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Zachary
Zachary, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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What to do? Move for Declaratory Judgment? This is part of

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What to do? Move for Declaratory Judgment? This is part of an ongoing saga of a municipal citation/trial gone bad. Was issued a municipal citation. Filed motion to dismiss for lack of personal jurisdiction. The court never called the motion, but instead assumed PJ (without saying a word) and moved into trial. Despite nonappearance by key "witness", was found guilty. Judge orally pronounced an erroneous sentence. Basically, sentence as pronounced was almost nil. Written judgment reflected same. Complete harmony between the two records. Clerk later noticed missing detail. Clerk sent letter "confirming" the missing details, apologizing for not including it in the paperwork at trial. Trouble is, judge never uttered such details (discretionary, exclusively the power of the judge). Clerk is denied even authority to correct a clerical error (see State of Wis v. Prihoda, Wis. Sup. Ct 2000).
Appeared before muni court to point this out. Judge pointed to the clerk's "confirmation" letter and declared that was the sentence. This is foolishness, however, as any clerk could then issue any "correction" at any time. What a mess!
What's my best course of action to get this corrected? Yes, the sentence was probably erroneous (incomplete)... but I satisfied the pronounced obligations TO THE LETTER.
So, in my mind, obligations were satisfied.
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
Hi,Thank you for your question.You stated that you have already appeared before the judge and he pointed to the clerk's letter and stated that this was in fact his sentence. However, it is your belief that the judge did not include this in his oral pronouncement of the sentence from the bench. Unfortunately, if there was no record of the oral sentencing, then the judge may reform the sentence by approval of the clerk's statement. Essentially, the judge is declaring that the sentence as stated on the clerk's letter is the sentence. Even if you appealled the sentence, it would be your word vs. the judges word, and the judge is the party which has the authority to sentence you.
Customer: replied 1 year ago.

This is certified written transcript of oral pronouncement of sentence. The written notice, created contemporaneously to oral pronouncement is in harmony with the transcript.
It is my understanding there are two - and only two - records of sentence: 1) the oral pronouncement (and transcript thereof) and 2) the written notice created created at the time (or soonest thereafter).
Those records both indicate the judge did not state the particular details. The judge knows this... I pointed out both records (transcript, written notice).


Time for appeal has tolled, I believe.


Again, in State (Wi) v. Prihoda, the Wis Sup Ct adopted the "brightline rule" that a clerk cannot correct a clerical error absent direction by the court. In this case, this "confirmation" letter is not even a correction of a clerical error - it is, in fact, a modification of sentence. It is my understanding this can be done only by the judge, only by order.

Expert:  Zachary replied 1 year ago.
Ah, I did not know you had a written transcript of the oral order. So, when you went back to the court, you had a hearing under which you asked the judge to correct the written judgment, pointing to the transcript, and the judge refused and said that he is confirming the letter?
Expert:  Zachary replied 1 year ago.
How many days have passed since the written order was issued?
Customer: replied 1 year ago.

roughly 800 (by written order, I shall assume you mean the written notice prepared as oral pronouncement was made on the record - since this undated "confirmation letter" lack any indication of an "order")

Expert:  Zachary replied 1 year ago.
800 days have passed since the judgement.This is far to long ago to do anything about.There is a Motion Nunc Pro Tunc which you can file, but the time for doing this is within 30 days of the issuance of the judgment.You can also seek relief from the judgment becaus eof a mistake, but this must be within one year of the judgment being issued.The law treats this judgment as perfected and settled. There is no procedure which allows you at this point to go back and attempt to correct the error.
Customer: replied 1 year ago.

This seems odd. The record is... the RECORD. I don't seek to correct the "record", but to simply cause the court's computer entries to conform to the actual official record. There is no Order correcting any error of omission... simply the court's computer records were altered by the clerk and the judge issued a warrant based on that inaccurate information. Even after I brought this to the judge's attention, he did nothing... no order to correct the record (to reflect what he claimed the sentence was to be - this strikes me as odd). Even today, the official records remain as they were.

No options?

Expert:  Zachary replied 1 year ago.
When an oral judgment is made from the bench and transcribed on the record, the clerk then renders the judgment into a written format which becomes the official judgment. The clerk then issues the judgment in its written format (i.e., publishes it) and this is the official document which is recorded in the court's computer system.

Once that written judgment is issued, the burden is on you to correct any mistakes in it within a set amount of time pursuant to the rules.

You did have options, but you did not exercise those options within the time allowed. Coming back now, several years later, is not allowed under the rules.
Zachary, Attorney
Category: Legal
Satisfied Customers: 4002
Experience: Lead trial/International commercial attorney licensed 11 yrs
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