In the 

Missouri Court of Appeals 

Western District

STATE OF MISSOURI,

Respondent,

v.

DEMETRIUS C. NELSON,

Appellant.

)

)

)

)

)

)

)

)

)

WD79226

OPINION FILED: 

December 27, 2016

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Charles H. McKenzie, Judge

Before Division Four: Mark D. Pfeiffer, Chief Judge, Presiding, Thomas H. Newton, 

Judge and Gary D. Witt, Judge

Demetrius C. Nelson ("Nelson) appeals from the denial by the Circuit Court of 

Jackson County of his Motion for an Order Nunc Pro Tunc ("Motion") under Rule 

29.12(c).1 Nelson was previously convicted after trial of attempted forcible sodomy, 

section 566.060,2first-degree assault, section 565.050, first-degree burglary, section 

569.160, and attempted second-degree robbery, section 569.030. In his Motion, Nelson 

 

1 All rule references are to Missouri Supreme Court Rules (2016).

2 All statutory references are to the Revised Statutes of Missouri 2000 as currently supplemented, unless 

otherwise indicated.
2

alleged that the trial court's judgment finding him guilty of attempted forcible sodomy 

mistakenly included that the court found Nelson had physically injured the victim. We 

dismiss the appeal for lack of statutory authority to hear the issues presented.

Factual Background

Nelson was charged by information in lieu of indictment of one count of attempted 

forcible sodomy, one count of first-degree assault, one count of first-degree burglary, and 

one count of robbery in the second degree. As relevant to Nelson's Motion, the basis for 

the charge of attempted forcible sodomy was the allegation that Nelson "on or about the 

6th day of September, 2009 [ . . . ] put his hands on [Victim's] vagina, and such conduct 

was a substantial step toward the commission of the crime of forcible sodomy, and was 

done for the purpose of committing such forcible sodomy." 

The cause was heard by the court, and the court found Nelson guilty of all charges. 

The verdict form stated the following with respect to the charge of attempted forcible 

sodomy: "Count 1 - the Court finds the defendant Demetrius C. Nelson, guilty of 

Attempted Forcible Sodomy, a Felony." The judgment issued by the court stated that 

Nelson was guilty of "Atmpt-Forc Sodmy- w physical inj." 

Nelson's Motion argued that the written judgment issued by the court was 

inconsistent with the actual verdict as a result of a clerical mistake. Nelson alleges that as 

a result of the inclusion of the "physical injury" language in the verdict he is required to 

serve a minimum prison term of eighty-five percent of the sentence imposed for the count

of attempted forcible sodomy. His Motion requested that the court enter an order correcting 

the alleged clerical error in the judgment by deleting the language stating that the attempted 
3

forcible sodomy included physical injury to the victim. The Motion was denied by the 

court. Nelson now appeals.

Analysis

Although the State fails to take a position in briefing regarding this Court's authority

to decide this appeal, this Court must do so sua sponte. State v. Lilly, 410 S.W.3d 699, 701 

(Mo. App. W.D. 2013). "The right to appeal is purely statutory and, where a statute does 

not give a right to appeal, no right exists." Id. (quoting Buemi v. Kerckhoff, 359 S.W.3d 

16, 20 (Mo. banc 2011)). "If this Court lacks jurisdiction to entertain an appeal, the appeal 

must be dismissed." Id. (quoting Walker v. Brownel, 375 S.W.3d 259, 261 (Mo. App. E.D. 

2012)).

Nelson appeals from the denial by the circuit court of his Motion for an Order Nunc 

Pro Tunc under Rule 29.12(c). Nunc pro tunc motions under Rule 29.12(c) have a very 

limited purpose. 

Nunc pro tunc emerged as a common law power to allow a court that has lost 

jurisdiction over a case to maintain jurisdiction over its records to correct 

clerical mistakes in the judgment arising from either scrivener's errors or 

from omissions that are indicated in the record but are not recorded in the 

original judgment. Pirtle v. Cook, 956 S.W.2d 235, 240 (Mo. banc 1997). 

The court retains jurisdiction over its records so that it may "amend its 

records according to the truth, so that they should accurately express the 

history of the proceedings which actually occurred prior to the appeal."

DeKalb Cnty. v. Hixon, 44 Mo. 341, 342 (Mo. 1869).

McGuire v. Kenoma, LLC, 447 S.W.3d 659, 663 (Mo. banc. 2014). As such, "a nunc pro 

tunc judgment is not a 'judicial declaration of the parties' rights' but merely a judicial power 

to ensure the accuracy of its own records." Id. (quoting Pirtle, 956 S.W.2d at 242). The 

relief that may be afforded by a nunc pro tunc judgment "is so narrowly prescribed and so 
4

strictly confined to the record that it creates no new judgment, but relates back to the 

original judgment." See State v. McCauley, 496 S.W.3d 593, 595 (Mo. App. S.D. 2016)

(citing McGuire, 447 S.W.3d at 663–64, Pirtle, 956 S.W.2d at 241–42; State v. Lawrence, 

139 S.W.3d 573, 576 (Mo. App. E.D. 2004)).

Recently, the Southern District of this Court held that this Court does not have the 

authority to consider the appeal of the denial of such a motion in a criminal case. See

McCauley, 496 S.W.3d 593. The principles supporting the decision in McCauley are 

straightforward. 

• In criminal cases "[t]here is no right to an appeal without statutory 

authority." State v. Sturdevant, 143 S.W.3d 638, 638 (Mo. App. E.D. 2004).

• In criminal cases, appeal lies only from a final judgment, § 547.070, which 

occurs "only when a sentence is entered." State v. Famous, 415 S.W.3d 759, 

759 (Mo. App. E.D. 2013).

• "Orders entered in criminal cases after the judgment has become final which 

deny motions requesting various types of relief are not appealable." State v. 

Payne, 403 S.W.3d 606, 607 (Mo. App. S.D. 2011) (collecting cases).

Id. at 594. 

The Southern District's decision held that we do not have the authority to hear an 

appeal from the denial of a nunc pro tunc motion under Rule 29.12(c) as appeals in criminal 

cases may only be from a final judgment rendered upon indictment or information, section 

547.070. As a nunc pro tunc judgment, and the refusal by the court to issue such a 

judgment, creates no new judgment from which there is a statutory right to appeal under 

section 547.070, this Court does not have the authority to entertain an appeal therefrom.

Id. This result aligns with numerous other holdings that rulings in criminal cases after 
5

judgment and sentence are not appealable, including orders denying probation, jail-time 

credit, motions for early release, etc. See McCauley, 496 S.W.3d at 595 (listing nonappealable rulings in criminal cases following judgment and sentence). 

Nelson argues this Court does have the authority to decide this appeal and cites in 

support a number of cases decided before McCauley that did not explicitly address whether 

this Court has the authority to decide an appeal from the denial of a nunc pro tunc motion

but rather assumed such authority. See McArthur v. State, 428 S.W.3d 774, 781 (Mo. App. 

E.D. 2014); State v. Lawrence, 139 S.W.3d 573, 576 (Mo. App. E.D. 2004); State v. Currie, 

454 S.W.3d 903 (Mo. App. S.D. 2014). As these cases were decided prior to McCauley

and failed to address the issue actually decided by McCauley that is dispositive of this 

appeal, it is unnecessary to distinguish them individually. Insofar as these cases are 

contrary to McCauley's holding that this Court does not have the authority to decide an 

appeal from the denial of a nunc pro tunc motion under Rule 29.12(c) in a criminal case, 

they should not be followed.

Nelson is not, however, without any avenue for relief if the alleged clerical error 

actually infringes upon his rights. "[W]rit and perhaps other remedies are adequate to 

protect the narrowly-limited right" that Nelson asserts on appeal. McCauley, 496 S.W.3d 

at 596; see also State v. Williams, 871 S.W.2d 450, 452 n.2 (Mo. banc 1994) (writs of 

prohibition or of habeas corpus are remedies available where terms and conditions of 

probation are not subject to direct appellate review); (Mazur v. State, 285 S.W.3d 820, 822 

n.2 (Mo. App. S.D. 2009) (remedy for seeking jail time credit under section 558.031 is by 

declaratory judgment or extraordinary writ). 
6

Conclusion

The appeal is dismissed.

__________________________________

Gary D. Witt, Judge

All concur