State v. Dean

Missouri Court of Appeals

State v. Dean

5 S.W.3d 616, 1999 Mo. App. LEXIS 2264, 1999 WL 1051093

CourtMissouri Court of Appeals

DecidedNovember 22, 1999

DocketNo. 22820

StatusPublished

Cited by3 cases

This text of 5 S.W.3d 616 (State v. Dean) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Dean, 5 S.W.3d 616, 1999 Mo. App. LEXIS 2264, 1999 WL 1051093 (Mo. Ct. App. 1999).

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Opinions

KENNETH W. SHRUM, Judge.

Timothy Dean (Defendant) was tried by the court without a jury on two counts of [617]*617forgery, both class C felonies. § 570.090.1(4) and .2, RSMo 1994. After hearing the evidence, the trial court took the case under advisement pending receipt of trial briefs from the lawyers. The docket sheet reflects that the briefs were timely filed, and on January 5, 1999, the lawyers were notified to appear “for decision” on January 12, 1999. On the appearance date, the trial judge found Defendant guilty on both counts and sentenced him to two concurrent one-year terms in the county jail¹ This appeal followed.

Where a prerequisite to appellate-court jurisdiction is not met, the appellate court must raise the issue sua sponte. See State v. Clemmons, 416 S.W.2d 68, 70-71 (Mo.1967). Such an issue appears here; accordingly, we dismiss the appeal.

Under Rule 29.11(b) and (e),² Defendant had the right to file a motion for new trial within fifteen days after the trial court found him guilty. Rule 29.11(c) provides that “[n]o judgment shall be rendered until the time for filing a motion for new trial has expired.”

“The right to file a motion for a new trial is valuable, and may not be denied unless it is expressly waived, even in court-tried cases.” State v. Braden, 864 S.W.2d 8, 9[2] (Mo.App.1993). The record here is barren of any indication that Defendant waived his right to file a motion for new trial, yet the trial court purported to render judgment and sentence before the deadline passed.

Missouri courts have repeatedly held that in such circumstances, any purported judgment and sentence is premature and void; consequently, there is no judgment from which to appeal. Braden, 864 S.W.2d at 9[1]; State v. DeGraffenreid, 855 S.W.2d 450, 451 (Mo.App.1993); State v. Dieter, 840 S.W.2d 887 (Mo.App.1992); State v. Goth, 792 S.W.2d 437, 438[2] (Mo.App.1990); State v. Wren, 609 S.W.2d 480, 481 [1,2] (Mo.App.1980); State v. Collins, 580 S.W.2d 320, 321[2] (Mo.App.1979). Therefore, this court is without jurisdiction to hear this appeal. Braden, 864 S.W.2d at 9.

In conformity with the procedure spelled out by this court in DeGraffenreid, 855 S.W.2d 450, and Dieter, 840 S.W.2d 887, we dismiss the appeal and remand the case to the trial court and direct the court to grant Defendant the opportunity to file a motion for new trial or to waive his right to do so. If the right is waived expressly or by passage of time, or if a motion for new trial is filed and denied, the trial court may thereafter sentence Defendant. Defendant will then have the right to appeal.

CROW, P.J., concurs. PARRISH, J., concurs in separate opinion.

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KENNETH W. SHRUM, Judge.

Timothy Dean (Defendant) was tried by the court without a jury on two counts of [617]*617forgery, both class C felonies. § 570.090.1(4) and .2, RSMo 1994. After hearing the evidence, the trial court took the case under advisement pending receipt of trial briefs from the lawyers. The docket sheet reflects that the briefs were timely filed, and on January 5, 1999, the lawyers were notified to appear “for decision” on January 12, 1999. On the appearance date, the trial judge found Defendant guilty on both counts and sentenced him to two concurrent one-year terms in the county jail¹ This appeal followed.

Where a prerequisite to appellate-court jurisdiction is not met, the appellate court must raise the issue sua sponte. See State v. Clemmons, 416 S.W.2d 68, 70-71 (Mo.1967). Such an issue appears here; accordingly, we dismiss the appeal.

Under Rule 29.11(b) and (e),² Defendant had the right to file a motion for new trial within fifteen days after the trial court found him guilty. Rule 29.11(c) provides that “[n]o judgment shall be rendered until the time for filing a motion for new trial has expired.”

“The right to file a motion for a new trial is valuable, and may not be denied unless it is expressly waived, even in court-tried cases.” State v. Braden, 864 S.W.2d 8, 9[2] (Mo.App.1993). The record here is barren of any indication that Defendant waived his right to file a motion for new trial, yet the trial court purported to render judgment and sentence before the deadline passed.

Missouri courts have repeatedly held that in such circumstances, any purported judgment and sentence is premature and void; consequently, there is no judgment from which to appeal. Braden, 864 S.W.2d at 9[1]; State v. DeGraffenreid, 855 S.W.2d 450, 451 (Mo.App.1993); State v. Dieter, 840 S.W.2d 887 (Mo.App.1992); State v. Goth, 792 S.W.2d 437, 438[2] (Mo.App.1990); State v. Wren, 609 S.W.2d 480, 481 [1,2] (Mo.App.1980); State v. Collins, 580 S.W.2d 320, 321[2] (Mo.App.1979). Therefore, this court is without jurisdiction to hear this appeal. Braden, 864 S.W.2d at 9.

In conformity with the procedure spelled out by this court in DeGraffenreid, 855 S.W.2d 450, and Dieter, 840 S.W.2d 887, we dismiss the appeal and remand the case to the trial court and direct the court to grant Defendant the opportunity to file a motion for new trial or to waive his right to do so. If the right is waived expressly or by passage of time, or if a motion for new trial is filed and denied, the trial court may thereafter sentence Defendant. Defendant will then have the right to appeal.

CROW, P.J., concurs. PARRISH, J., concurs in separate opinion.

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5 S.W.3d 616, 1999 Mo. App. LEXIS 2264, 1999 WL 1051093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dean-moctapp-1999.

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