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Barthell v. State

The trial court lacked jurisdiction over the defendant's motion to vacate a void sentence, since it was filed outside the term of court in which he was sentenced.

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Jerome Barthell, sentenced in 1998 pursuant to his plea of guilty to aggravated assault on a peace officer, appeals from the trial court’s order of September 25, 2006, which denied his June 26, 2006 motion to vacate void sentence. An arrest warrant was issued for Barthell on May 23, 1998, for assault on State Trooper Rowe. Because Barthell was on probation for a 1995 conviction of selling cocaine, a probation revocation hearing based on the assault charge was held on July 8, 1998, and the remaining seven years of probation were revoked. That same day, Barthell attempted to enter a plea of guilty to the assault charge under Accusation No. 98-CR-149,1 but the court did not accept it. On August 18, 1998, Accusation No. 98-CR-182 was filed, charging Barthell with the same aggravated assault against Trooper Rowe. That same day, Barthell entered his guilty plea to that charge and was sentenced to 15 years confinement.

For reasons not clear from the record and transcripts, on November 3, 1999, the trial court sua sponte entered an order vacating the sentence entered on Accusation No. 98-CR-182 because it “duplicated 98-CR-149 to which the defendant had already pled guilty. The plea & sentence in 98-CR-149 remains in full force & effect.”2

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