Hales

The People have appealed from orders of the trial court which (1) purported to vacate and set aside a prior judgment which sentenced the defendant to prison following his conviction by jury verdict of burglary in the second degree in violation of section 459 of the Penal Code and (2) thereupon granted his motion for new trial.

The People contend that the trial court had no power or authority to vacate the judgment, and that defendant's motion for a new trial was not timely made and should not have been granted by the trial court. [1] The trial court does have power and authority to vacate its judgment in criminal matters on proper showing. (See People v. Wadkins (1965) 63 Cal.2d 110, 113 [ 45 Cal.Rptr. 173 , 403 P.2d 429 ]; People v. Shipman (1965) 62 Cal.2d 226, 230 [ 42 Cal.Rptr. 1 , 397 P.2d 993 ].) The record, however, fails to reflect that the motion to vacate was made prior to entry of judgment or prior to execution of sentence, nor does it assert grounds for relief as an application for a writ of coram nobis after final judgment. The trial court, therefore, had no authority to set aside its judgment. Since the motion for new trial was not made or determined…