State v. Friend

Missouri Court of Appeals

State v. Friend

605 S.W.2d 209, 1980 Mo. App. LEXIS 3316

CourtMissouri Court of Appeals

DecidedSeptember 5, 1980

DocketNo. 11533

StatusPublished

This text of 605 S.W.2d 209 (State v. Friend) 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. Friend, 605 S.W.2d 209, 1980 Mo. App. LEXIS 3316 (Mo. Ct. App. 1980).

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Opinion

per CURIAM:

Defendant was jury-convicted of stealing cattle. It fixed his punishment at five years’ imprisonment. In due time defendant filed his motion for a new trial which was overruled October 4,1979. The minute entries upon the docket sheet, included in the record on appeal, reflect that the following entry was made on the same date: “10/4/79 Defendant appears-Alloeution allowed defendant Judgement and Sentence-Defendant allowed one day Jail time Sheriff allowed one additional Guard at request of Defendant. Bail pending appeal is fixed at $10,000/00 to be approved by the clerk.”

The above is a minute entry and is not and does not purport to be a judgment entered of record. State v. Skaggs, 248 S.W.2d 635, 637-638 (Mo.1952). As a mere minute entry, the above does not constitute a judgment from which an appeal may be taken because it fails to comply with the requirements placed on the clerk for entry of judgment by Rule 27.11, V.A.M.R., then still in effect.¹ State v. Shipman, 560 S.W.2d 603, 604[1] (Mo.App.1978); accord: State v. Wilke, 560 S.W.2d 601, 602[3] (Mo.App.1978). Before appellate review may be undertaken, in this case, the judgment must be entered and made a part of the record. Wilke at 602[1]; cf. Id. n. 1.

As it appears the failure to enter judgment is chargeable to the clerk’s omission of a ministerial duty required by Rule 27.11, supra, defendant’s appeal will not be dismissed. State v. Skaggs, supra, 248 S.W.2d at 638[13, 14]. Rather, the appeal will be held in abeyance and the cause remanded to the circuit court for entry of [210]*210the proper judgment. Upon receipt here of a supplemental legal file attesting entry of a proper judgment, the appeal will be reinstated. Until receipt of such document, the appeal in this case is relegated to limbo. State v. Wilke, supra, 560 S.W.2d at 602-603[4]; accord: State v. Anderson, 580 S.W.2d 553, 554 (Mo.App.1979).

It is so ordered.

All concur, except FLANIGAN, C.J., re-cused.

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per CURIAM:

Defendant was jury-convicted of stealing cattle. It fixed his punishment at five years’ imprisonment. In due time defendant filed his motion for a new trial which was overruled October 4,1979. The minute entries upon the docket sheet, included in the record on appeal, reflect that the following entry was made on the same date: “10/4/79 Defendant appears-Alloeution allowed defendant Judgement and Sentence-Defendant allowed one day Jail time Sheriff allowed one additional Guard at request of Defendant. Bail pending appeal is fixed at $10,000/00 to be approved by the clerk.”

The above is a minute entry and is not and does not purport to be a judgment entered of record. State v. Skaggs, 248 S.W.2d 635, 637-638 (Mo.1952). As a mere minute entry, the above does not constitute a judgment from which an appeal may be taken because it fails to comply with the requirements placed on the clerk for entry of judgment by Rule 27.11, V.A.M.R., then still in effect.¹ State v. Shipman, 560 S.W.2d 603, 604[1] (Mo.App.1978); accord: State v. Wilke, 560 S.W.2d 601, 602[3] (Mo.App.1978). Before appellate review may be undertaken, in this case, the judgment must be entered and made a part of the record. Wilke at 602[1]; cf. Id. n. 1.

As it appears the failure to enter judgment is chargeable to the clerk’s omission of a ministerial duty required by Rule 27.11, supra, defendant’s appeal will not be dismissed. State v. Skaggs, supra, 248 S.W.2d at 638[13, 14]. Rather, the appeal will be held in abeyance and the cause remanded to the circuit court for entry of [210]*210the proper judgment. Upon receipt here of a supplemental legal file attesting entry of a proper judgment, the appeal will be reinstated. Until receipt of such document, the appeal in this case is relegated to limbo. State v. Wilke, supra, 560 S.W.2d at 602-603[4]; accord: State v. Anderson, 580 S.W.2d 553, 554 (Mo.App.1979).

It is so ordered.

All concur, except FLANIGAN, C.J., re-cused.

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605 S.W.2d 209, 1980 Mo. App. LEXIS 3316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-friend-moctapp-1980.

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