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Name: People v. Nelms
Case #: C055100
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/14/2008

An appellate court may decline to dismiss an appeal upon filing of abandonment. While the appeal was pending in Nelms’s case, the trial court granted his motion to recall the sentence pursuant to Penal Code section 1170, subdivision (d). The trial court also granted Nelms’s motion to dismiss his smuggling conviction. It then resentenced Nelms on the remaining count. The appellate court received no notice of the subsequent trial court proceedings and issued an opinion reversing the conviction on the smuggling charge because of instructional error. It also remanded the case to the trial court to resentence on the remaining offense. The remittitur issued. Subsequently the trial court acknowledged the remittitur and suggested that the appellate court might wish to recall it since resentencing occurred while the appeal was pending. The appellate court recalled the remittitur and vacated the earlier opinion, requesting supplemental briefing on the issue of whether the trial court exceeded its jurisdiction in dismissing the smuggling count while the case was pending on appeal. Both parties submitted supplemental briefing arguing that the trial court did not exceed its jurisdiction, and Nelms also filed an abandonment of his appeal. The appellate court here held that once the record has been filed in the appellate court, an appellant may abandon the appeal, but it is up to the court to decide if the appeal will be dismissed. The trial court exceeded its jurisdiction in dismissing the smuggling charge while the case was pending on appeal. Therefore the dismissal had no effect. Although the abandonment of appeal was an attempt to preserve the trial court’s dismissal of the smuggling charge, the effect of dismissing the appeal would instead be to preserve the conviction. Therefore, the court declined to dismiss the appeal.
Recall of the case for resentencing did not confer authority to modify the judgment of conviction. Although the trial court had authority to recall Nelms’s sentence under section 1170, subdivision (d), the authnority was limited to sentencing, and did not extend to modifying the judgment. The trial court had no jurisdiction to dismiss the smuggling count once Nelms filed his notice of appeal.