City of Florissant, Plaintiff/Appellant, v. Damon Moore, Defendant/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: City of Florissant, Plaintiff/Appellant, v. Damon Moore, Defendant/Respondent. Case Number: 75357 Handdown Date: 10/19/1999 Appeal From: Circuit Court of St. Louis County, Hon. Jeff Schaeperkoetter Counsel for Appellant: Robert G. Raleigh Counsel for Respondent: Party Acting Pro Se Opinion Summary: The city appeals from the circuit court's judgment finding the driver not guilty in trial de novo in an action for violation of the posted speed limit. DISMISSED. Division Two holds: This court has no jurisdiction because the city failed to file a timely notice of appeal. Citation: Opinion Author: PER CURIAM Opinion Vote: DISMISSED. Knaup Crane, P.J., Dowd, Jr., and Sullivan, JJ., concur. Opinion: Plaintiff, City of Florissant ("city"), appeals from finding of not guilty by the circuit court on trial de novo in favor of defendant, Damon Moore ("defendant"), in an action for violation of the posted speed limit. We dismiss because the city failed to file a notice of appeal within ten days after the charge against defendant was disposed of in circuit court. Once defendant's appeal from the municipal court judgment was docketed in the circuit court, the Rules of Criminal Procedure controlled the case. City of Ballwin v. Langenberg, 654 S.W.2d 651, 652 (Mo. App. 1983); City of Richmond Heights v. Buehler, 644 S.W.2d 390, 391 (Mo. App. 1982). The trial court entered its order disposing of the case with a finding of "not guilty" on October 20, 1998.

A judgment of acquittal is final when entered. Buehler, 644 S.W.2d at 391. Criminal Rule 30.01(d) provides: "No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final." City did not file the notice of appeal until November 20, 1998.(FN1) This court accordingly has no jurisdiction to consider the appeal. City argues that because it filed a Petition for Writ of Prohibition against the trial judge before it filed its notice of appeal, the time for filing a notice of appeal was tolled. We disagree. No statute or Supreme Court Rule provides that the filing of a writ tolls the time limits set out in Rule 30.01(d). City also argues that defendant waived the untimely filing by failing to object thereto. Again we disagree. Timely filing of a notice of appeal is a jurisdictional requirement which we must raise sua sponte if a party fails to do so. State v. Mackin, 927 S.W.2d 553, 557 (Mo. App. 1996). Appeal dismissed. Footnotes: FN1. Because we have no jurisdiction as a result of the untimely notice of appeal, we do not consider any other questions going to either the jurisdiction or the merits of this appeal, including the question of double jeopardy. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.