State v. Jacobs

• Decision Date: 13 September 2013
• Docket Number: No. SD 32107.,SD 32107.
• Citation: 421 S.W.3d 507
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Victor Allen JACOBS, Defendant–Appellant.
• Court: Missouri Court of Appeals

421 S.W.3d 507

STATE of Missouri, Plaintiff–Respondent,

v.Victor Allen JACOBS, Defendant–Appellant.

No. SD 32107.

Missouri Court of Appeals,

Southern District,

En Banc.

Sept. 13, 2013.

Margaret M. Johnston, Columbia, MO, for Appellant.

Andrew C. Hooper, Jefferson City, MO, for Respondent.

MARY W. SHEFFIELD, J.

Victor Allen Jacobs (“Defendant”) appeals his conviction for one count of failing to register as a sex offender. See§ 589.425.¹ He argues there was insufficient evidence to support his conviction. We disagree. Defendant's conviction and sentence are affirmed.

Factual and Procedural Back2round

Defendant was convicted of rape in 2001. He registered as required when he was released from the Department of Corrections in September 2007. Defendant subsequently registered with Lisa Simmons, the Greene County Sex Offender Registrar (“Registrar”), on March 7, 2011.

On May 24, 2011, Defendant went to speak with Registrar. Defendant asked Registrar if he could reside at 666 South Jefferson in Springfield. Registrar told him he could not because the residence was too close to a school. Defendant “continued to beg [Registrar] to bend the rules for him because that was the only place that he could find that he could live.” Registrar stated she could not bend the rules and Defendant could not live at the proposed address.

On July 7, 2011, Defendant updated his registration, listing his address as 805 East Dale Street in Springfield. Sometime after that, Registrar received a call from Defendant's probation officer which caused Registrar to become concerned that Defendant had not registered a new address. Registrar contacted Sergeant Judy Walker (“Sgt. Walker”) of the Greene County Sheriff's Office. On August 9, 2011, Sgt. Walker interviewed Defendant. In that interview, Defendant admitted he had moved from the 805 East Dale address some two to two and a half months earlier. He also admitted he lied to Registrar about his address so he would have time to get a job and improve his situation. On August 10, 2011, Defendant completed a change of address registration. In that registration, he listed his new address as 666 South Jefferson Avenue, Apartment 5, in Springfield.

Defendant was charged with one count of failing to register as a sex offender. He waived his right to a jury trial and was tried by the court on May 21, 2012. After the presentation of evidence, the trial court took the case under advisement.

The trial court made a docket entry on May 22, 2012, finding Defendant guilty as charged. On that same day, sentencing was set for June 1, 2012.

The parties appeared in court on June 1, 2012. After the parties presented argument to the trial court regarding the appropriate sentence, the trial court sentenced Defendant to four years in the Department of Corrections. Near the very end of the sentencing hearing and after the actual sentencing, Defendant's attorney asked to clarify a matter for the record. She stated, “I'm not filing a motion for new trial since this was a bench trial.” This is the only discussion in the record regarding a motion for new trial. Defendant appeals.

Discussion

Before we address the merits of Defendant's arguments on appeal, we feel compelled to address an issue regarding the potential invalidity of the judgment. See State v. Griffin, 202 S.W.3d 670, 674 (Mo.App.W.D.2006) ( “this [C]ourt must examine its jurisdiction, sua sponte.”). In the present case, the trial court entered judgment before the 15–day time period for filing a motion for new trial had elapsed and before Defendant's waiver of the right to file a motion for new trial. There is a long line of cases holding that in such circumstances, the judgment is void and the appeal must be dismissed. See, e.g., State v. Besendorfer, 372 S.W.3d 914, 915 (Mo.App.W.D.2012); City of Byrnes Mill v. Rice, 136 S.W.3d 84, 85 (Mo.App.E.D.2004); State v. Goth, 792 S.W.2d 437, 438 (Mo.App.W.D.1990); State v. Wren, 609 S.W.2d 480, 481 (Mo.App.W.D.1980). We believe the reasoning in those cases conflicts with our Supreme Court's decision in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009).

To demonstrate this conflict, it is helpful to examine the reasoning behind the decisions dismissing appeals in criminal cases because the judgment had been entered prior to the expiration of the 15–day time period for filing a motion for new trial and without the defendant's express waiver of that right. The reasoning in Besendorfer is typical of the reasoning in such cases. Compare Besendorfer, 372 S.W.3d at 915;with Rice, 136 S.W.3d at 85;Goth, 792 S.W.2d at 438; and Wren, 609 S.W.2d at 481.

In Besendorfer, the defendant waived his right to a jury trial, and the trial court found him guilty of driving while intoxicated. 372 S.W.3d at 915. That same day, the trial court sentenced the defendant. Id. The record did not show the defendant waived the right to file a motion for new trial. Id. On appeal, the defendant actually requested the court to proceed to “address his appeal on the merits for the sake of judicial economy[,]” but the court refused. Id. The court's reasoning for that refusal began with Rule 29.11(c) which provides “[n]o judgment shall be rendered until the time for filing a motion for new trial has expired and if such motion is filed, until it has been determined.” Id. (quoting Rule 29.11(c)). Then, citing State v. Herron, 136 S.W.3d 126 (Mo.App.E.D.2004); State v. Dean, 5 S.W.3d 616 (Mo.App.S.D.1999); City of Sunset Hills v. Wymer, 262 S.W.3d 293 (Mo.App.E.D.2008); and State v. Howe, 171 S.W.3d 799 (Mo.App.E.D.2005), the court concluded the judgment was premature and void. Besendorfer, 372 S.W.3d at 916. None of the cases cited in Besendorfer were decided after the Supreme Court of Missouri handed down the J.C.W. decision. Furthermore, other cases decided in the years after the J.C.W. decision have implied, without analysis of J.C.W., that the reasoning used to reach the result in Besendorfer is nevertheless correct. See State v. Paul, 401 S.W.3d 591, 592 (Mo.App.W.D.2013) (holding the judgment was not final because “the time for filing a motion for new trial had not yet expired ... and the court had not yet imposed a sentence.”); State v. Franklin, 307 S.W.3d 205, 206 (Mo.App.S.D.2010) (noting a prior appeal in the case had been dismissed based on the entry of judgment prior to the expiration of the 15–day time period). Thus, it appears no Missouri court has addressed whether it remains correct, after the J.C.W. decision, that a criminal judgment is “premature and void” when that judgment is entered before the time for filing a motion for new trial has expired and without the defendant's express waiver of the right to file a motion for new trial.

We begin by tracing the origin of the use of the phrase “premature and void” in this context. Besendorfer cites Herron for the proposition that “unless the defendant waives the right, any judgment rendered before the time for filing a motion for new trial has expired is ‘premature and void.’ ” Besendorfer, 372 S.W.3d at 916.Herron, in turn, cites State v. Hauser, 101 S.W.3d 320 (Mo.App.E.D.2003), and State v. Morrison, 94 S.W.3d 448 (Mo.App.E.D.2003). Herron, 136 S.W.3d at 128. Both of those cases rely on State v. Goth, 792 S.W.2d 437 (Mo.App.W.D.1990). Hauser, 101 S.W.3d at 321;Morrison, 94 S.W.3d at 449.Goth relies on Wren, which relies on State v. Summers, 477 S.W.2d 721, 722 (Mo.App.St.L.D.1972); and State v. Nichols, 474 S.W.2d 54, 55 (Mo.App.K.C.D.1971).

It appears Summers and Nichols were the first cases to use the phrase “premature and void” in this context. In Summers the trial court sentenced the defendant before the defendant filed his motion for new trial. Summers, 477 S.W.2d at 722. The appellate court found the attempt to sentence the defendant at that time was “premature and void.” Id. In support, it cited State v. Jaeger, 394 S.W.2d 347 (Mo.1965); State v. Grimes, 470 S.W.2d 4 (Mo.App.St.L.D.1971); and State v. Ezell, 470 S.W.2d 162 (Mo.App.St.L.D.1971). Summers, 477 S.W.2d at 722. The analysis in Nichols was similarly brief, but instead cited State v. Grant, 380 S.W.2d 799 (Mo.1964). But Jaeger,Grimes,Ezell, and Grant involved different factual situations, and none of those cases stated or held that a judgment was “premature and void” when the judgment was filed prior to the expiration of the time for filing a motion for new trial and without the defendant's express waiver of the right.

In Jaeger, the defendant was tried by a jury and found guilty of robbery. 394 S.W.2d at 353. After the verdict, the trial judge stated “robbery first degree by means of a dangerous and deadly weapon, fifteen years. That will be the judgment. This is not the sentence at this time, however.” Id. The trial court then ordered a presentence investigation and granted additional time in which to file a motion for new trial. Id. At a subsequent proceeding, the trial court reviewed the presentence report and sentenced the defendant to 65 years. Id. The motion for new trial was still pending. Id. Some months later, the trial court overruled the motion for new trial, set aside the 65–year sentence, and imposed a sentence of 40 years. Id. at 353–54. The defendant appealed, arguing that the trial court had no power to do anything in the case after the announcement that the judgment was going to be 15 years. Id. at 354. Thus, the appellate court was faced with the issue of which of the three sentences was effective. The appellate court found three facts to be compelling: (1) the trial court's statement during the first hearing that it was not sentencing the defendant at that time; (2) a motion for new trial remained pending; and (3) a presentence investigation remained pending. Id. From these facts, the appellate court reasoned “it is not proper to pronounce sentence before these matters have been disposed of.” Id. Thus, Jaeger did not decide that a judgment was void where the sentence...