State v. Williams, 76138
| Decision Date | 22 February 1994 |
| Docket Number | No. 76138,76138 |
| Parties | STATE of Missouri, Respondent, v. Carolyn WILLIAMS, Appellant. |
| Court | Missouri Supreme Court |
Laura G. Martin, Asst. Appellate Defender, Kansas City, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Appellant, Carolyn Williams, was convicted by a jury of robbery, first degree, and armed criminal action and sentenced to consecutive prison terms of ten years and three years, respectively. The trial court suspended execution of the ten-year sentence for robbery and ordered that Williams be placed on probation for five years after serving the three-year sentence for armed criminal action. Williams appealed to the Court of Appeals, Western District, which affirmed the judgment of conviction and sentence. Although this Court accepted transfer to address the propriety of postponing commencement of Williams' term of probation on the robbery count until she serves the sentence on the armed criminal action count, we now determine that we have no jurisdiction to address that issue. The judgment is affirmed.
The following facts are pertinent to this appeal: On July 3, 1991, about 2:00 a.m., Richard Scott was seated in his car using a "drive up" telephone next to a service station. Karl Liebnitz was a passenger in Scott's car. Liebnitz was on crutches because of a broken leg. As Scott was hanging up the telephone, Williams jumped into the back seat of the car and demanded money. When Scott refused to comply, Williams dove into the front seat, threw the car into park, and attempted to remove the key from the ignition. After a scuffle, Liebnitz ended up with the key.
Scott then jumped from the car, ran to the service station, and asked the attendant to call 911. For some reason, the attendant did not make the call, so Scott ran to a different pay telephone to place the call himself. Deciding not to wait for the operator, he ran back to the car. Liebnitz was still in the passenger seat, and Williams was digging through the change dish. Scott started to grab Williams, but an unidentified man came up behind him and pinned him between the car door and the car. This man told Scott, "You better leave my sister alone." Scott fought with this man for a short time, but then felt what he believed to be a knife at his throat. Scott testified that it was Williams who held the knife. She told him to give up his wallet, and then she took it from his back pants pocket and ran down the street.
Scott saw a police officer at a nearby fast food restaurant and told him about the robbery. The two of them then drove around looking for Williams. Another officer in the search stopped her, and she dropped Scott's wallet as well as a pager he had been carrying in his car. No knife was found.
In her first point on appeal, Williams asserts that the trial court erred in ordering her five-year term of probation to commence after she completed her three-year prison term for armed criminal action. She claims that § 559.036.1, RSMo Supp.1992, required the trial judge to order her probation to commence on the date she was sentenced. Although both parties address the merits of this issue, neither party addresses whether an appellate court has the power to review the terms and conditions of probation on direct appeal.
There is no right to appeal without statutory authority. State v. Lynch, 679 S.W.2d 858, 859 (Mo. banc 1984). Section 547.070, RSMo 1986, allows appeals in criminal cases from a "final judgment." A final judgment occurs only when a sentence is entered. State v. Lynch, 679 S.W.2d at 859-60; State ex rel. Wagner v. Ruddy, 582 S.W.2d 692, 693 (Mo. banc 1979). 1 Probation is not part of the sentence. McCulley v. State, 486 S.W.2d 419, 423 (Mo.1972). Consequently, there is no right to appeal a trial judge's decision to grant or deny probation. Benson v. State, 504 S.W.2d 74, 76 (Mo.1974); State v. Simmons, 660 S.W.2d 319, 320 (Mo.App.1983). It follows that there is no right to appeal the terms and conditions of an order of probation. Therefore, we do not have appellate jurisdiction to review the merits of Williams' first point. 2
Next, Williams asserts that the trial court erred in overruling her motion for judgment of acquittal or, in the alternative, for a new trial, and in sentencing Williams on the robbery and armed criminal action convictions. Williams disputes that the State's evidence was sufficient to prove that she used or threatened to use a dangerous instrument during the course of the robbery as required under § 569.020.1, RSMo 1986, and § 571.015.1, RSMo 1986.
To determine whether there is sufficient evidence to support a finding of guilt, "an appellate court may not weigh the evidence but accepts as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and all contrary evidence and inferences are ignored." State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992).
At trial, Scott testified about the presence of a dangerous instrument as follows Q [Prosecuting Attorney]: What happened when this [unidentified] man grabbed you?
A [Scott]: We started fighting in between--I was pinned in between the car and the door, and he was in on me, and we were fighting back and forth. And that's about the time that I felt something at my throat.
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