State v. Tidwell

• Decision Date: 04 February 2019
• Docket Number: No. SD35656,SD35656
• Parties: STATE OF MISSOURI, Respondent, v. TAMARA D. TIDWELL, Appellant.
• Court: Missouri Court of Appeals

STATE OF MISSOURI, Respondent,
v.
TAMARA D. TIDWELL, Appellant.

No. SD35656

Missouri Court of Appeals Southern District Division Two

February 4, 2019

APPEAL FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY

Honorable David A. Dolan, Judge

TRANSFERRED TO THE SUPREME COURT PER RULE 83.02

(Before Bates, J., Scott, J., and Sheffield, J.)

PER CURIAM. Initially charged with multiple felonies, Tamara Tidwell agreed to plead guilty to one felony count and receive a suspended imposition of sentence and probation, with other charges and cases to be dismissed, all of which occurred in November 2010.¹

In March 2014, the court revoked Tidwell's probation, sentenced her to five years in prison concurrent with another sentence and subject to a 120-day callback per § 559.115, and made a docket entry "Costs Ordered to State." The county certified a bill to the state including $920.26 for incarcerating Tidwell during 2010 and 2013.

In July 2014, the court ordered Tidwell released from prison and placed her

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on five years' probation. A condition of probation was that Tidwell "should pay any outstanding court costs, Crime Victims Compensation Fund, intervention fees and restitution balances, as applicable." Related paperwork showed the court costs claimed as $920.26, mirroring the county's March 2014 cost bill to the state.

Four years later, having made only one $60 payment, Tidwell filed a "Motion to Retax Costs," asserting that she did not owe jail costs taxed to the state in 2014 due to her indigent status. After a hearing, the court denied the motion on August 17, 2018.

Four days later, but over four years after she was sentenced, Tidwell filed notice of appeal on August 21, 2018.

We must determine sua sponte whether we have appellate jurisdiction before reaching the merits of an appeal. See State v. Lilly, 410 S.W.3d 699, 701 (Mo.App. W.D. 2013). For example, our supreme court determined sua sponte "that there is no right to appeal the terms and conditions of an order of probation." State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994).

There is no right to appeal without statutory authority. Section 547.070, RSMo 1986, allows appeals in criminal cases from a "final judgment." A final judgment occurs only when a sentence is entered. Probation is not part of the sentence. Consequently, there is no right to appeal a trial judge's decision to grant or deny probation. It follows that there is no right to appeal the terms and conditions of an order of probation.

Id. (citations omitted).

Yet Williams still could seek relief; courts offered sufficient remedies; just not by direct appeal. "Although terms and conditions probation [sic] is not subject to review on direct appeal, Williams has other remedies available to correct unlawful terms of conditions of probation," including writs of prohibition or habeas corpus. Id. at 452 n.2. "These remedies are sufficient to protect the claims which Williams now raises on appeal." Id. Thus all appellate districts recognize writs, and perhaps declaratory judgment, as available and sufficient bases for relief in these situations. See, e.g., State v. Nelson, 505 S.W.3d 869, 872 (Mo.App. W.D. 2016); State v. McCauley, 496 S.W.3d 593, 596 (Mo.App. S.D. 2016); State v. Decker, 194 S.W.3d 879, 881 (Mo.App. E.D. 2006).

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Because Tidwell elected, four years after final judgment, to seek direct appeal...