State of Missouri v. Nasir N. Ahmad

• Court: Missouri Court of Appeals
• Decided: March 18, 2014
• Docket: ED99907
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION ONE

STATE OF MISSOURI, ) No. ED99907 ) Respondent, ) Appeal from the Circuit Court ) of St. Louis County vs. ) ) Honorable Thea Sherry NASIR N. AHMAD, ) ) Appellant. ) FILED: March 18, 2014

Nasir Ahmad ("Appellant") appeals from the trial court's judgment dismissing his

motion to withdraw his guilty plea under Rule 29.07(d). We dismiss this appeal for want

of jurisdiction.

I. BACKGROUND

On October 23, 2003, Appellant pled guilty to the class C felony of burglary in

the second degree, in violation of Section 569.170. The plea court suspended imposition

of sentence ("SIS") and placed Appellant on probation, ordering, inter alia, Appellant to

complete classes relating to domestic abuse. Appellant successfully completed these

classes and completed his term of probation under the SIS on October 23, 2006.

Appellant was discharged from probation. On December 21, 2012, Appellant filed a motion to withdraw his guilty plea

under Rule 29.07(d). The trial court dismissed Appellant's motion on March 11, 2013,

for lack of jurisdiction.

This appeal now follows.

II. DISMISSAL FOR LACK OF JURSIDCTION

It is well settled that before this Court may address the merits of an appeal, we

must first determine our jurisdiction to do so. Avidan v. Transit Cas. Co., 20 S.W.3d

521, 523 (Mo. banc 2000) ("In all appeals, we are required to examine our own

jurisdiction."). If jurisdiction is lacking, then the appeal must be dismissed. State v.

Tyler, 224 S.W.3d 89, 90 (Mo. App. W.D. 2007).

"Our jurisdiction derives from that of the circuit court." Kieffer v. Niemeyer, 113

S.W.3d 300, 301 (Mo. App. E.D. 2003). Thus, if the trial court determined it lacked

jurisdiction to entertain Appellant's motion, then this Court would lack jurisdiction over

Appellant's appeal. State v. Bryant, 237 S.W.3d 603, 604-05 (Mo. App. S.D. 2007).

Accordingly, we are under an obligation to examine the issue of the trial court's

jurisdiction. White v. State, 265 S.W.3d 850, 853 (Mo. App. E.D. 2008) ("Where the

motion court lacked jurisdiction to hear Appellant's motion, we likewise lack jurisdiction

to review Appellant's claims.").

There exists little need to perform extensive analysis as we find State v. Byers,

396 S.W.3d 366 (Mo. App. S.D. 2012), with reference to and reliance upon State ex rel.

Kauble v. Hartenbach, 216 S.W.3d 158 (Mo. banc 2007), and State v. Ortega, 985

S.W.2d 373 (Mo. App. S.D. 1999), to be controlling and in contravention of Appellant's

arguments.

2 Under the holdings (and continued acceptance) of the three aforementioned cases,

Rule 29.07 is not available after discharge from probation when a defendant receives a

suspended imposition of sentence because there is no final judgment or conviction. State

v. Ison, 270 S.W.3d 444, 445-46 (Mo. App. W.D. 2008); see also Ortega, 985 S.W.2d at

374 ("When the trial court discharged appellant from probation, it discharged him from

its jurisdiction with respect to that case . . . . It, therefore, lacked authority to grant the

relief sought by appellant's subsequent motion to withdraw his plea of guilty."); Kauble,

216 S.W.3d at 160 (our Missouri Supreme Court adopted the holding in Ortega that when

a defendant has been discharged from probation, without a criminal conviction, the trial

court loses authority to alter or amend its previous decision under Rule 29.07(d)); Byers,

396 S.W.3d at 368 ("The procedural posture here is identical to that in Ortega. Byers

pleaded guilty to an offense upon which imposition of sentence was suspended. He was

placed on probation, subsequently was discharged from that probation, and thereafter

filed a motion to withdraw his guilty plea under Rule 29.07(d). Under the holding in

Ortega, the trial court lacked authority to grant any relief sought by that motion.").

Appellant, having received an SIS, and having successfully completed probation

and thereafter discharged on October 23, 2006, does not have Rule 29.07(d) available to

him. For the reasons heretofore, we conclude that the trial court lacked jurisdiction to

consider Appellant's motion to withdraw his guilty plea pursuant to Rule 29.07(d), and

this Court, therefore, must dismiss this appeal for lack of jurisdiction.

3 III. CONCLUSION

For the foregoing reasons, this appeal is dismissed.

____________________________________ Roy L. Richter, Presiding Judge Clifford H. Ahrens, J., concurs Glenn A. Norton, J., concurs