State v. Preston

Missouri Court of Appeals

State v. Preston

563 S.W.2d 98, 1978 Mo. App. LEXIS 2511

CourtMissouri Court of Appeals

DecidedFebruary 27, 1978

DocketNo. 10612

StatusPublished

Cited by3 cases

This text of 563 S.W.2d 98 (State v. Preston) 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. Preston, 563 S.W.2d 98, 1978 Mo. App. LEXIS 2511 (Mo. Ct. App. 1978).

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PER CURIAM.

Defendant Harold W. Preston was tried by the court after having waived trial by jury. The court found defendant to be guilty of driving while intoxicated. A timely motion for new trial was filed on behalf of defendant but said motion failed to persuade the court to grant relief. Thereafter, allocution was granted and defendant was informed that the court had assessed a one-year period of confinement in the county jail. However, the attention of this court must be prematurely diverted from the possible merits of the case to address a deficiency in the record.

The only transcribed entry which bears resemblance to a judgment is nothing more than a single docket entry which states: “. . . Motion for new trial is denied by the Court. Court sentences defendant to one year confinement in Greene County Jail and sets appeal bond for $2500.00. Defense attorney Shepard orally moves for stay on sentencing, and Court allows stay of execution for 3 days from 2/14/77 for filing of appeal bond.”

The above entry fails to constitute rendition of a final judgment from which an appeal may be taken. The appeal is premature and the case is remanded to the circuit court for rendition and entry of judgment. State v. Robbins, 481 S.W.2d 618 (Mo.App.1972).

All concur, except FLANIGAN, J., who dissents in separate opinion.

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PER CURIAM.

Defendant Harold W. Preston was tried by the court after having waived trial by jury. The court found defendant to be guilty of driving while intoxicated. A timely motion for new trial was filed on behalf of defendant but said motion failed to persuade the court to grant relief. Thereafter, allocution was granted and defendant was informed that the court had assessed a one-year period of confinement in the county jail. However, the attention of this court must be prematurely diverted from the possible merits of the case to address a deficiency in the record.

The only transcribed entry which bears resemblance to a judgment is nothing more than a single docket entry which states: “. . . Motion for new trial is denied by the Court. Court sentences defendant to one year confinement in Greene County Jail and sets appeal bond for $2500.00. Defense attorney Shepard orally moves for stay on sentencing, and Court allows stay of execution for 3 days from 2/14/77 for filing of appeal bond.”

The above entry fails to constitute rendition of a final judgment from which an appeal may be taken. The appeal is premature and the case is remanded to the circuit court for rendition and entry of judgment. State v. Robbins, 481 S.W.2d 618 (Mo.App.1972).

All concur, except FLANIGAN, J., who dissents in separate opinion.

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Bluebook (online)

563 S.W.2d 98, 1978 Mo. App. LEXIS 2511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-preston-moctapp-1978.

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