State v. Nelson
Decision Date | 30 November 1999 |
Citation | 9 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: |
Court | Missouri 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 His probation was revoked.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.
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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