State of Missouri, Respondent v. Keith Drury, 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. Keith Drury, Appellant. Case Number: ED85357 Handdown Date: 04/12/2005 Appeal From: Circuit Court of Jefferson County, Hon. Gary P. Kramer Counsel for Appellant: Joseph P. Cunningham III Counsel for Respondent: Robert G. Wilkins Opinion Summary: Keith Drury appeals from the judgment and sentence entered for misdemeanor third degree assault. APPEAL DISMISSED; CAUSE REMANDED. Division Five holds: The trial court sentenced Keith Drury prior to the filing and ruling on his motion for new trial, and thus, the judgment is void and there is no final, appealable judgment. Citation: Opinion Author: George W. Draper III, Chief Judge Opinion Vote: DISMISSED; CAUSE REMANDED. Crahan, J., and Norton, J., concur. Opinion: On September 23, 2004, the trial court found the defendant Keith Drury (Defendant) guilty of misdemeanor third degree assault. On that same day, the trial court entered a judgment against Defendant and sentenced him to pay a fine of $25.00. On October 1, 2004, Defendant filed a timely motion for new trial, which the trial court denied on October 25,

1. Defendant now appeals from the judgment and sentence.

Under 29.11(c), which applies to misdemeanors, no judgment can be rendered until the time for filing the motion for

new trial has expired. Any judgment and sentence rendered by the trial court prior to the filing and ruling on the motion for new trial is premature and void. State v. Burkemper, 853 S.W.2d 416, 417 (Mo. App. E.D. 1993); See also, City of Byrnes Mill v. Rice, 136 S.W.3d 84, 85 (Mo. App. E.D. 2004); State v. Hauser, 101 S.W.3d 320, 321 (Mo. App. E.D. 2003). A defendant has the right to file a motion for new trial within 15 days after the trial court finds him guilty. Rule 29.11(b) & (e). Here, the trial court sentenced Defendant on September 23, 2004, the same day it found him guilty, prior to the filing and ruling on his motion for new trial. 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. Rice, 136 S.W.3d at 86. We have a duty to sua sponte determine whether we have jurisdiction to entertain an appeal. Hauser, 101 S.W.3d at

1. We issued an order directing Defendant to show cause why this appeal should not be dismissed. Defendant has

failed to file a response. The appeal is dismissed and the cause is remanded to the trial court to sentence Defendant in accordance with Rule

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