§ 470.40 Determination by court of appeals of appeals from intermediate
appellate courts; corrective action upon reversal or
modification.
1. Upon reversing or modifying an order of an intermediate appellate
court affirming a criminal court judgment, sentence or order, the court
of appeals must take or direct such corrective action as the
intermediate appellate court would, pursuant to section 470.20, have
been required or authorized to take or direct had it reversed or
modified the criminal court judgment, sentence or order upon the same
ground or grounds.
2. Upon reversing an order of an intermediate appellate court
reversing or modifying a criminal court judgment, sentence or order upon
the ground that questions of law were erroneously determined by the
intermediate appellate court in favor of the party appellant therein,
the court of appeals must take or direct corrective action as follows: (a) If the facts underlying the original criminal court judgment,
sentence or order were considered and determined to have been
established by the intermediate appellate court, the court of appeals
must reinstate and affirm the original criminal court judgment, sentence
or order and remit the case to such criminal court for whatever further
proceedings may be necessary to complete the action or proceedings
therein; provided, however, that where such facts were applied to an
erroneous determination of law, the court of appeals may remit the case
to the intermediate appellate court for a further determination of the
facts;
(b) If the facts underlying the original criminal court judgment,
sentence or order were not, or are presumed not to have been, considered
and determined by the intermediate appellate court, the court of appeals
must remit the case to such intermediate appellate court for
determination of the facts.
3. Upon modifying an intermediate appellate court order reversing or
modifying a criminal court judgment or order, upon the ground that
corrective action taken or directed by the intermediate appellate court
was illegal, the court of appeals must either (a) itself take or direct
the appropriate corrective action or (b) remit the case to the
intermediate appellate court for appropriate corrective action by the
latter.
