holding that trial court did not have authority to correct mistake in failing to sentence defendant as habitual offender when less than a minute elapsed from time of imposing first sentence of two years to imposing intended sentence of twenty-five years even though it was clear that the "trial court meant to find the enhancement paragraphs true”
How later courts described this case
- holding that trial court did not have authority to correct mistake in failing to sentence defendant as habitual offender when less than a minute elapsed from time of imposing first sentence of two years to imposing intended sentence of twenty-five years even though it was clear that the "trial court meant to find the enhancement paragraphs true”
- explaining that it is “too late” to change a sentence once a lawful sentence is imposed
- noting that the effect of a motion is determined by its contents and purpose, rather than by its caption
Written by the judges who cited it.
Later courts went against this
Questioned by Johnny Alison Grant v. State (2008)
Without speculating as to the continuing viability of Dickerson and Tooke,
The opinion
DUNN, Justice,
dissenting.
I withdraw my initial opinion of August 12, 1993, and substitute this one in its stead *765 solely to reflect that I would grant the State’s motion for rehearing.
I respectfully dissent regarding the disposition of point of error one.
At the hearing on appellee’s “motion for new trial,” uncontradicted evidence demonstrated that less than a minute had elapsed between the time that the court first sentenced appellee and the time that the prosecutor brought the court’s error to its attention. Uncontradicted evidence also showed that, at the time the court called appellee back to resentence him, appellee was at the clerk’s desk inside the courtroom waiting to be “processed” and taken to the Texas Department of Criminal Justice.
I am cognizant of a long line of eases, several of which appellee cites in his brief, in which appellate courts held that a trial court erred when it attempted to change a defendant’s sentence after imposing it. These cases include Ex parte Reynolds, 462 S.W.2d 605 (Tex.Crim.App.1970); Ex parte Brown, 477 S.W.2d 552 (Tex.Crim.App.1972); Blackwell v. State, 510 S.W.2d 952 (Tex.Crim.App.1974); Ex parte Voelkel, 517 S.W.2d 291 (Tex.Crim.App.1975); Tooke v. State, 642 S.W.2d 514 (Tex.App.—Houston [14th Dist.] 1982, no pet.); Bullock v. State, 705 S.W.2d 814 (Tex.App.—Dallas 1986, no pet.); and State v. Evans, 817 S.W.2d 807 (Tex.App.—Waco 1991), aff'd in part on other grounds and rev’d in part on other grounds, 848 S.W.2d 576 (Tex.Crim.App.1992) (not yet reported).
I find Reynolds, Brown, Blackwell, Voelk-el, Bullock, and Evans to be inapplicable here. In each of those cases, the trial court erred when it attempted to change the sentence it had already imposed after the defendant had begun serving the sentence.
In Reynolds, the Court of Criminal Appeals held that “it was beyond the power of the court ... to add a cumulation order onto the last sentence imposed after the petitioner had suffered punishment under the sentence originally imposed.” 462 S.W.2d at 608 (emphasis added).
In Brown, the Court of Criminal Appeals wrote that:
[A]t the time that the court entered its resentencing order, making these additional sentences to run consecutively, petitioner had already been incarcerated ... for approximately two calendar months. Thus, it is apparent that petitioner had already suffered partial punishment under the original sentence at the time the more lengthy commitment was re-assessed ... Such a belated attempt at altering the terms of a defendant’s sentence [is] null and void of effect.
477 S.W.2d at 554 (emphasis in original).
In Blackwell , the defendant had already served several days in jail when he was “again called into court where his sentence was cumulated with [his] previous ten-year sentence.” 510 S.W.2d at 956 . The Court of Criminal Appeals held that the cumulation order was invalid. Id.
In Voelkel, the defendant's sentences were cumulated after he had already begun serving the sentence imposed by the court the day before. 517 S.W.2d at 292 . The Court of Criminal Appeals set aside the order of cumulation. Id. at 293 .
In Bullock , the trial court ordered that the defendant’s sentence “run concurrently with any other sentences [he] was serving.” 705 S.W.2d at 815. Then, two weeks later, the trial court signed an order that the defendant’s sentence run consecutively. Id. The Dallas Court of Appeals held that the order was invalid “where the defendant has already commenced service under the prior sentencing order.” Id. at 816 .
In Evans , the defendant and the State entered into a plea agreement. 817 S.W.2d at 808 . The trial court approved the agreement and sentenced the defendant to eight years in prison, the recommended punishment. Id. Five days later, upon the defendant’s motion to withdraw his plea, the court vacated the sentence. Id. The Waco Court of Appeals, noting that “the power of a court is limited” after a defendant has begun serving a sentence, id. at 809 , set aside the trial court’s vacation of the eight-year sentence and reinstated that sentence. Id. at 810 .
I find the law best stated in Evans :
*766 It is a general rule that a trial court has full power and control of its judgments, orders and decrees, during the term at which they have been made, and that, in the exercise of that power, it may at the same term of court, correct, modify or set them aside. An exception to the general rule, however, is recognized when the accused has accepted the judgment and has performed a part thereof, or has suffered some punishment as a result thereof, in which event the court is powerless to change the judgment in any substantial respect.
Id. at 809 (citations omitted).
Here, as the record demonstrates, appellee had not performed part of, or suffered some punishment under, the original sentence. In fact, at the time the trial court resentenced appellee, appellee had not even left the courtroom after the original sentence was handed down, and the resentencing occurred a mere instant after the original sentencing. These facts remove this case from the holdings in Reynolds, Brown, Blackwell, Voelkel, Bullock, and Evans , cases in which the respective defendants had already begun serving their sentences when the attempted resentencing occurred.
I am unable to determine whether Tooke , the case relied upon by the majority, is on point. The Fourteenth Court of Appeals’ recitation of the relevant facts is as follows:
[T]he trial court orally sentenced appellant to confinement in the Texas Department of Corrections “for not less than 5 years nor more than 50 years.” After appellant accepted such sentence, the court, realizing that he mistakenly omitted to consider the enhancement paragraph of the indictment resentenced appellant to confinement in the Texas Department of Corrections “for not less than 15 years nor more than 50 years.”
642 S.W.2d at 516 .
The court held that the “attempting resen-tencing was null and void and of no legal effect” 1 and that “the sentence first imposed oh appellant will stand.” Id. at 518 . However, I am unable to tell from the court’s opinion whether the defendant had already begun serving his original sentence when he was resentenced, or even how much time had elapsed between the original sentencing and the resentencing, a fact that would shed some light on the question of whether he had already begun serving the original sentence when he was resentenced. It does appear from the opinion that the defendant was sentenced orally and then later resentenced in writing, id. at 516, indicating a lapse of more time between sentencing and resentencing than in the present case.
I would hold that, when a trial court sentences a defendant erroneously due to some mistake or oversight, and subsequently realizes its mistake and resentences the defendant in line with its original intentions, then as long as the defendant has not already begun to perform or serve the original sentence, the “resentencing,” if otherwise proper, is valid. 2 In my opinion, the trial court therefore erred when it “modified” the valid sentence of 25-years confinement.
*767 To whatever extent, if at all, that Tooke can be read to conflict with my would-be holding, I respectfully disagree with that case.
I would sustain point of error one. I would vacate the order granting appellee’s “motion for new trial,” which orders that “the judgment and sentence entered in this cause be modified to read that the defendant was assessed a punishment of two (2) years,” and reinstate the judgment and sentence assessing appellee 25-years confinement. I would remand the cause to the trial court for execution of the sentence.
MIRABAL, WILSON and HEDGES, JJ., join this opinion.
. In making this holding, the Tooke court relied in part upon Williams v. State, 145 Tex.Crim. 536 , 170 S.W.2d 482 (1943). 642 S.W.2d at 518 . In Williams , the Court of Criminal Appeals wrote:
It is the general rule that a trial court has full power and control of its judgments, orders and decrees, during the term at which they have been made, and that, in the exercise of that power, he may, at the same term of court, correct, modify, or set them aside ... An exception to the general rule, however, is recognized when the accused has accepted the judgment and has performed a part thereof, or has suffered some punishment as a result thereof, in which event the court is powerless to change the judgment in any substantial respect.
170 S.W.2d at 486 .
. Such a holding would be consistent with language found in Turner v. State, 166 Tex.Crim. 154 , 31 S.W.2d 809 (1930):
The power of the court to alter its docket entries and records during the term wherein they are made, includes the right within such time to revise, correct and change its sentences, however formally pronounced, if nothing has been done under them. But steps taken under a sentence — for example, a substantial part execution thereof — will cut off the right to alter it, even during the term.
Id.