State v. Drury

• Decision Date: 12 April 2005
• Docket Number: No. ED 85357.,ED 85357.
• Citation: 160 S.W.3d 419
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Keith DRURY, Defendant/Appellant.
• Court: Missouri Supreme Court

160 S.W.3d 419

STATE of Missouri, Plaintiff/Respondent, v. Keith DRURY, Defendant/Appellant.

No. ED 85357.

Missouri Court of Appeals, Eastern District, Division Five.

April 12, 2005.

Appeal from the Circuit Court of Jefferson County; Gary P. Kramer, Judge.

Joseph P. Cunningham III, Crystal City, MO, for Appellant.

Robert G. Wilkins, Hillsboro, MO, for Respondent.

GEORGE W. DRAPER III, Chief Judge.

On September 23, 2004, the trial court found the defendant Keith Drury (Defendant) guilty of misdemeanor third degree assault. On that same day, the trial court entered a judgment against Defendant and sentenced him to pay a fine of $25.00. On October 1, 2004, Defendant filed a timely motion for new trial, which the trial court denied on October 25, 2004. Defendant now appeals from the judgment and sentence.

Under 29.11(c), which applies to misdemeanors, no judgment can be rendered until the time for filing the motion for new trial has expired. Any judgment and sentence rendered by the trial court prior to the filing and ruling on the motion for new trial is premature and void. State v. Burkemper, 853 S.W.2d 416, 417 (Mo.App. E.D. 1993); See also, City of Byrnes Mill v. Rice, 136 S.W.3d 84, 85 (Mo.App. E.D.2004); State v. Hauser, 101 S.W.3d 320, 321 (Mo.App. E.D.2003). A defendant has the right to file a motion for new trial within 15 days after the trial court finds him guilty. Rule 29.11(b) & (e). Here, the trial court sentenced Defendant on September 23, 2004, the same day it found him guilty, prior to the filing and ruling on his motion for new trial. As a result, the judgment and sentence rendered by the court is void and there is no final judgment from which the defendant can appeal. Rice, 136 S.W.3d at 86.

We have a duty to sua sponte determine whether we have jurisdiction to entertain an appeal. Hauser, 101 S.W.3d at 321. We issued an order directing Defendant to show cause why this appeal should not be dismissed. Defendant has failed to file a response.

The appeal is dismissed and the cause is remanded to the trial court to sentence Defendant in accordance with Rule 29.

LAWRENCE G. CRAHAN, J., and GLENN A. NORTON, J., concur.