              In the Missouri Court of Appeals
                                Western District

STATE OF MISSOURI,                      )
                           Respondent, )
v.                                      )          WD78011
                                        )
ERIA DOSS,                              )
                             Appellant. )          FILED: November 1, 2016

     APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
               THE HONORABLE DAVID M. BYRN, JUDGE

       BEFORE DIVISION ONE: LISA WHITE HARDWICK, PRESIDING JUDGE,
         ALOK AHUJA, CHIEF JUDGE AND CYNTHIA L. MARTIN, JUDGE

      Eria Doss appeals from the circuit court's denial of his motion for judgment

of acquittal for second-degree felony murder and its corresponding count of armed

criminal action while his case was on remand for a new penalty phase. Because

Doss's request was beyond the scope of our mandate, we affirm the denial of his

motion and the entry of judgment on his convictions.

                         FACTUAL AND PROCEDURAL HISTORY

      In April 2009, Doss and his co-defendant Michael Gunn shot and killed

Justin Budreau and Andrew Eli. Doss was subsequently convicted by a jury of two

counts of second-degree felony murder, two counts of first-degree robbery, and
four counts of armed criminal action, for which the circuit court sentenced him to

an aggregate total sentence of two consecutive life terms.

      On direct appeal, this court found the evidence was insufficient to support

Doss's convictions for first-degree robbery relating to Budreau and its

corresponding armed criminal action count. State v. Doss, 394 S.W.3d 486, 494

(Mo. App. 2013). We reversed those convictions. This court also found prejudicial

error in the admission of Doss's juvenile records during the penalty phase of the

trial. Id. at 497. Therefore, we vacated Doss's sentences on his remaining

convictions and remanded the case to the circuit court for a new penalty phase.

Id. at 497-98.

      On remand, Doss filed a motion for judgment of acquittal on the second-

degree felony murder count relating to Budreau and its corresponding armed

criminal action count. Doss argued that, because this court vacated his conviction

for first-degree robbery relating to Budreau based on insufficient evidence, the

felony murder and armed criminal action convictions based on the first-degree

robbery also had to be set aside. Doss's counsel did not raise this claim on direct

appeal. Nevertheless, Doss argued that the circuit court had the authority to grant

his motion for judgment of acquittal based on Supreme Court Rules 30.29, 29.11,

and 29.12.

      The circuit court found the rules cited by Doss were inapplicable, noting that

a motion for judgment of acquittal could only be filed pursuant to Rule 72 or Rule

27.07. The court observed that Doss's motion would have been untimely under

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Rule 72, which applies only to civil cases. The court noted that Doss's motion was

also untimely under Rule 27.07(c), which provides that a motion for judgment of

acquittal "must be filed within fifteen days after the return of the verdict or the jury

is discharged." Ultimately, the court stated that it had a "specific ruling and a

specific mandate from the Court of Appeals," and that it would be overstepping its

authority if it were to sustain Doss's motion for judgment of acquittal. Therefore,

the court denied Doss's motion and proceeded with the new penalty phase and

resentencing. Doss was sentenced to consecutive sentences of 30 years in prison

for both murder counts, 10 years in prison the robbery count, and three years in

prison for each of the three armed criminal action counts. Doss appeals.

                                       ANALYSIS

      In his sole point on appeal, Doss contends the circuit court erred in denying

his motion for judgment of acquittal for the second-degree felony murder count

relating to Budreau and its corresponding armed criminal action count. He argues

that the circuit court had the authority to grant the motion for judgment of acquittal

under Rules 29.07(c) and 29.12(b). We disagree.

      The scope of the circuit court's authority on remand was defined by our

mandate. Developers Sur. & Indem. Co. v. Woods of Somerset, LLC, 455 S.W.3d

487, 492 (Mo. App. 2015). The circuit court was required to "render judgment in

accord with our mandate and opinion." Gerken v. Sherman, 351 S.W.3d 1, 6 (Mo.

App. 2011). There are two types of remands: "'(1) a general remand, which does

not provide a specific direction and leaves all issues open to consideration in the

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new trial; and (2) a remand with directions, which requires the [circuit] court to

enter a judgment in conformity with the mandate.'" Id. (citation omitted). Thus,

while "'[a] general remand leaves all issues not conclusively decided open for

consideration at the new trial,'" a mandate with express instructions directing the

circuit court to take a specific action or actions leaves the circuit court with "no

authority to deviate from those instructions." Developers Sur. & Indem. Co., 455

S.W.3d at 492 (citation omitted). "Any act by the [circuit] court that diverges

from those instructions is void." Id.

        Here, our mandate remanded the case to the circuit court for proceedings

consistent with our opinion. Our opinion provided that, due to the erroneous

admission of evidence at the penalty phase, Doss's sentences were vacated and

the cause was remanded for a new penalty phase on his convictions of two counts

of second-degree felony murder, one count of first-degree robbery, and three

counts of armed criminal action. Doss, 394 S.W.3d at 498. This was an express

instruction to the circuit court to take the specific action of conducting a new

penalty phase on Doss's remaining convictions. Under our mandate, the circuit

court had no authority to reconsider, let alone set aside, any of those convictions.

Such actions would have been beyond the scope of our mandate and, therefore,

void.1 Developers Sur. & Indem. Co., 455 S.W.3d at 492. The circuit court did



1
  Moreover, we note that the rules Doss cites, Rules 29.07(c) and 29.12(b), did not provide the
circuit court with the authority to grant his motion for judgment of acquittal. Rule 29.07(c) states
that "[a] judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication
and sentence. If the defendant is found not guilty or for any other reason is entitled to be
discharged, judgment shall be entered accordingly." This rule merely sets forth what information is

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not err in denying Doss's motion for judgment of acquittal. Doss's point on appeal

is denied.2

                                            CONCLUSION


       The judgment is affirmed.


                                                       ____________________________________
                                                       Lisa White Hardwick, Judge


All Concur.




required to be included in a final judgment in a criminal case. See, e.g., State v. Paul, 401 S.W.3d
591-92 (Mo. App. 2013). It does not allow the circuit court to enter a new judgment at any time
notwithstanding other procedural rules. Likewise, Rule 29.12(b), the plain error rule, did not give
the circuit court such authority, as the rule "does not provide an independent basis under which a
person convicted of a crime can subsequently challenge his conviction or sentence." State v.
Lawrence, 477 S.W.3d 170, 170 (Mo. App. 2015).

2
  Doss also argues that we, independently, should address the sufficiency of the evidence to
support his second-degree felony murder conviction relating to Budreau and its corresponding armed
criminal action conviction. In support of this argument, he relies on State ex rel. Verweire v. Moore,
a case in which a defendant successfully raised a sufficiency of the evidence claim in a habeas
corpus action. 211 S.W.3d 89, 91-92 (Mo. banc 2006) (abrogated on other grounds by State v.
Lammers, 479 S.W.3d 624, 636 (Mo. banc 2016)). This is not a habeas corpus action, however.
Instead, it is simply an appeal from the denial of an untimely motion for judgment of acquittal that
fell outside the scope of our limited remand.

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