State of Missouri, Plaintiff-Respondent, v. Gerald W. Hauser, Jr., Defendant-Appellant.

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: State of Missouri, Plaintiff-Respondent, v. Gerald W. Hauser, Jr., Defendant-Appellant. Case Number: ED81146 Handdown Date: 03/25/2003 Appeal From: Circuit Court of St. Charles County, Hon. Steven Ehlmann Counsel for Appellant: Gerald Hauser, Pro Se Counsel for Respondent: John C. Bauer Opinion Summary: Gerald W. Hauser, Jr., appeals from the judgment and sentence entered for driving while intoxicated. APPEAL DISMISSED. Division Five holds: The court sentenced Hauser before his time period for filing a motion for new trial had expired. The judgment, therefore, is void and there is no final, appealable judgment. Citation: Opinion Author: Lawrence Mooney, Chief Judge Opinion Vote: DISMISSED. Crahan and Dowd, Jr., JJ., concur Opinion: On January 31, 2002, the trial court found the defendant Gerald Hauser, Jr., guilty of driving while intoxicated. That same day, the trial court entered judgment against the defendant and sentenced him to six months in the St. Charles County Detention Center. The court suspended execution of the sentence and placed the defendant on probation for two years. The defendant now appeals from the judgment and sentence. Because we find the judgment was void, we dismiss the defendant's appeal. The defendant had a right to file a motion for new trial within fifteen days after the trial court found him guilty. Rule

29.11(b) & (e). No judgment can be rendered until the time for filing the motion for new trial has expired. Rule 29.11(c). The right to file a motion for new trial is a valuable right and cannot be denied unless expressly waived, even in court-tried cases. State v. Braden , 864 S.W.2d 8, 9 (Mo. App. E.D. 1993). Any judgment and sentence rendered by the trial court before the period for filing the motion for new trial expired is premature and void. Id. Here, the trial court sentenced the defendant before his time period for filing the motion for new trial expired. The defendant did not expressly waive his right to file a motion for new trial either. As a result, the judgment and sentence rendered by the court is void and there is no final judgment from which the defendant can appeal. State v. Goth , 792 S.W.2d 437, 438 (Mo. App. W.D. 1990). We have a duty to sua sponte determine whether we have jurisdiction to entertain an appeal. State v. Wilson , 15 S.W.3d 71, 72 (Mo. App. S.D. 2000). We issued an order directing the parties to show cause why this appeal should not be dismissed. Both parties concede that we have no jurisdiction and ask that the appeal be dismissed. In accordance with the procedure enunciated in Wilson , the appeal is dismissed and remanded to the trial court to grant the defendant the opportunity to file a motion for new trial or to waive his right to do so. If the right is waived expressly or by passage of time, or if a motion for new trial is filed and denied, the trial court may thereafter sentence the defendant and he will then have the right to appeal. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.