State v. Nichols, 25705
| Citation | 474 S.W.2d 54 |
| Decision Date | 06 December 1971 |
| Docket Number | No. 25705,25705 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. William R. NICHOLS, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
R. H. Mos, Jr., Farley & Mos, Farley, for defendant-appellant.
Abe Shafer, Platte City, for plaintiff-respondent.
DIXON, Commissioner.
Defendant appeals his conviction in a jury waived case. The charge was driving a motor vehicle while intoxicated. We set aside the submission of this case and dismiss the appeal since we are without jurisdiction. The trial was held September 17, 1970; at the conclusion of the evidence, the following appears in the transcript:
On Monday, September 28th, a motion was filed denominated 'MOTION TO SET ASIDE VERDICT AND FOR JUDGMENT OF ACQUITTAL OR IN THE ALTERNATIVE FOR A NEW TRIAL.' No ruling of the court on this motion appears. Ninety-four days later appellant filed notice of appeal 'from the judgment of conviction entered' the 17th day of September, 1970.
If the remark of the court as to the punishment assessed be taken as the judgment, it is premature and void as being made prior to the filing of the motion for new trial. State v. Grant, Mo., 380 S.W.2d 799, 803. V.A.M.R. 27.20. No other judgment appearing, we can only conclude no valid final judgment has been entered from which a proper appeal might be taken.
The trial court retains jurisdiction to enter such a final judgment, and the appeal may then be prosecuted. State v. Chase, Mo., 415 S.W.2d 731.
Submission of this cause is set aside and appeal dismissed.
The foregoing opinion of DIXON, C., is adopted as the opinion of the Court.
All concur.
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State v. Jacobs
...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 ......
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Kansas City v. Scanland
...for a new trial was filed by her in this court-tried case. She relies in support of this novel contention on the cases of State v. Nichols, 474 S.W.2d 54 (Mo.App.1971); State v. Myers, 467 S.W.2d 577 (Mo.App.1971); and State v. Summers, 477 S.W.2d 721 (Mo.App.1972). We have carefully review......
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City of Riverside v. Johnson
...Therefore, there is no final judgment and the appeal is premature. State v. Myers, 467 S.W.2d 577 (Mo.App.1971); State v. Nichols, 474 S.W.2d 54 (Mo.App.1971); State v. Absher, supra. No formal judgment and imposition of sentence having been made, the trial court retains jurisdiction to do ......
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State v. DeGraffenreid, No. 18335
...(Mo.App.W.D.1980); State v. Collins, 580 S.W.2d 320 (Mo.App.S.D.1979); State v. Summers, 477 S.W.2d 721 (Mo.App.1972); State v. Nichols, 474 S.W.2d 54 (Mo.App.1971). In conformity with the procedure spelled out by this Court in Dieter, 840 S.W.2d 887, we dismiss the appeal and remand the ca......