Vaidik, J.
Indiana Code section 9-30-5-3(a) provides that a person commits OWI as a Class D felony if the person has a previous OWI conviction that occurred within five years of the current violation. It is undisputed that in 2009 Dillon pleaded guilty to Class A misdemeanor OWI in Cause No. 109 and that this occurred within five years of his alleged violation in this case, Cause No. 215. And all parties agree that on February 1, 2011, the State inadvertently dismissed Dillon’s OWI conviction instead of the possession of marijuana count in Cause No. 109. See Appellant’s Br. p. 5 (“DILLON does not challenge the trial court’s conclusion that the Daviess County Prosecutor’s action in dismissing the OWI count instead of the Possession of Marijuana count was . . . due to an oversight, and that their intention was to dismiss the Marijuana charge pursuant to DILLON’s conditional discharge on that count.”). The State argues, however, that the inadvertent dismissal of Dillon’s OWI conviction in Cause No. 109 was properly reinstated by the trial court’s April 19, 2012, nunc pro nunc entry and, therefore, his “[Cause No.] 109 OWI conviction was effective at the date of [Dillon’s April 7, 2012,] OWI offense [in this case, Cause No. 215].” Appellee’s Br. p. 6.
A nunc pro tunc order is an entry made now of something which was actually previously done, to have effect as of the former date. Cotton v. State, 658 N.E.2d 898, 900 (Ind. 1995). Such an entry may be used to either record an act or event not recorded in the court’s order book or to change or supplement an entry already recorded in the order book. Id. The purpose of a nunc pro tunc order is (1) to correct an omission that actually occurred but was omitted because of inadvertence or mistake and (2) to make the record correspond to what actually happened and to speak the truth of the events that occurred on a particular day. Id.; Miller v. Muir, 115 Ind. 335, 56 N.E.2d 496, 504 (1944). To correct an error by a nunc pro tunc order, the trial court’s record must show that the unrecorded act or event actually occurred. Cotton, 658 N.E.2d at 900. A written memorial must form the basis for establishing the error or omission. Id. That is, a nunc pro tunc entry cannot be used to show that an event happened which did not actually occur. Id. at 901.
Dillon does not really dispute the Daviess Superior Court’s authority to make a nunc pro tunc entry to reinstate his 2009 OWI conviction in Cause No. 109 based on the inadvertent dismissal of Count 1 instead of Count 2; instead, what Dillon disputes is the timing of the nunc pro tunc entry in relation to his alleged commission of the offense in this case. See Appellant’s Reply Br. p. 2 (“The fact is that the Daviess [C]ounty OWI offense had been vacated at the time DILLON allegedly committed the new OWI offense in Grant County. As a matter of law, therefore, the enhancement should be barred.”). Dillon’s OWI conviction in Cause No. 109 was reinstated after he allegedly committed the OWI in this case. This means that when Dillon allegedly committed the OWI in this case, he did not have a prior conviction within five years because the nunc pro tunc entry had not yet been made in Cause No. 109. Had the State moved to reinstate Dillon’s inadvertently dismissed OWI in Cause No. 109 before he allegedly committed the OWI in this case, then the OWI in this case would be subject to the Class D felony enhancement pursuant to Indiana Code section 9-30-5-3. But that is not what happened. The nunc pro tunc entry therefore could not have been effective when Dillon was arrested and charged in this case for OWI, because no action had been taken yet to reinstate that conviction. Because Dillon did not have a prior OWI within five years when he allegedly committed the instant OWI, the trial court erred in denying his motion to dismiss the felony enhancement. [Footnote omitted.] We therefore reverse the trial court.
FRIEDLANDER, J., concurs.
BAKER, J., dissents with separate opinion:
I respectfully part ways from the majority inasmuch as the trial court lacked the authority to dismiss Count 1. Indiana Code section 35-48-4-12 provides that if a person with no prior conviction relating to controlled substances pleads guilty to possession of marijuana . . . as a Class A misdemeanor, the court, without entering judgment of conviction and with consent of the person may defer further proceedings and place the person in the custody of the court under such conditions as the court determines.
A judgment of conviction had already been entered on Count 1. Additionally, as acknowledged but quickly dismissed in a footnote by the majority, Section 35-48-4-12 only applied to the marijuana offense. Thus, the trial court’s order dismissing Count 1 was void. See In re Guardianship of A.J.A., No. 48S02-1305-GU-398, slip op at 4 (Ind. July 18, 2013) (stating that if the General Assembly did not intend for the trial court to have the authority, the court’s action “was void ab initio and without legal effect”). Moreover, even assuming the trial court’s order dismissing Count 1 was not void, we cannot permit criminal defendants to reap the benefits of simple scriveners’ errors.