Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF PULASKI COUNTY Honorable John D.
Beger, Circuit Judge
JEFFREY W. BATES, J.
a jury trial on a four-count information, the jury found
Jeffrey Waters (Defendant) guilty of two of the counts:
first-degree statutory sodomy and attempted first-degree
statutory sodomy. See § 566.062. The jury,
however, was unable to reach a verdict on the two other
counts alleging statutory rape and incest. See
§§ 566.032, 568.020. The trial court declared a
mistrial as to the latter two counts. The court imposed
sentences on the two counts on which the jury found Defendant
guilty and entered a judgment showing a disposition and
sentence on two of the four counts. Defendant appealed.
Because the two remaining counts are still pending, the
judgment is not final. Therefore, we dismiss the appeal.
was originally charged with the following four offenses that
allegedly occurred in November 2015: the unclassified felony
of first-degree statutory rape (Count 1); the unclassified
felony of first-degree statutory sodomy (Count 2); the class
D felony of incest (Count 3); and the unclassified felony of
attempted first-degree statutory sodomy (Count 4). Prior to
Defendant's jury trial, the trial court found that
Defendant was a prior felony offender.
trial was held in April 2017. On Counts 2 and 4, the jury
found Defendant guilty of first-degree statutory sodomy and
attempted statutory sodomy. On Counts 1 and 3, the jury was
unable to reach a verdict. The trial court declared a
mistrial as to those two counts. Thereafter, the court
conducted a sentencing hearing on the two charges of which
Defendant was found guilty. The trial court imposed
consecutive terms of imprisonment for ten and eight years,
respectively, on the first-degree statutory sodomy and
attempted statutory sodomy counts.
2017, the trial court entered a judgment correctly reflecting
the jury verdicts of "Guilty" and consecutive
sentences on Counts 2 and 4. With respect to Counts 1 and 3,
however, the judgment incorrectly specified that the jury
verdicts were "Not Guilty" on both counts.
Thereafter, Defendant filed the underlying appeal.
August 2017, the trial court entered an amended judgment. The
amended judgment restated the correct disposition and
consecutive sentences on Counts 2 and 4, but completely
omitted any mention of Counts 1 and 3. Because there was no
formal disposition of those counts and they appeared to
remain pending, this Court issued an order to show cause for
the parties to submit written suggestions why the appeal
should not be dismissed for lack of a final judgment. In
response, both parties urge this Court not to dismiss the
appeal. For the following reasons, we reject the parties'
arguments and dismiss the appeal.
begin by noting this Court has an obligation, acting sua
sponte if necessary, to determine its authority to hear
the appeals that come before it. State v. Geist, 556
S.W.3d 117, 123 (Mo. App. 2018). "The right to appeal is
statutory." Id.; see also Fannie Mae v.
Truong, 361 S.W.3d 400, 405 (Mo. banc 2012) (an appeal
without statutory sanction confers no authority upon an
appellate court except to enter an order dismissing the
relevant here, § 547.070 RSMo (2016) authorizes an
appeal by a defendant "[i]n all cases of final judgment
rendered upon any indictment or information[.]"
Id. Additionally, Rule 30.01(a) provides that
"[a]fter the rendition of final judgment in a criminal
case, every party shall be entitled to any appeal permitted
by law." Id. "A trial court's judgment
is final ... if the judgment disposes of all disputed issues
in the case and leaves nothing for future adjudication."
State v. Burns, 994 S.W.2d 941, 942 (Mo. banc 1999).
Generally, this occurs when a sentence is imposed.
multi-count information or indictment, however, a judgment of
conviction and sentence that resolves fewer than all counts
does not result in a final judgment from which an appeal
would lie. State v. Storer, 324 S.W.3d 765, 766-67
(Mo. App. 2010). In Storer, the trial court
dismissed the first four counts of the information with
prejudice, but left two additional counts pending against the
defendant. Id. at 767. Because "resolution of
these two charges is dependent upon 'future
adjudication' and 'further prosecution of the
defendant'" this Court determined the judgment was
not final and dismissed the appeal. Id. Absent a
final judgment as to all counts, this Court has consistently
held that the judgment is not final for purposes of appeal,
and because the appeal is premature, this Court is without
authority to address the merits of the appeal. Id.;
State v. Thomas, 801 S.W.2d 504, 505 (Mo. App.
1991); State v. Wakefield, 689 S.W.2d 809, 811-12
(Mo. App. 1985).
parties urge this Court to ignore our long-standing precedent
and not dismiss this appeal for two reasons. First, both
parties argue this Court should adopt the approach of the
eastern district of this Court, which has determined that, in
a multi-count information, a defendant may appeal those
counts on which a sentence has been imposed. See State v.
Bracken, 333 S.W.3d 48, 53 (Mo. App. 2010) (concluding
that because "sentences have been imposed on Counts 15
and 16 … judgment as to those counts is final for
purposes of appellate review"). Second, citing State
v. Honeycutt, 421 S.W.3d 410 (Mo. banc 2013), the State
argues that the Supreme Court has "effectively overruled
this Court's ruling in Storer, though it did not
do so explicitly." We disagree with both arguments and
address each in turn.
recent support for our approach in Storer from our
Supreme Court in State v. Smiley, 478
S.W.3d 411 (Mo. banc 2016). There, the Court reiterated the
long-standing rule of finality as set forth in
"A trial court's judgment is final ... if the
judgment disposes of all disputed issues in the case and
leaves nothing for future adjudication." Burns,
994 S.W.2d at 942 (internal quotation marks omitted). In a
criminal case, a judgment is final when sentence is entered
or "when the trial court enters an order of dismissal
... prior to trial which has the effect of foreclosing any
further prosecution of the defendant on a particular charge,
for example, when an information ...