Opinion
7 Div. 514.
March 19, 1940.
Appeal from Circuit Court, Etowah County; J. H. Disque, Jr., Judge.
Earl Lawley was convicted of assault with intent to rob, and he appeals.
Appeal dismissed.
E. L. Roberts, of Gadsden, for appellant.
After the lapse of thirty days from the date on which a judgment or decree was rendered, the court loses all power over it, unless a motion to set aside the judgment or decree or grant a new trial has been filed and called to the attention of the court and an order entered continuing it for hearing to a future date. In this case the judgment was affirmed and the case sent back for proper sentence on June 20, 1939, and forty-five days elapsed before the trial court pronounced the sentence upon appellant, which was more than thirty days. Hence, the trial court erred in sentencing appellant after expiration of more than thirty days. Code 1923, § 6670.
Thos. S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty. Gen., for the State.
The lapse of more than thirty days between the judgment of the Court of Appeals and the resentencing of the Circuit Court does not render the sentence void or voidable. The judgment involved is not a judgment of the Circuit Court but a mandatory order of the Court of Appeals, and Code, § 6670 has no application. Furthermore, the judgment proper, as it stood after the judgment of the Court of Appeals, was not such a final judgment as is contemplated by Code, § 6670. Blankenship v. Hail, 214 Ala. 95, 106 So. 594. A criminal judgment consists of two component parts either of which is sufficient to support an appeal. Law v. State, 238 Ala. 428, 191 So. 803; Hines v. State, 238 Ala. 575, 192 So. 423. After judgment of the Court of Appeals there remained only a judgment of conviction, which is not a final judgment.
Upon the consideration of the original appeal in this case, it was ascertained and determined that no error prevailed upon the trial of the case in the lower court as to the conviction of the defendant, and to this extent the judgment of conviction in the lower court was duly affirmed. Lawley v. State, 28 Ala. App. 580, 190 So. 106. Error as to the sentence imposed was apparent however, which necessitated the remandment of the cause to the lower court for the sole purpose of proper sentence.
It appears from the record on this appeal, that the lower court properly followed the mandate of this court, supra, proceeded to, and did duly and legally pronounce sentence upon the defendant, as the statute provides; to which action the defendant reserved an exception, and here insists that the lower court was without legal authority to sentence the defendant, the point of decision relied upon is to the effect that the court had lost all jurisdiction of the case under the terms of Section 6670 of the Code 1923.
There is no semblance of merit in the foregoing insistence. The quoted section has no application to the matter involved, wherein the trial court properly followed, and put into effect, the legal mandate of this court. This court, within the limitations of the provisions of Section 7309 of the Code 1923, and other relative statutory provisions, is vested with a general superintendence and control of courts of inferior jurisdiction; and no appeal may be had from the action of the nisi prius court in strictly complying with the proper and legal mandate of the appellate courts.
The case at bar now discloses a proper adjudication and determination of all questions presented by the appeal had from the original judgment of conviction.
Further discussion is unnecessary.
This purported appeal is dismissed.
Appeal dismissed.