State v. Thompson

659 S.W.2d 766, 1983 Mo. LEXIS 477

• Court: Supreme Court of Missouri
• Decided: November 22, 1983
• Docket: 61790
• Status: Published

Opinions

WELLIVER, Judge.

The state by its motion requests this Court to recall its mandate issued in this case February 11,1981, and enter judgment affirming, rather than reversing, Thompson’s conviction for armed criminal action. We overrule the motion.

I

Thompson was charged with first degree murder, armed robbery, and armed criminal action for his part in a robbery and killing at Cox’s Cleaners in St. Louis on January 13, 1979. The jury acquitted him of first degree murder but convicted him of armed robbery and armed criminal action. The trial court found Thompson to be a “dangerous offender” and sentenced him to life in prison for armed robbery and ten years in prison for armed criminal action, with the sentences to run concurrently.

On appeal this Court affirmed the conviction and sentence for armed robbery. State v. Thompson, 610 S.W.2d 629, 638 (Mo.1981). The conviction for armed criminal action was reversed, id., because at the time the appeal was decided our cases held that the fifth amendment proscription of double jeopardy prohibited imprisonment of a defendant for both armed criminal action and the underlying felony when both crimes arose out of the same transaction, see Sours v. State, 603 S.W.2d 592 (Mo. banc 1980) (Sours II), cert. denied, 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 118 (1981); Sours v. State, 593 S.W.2d 208 (Mo. banc) (Sours I), vacated and remanded, 446 U.S. 962, 100 S.Ct. 2935, 64 L.Ed.2d 820 (1980). On October 5, 1981, the Supreme Court denied Thompson’s petition for a writ of certiorari, which the state opposed. Thompson v. Missouri, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 122 (1981). The state did not cross-petition for certiorari on the double jeopardy issue.

The reasoning underlying the Sours line of cases was invalidated by the Supreme Court’s decision on January 19, 1983, in Missouri v. Hunter, - U.S. -, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). On March 10, 1983, more than two years after our mandate issued in this case and nearly one and one-half years after the judgment became final when the Supreme Court denied review, the state filed the present motion requesting that we recall our mandate and, on the authority of Hunter, affirm Thompson’s conviction for armed criminal action.

II

Finality of litigation occupies an important place in the criminal justice process. See, e.g., Engle v. Isaac, 456 U.S. 107, 126-28, 102 S.Ct. 1558, 1570-71, 71 L.Ed.2d 783 (1982); Schneckloth v. Bustamonte, 412 U.S. 218, 262,93 S.Ct. 2041, 2065, 36 L.Ed.2d 854 (1973) (Powell, J., concurring); Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct. 1068, 1082, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting); Gailes v. State, 454 S.W.2d 561, 564 (Mo.1970). At some point litigation must cease. This precept applies with equal force to both society and the individual criminal defendant, see Engle, 456 U.S. at 127, 102 S.Ct. at 1571; Sanders, 373 U.S. at 24-25, 83 S.Ct. at 1082 (Harlan, J., dissenting), for both have an interest in obtaining a final and just resolution of criminal proceedings.

The principle of finality finds expression in the jurisdictional limitation imposed upon an appellate court once it finally decides a case and its mandate issues. This Court long ago held that once an appellate court transmits its mandate to the trial court, it divests itself of jurisdiction of the cause. Gray Realty Co. v. Swinney, 317 Mo. 687, 691, 297 S.W. 43, 45 (banc 1927). This comports with the general rule. See, e.g., Riley v. Superior Court, 49 Cal.2d 305, 309-10, 316 P.2d 956, 958-59 (1957); Hagan v. Robert & Co., 222 Ga. 469, 470, 150 S.E.2d 663, 665 (1966); Woodson v. Lee, 74 N.M. 227, 228, 392 P.2d 419, 420 (1964); Raht v. Southern Railway, 215 Tenn. 485, 498, 387 S.W.2d 781, 787 (1965); Reeploeg v. Jensen, 81 Wash.2d 541, 546, 503 P.2d 99, 102 (1972), cert. denied, 414 U.S. 839, 94 S.Ct. 91, 38 L.Ed.2d 75 (1973). See generally Annot., 84 A.L.R. 579 (1933). The question, therefore, is the extent to which an appellate court may reacquire jurisdiction by recalling a mandate once issued. This Court has said that it possesses “the judicial power to recall a mandate for certain purposes,” Reimers v. Frank B. Connet Lumber Co., 273 S.W.2d 348, 349 (Mo.1954), but it has never fully delineated the scope of that power.

Other courts have held that a mandate once issued may not be recalled absent one of a few specific exceptions, such as when the judgment is the result of prejudicial mistake of fact or of fraud, when there is irregularity or error in the issuance of the mandate, or when the mandate does not correctly reflect the judgment rendered by the court. See, e.g., People v. Stone, 93 Cal.App.2d 858, 860, 210 P.2d 78, 79-80 (1949); Tyson v. Whitaker & Son, 411 A.2d 389, 390 (Me.1980); Reeploeg, 81 Wash.2d at 546, 503 P.2d at 102-03. See generally 5B C.J.S. Appeal & Error § 1996, at 650-51 (1958). In the criminal context, a

motion for recall of the remittitur is not the proper remedy to correct a mere mistake of law, even though one exits....

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Ordinarily, when a court has jurisdiction to render a judgment which is not the result of fraud, imposition or prejudicial mistakes of facts, a remittitur which has been duly issued thereon may not be recalled or quashed to correct mere errors of law or procedure.

Stone, 93 Cal.App.2d at 860, 210 P.2d at 79-80.

Whenever the judgment of an appellate court impinges upon the federal constitutional rights of the accused, however, the mistake cannot be said to be a “mere [error] of law or procedure.” Id. at 860,210 P.2d at 80. Consequently, our courts have properly recognized that a mandate may be recalled in order to remedy a deprivation of the federal constitutional rights of a criminal defendant. For. example, a motion to recall the mandate may be employed to seek reconsideration of an appellate court’s affirmance of a conviction when a criminal defendant alleges ineffective assistance of counsel on appeal, State v. Rone, 603 S.W.2d 575, 578 (Mo. banc 1980); Hemphill v. State, 566 S.W.2d 200, 208 (Mo. banc 1978), or when a defendant has been deprived of appellate counsel altogether, see State v. Schaffer, 383 S.W.2d 698, 700 (Mo.1964). Such a motion may also be employed when the decision of a lower appellate court directly conflicts with a decision of the United States Supreme Court upholding the rights of the accused. See State v. McReynolds, 581 S.W.2d 465 (Mo.App.1979); State v. Nevels, 581 S.W.2d 138 (Mo.App.1979).

The present case, however, is not one in which the rights of the defendant have been abridged. Instead, our original decision was in favor of the liberty of the accused with respect to the conviction for armed criminal action. That decision was final.¹ To reopen the proceedings now would subvert the policies the principle of finality is designed to further. “To require courts to consider and reconsider cases at the will of litigants would deprive the courts of that stability which is necessary in the administration of justice.” Kosten v. Flemming, 17 Wash.2d 500, 504, 136 P.2d 449, 451 (1943). A criminal defendant should not be burdened with the concern that long after proceedings against him are closed, a change in the substantive law or in the composition of the court that granted him his liberty might again render him amenable to imprisonment at the instance of the state.

This case does not fall within any of the exceptions to the general rule that a mandate once issued may not be recalled. The mandate in this case therefore cannot and should not be recalled.

The state relies on McReynolds and Nevels, but those cases are inapposite. Both involved the recall of mandates affirming convictions obtained in violation of Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and were decided after the Supreme Court in Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979), expressly made the holding in Duren retroactive to the date of the decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Whether a construction of the United States Constitution is to be applied retroactively or prospectively depends upon the Supreme Court’s view of the facts and circumstances of each particular case, see United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), but no such question is here involved. It suffices to say that neither McReynolds nor Nevels involved an attempt by the state to deprive a defendant of his liberty after it had once been duly granted him.

The motion to recall the mandate is overruled.

HIGGINS and DONNELLY, JJ., concur. BLACKMAR, J., concurs in result in separate opinion filed. RENDLEN, C.J., and BILLINGS, J., dissent in separate opinions filed. GUNN, J., dissents and concurs in separate dissenting opinion of BILLINGS, J.

1 . There is no question that the decision of this Court was final. The Supreme Court has defined a final judgment in this context as one in which a conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari elapsed or a petition for certiorari finally denied. See United States v. Johnson, 457 U.S. 537, 542 n. 8, 102 S.Ct. 2579, 2583 n. 8, 73 L.Ed.2d 202 (1982); Tehan v. United States exrel. Shott, 382 U.S. 406, 409 n. 3, 86 S.Ct. 459, 461 (1966); Linkletter v. Walker, 381 U.S. 618, 622, 85 S.Ct. 1731, 1733, 14 L.Ed.2d 601 n. 5 (1965). In this case the Supreme Court denied Thompson’s petition for certiorari, Thompson v. Missouri, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 122 (1981), and the state made no effort to seek certiorari on the double jeopardy issue as it had done in most other cases posing the same question, see Missouri v. Hunter, — U.S. —, 103 S.Ct. 673, 677, n. 4, 74 L.Ed.2d 535 (1983).