The court has the power to act nunc pro tunc — to do an act upon one date and make it effective as of a prior date. Mitchell v. Overman, 103 U.S. (13 Otto) 62, 64-65, 26 L.Ed. 369 (1881); Kettner v. Snow, 13 Utah 2d 382, 384, 375 P.2d 28, 30 (1962). The common law power of nunc pro tunc allows the court to correct errors or supply omissions so the record accurately reflects that which in fact took place.
We nevertheless deny Mr. Logue's petition because we conclude that Mr. Logue failed to carry his burden of showing that the newly discovered impeachment evidence in this case justifies our issuing an extraordinary writ. See Kettner v. Snow , 13 Utah 2d 382, 375 P.2d 28, 30 (Utah 1962) ("[T]he burden of showing facts to justify [granting extraordinary relief] is upon him who seeks such relief."). Mr. Logue contends that Mr. Wright's posttrial confession to an unrelated murder shows that he "seriously perjured himself by the material omission of the fact that he had committed a murder in Washington State for which he had not been brought to justice."
In order to grant a new trial under either rule 59(a)(4) or rule 60(b), any newly discovered evidence “must be of sufficient substance that there is reasonable likelihood that with it there would have been a different result.” In re S.R., 735 P.2d 53, 58 (Utah 1987) (applying rule 59(a)(4)); accord Kettner v. Snow, 13 Utah 2d 382, 375 P.2d 28, 30 (1962) (applying the same standard to rule 60(b)). The district court applied this standard when it ruled that Mr. Gressman was entitled to a new trial because he had produced “newly discovered evidence which is material” and “such evidence would have [had] a material and persuasive power and influence on the jury in considering the guilt of the Defendant[ ].”
Insofar as the correction of clerical errors is concerned, we have long recognized the power of courts, under proper circumstances and where the interests of justice require, to do an act upon one date and make it effective as of a prior date so that the record accurately reflects that which took place. Dairy Distributors, Inc. v. Local 976, etc., 16 Utah 2d 85, 396 P.2d 47 (1964); Cook v. Gardner, 14 Utah 2d 193, 381 P.2d 78 (1963); Kettner v. Snow, 13 Utah 2d 382, 375 P.2d 28 (1962). However, we have not been faced with the situation where the court announces that it is granting a divorce and will waive the interlocutory period but then one party dies before the decree is signed.
In this case there was no abuse of discretion. Kettner v. Snow, 13 Utah 2d 382, 375 P.2d 28 (1962); Haslam v. Paulsen, 15 Utah 2d 185, 389 P.2d 736 (1964). As to the facts of the case as revealed at the trial, the judge, as a trier of those facts, could readily have found beyond a reasonable doubt, and did so find, that an 18 year old girl was in a Shopping Mall where she was approached by a man who told her that someone had been trying to break into her automobile.
For the same reasons it cannot be used to reduce the time nor to defeat the right to take an appeal. 13 Utah 2d 382, 375 P.2d 28. Finally, defendant argues that the pretrial order was itself a final judgment.
Its action was in conformity with the well-established precept that mere lapse of time will not prevent the court from correcting errors or omissions. We so recognized in the recent case of Kettner v. Snow, 13 Utah 2d 382, 375 P.2d 28, stating that "* * * in proper circumstances where the interests of justice so require, the court has power to act nunc pro tunc, that is, to do an act upon one date and make it effective as of a prior date. It is recognized that clerical errors may be corrected or omissions supplied so the record will accurately reflect that which in fact took place." To the same effect see Cook v. Gardner, 14 Utah 2d 193, 195, 381 P.2d 78.
Not having done so, it stands unassailed and clearly afforded the plaintiff the privilege of bringing this new action. See Kettner v. Snow, 13 Utah 2d 382, 375 P.2d 28. See Williams v. Tuckett, 98 Utah 398, 95 P.2d 982.
Moreover, nunc pro tunc orders cannot be used " 'to revive the time for taking the required step in a legal proceeding after the statutory time for doing so [has] elapsed.' " Diehl Lumber Transp., Inc. v. Mickelson, 802 P.2d 739, 743 (Utah App. 1990) (quoting Kettner v. Snow, 13 Utah 2d 382, 375 P.2d 28, 30 (1962)). The Utah Supreme Court has noted:
Id. 405 N.W.2d at 675 (citations omitted). Similarly, in Kettner v. Snow, 13 Utah 2d 382, 375 P.2d 28, 30 (1962), our supreme court held that using nunc pro tunc power, clerical errors may be corrected or omissions supplied so the record will accurately reflect that which in fact took place.