Roe

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 motion 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 conclude Roe's original sentence was authorized and properly imposed and must now be completed.

During the course of his abortive nocturnal effort to burglarize Michele Reynolds' home, Roe severely beat Reynolds about her face and eyes. The injuries he inflicted required 22 stitches. When he committed the offense Roe was on parole from the California Rehabilitation Center where he had received treatment for drug addiction.

Roe pleaded guilty to first degree burglary (§ 459, former § 460, subd. (1) and inflicting great bodily injury (§ 12022.7) and agreed to a Harvey waiver ( People v.…