State v. Wakefield, 13246

• Decision Date: 16 April 1985
• Docket Number: No. 13246,13246
• Citation: 689 S.W.2d 809
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Richard D. WAKEFIELD, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 809

689 S.W.2d 809

STATE of Missouri, Plaintiff-Respondent, v. Richard D. WAKEFIELD, Defendant-Appellant.

No. 13246.

Missouri Court of Appeals,

Southern District,

Division Three.

April 16, 1985.

Charles M. Shaw, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Judge.

This case is a companion to State v. Wakefield, 682 S.W.2d 136 (Mo.App.1984). The same order of criminal activity is involved. The two records before us indicate that at least nine distinct criminal charges were filed against the defendant as a result of the Missouri State Highway Patrol's investigation of the defendant's trafficking in stolen motor vehicles and parts thereof during the period from November 20, 1980, to April 27, 1981. By order dated November 3, 1982, the Circuit Court of Reynolds County consolidated all the pending prosecutions into two distinct cases, "for trial and for all actions from this point forward." (Emphasis ours.)

In this case, which was tried before the reported companion case, the State filed a six-count information charging defendant with: 1) disposing of parts of a stolen 1979 GMC pickup truck in violation of § 570.080, RSMo 1978; ¹ 2) removing or defacing the manufacturer's identification numbers on a 1979 GMC pickup in violation of § 301.400; 3) disposing of parts of a 1979 Jeep CJ7 in violation of § 570.080; 4) commission of forgery in violation of § 570.090.1(3) by altering the vehicle identification number on the body of a 1979 Jeep CJ7 so that the vehicle purported to have an ownership it did not possess; 5) receiving or retaining a stolen 1979 Ford Thunderbird in violation of § 570.080, and 6) removing or defacing the manufacturer's identification number on a 1979 Ford Thunderbird in violation of § 301.400.

The cause came on for hearing on November 16, 1982. A jury panel appeared and the trial court read MAI-Cr.2d 1.02, omitting any reference to the offense charged in Count VI of the information. The voir dire examination was conducted. The panel was admonished, challenges for cause were considered and ruled on by the court, and the following proceeding then took place:

* * * THE COURT: Now, once again, out of the hearing and presence of the jury, there being no one else in the courtroom, as the Court has already indicated ... when the Court read Instruction 1.02 it did not mention the offense set out in Count VI. You are precluded from offering any evidence, Mr. MacFarlane, with respect to Count VI. The Court wants to go on record as showing that the State of Missouri did not provide the Court with a prepared Instruction 1.02 and it was the Court's oversight, of course, not to advise the jury of that count. However, the Court regrets it.

MR. MacFARLANE: Your Honor, by that, do you mean we cannot present evidence to ... the jury.

THE COURT: It will not be submitted to the jury. Evidence as it pertains to the other counts may be presented, but it will not be submitted to the jury.

MR. MacFARLANE: What I wanted to clarify, Your Honor, was that we do have evidence going to, which relates to the receipt of stolen property.

THE COURT: I understand that. You are not prevented from presenting evidence for that purpose. However, you will not be permitted to--

MR. MacFARLANE: Submit it?

THE COURT: That's correct. The court regrets that, but once again, and I am sure you are not familiar with this Court's procedure, we do expect the attorneys to provide MAI-CR 2nd 1.02. That wasn't done. The Court read from the volume itself, Volume I, and omitted to call that to the attention of the jury. Anything else?

MR. MacFARLANE: Nothing from the State, Your Honor.

MR. SHAW: Nothing from the defendant.

THE COURT: The Court at this time, Mr. MacFarlane, hands you the official jury list, indicating that jurors 4 and 15 have been challenged for cause, leaving a panel of 24....

* * *

The trial proceeded to completion on five of the six counts pled in the information. The jury found defendant guilty upon all counts submitted. In accordance with the verdict and after considering defendant's motion for new trial, the court pronounced sentence as follows: 1) that defendant be confined for a period of 3 months for receiving stolen property as charged in Count I; 2) that defendant be confined for a period of 2 months for removing or defacing a manufacturer's number on an automobile as charged in Count II; 3) that defendant be confined for a period of 3 months for receiving stolen property as charged in Count III; 4) that defendant be confined for a period of 3 months for commission of forgery as charged in Count IV; 5) that defendant be confined for a period of 3 months for receiving stolen property as charged in Count V, and that the said sentences run consecutively and not concurrently. Defendant was ordered confined to the Reynolds County Jail. We find no record disposition of Count VI. None of the counts disposed of by trial in the other Wakefield case dealt with a Ford Thunderbird.

In criminal cases, as in civil cases, an appellate court is bound to inquire into its jurisdiction of the appeal, whether or not the parties raise that issue, and the sufficiency of the judgment and sentence are matters of jurisdictional import. State v. Garrett, 642 S.W.2d 378-379 (Mo.App.1982). We have the opinion that in this case no final, appealable judgment has been entered.

In this case, the State joined separate and distinct offenses constituting several acts which were part of a common scheme or plan, as authorized by Mo.R.Crim.P. 23.05. The kindred nature of Mo.R.Crim.P. 23.05 and Fed.R.Crim.P. 8(a) is such that federal precedents bearing on failure to dispose finally of one count of a multi-count information--as it affects appealability--are persuasive here. Generally, our courts have indicated that a criminal judgment is final both for the purposes of exhausting the trial court's judgment and of triggering the defendant's right of appeal when the sentence and judgment finally disposes of all issues in the criminal proceeding, leaves no questions to the future judgment of the court and is neither interlocutory nor conditional in any respect. Such, as we read the case, is the holding and substance of State ex rel. Wagner v. Ruddy, 582 S.W.2d 692 (Mo. banc 1979).

The federal cases are more explicit. Those authorities hold without equivocation that unless a sentence or other authorized punishment has been imposed upon every count of a multi-count indictment, the criminal judgment is not final and appealable. United States v. Wilson, 440 F.2d 1103, 1104-1105[2-4] (5th Cir.1971), cert. denied, 404 U.S. 882, 92 S.Ct. 210, 30 L.Ed.2d 163 (1972), and 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 (1976); United States v. Bronson, 145 F.2d 939, 944 (2d Cir.1944). See, generally, 15 Wright, Miller & Cooper, Federal Practice and Procedure, Jurisdiction § 3918 (1976).

On the record before us, the appeal is premature because no disposition was made of Count VI of the information. The submission must be set aside. We are hesitant, however, to dismiss the appeal and require the defendant to take all the procedural steps required to appeal anew. Having consolidated the various charges, the trial court may again sever the crime charged in Count VI if it is so moved and the court considers it desirable. The State may still enter a nolle prosequi, subject to any objection defendant may make upon the grounds of double jeopardy if the State seeks to try Count VI at a later date, or the State may dismiss Count VI if it is so advised.

There is no doubt that this court may remand for the limited purpose of correcting the record. See: State v. Phroper, 619 S.W.2d 83 (Mo.App.1981) [resentencing only]; State v. Jackson, 599 S.W.2d 527 (Mo.App.1980); State v. Shipman, 560 S.W.2d 603 (Mo.App.1978). Therefore rather than dismiss the appeal, we shall hold the appeal in abeyance and remand the cause to the trial court for the limited purpose of disposing of Count VI. Upon receipt of a judgment or docket entry showing disposition of Count VI, the appeal will be reinstated. Cf. State v. Wilke, 560 S.W.2d 601 (Mo.App.1978). It is so ordered.

MAUS, J., concurs in dissent.

GREENE, C.J., and PREWITT, J., concur.

CROW, P.J., dissents.

CROW, Presiding Judge, dissenting.

I respectfully dissent.

Assuming the six counts were properly joined in the single information per Rule 23.05 ¹--defendant does not argue otherwise--the trial judge had discretion under Rule 24.07 whether to order the...