Clerical Correction of a Hold-Without-Bail Order During a Pending Appeal: Intent Controls Under V.R.Cr.P. 36

1. Introduction

In State v. Michael Williams (Entry Order, 2025 VT 3, Jan. Term 2026), the Vermont Supreme Court addressed a procedurally unusual but practically important question in Vermont’s pretrial-detention framework: whether a trial court may “correct” a hold-without-bail order—after the defendant has appealed—by deleting a single word that flips the core constitutional finding from “the evidence of guilt is not great” to “the evidence of guilt is great.”

The case arose after defendant Michael Williams was charged with second-degree murder and held without bail pending a weight-of-the-evidence hearing. The trial court’s written order contained internally inconsistent language: it purported to hold defendant without bail under 13 V.S.A. § 7553 (which requires “evidence of guilt is great”), yet a sentence stated the State had not met its burden. While the appeal was pending, the trial court issued a corrected order deleting “not.” Defendant argued the change was impermissible because it was substantive and because no leave from the Supreme Court had been sought under V.R.Cr.P. 36. Alternatively, he challenged the “great evidence” finding on the merits.

2. Summary of the Opinion

The Vermont Supreme Court affirmed. It held:

  • The trial court’s deletion of the word “not” was a permissible clerical correction because the order, read as a whole, showed the court originally intended to find that the evidence of guilt was great; the erroneous word was a “blunder in execution,” not a “change of mind.”
  • Although V.R.Cr.P. 36 generally requires “leave of the Supreme Court” to correct clerical mistakes while an appeal is pending, the Supreme Court effectively granted leave (and declined to remand for a redundant procedural step), citing the need to avoid delay in bail matters.
  • On independent appellate review, the Court concluded the State met the “great evidence” standard under the Vermont Rule of Criminal Procedure 12(d) framework: there was substantial, admissible evidence from which a reasonable factfinder could be convinced beyond a reasonable doubt, even though much of the case was circumstantial.

3. Analysis

A. Precedents Cited

1) Constitutional/statutory architecture for holding without bail

The Court grounded the analysis in the established two-part constitutional test for denial of bail under Vt. Const. ch. II, § 40(1), as summarized in State v. Sartwell, 2025 VT 13, ¶ 4: the defendant may be held without bail only if (1) the offense is punishable by life imprisonment and (2) “the evidence of guilt is great.” If both are shown, “a presumption against release arises,” shifting a burden to the defendant.

The Court also referenced State v. Kirkland, 2022 VT 38, ¶ 9, for the presumption against release when those two conditions are met. This mattered because the trial court’s original order purported to apply the presumption framework (a hallmark of a “great evidence” finding), creating the internal inconsistency that later supported characterization of the “not” as clerical.

2) The necessity of an explicit “great evidence” finding

Defendant’s initial appellate argument relied on State v. Memoli, 2008 VT 85, ¶ 5, which states a defendant may not be held without bail under § 7553 unless the trial court explicitly finds the evidence of guilt is great. Memoli explains why the erroneous “not great” sentence initially appeared dispositive—and why the classification of the correction (clerical vs. substantive) became the central issue.

3) Interpreting procedural rules and borrowing from federal counterparts

To frame interpretation of V.R.Cr.P. 36, the Court cited State v. Amidon, 2008 VT 122, ¶ 16, for the methodology of construing procedural rules by plain language and purpose, and for looking to federal authority when Vermont’s rule is identical to a federal counterpart. The Court used Amidon to justify reading Rule 36 through the same lens as the clerical-correction doctrine developed under the closely related civil rules.

4) Defining “clerical mistake” by intent and internal consistency

The Court’s principal doctrinal tool was Warner v. Warner, 2025 VT 70, ¶¶ 17-18. Warner draws the “basic distinction” between correctable clerical mistakes (“blunders in execution”) and uncorrectable changes of mind, and directs courts to focus on what the court originally intended. Warner also rejects an “impact-based” test: the magnitude of the correction’s practical consequences does not determine whether a correction is clerical.

This intent-centric framework let the Supreme Court treat the deletion of “not” as a correction of mistranscription rather than a reversal of a judicial conclusion—because the remainder of the order functioned as if the State had met the “great evidence” threshold.

5) Circumstantial evidence and “great evidence” proof

Substantively, the Court leaned on multiple cases confirming that circumstantial evidence can satisfy demanding criminal standards:

  • State v. Godfrey, 2010 VT 29, ¶ 18: “The State is allowed to rely exclusively on circumstantial evidence in proving its case.” The trial court’s footnote quoting this point appeared in both the original and corrected orders, reinforcing that the trial court’s intended finding was “great evidence,” not “not great.”
  • State v. Theriault, 2014 VT 119, ¶¶ 2-3: adopted the Rule 12(d) standard for § 7553 review; also emphasized the Court has upheld convictions based solely on circumstantial evidence.
  • State v. Baird, 2006 VT 86, ¶ 13: when evidence is largely circumstantial, it must be evaluated together, not item-by-item; and the reviewing court views evidence in the light most favorable to the prosecution under the relevant sufficiency framework.
  • State v. Hardy, 2008 VT 119, ¶ 11: on appeal, the Supreme Court independently determines whether the “great evidence” standard has been met.

6) Distinguishing “weight of the evidence” under § 7553 and § 7554

The Court acknowledged, via State v. Auclair, 2020 VT 26, ¶¶ 16-18, that “weight of the evidence” can mean different things depending on whether the court is deciding (a) the constitutional/§ 7553 “great evidence” gateway (Rule 12(d)-style sufficiency) or (b) the § 7554(b) factor assessing the relative strength of the State’s case as part of release conditions. This distinction supported the Court’s close reading of the trial court’s order: the trial court’s language about evidence being “considerable” in the § 7554 discussion fit comfortably with an intended § 7553 “great evidence” finding.

7) Treating inconsistent boilerplate as clerical error and emphasizing speed in bail matters

The Court cited State v. Greene, 172 Vt. 610, 611, 782 A.2d 1163, 1165 (2001) (mem.), for the proposition that internally inconsistent boilerplate language can be attributed to clerical error when the substance of the order points clearly in another direction.

It also cited State v. Passino, 154 Vt. 377, 383, 577 A.2d 281, 285 (1990), emphasizing that bail proceedings must occur “as soon as reasonably possible.” This policy concern drove the Court’s pragmatic choice to grant leave and proceed, rather than remand for the trial court to request leave to do what it had already done.

B. Legal Reasoning

1) Why the correction was “clerical” rather than “substantive”

The Court treated the disputed edit as a classic clerical mistake because the original order’s reasoning operated on the assumption that the “great evidence” predicate had been satisfied:

  • The order recited the proper § 40(1)/§ 7553 standards and described burden-shifting that only applies after a “great evidence” finding (as explained in State v. Sartwell).
  • It analyzed the § 7554 factors as if a presumption against release existed and concluded defendant failed to overcome that presumption.
  • It included a footnote (also present after correction) relying on State v. Godfrey to explain that circumstantial evidence can satisfy the State’s burden—an explanation that logically supports a conclusion that the State did meet its burden.
  • The correction made the order “internally cohesive and consistent,” echoing the logic in State v. Greene.

Defendant argued the change was necessarily substantive because it reversed “the most significant finding.” The Court rejected that framing by applying Warner v. Warner: the relevant inquiry is intent, not the practical stakes. If a court decided the issue one way but “incorrectly recorded” it, correction is available even if it materially changes the parties’ positions.

2) Rule 36 timing and the Supreme Court’s “leave”

The Court recognized the textual hurdle in V.R.Cr.P. 36: once the appeal is docketed and pending, clerical mistakes may be corrected only “with leave of the Supreme Court.” No leave had been requested.

Rather than invalidate the correction or remand for a formal leave request, the Court:

  • Noted that it had placed the appeal “on hold” to permit trial-court activity (based on the State’s representation it would withdraw its motion), thereby transferring at least some jurisdiction back to the trial court; and
  • Held it “need not decide” whether the appeal was no longer “pending” for Rule 36 purposes because the Supreme Court would grant leave anyway and a remand would only delay a bail matter (citing State v. Passino).

The practical upshot is a procedural safety valve: even if leave was not sought first, the Supreme Court may grant it and proceed when the record shows the correction is clerical and delay would be unjustified in the bail context.

3) Independent review of “great evidence” under the Rule 12(d) standard

On the merits, the Court applied the “great evidence” standard described in State v. Theriault, 2014 VT 119, ¶ 2: the State must show (1) substantial, admissible evidence of guilt exists, and (2) it can fairly and reasonably convince a factfinder beyond a reasonable doubt. Under State v. Hardy, the Court independently assessed whether the standard was met.

Viewing the evidence in the light most favorable to the State and considering it cumulatively as required by State v. Baird, the Court identified:

  • Motive and relationship conflict (a long relationship that had “soured,” victim was seeing another man, and defendant had confronted that man);
  • Opportunity and timing (victim returned home at about 3:30 a.m.; victim’s car left about forty minutes later);
  • Inconsistencies in defendant’s accounts compared to surveillance video coverage of the street;
  • Physical observations of defendant (red mark, swollen dominant hand, shifting explanations);
  • Cause of death (strangulation and blunt-force trauma).

Taken together, the Court held this constituted substantial evidence that could fairly and reasonably convince a factfinder beyond a reasonable doubt, satisfying the constitutional “great evidence” threshold.

C. Impact

1) Procedural impact: correcting bail orders during appeal

The decision strengthens an intent-based approach to post-judgment corrections in criminal cases: where the text of an order is internally inconsistent and the record demonstrates what was actually decided, courts may treat the inconsistency as clerical—even if one word controls the constitutional bail outcome. The Court also signaled that, in bail appeals, it will avoid needless remands and may grant the requisite “leave” under Rule 36 to prevent delay.

2) Substantive impact: circumstantial cases can satisfy the “great evidence” threshold

By applying Theriault, Baird, and Godfrey, the Court reaffirmed that a “great evidence” finding can rest on an aggregation of circumstantial proof, including motive, opportunity, inconsistent statements, video inferences, and injury observations—without direct eyewitness testimony.

3) Litigation impact: drafting discipline and appellate strategy

For trial courts, the case is a warning that a single mistaken “not” can create appellate whiplash; for litigants, it shows that reliance on an isolated sentence may fail if the order’s reasoning and structure show a different intended outcome. For prosecutors and defenders alike, it also underscores that Rule 36 “leave” should be sought promptly when an appeal is docketed, even if the mistake seems obvious.

4. Complex Concepts Simplified

  • “Held without bail” under § 7553: an exceptional form of pretrial detention allowed only when the charge is life-imprisonment-eligible and “the evidence of guilt is great” under the Vermont Constitution and statute.
  • “Evidence of guilt is great” (Rule 12(d) standard): not as low as probable cause, and not a full trial finding; it asks whether the State has substantial admissible evidence that could fairly and reasonably convince a factfinder beyond a reasonable doubt.
  • “Clerical mistake” vs. “substantive change”: a clerical mistake is an error in recording what the court already decided (a “blunder in execution”); a substantive change is when the court changes its mind. The test focuses on the court’s original intent, not how big the consequences are.
  • “Leave of the Supreme Court” under V.R.Cr.P. 36: once an appeal is pending, the trial court generally needs permission from the Supreme Court to correct clerical mistakes; here, the Supreme Court granted that permission rather than requiring a remand.
  • Circumstantial evidence: evidence from which a factfinder infers what happened (e.g., timing, video inferences, inconsistencies, injuries). Vermont law permits the State to rely exclusively on circumstantial evidence.

5. Conclusion

State v. Michael Williams establishes a pragmatic and intent-focused rule for bail orders: a trial court may correct an internally inconsistent hold-without-bail decision by fixing a clerical misstatement—even during a pending appeal—where the order’s reasoning shows what was actually decided, and the Supreme Court may grant Rule 36 leave to prevent delay. On the merits, the Court reaffirmed that aggregated circumstantial proof can satisfy Vermont’s Rule 12(d) “great evidence” standard for purposes of § 7553 pretrial detention.