(Applicable to District Court and Superior Court)
Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be corrected with leave of the appellate court.
This rule is substantially identical to Mass.R.Civ.P. 60(a). See Fed.R.Crim.P. 36; Fed.R.Civ.P. 60(a).
Rule 42 is limited to the correction of “clerical mistakes” or errors “arising from oversight or omission” and does not apply to the correction of errors of substance, such as an illegal sentence or improperly obtained conviction. The federal criminal analogue is said to be typically invoked when the court has authority to impose consecutive as well as concurrent sentences, but the record is ambiguous as to which was in fact given. 8A J. MOORE, FEDERAL PRACTICE Para. 36.02 at 36-1 n. 1 (1978). See e.g., Borum v. United States , 409 F.2d 433, 439-41 (D.C.Cir.1967), cert. denied 395 U.S. 916 (1968).
Errors which may be corrected pursuant to this rule must arise out of “misprisions, oversights, omissions, unintended acts or failures to act,” First Nat’l Bank v. National Airlines , 167 F.Supp. 167, 169 (S.D.N.Y.1958) (construing Fed.R.Civ.P. 60[a] ), and not result from deliberate action, Ferrao v. Arthur M. Rosenberg Co. , 156 F.2d 212 (2d Cir.1946). See 8 MASS.PRACTICE SERIES (Smith & Zobel) Reporters’ Notes at (1977).
Clerical mistakes are due to a failure to accurately record statements made or action taken by the court or parties. E.g., Costello v. United States , 252 F.2d 750 (5th Cir.1958). 8A J. MOORE, FEDERAL PRACTICE Para. 36.02 at 36-2 (1978). Errors which are due to oversight or omission generally require correction so as to conform to the intent of the court or a party which may not be reflected in their recorded statements. E.g., Green v. Clerk of Mun. Ct. , 321 Mass. 487 (1947); Lott v. United States , 309 F.2d 115 (5th Cir.1962), cert. denied 371 U.S. 950 (1963). But cf. United States v. Raftis , 427 F.2d 1145 (8th Cir.1970); 8A J. MOORE, supra at 36-2.
The term “record” is intended to be broadly read so as to encompass not only process, pleadings, and verdict, but also evidentiary documents, testimony, instructions and all other matters pertaining to the case of which there is a written record. 8 MASS.PRACTICE SERIES, supra at 461; 8A J. MOORE, supra at 36-2. The entry of an appeal does not divest the trial court of its power to correct error. If the case has been docketed in the appellate court, the trial court is still empowered to correct error, but only with permission of the appellate court. See 8 MASS.PRACTICE SERIES, supra at 461; Fed.R.App.P. 10(a), (e).