State v. Mahurin

207 S.W.3d 662, 2006 Mo. App. LEXIS 1789, 2006 WL 3422188

• Court: Missouri Court of Appeals
• Decided: November 28, 2006
• Docket: No. ED 88470
• Status: Published

Opinion

BOOKER T. SHAW, Chief Judge.

James Mahurin (Defendant) appeals from an order denying his release on probation under section 217.362, RSMo 2000. Because such an order is not a final, ap-pealable judgment, the appeal is dismissed.

No right of an appeal exists without statutory authority. State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994). In criminal cases, section 547.070, RSMo 2000, allows appeals from final judgments, which occur when the court enters a judgment of conviction and sentence. State v. Larson, 79 S.W.3d 891, 893 (Mo. banc 2002). Defendant is not appealing from his judgment of conviction or sentence, but rather an order denying his release on probation under section 217.362. Probation is not part of the Defendant’s sentence. State v. McKinzie, 968 S.W.2d 160, 161 (Mo.App. E.D.1998). There is no right to appeal a trial court’s decision to deny probation under section 217.362. Id. Thus, this Court is without jurisdiction to review the merits of Defendant’s appeal. Id.

This Court has a duty to sua sponte determine our jurisdiction. State v. Dunn, 103 S.W.3d 886, 887 (Mo.App. E.D.2003). This Court issued an order directing Defendant to show cause why his appeal should not be dismissed for lack of jurisdiction. Defendant has not filed a response.

The appeal is dismissed for lack of a final, appealable judgment.

GLENN A. NORTON and PATRICIA L. COHEN, JJ., concur.