2d at 473. In Owens, the sentencing court failed to designate the 

defendant

as a dangerous offender in the written sentencing order, but made a specific finding 

on the

record in open court that the defendant was a dangerous offender. Owens, 748 P.2d 

at 474-75. Subsequently, in what was deemed a nunc pro tunc order by this Court, 

the court

amended the sentence to include this designation. Owens, 748 P.2d at 474. We held 

that

"[i]t is clear from this Court's review of the record that the District Court 

intended to

designate the defendant as dangerous" and upheld the district court's order. Owens, 

748 P.2d

at 475. 

¶16 By contrast, in this case, not only was the sentence on the theft conviction 

omitted

from the written sentencing order, but neither the District Court nor the parties 

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ever

discussed it at the sentencing hearing. The State contends that Winterrowd should 

have

known the maximum term to which he could be sentenced and that "it is customary for 

the

sentencing court to impose a six-month concurrent sentence on a misdemeanor offense

whenever a prison term is imposed on a felony." The State argues that, therefore, 

"it should

be no surprise" to Winterrowd that the District Court sentenced him to six months. 

Contrary

to the State's assertion, there is nothing in the record that suggests what sentence 

the court

intended to impose, and we shudder at the suggestion that a criminal defendant 

should expect

a maximum sentence as "customary." 

¶17 We hold that it was an abuse of discretion for the District Court to attempt to 

correct,

by nunc pro tunc order, its failure to sentence Winterrowd on the misdemeanor theft

conviction. 

¶18 Therefore, we reverse and vacate the court's December 30, 1996 order and 

sentence.

 /S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

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