Kirkpatrick

Defendant Randy Steven Kirkpatrick appeals from the judgment of conviction entered after a jury found him guilty as charged of possessing more than 57 grams of cocaine for sale. (Health & Saf. Code, § 11351; Pen. Code, § 1203.073, subd. (b).)

Background

VII

Defendant claims that a resentencing imposed by the trial court was in excess of its jurisdiction. The problem arose in this context:

Friday, June 1,1990, was the time set for receipt of the probation officer’s report and sentence. After hearing the submissions of counsel, the court noted that defendant “did serve his country in Vietnam, and he was awarded . . . a Silver Star,” something “you . . . don’t get . . . for washing mess tins.” Upon reviewing the circumstances in mitigation and aggravation, the court pronounced sentence as follows: “Because of the . . . Silver Star I think that the country owes him something on that. And I’m going to make his sentence ... the middle term” of three years. The court then proceeded to sentence a codefendant to the aggravated term of four years.

It was only when the collateral matter of defendant’s possible release on bail pending appeal was being considered that the prosecutor…