State of Missouri, Plaintiff/Respondent v. Candy Pressley, 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. Candy Pressley, Defendant/Appellant. Case Number: ED81729 Handdown Date: 01/21/2003 Appeal From: Circuit Court of St. Louis County, Hon. Mark D. Seigel Counsel for Appellant: Joel J. Schwartz Counsel for Respondent: Kelly Clarkin and Andrew W. Hassell Opinion Summary: Candy Pressley appeals from an order denying her motion to reinstate an order terminating probation, which is essentially a motion for an early termination of her probation. APPEAL DISMISSED. Division Five holds: There is no right to appeal from the trial court's refusal to end probation early before its term has expired and, therefore, there is no final, appealable judgment. Citation: Opinion Author: Lawrence E. Mooney, Chief Judge Opinion Vote: APPEAL DISMISSED. Crahan, J., and Dowd, Jr., J., concur. Opinion: Candy Pressley, the defendant, appeals from an order denying her motion to reinstate an order terminating probation, which is essentially a motion for an early termination of her probation. Because we find this is not a final, appealable judgment, we dismiss her appeal. The defendant pleaded guilty to two counts of forgery. On June 3, 1999, the trial court sentenced her to two concurrent terms of seven years' imprisonment. However, the trial court suspended execution of the sentence and placed

the defendant on probation for five years. On June 20, 2002, the trial court granted her motion to terminate probation, but set that order aside the next day.(FN1) The court then rescheduled the motion for a later hearing and denied it on July 11,

1. On August 6, 2002, the defendant filed her "Motion to Reinstate Order Terminating Probation." The trial court

issued an order denying this motion on August 22, 2002. The defendant appeals from this order. 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. The defendant failed to file a response. A final judgment in a criminal case occurs only when a sentence is entered. State v. Lynch, 679 S.W.2d 858, 859- 60 (Mo. banc 1984). Probation is not part of the sentence and consequently, there is no right to appeal a trial court's decision to grant or deny probation. State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994). In addition, there is no right to appeal the terms and conditions of an order of probation. Id. It follows that a defendant does not have the right to appeal from the trial court's refusal to end probation early before its term has expired. The appeal is dismissed for lack of a final, appealable judgment. Footnotes: FN1.We do not express any opinion about whether the trial court had jurisdiction to set aside its order terminating probation. We are only addressing the appealability of the order denying the defendant's motion to reinstate an order terminating probation. However, it would appear that the trial court may have lost jurisdiction over the case when it entered its order to terminate probation. See, e.g., Williams v. State, 927 S.W. 2d 903, 906 (Mo. App. S.D. 1996); State v. Bachman, 675 S.W. 2d 41, 46 (Mo. App. W.D. 1984). The defendant may have a remedy by way of writ to address this issue. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.