§ 470.40 Determination by court of appeals of appeals from intermediate\n appellate courts; corrective action upon reversal or\n modification.\n 1. Upon reversing or modifying an order of an intermediate appellate\ncourt affirming a criminal court judgment, sentence or order, the court\nof appeals must take or direct such corrective action as the\nintermediate appellate court would, pursuant to section 470.20, have\nbeen required or authorized to take or direct had it reversed or\nmodified the criminal court judgment, sentence or order upon the same\nground or grounds.\n 2. Upon reversing an order of an intermediate appellate court\nreversing or modifying a criminal court judgment, sentence or order upon\nthe ground that questions of law were erroneously determined by the\nintermediate appellate court in favor of the party appellant therein,\nthe court of appeals must take or direct corrective action as follows:\n (a) If the facts underlying the original criminal court judgment,\nsentence or order were considered and determined to have been\nestablished by the intermediate appellate court, the court of appeals\nmust reinstate and affirm the original criminal court judgment, sentence\nor order and remit the case to such criminal court for whatever further\nproceedings may be necessary to complete the action or proceedings\ntherein; provided, however, that where such facts were applied to an\nerroneous determination of law, the court of appeals may remit the case\nto the intermediate appellate court for a further determination of the\nfacts;\n (b) If the facts underlying the original criminal court judgment,\nsentence or order were not, or are presumed not to have been, considered\nand determined by the intermediate appellate court, the court of appeals\nmust remit the case to such intermediate appellate court for\ndetermination of the facts.\n 3. Upon modifying an intermediate appellate court order reversing or\nmodifying a criminal court judgment or order, upon the ground that\ncorrective action taken or directed by the intermediate appellate court\nwas illegal, the court of appeals must either (a) itself take or direct\nthe appropriate corrective action or (b) remit the case to the\nintermediate appellate court for appropriate corrective action by the\nlatter.\n
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