State of Missouri, Respondent v. James A. Mahurin, 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, Respondent v. James A. Mahurin, Appellant. Case Number: ED88470 Handdown Date: 11/28/2006 Appeal From: Circuit Court of St. Francois County, Hon. Kenneth W. Pratte Counsel for Appellant: James A. Mahurin, Pro Se Counsel for Respondent: Shaun J. Mackelprang Opinion Summary: James Mahurin appeals from an order denying his release on probation under section 217.362, RSMo. APPEAL DISMISSED. Division Five holds: An order denying release on probation under section 217.362 is not a final, appealable judgment and Mahurin's appeal must be dismissed. Citation: Opinion Author: Booker T. Shaw, Chief Judge Opinion Vote: DISMISSED. Norton, J. and Cohen, J., concur. Opinion: James Mahurin (Defendant) appeals from an order denying his release on probation under section 217.362, RSMo 2000. Because such an order is not a final, appealable judgment, the appeal is dismissed. No right of an appeal exists without statutory authority. State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994). In criminal cases, section 547.070, RSMo 2000, allows appeals from final judgments, which occur when the court enters a judgment of conviction and sentence. State v. Larson, 79 S.W.3d 891, 893 (Mo. banc 2002). Defendant is not appealing

from his judgment of conviction or sentence, but rather an order denying his release on probation under section 217.362. Probation is not part of the Defendant's sentence. State v. McKinzie, 968 S.W.2d 160, 161 (Mo. App. E.D. 1998). There is no right to appeal a trial court's decision to deny probation under section 217.362. Id. Thus, this Court is without jurisdiction to review the merits of Defendant's appeal. Id. This Court has a duty to sua sponte determine our jurisdiction. State v. Dunn, 103 S.W.3d 886, 887 (Mo. App. E.D. 2003). This Court issued an order directing Defendant to show cause why his appeal should not be dismissed for lack of jurisdiction. Defendant has not filed a response. The appeal is dismissed for lack of a final, appealable judgment. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.