State v. Jones

477 S.W.2d 729, 1972 Mo. App. LEXIS 940

• Court: Missouri Court of Appeals
• Decided: February 22, 1972
• Docket: No. 34259
• Status: Published

Opinion

CLEMENS, Commissioner.

Defendant appeals a conviction of common assault for striking a police officer who had accused him of shoplifting. We find the purported judgment and sentencing defective and the case not ripe for our consideration.

Trial without jury was held June 12, 1970, at the conclusion of which the court stated: “On Attempt Stealing, I’ll find you not guilty . . . On the Common Assault, I’ll find you guilty and it will be sixty days in the City Workhouse.” Timely motion for new trial was denied July 27, 1970 and notice of appeal was filed immediately.

The record shows the trial court has neither afforded defendant allocution nor rendered a final judgment in accordance with Rules 27.09, 27.10 and 27.20.¹ This court is therefore without jurisdiction. State v. Jaeger, Mo., 394 S.W.2d 347 [7]; State v. Grant, Mo., 380 S.W.2d 799; State v. Ezell, Mo.App., 470 S.W.2d 162.

In State v. Chase, 415 S.W.2d 731, the supreme court held that where no final judgment has been rendered an appeal is premature. The cause must be remanded with directions to cause defendant to be brought into court to grant allocution (Rule 27.09) and to pronounce sentence. See also State v. Hendel, Mo.App., 468 S.W.2d 664; State v. Grimes, Mo.App., 470 S.W.2d 4; State v. Myers, Mo.App., 467 S.W.2d 577; State v. Nichols, Mo.App., 474 S.W.2d 54.

The appeal must be dismissed and the cause remanded for allocution and entry of final judgment.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the cause is remanded for al-locution and entry of final judgment.

BRADY, C. J., DOWD, J., and ROBERT LEE CAMPBELL, Special Judge, concur.

1 . All rule numbers refer to Supreme Court Rules, Y.A.M.R.