Section 29.20 Decision of Court

LibraryCriminal Practice 2012 Supp

IX. (§29.20) Decision of Court

When the judgment of the appellate court is rendered, there are several possible forms of relief that might be granted if the appellant has been able to avoid the affirmance of the trial court’s decision. For example, the appellate court can:

· reverse the matter outright and order the defendant’s discharge;

· reverse the matter and remand it for a new trial;

· remand the matter for further action by the trial court; or

· modify or reduce the sentence and judgment that was imposed.

The appellate courts will generally refuse to remand the matter for
an evidentiary hearing on a subject that might be more properly disposed of by a post-conviction proceeding. State v. Nebbitts, 498 S.W.2d 762 (Mo. 1973); State v. McKinney, 475 S.W.2d 51 (Mo. 1971). The courts have been extremely reluctant to reduce or modify sentences on appeal. The passion and prejudice must so clearly appear from the record of the sentencing that the reviewing court can confidently say that the trial court unmistakably abused its discretion in imposing the sentence.
State v. Maxwell, 502 S.W.2d 382 (Mo. App. E.D. 1973); State v. Mucie, 448 S.W.2d 879 (Mo. 1970). The court will be more likely to modify or change the sentence when statutory modifications have reduced
the maximum penalties while the matter is on appeal. State v. Hawkins, 482 S.W.2d 477 (Mo. 1972). The court will also remand the sentencing procedure when the transcript fails to show if sentences were improperly made consecutive. State v. McCollum, 527 S.W.2d 710 (Mo. App. W.D. 1975).

When the state’s case has been reversed for insufficient evidence, the defendant is discharged. Otherwise, there is double jeopardy. Burks v. United States, 437 U.S. 1 (1978); State v. Montgomery, 591 S.W.2d 412 (Mo. App. S.D. 1979). Cases that are reversed for technical reasons
or for informations that are insufficient will be remanded. State v. Hook, 433 S.W.2d 41 (Mo. App. W.D. 1968).

The Supreme Court also has the right to remand the matter for factual findings but will generally not exercise it in direct appeals. Any deficiencies in fact or conclusions will be resolved against the appellant. In Durham v. State, 473 S.W.2d 397 (Mo. 1971), the appellate court remanded a matter for findings of fact and conclusions of law when the action was brought under former Rule 27.26. See, however, State v. Tettamble, 517 S.W.2d 732 (Mo. App. E.D. 1974), in which the appellate court remanded the matter for a hearing on...

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