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State v. Waters

Court of Appeals of Missouri, Southern District, Second Division

April 17, 2019

STATE OF MISSOURI, Plaintiff-Respondent,
v.
JEFFREY A. WATERS, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY Honorable John D. Beger, Circuit Judge

          JEFFREY W. BATES, J.

         Following 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.[1] 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.

         Background

         Defendant 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.

         A jury 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.

         In June 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.

         In 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.

         We 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 appeal).

         As 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. Id.

         In a 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).

         The 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.

         We find 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 Burns:

"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 ...

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