State of Missouri, Respondent v. James Hawkins, 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 Hawkins, Appellant. Case Number: ED84661 Handdown Date: 08/23/2005 Appeal From: Circuit Court of the City of St. Louis, Hon. Julian L. Bush Counsel for Appellant: S. Kristina Starke Counsel for Respondent: Daniel N. McPherson Opinion Summary: James Hawkins appeals the judgment entered upon a jury verdict finding him guilty of two counts of first-degree statutory rape, four counts of first-degree statutory sodomy, and two counts of first-degree child molestation. Before reaching the merits of Hawkins' appeal, our review of the record indicates that the trial court's sentence does not comply with the mandatory terms of section 558.018.3, RSMo 2000. REMANDED FOR RESENTENCING Division Four holds: The trial court found Hawkins to be a persistent sexual offender under section 558.018. Section 558.018.3 requires that a persistent sexual offender shall serve a term of imprisonment of "not less than 30 years, which term shall be served without probation or parole." Hawkins' sentence, however, does not indicate that his term of imprisonment is to be served without probation or parole. A sentence that does not comply with the statute is void and cannot constitute a final judgment. State v. Ferrier, 86 S.W.3d 125, 127 (Mo. App. 2002). The trial court does not exhaust its jurisdiction until it renders a sentence in accordance with the law. Id. Because the trial court failed to sentence Hawkins to a term of years without probation or parole, we remand the case to the trial court for resentencing in accordance with section 558.018.3. Citation: Opinion Author: Glenn A. Norton, Chief Judge

Opinion Vote: REMANDED FOR RESENTENCING. Mooney, J., and Hoff, J., concur. Opinion: James Hawkins ("Defendant") appeals the judgment entered upon a jury verdict finding him guilty of two counts of statutory rape in the first degree, four counts of statutory sodomy in the first degree, and two counts of child molestation in the first degree. Because the trial court's judgment is not final, we dismiss Defendant's appeal. Defendant was indicted in January 2003 on ten counts involving charges of statutory rape in the first degree, statutory sodomy in the first degree, child molestation in the first degree, and sexual misconduct for the conduct involving two minor children. A substitute information in lieu of indictment was filed on March 26, 2004, a year after Defendant's arraignment on March 4, 2003. After hearing evidence at trial, the State submitted eight of the ten counts to the jury for consideration. The jury found Defendant guilty of all eight counts. Prior to sentencing Defendant, the trial court found him to be a prior offender and a persistent sexual offender under sections 558.016 and 558.018. (FN1) The trial court orally sentenced Defendant to terms of thirty years for his two counts of first degree statutory rape and his four counts of first degree statutory sodomy to be run concurrently. It also sentenced Defendant to terms of seven years for his two counts of first degree child molestation to be served consecutively to each other and consecutively with his concurrent thirty-year terms, resulting in a total sentence of forty-four years. Defendant's written sentence conformed to the trial court's oral pronouncement of his sentence. This appeal follows. Before reaching the merits of Defendant's appeal, our review of the record indicates that the trial court's sentence does not comply with the mandatory terms of section 558.018.3. Under section 558.018.3, a persistent sexual offender shall serve a term of imprisonment of "not less than thirty years, which term shall be served without probation or parole." Id. (emphasis added). A sentence that does not comply with the statute is void and cannot constitute a final judgment. State v. Ferrier, 86 S.W.3d 125, 127 (Mo. App. 2002). The trial court does not exhaust its jurisdiction until it renders a sentence in accordance with the law. Id. Because the trial court failed to sentence Defendant to a term of years without probation or parole, we remand the case to the trial court for resentencing in accordance with section 558.018.3. See State v. Chavez, 735 S.W.2d 127, 132 (Mo. App. 1987) (remanding case to trial court for resentencing in accordance with sentencing statute for proper charge). The case is remanded for re-sentencing in accordance with section 558.018.

Footnotes: FN1. Unless otherwise indicated, all statutory references are to RSMo 2000.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.