STATE OF MISSOURI ex rel. CRYSTAL BOLLINGER, Relator v. THE HONORABLE SCOTT L. BERNSTEIN , 2016 Mo. App. LEXIS 1173 ( 2016 )

STATE OF MISSOURI ex rel. )
CRYSTAL BOLLINGER, )
)
Relator, )
)
vs. ) No. SD34473
)
THE HONORABLE ) FILED: November 15, 2016
SCOTT L. BERNSTEIN, )
)
Respondent. )
PRELIMINARY WRIT OF PROHIBITION MADE PERMANENT
We consider whether the trial court, sua sponte and without stating grounds,
could set aside a judgment and sentence rendered after Crystal Bollinger’s voluntary
guilty plea.
Background 1
Bollinger was cited for careless and imprudent driving involving an accident, a
class A misdemeanor (§ 304.012). That ticket was received by and filed with the court.
Bollinger was arraigned, entered a guilty plea that was accepted, was sentenced to pay
1The pertinent facts are not in dispute. Statutory citations herein are to RSMo 2000
as amended through 2013; rule references are to Supreme Court Rules (2013).
a fine and costs, and a written record was made of the judgment and sentence. She
set up a payment plan and a traffic disposition record was sent to the Department of
Revenue and to the Highway Patrol.
Later that day, by order on its own motion and without stating grounds, the
court set aside the guilty plea and sentence, directing Bollinger to appear for further
proceedings.
Sixteen months later, in denying Bollinger’s motion to reinstate the plea and
sentence, the court first suggested of record any reasons for its prior actions:
Court finds no prejudice to defendant in the “same day” 9/19/14 set
aside of the guilty plea. Specifically, defendant has not paid the fine.
In addition, the State had not filed an Information and therefore
there was no jurisdiction for the plea, and the plea was not on the
record as required by case law.
Bollinger petitioned this court for a writ of prohibition. We issued a
preliminary writ and directed Respondent to answer. Respondent admitted all of the
writ petition’s factual and procedural allegations.
Legal Principles
“The judgment in a criminal prosecution becomes final when the trial court
enters a sentence. Entry occurs when a written record is made. Once a trial court
enters a sentence consistent with the law, the trial court exhausts its authority.” State
ex rel. Moore v. Brown, 270 S.W.3d 447, 449 (Mo.App. 2008) (citations omitted).
“The trial court cannot take further action in that case unless a statute or rule provides
the court with authority to do so.” Id.
Rule 29.13(a) allows a criminal judgment to be set aside within 30 days of entry
if the court “specif[ies] of record” that either the facts stated in the indictment or
2
information did not constitute an offense or the court lacked jurisdiction of the offense
charged. Respondent waited 16 months to suggest of record the latter of these, then
abandoned that theory in its answer to Bollinger’s writ petition. 2
Respondent has chosen not to file a brief, which leaves us to weigh Bollinger’s
arguments without benefit of counter-argument. State ex rel. Old Dominion
Freight Line, Inc. v. Dally, 369 S.W.3d 773, 776 n.4 (Mo.App. 2012). 3 As in Old
Dominion, we have only Respondent’s answer to the writ petition, which asserts only
that Bollinger has a remedy by appeal if she is tried and convicted, but wholly fails to
address by what authority Respondent might conduct a trial or resentence Bollinger.
Conclusion
“Because the court exceeded its judicial authority, a writ is the appropriate
remedy.” Moore, 270 S.W.3d at 449. We make absolute our preliminary writ,
prohibit Respondent from further action regarding the already-adjudicated charge,
and hold for naught Respondent’s actions following the initial judgment and sentence.
DANIEL E. SCOTT, J. – OPINION AUTHOR
GARY W. LYNCH, P.J. – CONCURS
NANCY STEFFEN RAHMEYER, J. – CONCURS
2
Rule 29.07(d) authorizes a trial court to set aside a judgment upon the defendant’s
motion, Moore, 270 S.W.3d at 449, and plainly does not apply here.
3 Full briefing is “encouraged in order to give all parties the opportunity to aid the
court in reaching a proper decision.” State ex rel. Neal v. Karl, 627 S.W.2d 913,
914 (Mo.App. 1982). See also In re A.T.H., 37 S.W.3d 423, 425 n.1 (Mo.App. 2001)
(a respondent’s failure to file a brief is an imposition on the court and leaves us
dependent upon the opponent’s presentation and our own research).
3