State v Rodrigues

2009 UT 62
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20070741
Plaintiff and Appellee,
v.
F I L E D
Ronald Richard Rodrigues,
Defendant and Appellant. September 25, 2009
---
Third District, Salt Lake
The Honorable Robin W. Reese
No. 031902822
Attorneys: Mark L. Shurtleff, Att’y Gen., Ryan D. Tenney,
Asst. Att’y. Gen., Salt Lake City, for plaintiff
Joan C. Watt, Michael Misner, Salt Lake City, for
defendant
---
On Certification from the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 Defendant appeals the district court’s order amending
and increasing its initial order of restitution. This appeal
requires us to consider: (1) whether a district court has
jurisdiction to amend an order of restitution under rule 30(b) of
the Utah Rules of Criminal Procedure where the State mistakenly
provided the court with an incorrect figure of restitution at the
sentencing hearing; and (2) assuming the court had jurisdiction,
whether the amended order of restitution violates protections
against double jeopardy or defendant’s due process rights to
presence and allocution.
¶2 We hold that in this case rule 30(b) applies, and the
district court had jurisdiction to amend the order of
restitution. We further hold that double jeopardy did not attach
and that defendant’s due process rights were not violated when
the district court corrected a clerical error regarding the

No. 20070741 2
amount of restitution ordered. We therefore affirm the district
court’s amended order of restitution.
BACKGROUND
¶3 Ronald Richard Rodrigues was charged with two counts of
criminal nonsupport, a third degree felony, in violation of Utah
Code section 76-7-201 (2008). In the first count, the State
alleged that Mr. Rodrigues failed to support the child he had
with Jennifer Falsone; in the second count, the State alleged
that Mr. Rodrigues failed to support the two children that he had
with Michele Rodrigues.
¶4 In May 2005, Mr. Rodrigues agreed to plead guilty to
one count of criminal nonsupport and to pay restitution “in the
amount of the total amount of child support arrears owed for the
support of [his] children on both counts from May 1999 through
the date of sentencing.” Pursuant to the plea agreement, Mr.
Rodrigues agreed that restitution would be calculated at $617 per
month ($289 to Ms. Falsone and $328 to Ms. Rodrigues) plus
interest. The plea agreement indicates that at the time it was
signed Mr. Rodrigues owed $49,000.46, and that “[a]n updated
calculation [of the total amount of child support owed would] be
provided the day of Sentencing.”
¶5 After Mr. Rodrigues signed the plea agreement, the
district court scheduled a sentencing hearing for July 11, 2005,
but Mr. Rodrigues failed to appear for the hearing and fled the
State. The district court issued an arrest warrant, and Mr.
Rodrigues was apprehended more than a year and a half later on
January 17, 2007.
¶6 About a month before Mr. Rodrigues’s sentencing, Adult
Probation and Parole prepared a Presentence Investigation Report
(the “PSR”). The PSR confirmed that Mr. Rodrigues was obligated
to pay $289 per month to Ms. Falsone and $328 per month to Ms.
Rodrigues for child support. The “Victim Impact Statement and
Restitution” section in the PSR indicates that the State sought
restitution “owed for both families from May 1, 1999, through the
date of sentencing” and that “[a]s of February 2, 2007, that
amount total[ed] $63,507.71.”
¶7 On March 19, 2007, Mr. Rodrigues appeared for
sentencing before the district court and “concur[red] with the
recommendations in the [PSR].” The district court suggested what
it thought was the correct amount of restitution and asked the
parties if it was correct. The State responded that pursuant to
the plea agreement the actual amount was higher. The court then
asked for the total amount of child support owed, and the State

1 The $30,680.96 amount represented a combination of Mr.
Rodrigues’s obligations to Jennifer Falsone for $19,778.44 and to
the State for $10,902.52. The State does not challenge the
district court’s restitution order with respect to the $30,680.96
figure. Rather, it indicates that this figure is correct and
accurately represents the total amounts owed from May 1, 1999,
through March 19, 2007, the date of sentencing.
2 The district court did not provide an explanation for
dropping $160 from the overall amount it initially calculated
using the figures provided by the State, and we do not find the
change factually relevant to the issue presented on appeal.
3 No. 20070741
indicated that as of “today’s date” Mr. Rodrigues owed
$30,680.961 to one of the mothers and $24,078.76 to the other.
Adding those two figures the court came up with a total arrearage
of $54,760.
¶8 Mr. Rodrigues did not object to the characterization or
the amount of restitution that was presented to the district
court. At the end of the hearing the district court sentenced
Mr. Rodrigues to an “indeterminate term [of] zero to five years
in the state penitentiary” and ordered that he “pay the sum of
$54,6002 in restitution.” The sentencing order entered by the
district court indicates, in relevant part, that the court
awarded “[a] restitution judgment in favor of the State of Utah
. . . in the amount of $54,600.00 which represents child support
arrears for the Defendant’s children with Jennifer Falsone and
Michele Rodrigues through March 19, 2007.”
¶9 After the district court entered the sentencing order,
the State filed a motion to amend the restitution order under
Utah Rule of Criminal Procedure 30(b) on the basis of a clerical
error in the judgment. Mr. Rodrigues was not present for the
hearing to consider the State’s motion. At that hearing, the
State indicated it “picked up the wrong computation” at
sentencing and provided the court with an incorrect figure for
the total restitution owed to Ms. Rodrigues. The State argued
that the error was clerical and that the district court should
amend the order of restitution pursuant to rule 30(b). Through
counsel, Mr. Rodrigues argued that (1) the district court lacked
jurisdiction to amend the restitution order and (2) amending the
restitution order would violate due process. The district court
granted the State’s motion and increased the total amount of
restitution from $54,600 to $65,403.66, reasoning that there had
been a misstatement of what was actually owed and that the
increased restitution conformed to the intent of the parties
under the plea agreement.

3 Utah R. Crim. P. 30(b) is nearly textually identical to
Utah R. Civ. P. 60(a), and the “clerical error” analysis under
both sections is often indistinguishable. See State v. Moya, 815
(continued...)
No. 20070741 4
¶10 Mr. Rodrigues appeals the district court’s decision to
amend and increase the total amount of restitution. This appeal
was originally before the court of appeals, which then certified
it to us. We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(b) (2008).
STANDARD OF REVIEW
¶11 Whether the district court had jurisdiction to amend
and increase its initial order of restitution requires us to
interpret rule 30(b) of the Utah Rules of Criminal Procedure.
“[T]he interpretation of a rule of procedure is a question of law
that we review for correctness.” Brown v. Glover, 2000 UT 89,
¶ 15, 16 P.3d 540.
¶12 Whether the entry of the district court’s amended order
of restitution violates protections afforded by the Double
Jeopardy Clause or the Due Process Clause presents constitutional
issues that are questions of law that we review for correctness.
Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.
ANALYSIS
I. THE DISTRICT COURT HAD JURISDICTION TO AMEND ITS INITIAL
ORDER OF RESTITUTION
¶13 Whether the district court had jurisdiction to amend
and increase its initial order of restitution hinges on whether
the district court was correcting a clerical error pursuant to
rule 30(b) of the Utah Rules of Criminal Procedure. Once a court
imposes a valid sentence and final judgment is entered, the court
ordinarily loses subject matter jurisdiction over the case.
See State v. Montoya, 825 P.2d 676, 679 (Utah Ct. App. 1991).
However, pursuant to rule 30(b), “[c]lerical mistakes in
judgments, orders or other parts of the record and errors in the
record arising from oversight or omission may be corrected by the
court at any time” Utah R. Crim. P. 30(b) (emphasis added). We
hold that rule 30(b) applies, and therefore the district court
had jurisdiction to amend its restitution order.
¶14 The purpose of rule 30(b) and its civil counterpart,
rule 60(a) of the Utah Rules of Civil Procedure,3 is to correct

3 (...continued)
P.2d 1312, 1314 n.3 (Utah Ct. App. 1991) (noting that “review
. . . based on either rule [would] result[] in the same
conclusion” in that case). Therefore, in making our
determination under Utah R. Crim. P. 30(b), we also inform our
analysis with case law applying Utah R. Civ. P. 60(a). Further,
while there may be subtle distinctions in the application of the
two rules, neither party has briefed those distinctions, and we
do not address them here.
4 The State recognizes that the error in the total amount
of restitution is attributable to its misstatement to the
district court during Mr. Rodrigues’s sentencing but accurately
argues that this is of no import. The relevant inquiry focuses
on whether the error was in fact clerical rather than on who
committed the error. See Bishop, 2002 UT 36, ¶ 30.
5 No. 20070741
clerical errors so that the record reflects what was actually
“done or intended.” Bishop v. GenTec, Inc., 2002 UT 36, ¶ 30, 48
P.3d 218 (internal quotation marks omitted). In our analysis
under rule 30(b), we draw a distinction between clerical errors
and judicial errors; “[t]he distinction . . . depends on whether
[the error] was made in rendering the judgment or in recording
the judgment as rendered.” Id. ¶ 32 (internal quotation marks
omitted). “A clerical error is one made in recording a judgment
that results in the entry of a judgment which does not conform to
the actual intention of the court. On the other hand, a judicial
error is one made in rendering the judgment and results in a
substantively incorrect judgment.” Thomas A. Paulsen Co. v.
Indus. Comm’n, 770 P.2d 125, 130 (Utah 1989). “To ascertain the
clerical nature of the mistake, this Court will look to the
record to harmonize the intent of the court with the written
judgment.” State v. Lorrah, 761 P.2d 1388, 1389 (Utah 1988).
Finally, “‘[i]n this broad approach to correctability . . . , it
matters little whether an error was made by the court clerk, the
jury foreman, counsel, a party, or the judge himself;’” rather
the court should focus on whether the error “‘is clearly a formal
error that should be corrected in the interest of having
judgment, order, or other part of the record reflect what was
done or intended.’” Bishop, 2002 UT 36, ¶ 30 (quoting Stanger v.
Sentinel Sec. Life Ins. Co., 669 P.2d 1201, 1206 (Utah 1983)).
Thus, our clerical error analysis generally focuses on (1)
whether the order or judgment that was rendered reflects what was
done or intended, (2) whether the error is the result of judicial
reasoning and decision making, and (3) whether the error is clear
from the record.4
A. The Court Intended to Order Restitution in Accordance with
the Plea Agreement

No. 20070741 6
¶15 “A clerical error is one made in recording a judgment
that results in the entry of a judgment which does not conform to
the actual intention of the court.” Thomas A. Paulsen Co., 770
P.2d at 130. Indeed, “[t]he correction [of a clerical error]
must be undertaken for the purpose of reflecting the actual
intention of the court and parties.” Lindsay v. Atkin, 680 P.2d
401, 402 (Utah 1984); see also Bishop, 2002 UT 36, ¶ 32 (amending
jury verdict because “accurately recording the intent of the jury
in its calculation of the damage award constitutes correction of
a clerical error, not a judicial error”). While the intent of
the parties may be taken into account in the clerical error
analysis, it is ultimately the intent of the court or fact finder
that is binding.
¶16 The State argues that the original order of restitution
as recorded did not conform with the intent of the district court
and the parties. Specifically, the State argues that when the
district court entered the original order of restitution, the
intent of the district court as well as both parties was to order
Mr. Rodrigues to pay restitution in accordance with the plea
agreement. In support of this position, the State directs our
attention to (1) the plea agreement, (2) the PSR, (3) the
dialogue between the parties and the court at the sentencing
hearing, and (4) the district court’s original order of
restitution.
¶17 In May 2005, Mr. Rodrigues entered into a plea
agreement wherein he agreed to pay restitution “in the amount of
the total amount of child support arrears owed for the support of
[his] children on both counts from May 1, 1999 through the date
of sentencing.” The plea agreement further specified that Mr.
Rodrigues agreed to calculate child support at the rate of
“$617.00 per month ($289.00 to Jennifer Falsone and $328.00 to
Michele Rodrigues)” plus interest. At the time Mr. Rodrigues
entered into the plea agreement his sentencing date was set for
July 11, 2005. Mr. Rodrigues, however, failed to appear and
instead left the state. Mr. Rodrigues was not actually sentenced
until more than a year and a half later on March 19, 2007.
¶18 The PSR confirms that Mr. Rodrigues owed $289 per month
to Ms. Falsone and $328 per month to Ms. Rodrigues. The PSR
further indicates that the State sought restitution “in the total
amount of child support arrears . . . owed for both families from
May 1, 1999, through the date of sentencing” and “[a]s of
February 2, 2007, that amount totals $63,507.71.” While the PSR
does not include the total amount owed from May 1, 1999, through
March 19, 2007, the actual date of sentencing, it indicates the
State’s intent to seek restitution through the date of sentencing

7 No. 20070741
in conformity with the plea agreement. During the sentencing
hearing, Mr. Rodrigues unambiguously indicated that he concurred
with the recommendations in the PSR.
¶19 The district court’s statements at the sentencing
hearing further demonstrate that it intended to order restitution
in accordance with the plea agreement. The court recited the
amount of restitution it believed Mr. Rodrigues owed. The State
indicated that the total was “actually even higher,” because
child support payments continued to accrue through “today’s date”
pursuant to the “plea agreement.” Mr. Rodrigues did not object
to the State’s characterization of the total amount of child
support owed. The court then asked, “[s]o what do you show as
the total?” In response, the State indicated that Mr. Rodrigues
owed “$30,680.96 . . . for one, and $24,078.76 . . . for the
other.” The court added the two figures and stated, “[s]o it
looks like the total arrearage is $54,760.” Clearly the district
court was under the impression that the $54,760 figure
represented the amount of child support arrears owed to both of
Mr. Rodrigues’s ex-wives from May 1, 1999, through March 19,
2007, pursuant to the plea agreement.
¶20 The district court’s original restitution order also
supports a finding that the court intended to order restitution
through March 19, 2007, the date of sentencing, in conformity
with the plea agreement; it states that the award of restitution
“represents child support arrears for [Mr. Rodrigues’s] children
with [Ms.] Falsone and [Ms.] Rodrigues through March 19, 2007.”
¶21 We are further persuaded that the district court
intended to order restitution in conformity with the plea
agreement by the fact that the amount of restitution ordered for
Ms. Falsone accurately represents Mr. Rodrigues’s child support
obligations under the plea agreement, i.e. child support arrears
owed to Ms. Falsone from May 1, 1999, through March 19, 2007, the
date of sentencing, while the amount of restitution ordered for
Ms. Rodrigues does not conform to Mr. Rodrigues’s obligations
under the plea agreement. We find it unlikely that the court,
without reason, would choose to order an inequitable amount of
restitution for two similarly situated victims.
¶22 In light of the plea agreement, the PSR, the exchange
during the sentencing hearing, and the court’s original
restitution order, it is clear that the intent of the district
court and the expectation of the parties was that Mr. Rodrigues
would pay restitution through the date of sentencing in
accordance with the plea agreement. The figure provided by the
State as restitution owed to Ms. Rodrigues did not accurately
represent Mr. Rodrigues’s child support arrears through the date

No. 20070741 8
of sentencing as set forth in the plea agreement. Therefore, the
order of restitution as recorded did not conform to the actual
intention of the court and this prong of our analysis suggests
that the error was clerical. We now address whether the error
was the result of judicial reasoning and decision making.
B. The Error Was Not the Direct Result of Judicial Reasoning and
Decision Making
¶23 The error in the amount of restitution owed was not the
product of judicial reasoning and determination; rather the error
was merely one of calculation. “[A] judicial error is one made
in rendering the judgment and results in a substantively
incorrect judgment.” Thomas A. Paulsen Co., 770 P.2d at 130. We
have specifically defined a judicial error as “the deliberate
result of the exercise of judicial reasoning and determination.”
Lorrah, 761 P.2d at 1389 (internal quotation marks omitted).
Unlike clerical errors, a district court does not have
jurisdiction to correct a judicial error after it has entered a
valid sentence.
¶24 Mr. Rodrigues argues that pursuant to Utah Code section
77-38a-302, (the “Restitution Statute”) the error must have been
the product of judicial reasoning and decision making and
therefore rule 30(b) cannot apply. Mr. Rodrigues does not argue
that the district court erred in applying or failing to comply
with the requirements of the Restitution Statute. He simply
argues that its application required judicial reasoning, and
therefore the amount of restitution ordered in this case cannot
be a clerical error.
¶25 We agree that the district court’s determination of
restitution required judicial reasoning and decision making.
However, we disagree that the misstatement of the restitution
amount and the subsequent order of restitution based on the
misstatement were the deliberate result of that judicial
reasoning and decision making. In other words, as demonstrated
below, the district court’s reasoning and decision making did not
result in or lead to the error in question.
¶26 Although a district court has discretion to adjust the
amount of restitution agreed to by the parties in a plea
agreement, any adjustment must fall within the “conduct for which
the defendant has agreed to make restitution as part of [the]
plea agreement.” Utah Code Ann. § 76-3-201(4)(a) (2008);
see also State v. Bickley, 2002 UT App 342, ¶ 9, 60 P.3d 582.
Mr. Rodrigues appeared before the district court for sentencing
based on a plea agreement. As part of the plea the parties
agreed that the amount of restitution would accrue from May 1,

9 No. 20070741
1999, through the date of sentencing. In accepting the figures
presented by the State, the district court engaged in judicial
reasoning and decision making and determined to impose the amount
of restitution agreed to by the parties in the plea agreement
instead of some other amount. The court then erroneously entered
an amount of restitution that did not conform to its judicial
determination.
¶27 The error in the amount of restitution was not a
deliberate result of the court’s judicial determination.
Instead, the error resulted from a miscalculation and subsequent
misstatement by the State in providing the court with an
incorrect figure for the amount of restitution owed to Ms.
Rodrigues. Further, Mr. Rodrigues never objected to the
characterization of the amount of restitution and in fact
concurred with the recommendations in the PSR, both of which
demonstrate the court’s intent to order restitution in conformity
with the plea agreement.
¶28 The error in this case was not the deliberate result of
judicial reasoning and decision making, and was therefore not a
judicial error. Rather, the error resulted from a miscalculation
and subsequent misstatement on the part of the State. We
accordingly turn to the final prong of our analysis--whether the
error is clear from the record.
C. The Error Is Clear from the Record
¶29 The error in the amount of restitution the district
court originally ordered is clear from the record. “To ascertain
the clerical nature of the mistake, this Court will look to the
record to harmonize the intent of the court with the written
judgment.” Lorrah, 761 P.2d at 1389. An error is clerical when
it is a “mistake or omission mechanical in nature which is
apparent on the record” Stanger, 669 P.2d at 1206 (internal
quotation marks omitted).
¶30 Mr. Rodrigues argues that the error is not apparent on
the record, and therefore rule 30(b) was an improper vehicle for
amending the judgment. We disagree and find that the error in
this case is apparent based on a review of the record prior to
judgment.
¶31 The plea agreement states that restitution will be paid
“in the amount of the total amount of child support arrears owed
for support of [Mr. Rodrigues’s] children on both counts from May
1999 through the date of sentencing.” It further states that
“the restitution judgment shall accrue interest as set forth in
Utah Code Ann. § 77-38a-401(4) (2001).” The plea agreement also
provides the amount of support Mr. Rodrigues agreed to pay, per

5 Under the section entitled “Victim Impact Statement and
Restitution,” the PSR states:
Victim Restitution will be sought in the
total amount of child support arrears
(principal and interest) owed for both
families from May 1, 1999, through the date
of sentencing. At the time the plea was
entered, the restitution totaled $49,000.49.
As of February 2, 2007, that amount totals
$63,507.71 ($34,317.82 to Michele Rodrigues,
$19,433.72 to Jennifer Falsone, and $9,756.17
to the State of Utah for reimbursement of
public assistance).
No. 20070741 10
month, for each ex-wife: $289 to Ms. Falsone and $328 to Ms.
Rodrigues. Therefore, the basic formula to determine the correct
amount of restitution can be found within the plea agreement.
¶32 Additionally, the PSR provides accurate totals of
restitution owed from May 1999 up until February 2, 2007, one
month before Mr. Rodrigues’s sentencing.5 The PSR indicates that
as of February 2, 2007, Mr. Rodrigues owed Ms. Rodrigues
$34,317.82 in restitution. Thus clearly the $24,078.76 requested
by the State at the sentencing hearing as restitution for Ms.
Rodrigues was in error.
¶33 Based on a review of the plea agreement, the PSR, and
the previously determined intent of the court to order
restitution in conformity with the plea agreement, we find that
the error is clear from the record.
¶34 In conclusion, the original order of restitution as
recorded does not accurately reflect what was intended by the
court or expected by the parties. Furthermore, the error in this
case was not the deliberate result of the exercise of judicial
reasoning and determination. Rather, it was an error of
computation, unintentionally initiated by the State. Finally,
the clerical mistake in the calculation of restitution is clear
from the record. We therefore hold that the error in question
was merely clerical under rule 30(b), and the district court had
jurisdiction to amend the order of restitution to reflect what
was intended.
II. THE AMENDED ORDER OF RESTITUTION DOES NOT VIOLATE
PROTECTIONS AGAINST DOUBLE JEOPARDY OR MR. RODRIGUES’S RIGHT TO
ALLOCUTION

11 No. 20070741
¶35 Mr. Rodrigues argues that amending the order of
restitution deprived him of his protections against double
jeopardy and violated his due process rights to presence and
allocution. We address both of Mr. Rodrigues’s contentions
beginning with his double jeopardy claim.
A. Correction of a Clerical Error Does Not Ordinarily Violate
Double Jeopardy
¶36 Clerical errors do not ordinarily infringe on
protections against double jeopardy because the correction of the
error rarely upsets a defendant’s expectation of finality in the
original proceedings. The Fifth Amendment of the United States
Constitution provides that no person “shall . . . be subject for
the same offense to be twice put in jeopardy of life or limb.”
U.S. Const. amend. V. “The Double Jeopardy Clause embodies three
separate protections: (1) protection against a second
prosecution for the same offense after acquittal, (2) protection
against a second prosecution for the same offense after
conviction, and (3) protection against multiple punishments for
the same offense.” Bernat v. Allphin, 2005 UT 1, ¶ 11, 106 P.3d
707. Here, Mr. Rodrigues argues that the trial court violated
his protection against multiple punishments for the same offense
when it in essence resentenced him by amending and increasing the
original order of restitution. However, “resentencing per se
does not implicate the double jeopardy protection from multiple
punishments.” State v. Maguire, 1999 UT App 45, ¶ 11, 975 P.2d
476. Rather, “the Double Jeopardy Clause ‘only proscribes
resentencing where the defendant has developed a legitimate
expectation of finality in his original sentence.’” Id. ¶ 8
(quoting Pasquarille v. United States, 130 F.3d 1220, 1222 (6th
Cir. 1997)); see also, United States v. DiFrancesco, 449 U.S.
117, 137-39 (1980); Warnick v. Booher, 425 F.3d 842, 847 (10th
Cir. 2005).
¶37 While this court has not yet considered whether the
Double Jeopardy Clause prevents the correction of a clerical
error that amends a criminal sentence, other jurisdictions have
done so and have held that the correction does not violate
principles of double jeopardy when there is no legitimate
expectation of finality in the sentence. See Gallinat v. State,
941 So. 2d 1237, 1238-42 (Fla. Dist. Ct. App. 2006)(holding that
correction of trial court’s miscalculation giving credit to
defendant for time not actually served did not violate double
jeopardy because defendant had no legitimate expectation of
finality); People v. Minaya, 429 N.E.2d 1161, 1163-64 (N.Y.
1981)(holding that correction of sentence to conform with plea
agreement did not violate double jeopardy because the defendant

No. 20070741 12
had no legitimate expectation of finality). We find the Minaya
opinion particularly persuasive.
¶38 In Minaya, the defendant pled guilty to one count of
attempted robbery in exchange for an eight-year prison sentence.
429 N.E.2d at 1162. At sentencing, the court indicated that it
intended to follow the plea agreement, but then inadvertently
sentenced the defendant to a three-year sentence. Id. Three
months later the court learned of its error and issued a
corrected sentence to reflect the eight-year sentence defendant
had agreed to in the plea agreement. Id. On appeal, defendant
argued that the correction violated double jeopardy. In holding
that the amendment to the original sentence did not violate
double jeopardy, the New York Court of Appeals reasoned that “a
defendant who is mistakenly sentenced to a lesser term than he
agreed to [does not] immediately upon commencing the sentence
acquire a vested interest in the error so that it would be
unfair, under the Double Jeopardy Clause, to correct the error”
Id. at 1164.
¶39 In this case Mr. Rodrigues entered into a plea
agreement whereby he agreed to pay restitution according to a
specific formula set forth therein. While a sentencing court has
discretion to accept or reject plea agreements, see State v.
Montiel, 2005 UT 48, ¶ 1, 122 P.3d 571, the district court in
this case intended to order restitution in accordance with the
plea agreement. Shortly after the original order of restitution
was issued, the State filed a motion seeking to correct the
clerical error in the total amount of restitution owed. The
district court granted the State’s motion reasoning that there
had been a misstatement of what was actually owed and the
increased restitution merely reflected what the parties had
agreed to under the plea agreement. Given these facts, we hold
that Mr. Rodrigues had no legitimate expectation of finality in
the original order of restitution because it did not reflect what
he had agreed to in the plea agreement. Because Mr. Rodrigues
had no legitimate expectation of finality, the amended order of
restitution does not violate protections against multiple
punishments guaranteed under the Double Jeopardy Clause.
B. Mr. Rodrigues’s Due Process Right to Presence and Allocution
Was Not Violated
¶40 Finally, Mr. Rodrigues argues that the amendment of the
restitution amount violated his due process right to presence and
allocution because he was not present at the hearing to amend the
order of restitution. “The trial court may correct clerical
mistakes in judgments at any time, with or without notice as the
court may order.” State v. Lorrah, 761 P.2d 1388, 1389 (Utah

13 No. 20070741
1988). The right to presence and allocution does not apply when
a court considers a motion to correct a clerical error. In such
cases, the defendant’s right to allocution is satisfied “in the
first sentencing hearing,” so long as the hearing was “held in
[defendant’s] presence” and defendant had an opportunity to
speak. Id. at 1390.
¶41 Mr. Rodrigues was present and had the opportunity and
did in fact speak at the original sentencing hearing. Therefore,
his due process rights of presence and allocution were not
violated when the district court held a hearing without his
presence to amend the order of restitution based on a clerical
error.
CONCLUSION
¶42 Rule 30(b) of the Utah Rules of Criminal Procedures
allows a court to correct clerical errors at any time. In this
case we hold that the error in question was clerical because:
(1) the intent of the district court and the parties was to order
restitution in conformity with the plea agreement (2) the error
was not the direct result of judicial reasoning and decision
making, and (3) the error is clear from the record. Therefore
the district court had jurisdiction to amend its order of
restitution to reflect the amount Mr. Rodrigues actually owed.
¶43 Additionally, Mr. Rodrigues’s claim that the amendment
to the restitution amount violates his right against double
jeopardy fails because he had no legitimate expectation of
finality in the original order of restitution. Finally, the due
process rights of presence and allocution do not apply when a
court considers a motion to correct a clerical error.
¶44 We therefore affirm the district court’s amended order
of restitution.
---
¶45 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur in Justice Parrish’s
opinion.