People v. Roe

Opinion

WIENER, J.

In this case we examine the nature of the 120-day limitation on a trial court’s authority to recall a sentence and commitment on its own *115motion and resentence a defendant. (Pen. Code, § 1170, subd. (d).)1 We conclude that limitation is jurisdictional, and thus the lower court lacked authority to resentence the defendant, Raymond D. Roe, nine months after originally pronouncing sentence. Rather than dismiss Roe’s attempted appeal from the judgment purportedly entered upon resentencing, we treat that appeal as a petition for a writ of habeas corpus. Thus reaching the merits we…