State ex rel. Wagner v. Ruddy

• Decision Date: 27 June 1979
• Docket Number: No. 60949,60949
• Parties: STATE ex rel. Melvin WAGNER, Relator, v. Honorable James RUDDY, Judge of the Circuit Court of the County of St. Louis, State of Missouri, Division 14, Respondent.
• Court: Missouri Supreme Court

Page 692

582 S.W.2d 692

STATE ex rel. Melvin WAGNER, Relator, v. Honorable James RUDDY, Judge of the Circuit Court of the County of St. Louis, State of Missouri, Division 14, Respondent.

No. 60949.

Supreme Court of Missouri, en banc.

June 27, 1979.

Roy A. Walther, III, Crouppen, Walther, Zwibelman, & Walsh, P. C., St. Louis, for relator.

Mark S. Levitt, Asst. Pros. Atty., Clayton, for respondent.

WELLIVER, Judge.

Relator Wagner seeks to prohibit respondent trial court from vacating judgment and sentence entered March 13, 1978, for the purpose of resentencing the relator. The sole issue is whether the trial court in a criminal prosecution retains general jurisdiction to reopen or modify its judgment after judgment and sentence is entered. Because we find that such modification and resentencing would exceed the limits of respondent's jurisdiction, our provisional rule of prohibition will be made absolute.

On March 28, 1978, the trial court on its own motion set aside the previous judgment and sentence and ordered a supplementary presentence investigation and report. This report was submitted on May 11, 1978, and an evidentiary hearing was held on May 26, 1978. At the relator's request, resentencing was passed until August 25, 1978. On August 10, 1978, the relator filed a motion to dismiss the resentencing and to reinstate the sentence and judgment of March 13 1978, on the ground that the court lacked jurisdiction to resentence the relator. The motion was overruled, and the relator then filed his Petition for Writ of Prohibition with the Court of Appeals, Eastern District which denied relief. The relator then filed his Petition for Writ of Prohibition with this court.

Rule 75.01 expressly authorizes a trial court in a Civil action to "vacate, reopen, correct, amend or modify its judgment for good cause" within thirty days after entry of its judgment. Rule 27.22 authorizes a trial court in a criminal case to arrest or set aside its judgment not later than thirty days after it is entered on either of two grounds: "(1) that the facts stated in the indictment or information do not constitute an offense, or (2) that the court is without jurisdiction of the offense charged." Relator contends that the grounds enumerated in Rule 27.22 are exhaustive of the grounds on which the trial court in a criminal case may set aside its judgment once it is entered. The respondent does not attempt to justify setting aside the judgment in this case on either of the grounds authorized by Rule 27.22, but maintains that the "good cause" standard provided by Rule 75.01 should apply. Respondent reasons that such an application is warranted by Rule 36.04, which provides that where the rules do not provide a specific procedure, "the court shall proceed in any lawful manner consistent with any applicable statute and not inconsistent with these Rules."

Respondent set aside relator's sentence fifteen days after entry of the judgment and sentence. The ground offered for setting aside the relator's sentence is respondent's discovery on March 28, 1978, that the relator gave a misleading explanation of his illegal conduct that appeared in the initial pre-sentence investigation report on which the original sentence was based. The report had shown that the relator's motive and purpose for embezzling money from his employer as charged was to provide "everything he could" for his terminally ill wife. The respondent alleges that information was uncovered concerning how the relator used the embezzled funds that indicated the relator's explanation was false and misleading. Since the thirty day limitation found in Rule 75.01 was met in this case, and assuming without deciding that the "good cause" requirement of that Rule was met, the respondent court's resentencing of relator would be within its jurisdiction if Rule 75.01 is applicable.

There are no cases cited by either party which involve the precise question of when a judgment in a criminal case becomes "final" for the purpose of terminating the jurisdiction of the trial court to modify the sentence imposed. The question of when a judgment becomes a final judgment for the purpose of determining whether it may be appealed is more easily resolved. ¹ A judgment in a civil proceeding becomes final for this purpose under Rule 81.05(a) "at the expiration of thirty days after the entry of such judgment, if no timely motion for a new trial is filed." If a timely motion for a new trial or for judgment notwithstanding the verdict is filed, "the judgment is not final until disposition of all such motions." Rule 78.04. The judgment in a criminal case is final for purposes of appeal when the judgment and sentence is entered, and a notice of appeal filed in the trial court more than ten days after its entry is ineffective to vest the appellate court with jurisdiction. State v. Domini, 391 S.W.2d 206, 207 (Mo.1965) (per curiam); State v. Lowe, 365 S.W.2d 613, 614 (Mo.1963) (per curiam); State v. Henderson, 344 S.W.2d 96, 97 (Mo.1961); State v. Johnson, 331 S.W.2d 551, 552 (Mo.1960) (per curiam); State v. Morrow, 316 S.W.2d 527 529 (Mo.1958); State v. Parker, 310 S.W.2d 923, 924 (Mo.1958); State v. Robbins, 269 S.W.2d 27, 29 (Mo.1954). The very term "sentence" has been defined to mean "judgment or final judgment," and a criminal case is not ripe for appeal if no sentence has been pronounced. State v. Pruitt, 169 S.W.2d 399, 400 (Mo.1943); State v. Motley, 546 S.W.2d 435, 436-37 (Mo.App.1976).

The respondent in the instant case does not dispute that the judgment and sentence entered on March 13, 1978, was immediately appealable. Respondent contends, however, that although a judgment in a criminal case is ripe for appeal immediately upon its entry, this does not negate the continuing power in the trial court to vacate or modify its judgment for thirty days following its entry. No case has been cited to us and diligent search has failed to disclose any case in which it has been held that a "final judgment" in a criminal case means one thing for purposes of appeal and another for purposes of terminating the power of the trial court to modify the judgment.

In State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 232 (Mo. banc 1969), we examined the relation between the finality of a judgment for purposes of appealability and for purposes of modifiability by the trial court. In that case, one of several defendants in a malpractice action sought a writ of prohibition against the trial court's modification of an order dismissing the relator as a defendant in the suit. It was held that the order of dismissal was not a final judgment and the trial court therefore had the power to modify it even after the expiration of a thirty day period.

Logic and justice would seem to indicate that a trial court should be permitted to retain control of every phase of a case so that it may correct errors, or, in its discretion, modify or set aside orders or judgments Until its jurisdiction is extinguished by the judgment becoming final and appealable. (Id. at 232.)

The implication is clear that the appealability of a judgment is one criterion of the extinction of jurisdiction in the trial court.

In State ex rel. Parks v. Barker, 567 S.W.2d 130 (Mo. banc 1978), the trial court entered judgment and sentence on July 29, 1977, against the defendant upon a finding that he was guilty of violating the Missouri Wildlife Code. On August 18, 1977, the trial court recons...