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State ex rel. Zahnd v. Van Amburg

Supreme Court of Missouri, En Banc

November 21, 2017

STATE ex rel. ERIC G. ZAHND, Platte County Prosecuting Attorney, Relator,
v.
THE HONORABLE JAMES W. VAN AMBURG, Respondent. STATE ex rel. ERIC G. ZAHND, Platte County Prosecuting Attorney, Relator,
v.
THE HONORABLE THOMAS C. FINCHAM, Respondent.

         ORIGINAL PROCEEDINGS IN PROHIBITION

          W. Brent Powell, Judge.

         Eric G. Zahnd, prosecuting attorney for Platte County, seeks writs of prohibition directing the Platte County circuit court to vacate its orders sustaining Rule 29.12(b) motions and amending the stealing convictions and sentences of Jesse Nelson and Jack Walker II. Because the circuit court lacked jurisdiction to adjudicate the Rule 29.12(b) motions and amend the judgments, such actions were void and this Court makes permanent its preliminary writs of prohibition.

         I. Factual and Procedural History

         In separate cases, Nelson and Walker were charged pursuant to § 570.030.3(1)[1] with a class C felony for stealing property worth $500 or more. Nelson pleaded guilty in August 2015; Walker pleaded guilty in August 2013. The circuit court sentenced Nelson to three years' imprisonment but suspended execution of his sentence and placed him on probation. The circuit court sentenced Walker to seven years' imprisonment but likewise suspended execution of his sentence and placed him on probation.

         In 2016, this Court held the offense of stealing could not be enhanced to a felony pursuant to § 570.030. State v. Bazell, 497 S.W.3d 263, 266-67 (Mo. banc 2016).[2] Relying on Bazell, Nelson and Walker, who were both still on probation, filed motions in the circuit court seeking to amend their convictions and sentences to reflect that stealing property worth $500 or more was a class A misdemeanor rather than a class C felony.[3] Nelson and Walker made their motions pursuant to Rule 29.12(b). The circuit court sustained both motions and amended the judgments in both cases. The judgments were amended to reflect convictions for the class A misdemeanor of stealing rather than class C felonies. Nelson's sentence was reduced to 180 days in jail, and Walker's sentence was reduced to one year in jail.

         The prosecuting attorney then sought writs of prohibition directing the circuit court to vacate its orders sustaining the Rule 29.12(b) motions and amending its judgments. Pursuant to article V, § 4.1 of the Missouri Constitution, this Court issued a preliminary writ of prohibition in both cases.

         II. Analysis

         "The writ of prohibition, an extraordinary remedy, is to be used with great caution and forbearance and only in cases of extreme necessity." State ex rel. Douglas Toyota III, Inc. v. Keeter, 804 S.W.2d 750, 752 (Mo. banc 1991). "The essential function of prohibition is to correct or prevent inferior courts and agencies from acting without or in excess of their jurisdiction." Id.

         A judgment in a criminal case becomes final when a sentence is imposed. State v. Larson, 79 S.W.3d 891, 893 (Mo. banc 2002). Therefore, a circuit court "exhausts its jurisdiction" over a criminal case once it imposes sentence. State ex rel. Simmons v. White, 866 S.W.2d 443, 445 (Mo. banc 1993); cf. Spicer v. Donald N. Spicer Revocable Living Trust, 336 S.W.3d 466, 468-69 (Mo. banc 2011) (holding, in the civil context, a circuit court is "divested of jurisdiction" once its judgment becomes final). "It can take no further action in that case [unless] expressly provided by statute or rule." Simmons, 866 S.W.2d at 445. "To allow otherwise would result in a chaos of review unlimited in time, scope, and expense." Id. at 446. Accordingly, any action taken by a circuit court after sentence is imposed is a "nullity" and "void" unless specifically authorized by law. Id. at 445; cf. Spicer, 336 S.W.3d at 469 ("Following divestiture [of jurisdiction], any attempt by the trial court to continue to exhibit authority over the case, whether by amending the judgment or entering subsequent judgments, is void.").

         Here, the circuit court, after exhausting its jurisdiction over the criminal cases, took post-sentence action to amend its judgments pursuant to Rule 29.12(b). That rule provides: "Plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Unlike Rule 24.035 or Rule 29.15, the plain language of Rule 29.12(b) does not provide for an independent post-sentence procedure. See Vernor v. State, 30 S.W.3d 196, 197 (Mo. App. 2000). Instead, Rule 29.12(b) presupposes the criminal case is still pending before the circuit court and provides a mechanism for the circuit court to consider plain errors before imposing sentence, i.e., while it still retains jurisdiction over the criminal case. See id.[4]

         Nelson's and Walker's Rule 29.12(b) motions did not extend the jurisdiction of the circuit court after the original sentences were imposed, so the circuit court had no jurisdiction to adjudicate the Rule 29.12(b) motions and amend the judgments. Any action the circuit court took pursuant to Rule 29.12(b) after imposing the sentences was a "nullity" and "void." See Simmons, 866 S.W.2d at 445; cf. Spicer, 336 S.W.3d at 469. The only action the circuit court could take was to exercise its inherent power to dismiss the motions for lack of jurisdiction.[5] See Collins & Assocs. Dietary Consultants v. Labor & Indus. Relations Comm'n, 724 S.W.2d 243, 245 (Mo. banc 1987), superseded by statute on other grounds.

         Nelson and Walker argue the circuit court never exhausted its jurisdiction over their criminal cases because it never rendered a final judgment in either case. As noted, a judgment in a criminal case becomes final when sentence is imposed. Larson, 79 S.W.3d at 893. The circuit court entered judgments convicting Nelson and Walker of the class C felony of stealing and sentencing them to three and seven years respectively. Although the circuit court suspended the execution of the sentences in both cases, the judgments were still final when the sentences were imposed. See State ex rel. Poucher v. Vincent, 258 S.W.3d 62, 66 (Mo. banc 2008) (explaining that when "a sentence is imposed but then its execution is suspended, the judgment is final and the defendant has a right of immediate appeal").

         Nelson and Walker rely on State v. Morris, 719 S.W.2d 761, 763 (Mo. banc 1986), wherein this Court held a "sentence that is contrary to the law cannot constitute a final judgment" and is "void." In doing so, this Court cited a court of appeals' decision, Ossana v. State, 699 S.W.2d 72 (Mo. App. 1985). In Ossana, the court of appeals cited no legal authority for its broad proposition that, "In order to ...


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