State v. Lynch

679 S.W.2d 858, 51 A.L.R. 4th 931, 1984 Mo. LEXIS 305
CourtSupreme Court of Missouri
DecidedNovember 20, 1984
Docket66043
StatusPublished
Cited by75 cases

This text of 679 S.W.2d 858 (State v. Lynch) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lynch, 679 S.W.2d 858, 51 A.L.R. 4th 931, 1984 Mo. LEXIS 305 (Mo. 1984).

Opinions

GUNN, Judge.

The issue in this case is whether a defendant may appeal from a conviction in which there is a suspended imposition of sentence ordered by the trial court. The Eastern District of the Missouri Court of Appeals found that a suspended imposition of sentence is not a final, appealable judgment and dismissed defendant’s appeal. This Court granted transfer, and on consideration of the same issue we reach a similar conclusion.

In a court tried case, defendant was convicted of second degree burglary—a violation of § 569.170, RSMo 1978. Imposition of sentence was suspended by the trial judge, and defendant was placed on probation for one year. Defendant sought to appeal his conviction, but on the state’s motion defendant’s appeal was dismissed by the Court of Appeals for the reason that there was no final judgment. Thus, the controversy centers on whether a suspended imposition of sentence is a final judgment. It is not. This seems simple enough, but the facts of this case and the dilemma in which defendant finds himself give cause to ponder the controlling legal rubric.

An abundance of precepts afford guidance. Absolutely fundamental is the principle that the right to appeal is statutory. We start and build from this point. “The right of appeal in a criminal case is purely statutory, no such right existed at common law.” State ex rel. Garnholz v. La Driere, 299 S.W.2d 512, 515 (Mo. banc 1957); the right to appeal is based upon statutory law. “Without underlying statutory authority there is no right to an appeal.” United Labor Committee, Inc. v. Ashcroft, 572 S.W.2d 446, 447 (Mo. banc 1978).

Next, appeal in Missouri is limited to cases of final judgment. Section 547.070, [860]*860RSMo 1978, governing the right to appeal in criminal cases, specifically makes that provision:

In all cases of final judgment rendered upon any indictment or information, an appeal to the proper appellate court shall be allowed to the defendant, provided, defendant or his attorney of record shall during the term at which the judgment is rendered file his written application for such appeal., (Emphasis added)

The next basic premise is that judgment in a criminal case does not become final for purposes of appeal until sentence is entered. Imposition of sentence must occur before the appellate process can begin. State v. Murphy, 626 S.W.2d 649, 650 (Mo.App.1981).

State ex rel. Wagner v. Ruddy, 582 S.W.2d 692 (Mo. banc 1979) states that “[t]he very term ‘sentence’ has been defined to mean ‘judgment or final judgment,’ and a criminal case is not ripe for appeal if no sentence has been pronounced.” Id. at 694. This statement is congruent with the following holding of State v. Harris, 486 S.W.2d 227 (Mo.1972):

For purposes of this provision [§ 547.-070], final judgment requires the imposition of sentence. State v. Jaeger, Mo. Sup., 394 S.W.2d 347, 352[7]; State v. Kelley, 206 Mo. 685, 105 S.W. 606, 608. When a defendant has been found guilty by a jury verdict which assesses the punishment, an appeal by the defendant pri- or to the pronouncement of sentence and entry of judgment is premature.

Id. at 229.

The following quote from State v. Motley, 546 S.W.2d 435 (Mo.App.1976) is also appropriate:

The Missouri Supreme Court, discussing the concept of sentencing, has stated:
“In its technical legal sense the sentence generally constitutes and has the same meaning as judgment or final judgment or determination against accused in a criminal case.”

Id. at 436 (quoting from State v. Pruitt, 169 S.W.2d 399, 400 (Mo.1943)).

The foregoing leads to the following conclusion of the cynosure of this case: suspended imposition of sentence is not a final judgment for purposes of appeal.

State v. Gordon, 344 S.W.2d 69 (Mo. 1961), in defining a suspended imposition of sentence, states:

The phrase “suspended sentence” is not a “sentence” at all but is used to describe the act of withholding the “sentence” in a case. A “suspended sentence” is not a “sentence” within the meaning of that word ....

Id. at 71.

An accurate definition of “suspension of sentence” is provided in 24 C.J.S. § 1571(l)(a) (1961), as follows: “Suspension of sentence is a suspension of active proceedings in a criminal prosecution. It is not a final judgment, or the equivalent of a nolle prosequi or discontinuance, nor does it operate as a discharge of accused.”

Finally, State ex rel. Peach v. Tillman, 615 S.W.2d 514 (Mo.App.1981), specifically and correctly finds that suspended imposition of sentence is not a final appealable judgment. It “is a hybrid in the law.” Id. at 517.

Most recently, in State v. LaPlant, 673 S.W.2d 782, 785 (Mo. banc 1984), this Court recognizes that with an s.i.s. and the suspension remaining in effect, no “judgment” exists.

So it is by virtue of the suspension of imposition of sentence, which is not a final, appealable judgment, that defendant’s conviction is not ripe for appeal; hence, his dilemma. This was brought about by statutory changes and case law subsequent to State ex rel. Peach v. Tillman, supra.

[861]*861The rationale for the Eastern District’s decision in Tillman and in support for finding that suspended imposition of sentence provides no final judgment was stated as:

Suspension of imposition of sentence is a salutary means of relieving a person who is guilty of a crime from the stigma of a conviction when the court in its discretion feels that the ends of justice warrant the court’s forebearance.

Id. at 517.

Tillman, supra, also notes that a suspension of imposition of sentence is “not a conviction within the meaning of the Second Offender Act ... nor can it [the finding of guilt] be used to impeach a wit-ness_” Id. at 517.

The reasoning cited in Tillman, however, is no longer applicable due to recent legislative enactments. The stigma of a conviction now attaches before sentencing. For instance, § 491.050, RSMo Cum.Supp.1983, provides:

[A]ny prior pleas of guilty, pleas of nolo contendere, and findings of guilty may be proved to affect his [the witness’] credibility in a criminal case.

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Cite This Page — Counsel Stack

Bluebook (online)
679 S.W.2d 858, 51 A.L.R. 4th 931, 1984 Mo. LEXIS 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lynch-mo-1984.