State v. Nelson

Decision Date30 November 1999
Citation9 S.W.3d 687
Parties(Mo.App. E.D. 1999) . State of Missouri, Respondent, v. Dennis Nelson, Appellant. Case Number: ED75137 Missouri Court of Appeals Eastern District Handdown Date:
CourtMissouri Court of Appeals

Appeal From: Circuit Court of the City of St. Louis, Hon. Evelyn M. Baker

Counsel for Appellant: Douglas R. Hoff

Counsel for Respondent: John M. Morris, III

Opinion Summary: Dennis Nelson was convicted of statutory rape, and the court suspended imposition of sentence. His probation was revoked. He was again placed on probation, which was again revoked. He then filed his appeal of the judgment and sentence. The state has filed a motion to dismiss the appeal, arguing Nelson's notice of appeal was untimely.

DISMISSED.

Division Five holds: Nelson's appeal is untimely. He failed to file his notice of appeal not later than ten days after the judgment became final. He filed his notice of appeal more than three years after the court imposed sentence.

Opinion Author: Mary Rhodes Russell, Chief Judge

Opinion Vote: DISMISSESD. Gaertner and Crahan, JJ., concur.

Opinion:

Dennis Nelson (Defendant) appeals from the judgment and sentence entered following his jury conviction for statutory rape in violation of section 566.030, RSMo 1994. We dismiss his appeal.

A jury convicted Defendant of statutory rape following trial. On June 30, 1995, the trial court entered a judgment of conviction and sentenced Defendant to serve 30 years' imprisonment. The court then suspended execution of that sentence and placed Defendant on probation for three years. On December 12, 1997, the court revoked his probation. The court then ordered that Defendant's prior sentence be executed. The court also ordered his sentence to be served pursuant to section 559.115, RSMo Cum. Supp. 1996. That statute provides for referral to an appropriate drug treatment center with the possibility that the trial court may grant probation to a defendant anytime up to 120 days after such defendant has been delivered to the custody of the department of corrections. Section 559.115.2.

Defendant was again placed on probation and released. On October 2, 1998, the court again revoked Defendant's probation. At that time, the court sentenced Defendant to 30 years imprisonment.

Defendant filed a notice of appeal on October 2, 1998. The State has filed a motion to dismiss his appeal, arguing that it was untimely, in that it was filed more than three years after judgment and sentence were entered on June 30, 1995. In response, Defendant contends he has filed a timely notice of appeal because he was "resentenced" on October 2, 1998.

We dismiss Defendant's appeal as untimely. Rule 30.01(d) requires a defendant to file his or her notice of appeal "not later than ten days after the judgment or order appealed from becomes final." A judgment becomes final in a criminal case when sentence is entered or imposed. State v. Welch, 865 S.W.2d 434, 435 (Mo. App. 1993); State v. Murphy, 626 S.W.2d 649, 650 (Mo. App. 1981). In a suspended execution of sentence, a criminal conviction has been entered and the sentence has been assessed; only the act of executing the sentence has been suspended. Barnes v. State, 826 S.W.2d 74, 76 (Mo. App. 1992). Moreover, probation is not part of the sentence and operates independently of...

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41 cases
  • Jones v. Sachse
    • United States
    • U.S. District Court — Eastern District of Missouri
    • August 18, 2014
    ...execution of sentence was the date the judgment became final and that date was before the date of the amendment); State v. Nelson, 9 S.W.3d 687, 688 (Mo. Ct. App. 1999) (dismissing a direct appeal in a criminal case as untimely when the appeal was filed approximately three years after the t......
  • Hawkins v. Schneider
    • United States
    • U.S. District Court — Eastern District of Missouri
    • March 10, 2016
    ...of executing the sentence has been suspended." Dear v. Moore, 2009 WL 330656 at *4 (E.D. Mo. Feb. 6, 2009) (citing State v. Nelson, 9 S.W.3d 687, 688 (Mo. Ct. App. 1999)). See also Garrett v. Dormire, 2011 WL 4445839 at *4 (E.D. Mo. Sep. 26, 2011) (same); State ex rel. Poucher v. Vincent, 2......
  • Mooring v. Wallace
    • United States
    • U.S. District Court — Eastern District of Missouri
    • June 24, 2014
    ...has been entered and the sentence has been assessed; only the act of executing the sentence has been suspended." State v. Nelson, 9 S.W.3d 687, 688 (Mo. Ct. App. 1999); see Garrett v. Dormire, 2011 WL 4445839, *4 (E.D. Mo. 2011). Moreover, petitioner was "in custody" for purposes of habeas ......
  • Garrett v. Dormire
    • United States
    • U.S. District Court — Eastern District of Missouri
    • September 26, 2011
    ...of judgment, because the sentence has been assessed and only the act of executing the sentence has been suspended. State v. Nelson, 9 S.W.3d 687, 688 (Mo. Ct. App.1999). Garrett was sentenced on August 24, 2007. He then had ten days to file a direct appeal of his sentence, Mo. Sup. Ct. R. 3......
  • Request a trial to view additional results
2 books & journal articles
  • Section 29.7 Time for Filing Notice
    • United States
    • The Missouri Bar Criminal Practice Deskbook Chapter 29 Appeals
    • Invalid date
    ...days after the judgment or order appealed from becomes final. In a criminal case the sentence is a final judgment. See: · State v. Nelson, 9 S.W.3d 687, 688 (Mo. App. E.D. 1999) (the ten-day period for filing a notice of appeal begins to run at the time of imposition of a suspended executio......
  • Section 10.26 Filing of the Notice of Appeal
    • United States
    • The Missouri Bar Appellate Court Practice Deskbook (2015 edition) Chapter 10 Criminal Appeals and Postconviction Remedies
    • Invalid date
    ...after the judgment or order appealed from has become final. In a criminal case the sentence is a final judgment. See: · State v. Nelson, 9 S.W.3d 687, 688 (Mo. App. E.D. 1999) (ten-day period for filing a notice of appeal begins to run at the time of imposition of a suspended execution of s......

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