              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT NASHVILLE                   FILED
STATE OF TENNESSEE,                            )
                                                                     July 17, 1998
                                               )   C.C.A. NO. 01C01-9801-CR-00034
       Appellee,                               )
                                                                   Cecil W. Crowson
                                               )   DAVIDSON COUNTY
                                                                 Appellate Court Clerk
VS.                                            )   (No. 94-D-1963 Below)
                                               )   The Hon. Seth Norman
JOHN GILBREATH,                                )
                                               )   (Motion to Alter or Amend Judgment)
       Appellant.                              )   REVERSED AND REMANDED



                                         ORDER



              This cause came to be heard on the motion of the state to remand this case

for a determination regarding whether the petitioner’s conviction for aggravated assault in

count ten of his indictment was the result of a clerical error. It appears from the record that

the petitioner entered guilty pleas on March 16, 1995, to several offenses. The plea

agreement and the transcript of the guilty plea hearing reflect that the petitioner pled guilty

to aggravated robbery in count ten. In contrast, the judgment form indicates that the

petitioner pled guilty to aggravated assault in count ten. However, the aggravated robbery

statute is cited in the judgment form. Subsequently, on December 4, 1997, the petitioner

filed a pro se Motion to Correct/Amendment Judgment in the trial court. The trial court’s

order denying the motion stated in part:



               The defendant has submitted a transcript that shows that the
       defendant pled to aggravated robbery. The judgment form as entered on the
       minutes, and the minute entry, show that the defendant pled to aggravated
       assault. The sentence imposed was 10 years. The defendant now seeks
       to alter the judgment.

              The Court is required to rely upon the minutes of the Court, not a
       transcript. A Court speaks through its minutes.



              As pointed out by the state, when there is a conflict between the transcript

and the court minutes, the transcript controls. See State v. Moore, 814 S.W.2d 381, 383

(Tenn. Crim. App. 1991) (citing State v. Zyla, 628 S.W.2d 39, 42 (Tenn. Crim. App. 1981)

and Farmer v. State, 574 S.W.2d 49, 50 (Tenn. Crim. App. 1978)). Moreover, pursuant

to Tenn. R. Crim. P. 36, “[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 and after such notice, if any, as the court orders.”



              From a review of the record, it is clear that the judgment form merely reflects

a clerical error. Accordingly, we find that the judgment form and the minutes of the trial

court should be corrected to show that the petitioner pled guilty to aggravated robbery in

count ten of the indictment.



              IT IS, THEREFORE, ORDERED that this matter is remanded and the trial

court shall correct the judgment form and the minutes to reflect that the petitioner pled

guilty to aggravated robbery in count ten of the indictment. Costs are taxed to the state.



                                          ________________________________
                                          THOMAS T. WOODALL, JUDGE


CONCUR:


________________________________
JOHN H. PEAY, JUDGE


________________________________
JERRY L. SMITH, JUDGE




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