Oh, typos. Between voice-to-text, autocorrect, and good old-fashioned mistakes, my life is riddled with typos. In fact, you can probably find a bunch of typos on this blog if you look . . . (I was going to say "hard enough" but that would be wildly overestimating the effort required). One of my pastimes is a little game I like to call: "find the typos in whatever I just filed with the court!" It's brutal. I keep score by the number of Homer-Simpson-esque "dohs!" I utter during the game.
Anywho, this case's typo is a little different than missing a comma or apostrophe, mixing up the i and e in receive, misspelling "vacuum," or using big words to sound more photosynthesis. The week's case involves an order where the trial court struck a "not" in an order while an appeal was pending and before the state filed a promised motion withdrawing its request to hold defendant without bail in light of the trial court's finding—excuse me, alleged finding—on that point.
The reason this is so important is because the "not" occurs, well, occurred in the trial court's finding about the weight of the evidence. A "has" would mean the court has authority under this statute (provided it also is a potential-life-imprisonment offense) to hold a defendant without bail. A "has not" would require bail to be set.
Defendant was charged with second-degree murder. After a weight of the evidence hearing, the trial court held defendant without bail. Here's where it gets a little confusing. The trial court originally wrote that "the State has not met its burden of establishing that [defendant’s] guilt on the pending second-degree murder charge is great." Nonetheless, after going through the bail factors, the trial court held defendant without bail and, in so doing, wrote that the weight of the evidence was "considerable."
"Hold up," said defendant and appealed. And after considering the defendant's you-can't-hold-me-if-the-evidence-of-guilt-ain't-great argument, the State said, "Well, fine, then. State will withdraw the motion to hold without bail." SCOV hit pause so this could play out at the trial-court level. The very next day, the trial court said, "Oops, that 'not' was a typo. I'm striking that word and issuing a corrected order." In response, the State decided not to file the not-asking-for-HWOB motion. (An aside: there's a joke about an English professor going through double negatives and positive meaning, ultimately pronouncing that there are no instances in the English language where a double positive has a negative meaning . . . to which a student in the back of the hall calls out, "Yeah, right.")
So, we're kinda back where we started. Defendant appeals, arguing first that the trial court impermissibly changed an already issued decision, and even if the "correction" was permissible, the finding that the evidence of guilt was great was erroneous.
SCOV takes some time on the first question. Rule 36 (60 is the civil counterpart) of the rules of criminal procedure allows a court to correct a clerical error at any time. But if there's an appeal pending, leave must be sought from SCOV. First, SCOV goes through the analysis of whether the deletion of "not" was a substantive change (meaning the court changed its mind) versus a clerical error (more clarification than anything else). SCOV concludes that here, the correction is consistent with the rest of the original decision and thus falls into the latter bucket. What we have here then, boys and girls, is a clerical error.
But the court didn't ask SCOV if it was cool to make that change and there was an appeal pending. SCOV reasons that the case kind of was back with the trial court anyway. Even if it wasn't procedurally all the way back, SCOV retroactively grants leave, noting that it isn't going to do a yo-yo remand thing to reach the same result.
On the weight-of-the-evidence front, we learn that there's fairly compelling circumstantial evidence, including video and inconsistent statements, that defendant likely killed his girlfriend while they were in the process of breaking up. The evidence is viewed in the light most favorable to the State and SCOV concludes that there's enough here to meet the standard.
Defendant is held without bail. Typo correction (and the trial court's reasoning that it was a typo) affirmed. State v. Williams, 2026 VT 3 (mem.)
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