State v. Wakefield

689 S.W.2d 809, 1985 Mo. App. LEXIS 4028
CourtMissouri Court of Appeals
DecidedApril 16, 1985
DocketNo. 13246
StatusPublished
Cited by6 cases

This text of 689 S.W.2d 809 (State v. Wakefield) 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.

Bluebook
State v. Wakefield, 689 S.W.2d 809, 1985 Mo. App. LEXIS 4028 (Mo. Ct. App. 1985).

Opinions

HOGAN, Judge.

This case is a companion to State v. Wakefield, 682 S.W.2d 136 (Mo.App.1984). The same order of criminal activity is involved. The two records before us indicate that at least nine distinct criminal charges were filed against the defendant as a result of the Missouri State Highway Patrol’s investigation of the defendant’s trafficking in stolen motor vehicles and parts thereof during the period from November 20, 1980, to April 27, 1981. By order dated November 3, 1982, the Circuit Court of Reynolds County consolidated all the pending prosecutions into two distinct cases, “for trial and for dll actions from this point forward.” (Emphasis ours.)

In this case, which was tried before the reported companion case, the State filed a six-count information charging defendant with: 1) disposing of parts of a stolen 1979 GMC pickup truck in violation of § 570.080, RSMo 1978;1 2) removing or defacing the manufacturer’s identification numbers on a 1979 GMC pickup in violation of § 301.400; 3) disposing of parts of a 1979 Jeep CJ7 in violation of § 570.080; 4) commission of forgery in violation of § 570.090.1(3) by altering the vehicle identification number on the body of a 1979 Jeep CJ7 so that the vehicle purported to have an ownership it did not possess; 5) receiving or retaining a stolen 1979 Ford Thunderbird in violation of § 570.080, and 6) removing or defacing the manufacturer’s identification number on a 1979 Ford Thunderbird in violation of § 301.400.

The cause came on for hearing on November 16, 1982. A jury panel appeared and the trial court read MAI-Cr.2d 1.02, omitting any reference to the offense charged in Count VI of the information. The voir dire examination was conducted. The panel was admonished, challenges for cause were considered and ruled on by the court, and the following proceeding then took place:

[811]*811THE COURT: Now, once again, out of the hearing and presence of the jury, there being no one else in the courtroom, as the Court has already indicated ... when the Court read Instruction 1.02 it did not mention the offense set out in Count VI. You are precluded from offering any evidence, Mr. MacFarlane, with respect to Count VI. The Court wants to go on record as showing that the State of Missouri did not provide the Court with a prepared Instruction 1.02 and it was the Court’s oversight, of course, not to advise the jury of that count. However, the Court regrets it.
MR. MacFARLANE: Your Honor, by that, do you mean we cannot present evidence to ... the jury.
THE COURT: It will not be submitted to the jury. Evidence as it pertains to the other counts may be presented, but it will not be submitted to the jury.
MR. MacFARLANE: What I wanted to clarify, Your Honor, was that we do have evidence going to, which relates to the receipt of stolen property.
THE COURT: I understand that. You are not prevented from presenting evidence for that purpose. However, you will not be permitted to—
MR. MacFARLANE: Submit it?
THE COURT: That’s correct. The court regrets that, but once again, and I am sure you are not familiar with this Court’s procedure, we do expect the attorneys to provide MAI-CR 2nd 1.02. That wasn’t done. The Court read from the volume itself, Volume I, and omitted to call that to the attention of the jury. Anything else?
MR. MacFARLANE: Nothing from the State, Your Honor.
MR. SHAW: Nothing from the defendant.
THE COURT: The Court at this time, Mr. MacFarlane, hands you the official jury list, indicating that jurors 4 and 15 have been challenged for cause, leaving a panel of 24....

The trial proceeded to completion on five of the six counts pled in the information. The jury found defendant guilty upon all counts submitted. In accordance with the verdict and after considering defendant’s motion for new trial, the court pronounced sentence as follows: 1) that defendant be confined for a period of 3 months for receiving stolen property as charged in Count I; 2) that defendant be confined for a period of 2 months for removing or defacing a manufacturer’s number on an automobile as charged in Count II; 3) that defendant be confined for a period of 3 months for receiving stolen property as charged in Count III; 4) that defendant be confined for a period of 3 months for commission of forgery as charged in Count IV; 5) that defendant be confined for a period of 3 months for receiving stolen property as charged in Count V, and that the said sentences run consecutively and not concurrently. Defendant was ordered confined to the Reynolds County Jail. We find no record disposition of Count VI. None of the counts disposed of by trial in the other Wakefield case dealt with a Ford Thunderbird.

In criminal cases, as in civil cases, an appellate court is bound to inquire into its jurisdiction of the appeal, whether or not the parties raise that issue, and the sufficiency of the judgment and sentence are matters of jurisdictional import. State v. Garrett, 642 S.W.2d 378-379[1][2] (Mo.App.1982). We have the opinion that in this case no final, appealable judgment has been entered.

In this case, the State joined separate and distinct offenses constituting several acts which were part of a common scheme or plan, as authorized by Mo.R.Crim.P. 23.-05. The kindred nature of Mo.R.Crim.P. 23.05 and Fed.R.Crim.P. 8(a) is such that federal precedents bearing on failure to dispose finally of one count of a multi-count information — as it affects appealability — are persuasive here. Generally, our courts have indicated that a criminal judg[812]*812ment is final both for the purposes of exhausting the trial court’s judgment and of triggering the defendant’s right of appeal when the sentence and judgment finally disposes of all issues in the criminal proceeding, leaves no questions to the future judgment of the court and is neither interlocutory nor conditional in any respect. Such, as we read the case, is the holding and substance of State ex rel. Wagner v. Ruddy, 582 S.W.2d 692 (Mo. banc 1979).

The federal cases are more explicit.

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Bluebook (online)
689 S.W.2d 809, 1985 Mo. App. LEXIS 4028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wakefield-moctapp-1985.