Case Law Update: 2011-2014 Cumulative Edition

Holding: Where Defendant receives an SIS on an offense, he cannot direct appeal because there is no final judgment, but a remedy may be available by writ.
State ex rel. Thompson v. Dueker, No. ED96570 (Mo. App. E.D. 8/9/11):

Even though Husband consulted with Attorney about a potential divorce case, where Husband did not end up hiring Attorney, Husband was only a “prospective client” of Attorney under Rule 4-1.18, and where Wife later hired Attorney in regard to the divorce, Husband could not disqualify Attorney without showing that Attorney received confidential information that could be significantly harmful to Husband in the matter.

Facts: Husband met with Attorney about a potential divorce case, and Husband claimed he discussed confidential matters with Attorney. Husband ended up, however, hiring a different lawyer for the case. Wife later hired Attorney in relation to the divorce case. Husband moved to disqualify Attorney, claiming he was a former client of Attorney under Rule 4-1.9. Trial court disqualified Attorney.

Holding: A writ of prohibition is proper where a court disqualifies a lawyer from representing a client because the judgment, if erroneously entered, would cause considerable hardship and expense and the issue would otherwise escape appellate review. Rule 4-1.9(a) applies to conflict of interest with former clients. To establish a conflict under Rule 4-1.9, a movant for disqualification must prove (1) the Attorney had a former attorney-client relationship with movant; (2) the interests of Attorney’s current client are materially adverse to movant’s interests; and (3) the current representation involves the same or substantially related matter as Attorney’s former representation of movant. Here, however, Husband (movant) did not have an attorney-client relationship with Attorney because Husband did not seek or receive any legal advice from Attorney. Rule 4-1.18(a) provides that “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” Rule 4-1.18(b) provides that an Attorney must keep information of prospective clients confidential. However, Rule 4-1.18(c) provides that a lawyer shall not represent former prospective clients in the same or substantially related matter only if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. This provides a more restrictive standard for disqualification than does 4-1.9 for former clients. Under 4-1.18(c), the movant asserting disqualification bears the burden of proving that Attorney received “significantly harmful” information. Mere speculation of receipt of such information is not enough. Here, Husband did not demonstrate what “significantly harmful” information Attorney had received. Disqualification of Attorney reversed.
Burston v. State, No. ED98228 (Mo. App. E.D. 6/21/11):

Holding: Dismissal of postconviction motion under 24.035 and 29.15 is immediately appealable because this effectively terminates the litigation, since successive motions are not allowed.
State v. Beckemeyer, No. ED94412 (Mo. App. E.D. 2/15/11):

Holding: In misdemeanor direct appeal, Court of Appeals considers claim of ineffective assistance of trial counsel.

Editor’s note: In felony direct appeals, ineffective assistance of trial counsel cannot be raised, but must be raised in a Rule 29.15 motion. See State v. Wheat, 775 S.W.2d 155 (Mo. banc 1989).
Jendro v. State, 2014 WL 7183607 (Mo. App. S.D. Dec. 17, 2014):

Holding: Where (1) PCR counsel filed an amended motion, (2) Movant retained new counsel who alleged that prior counsel’s amended motion was defective, and (3) the motion court entered a “judgment and order” overruling Movant’s “abandonment” motion but did not rule on the merits of the amended motion that was filed, the appeal is premature because the motion court did not resolve Movant’s PCR claims on the merits; because the motion court did not decide the PCR claims on the merits, the abandonment judgment is not a final judgment, and appeal must be dismissed.
State v. Love, 2014 WL 4723124 (Mo. App. S.D. Sept. 23, 2014):

Where trial court granted a motion to set aside judgment or for new trial, but then took no further action in case, the State could not appeal since there was no “final judgment.”

Facts: After conviction at trial, Defendant filed a “Motion to Set Aside Judgment or for New Trial,” which was sustained. However, the trial court took no further action. The State appealed.

Holding: In order to appeal, there must be a “final judgment” which disposes of all issues and leaves nothing for future determination. Here, the trial court merely set aside the judgment of conviction, apparently because the court thought the evidence was insufficient. However, the court failed to enter a judgment of acquittal, failed to convict of a lesser-included offense, or failed to finalize the case in any other legally permissible way. Therefore, there is no final judgment to support an appeal.
State v. Stone, 430 S.W.3d 288 (Mo. App. S.D. 2014):

Even though trial court suppressed evidence and State filed an interlocutory appeal, where none of the arguments presented by the State on appeal were presented to the trial court, State failed to preserve anything for appeal.

Facts: The trial court granted Defendant’s motion to suppress evidence. The State filed an interlocutory appeal raising various legal arguments as to why the trial court erred. However, none of these arguments were presented to the trial court.

Holding: The State has failed to preserve anything for appeal by not presenting its arguments to the trial court. Motions to suppress typically involve complicated legal issues. Requiring arguments and claims to be presented to the trial court first in order to preserve them for appellate review allows the trial court to rule intelligently on, and fix, any errors itself. Here, the State did not give the trial court that opportunity. The trial court would have been free to reconsider its ruling on the motion to suppress, and to consider the State’s arguments, if the State had availed itself of that opportunity, but the State didn’t do so. Interlocutory order suppressing evidence affirmed.
State v. Jacobs, 2013 WL 5028984 (Mo. App. S.D. Sept. 13, 2013):

Holding: Even though the trial court sentenced Defendant and entered judgment before the 15 days for filing a new trial motion expired, this was merely trial error which can be waived by Defendant and not “jurisdictional” after J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009); Southern District rejects prior cases that held this is “jurisdictional” such that there is no jurisdiction to hear appeal.
State v. DeLong, No. SD30928 (Mo. App. S.D. 9/30/11):

Holding: Footnote 3 states that where appellate court is reviewing an issue under de novo standard (such as whether interstate agreement on detainers applied), it does not matter whether party “properly preserved” issue for appellate review or whether there is a transcript of the legal arguments in the court below.
Shaw v. State, No. SD30814 (Mo. App. S.D. 8/17/11):

Even though trial judge “thought” he imposed consecutive sentences, where the transcript said “concurrent” and State did not challenge the accuracy of the transcript pursuant the procedures of Rule 30.04(g), the appellate court must accept the accuracy of the transcript and the oral pronouncement of sentence controls.

Facts: Defendant entered into a plea bargain whereby prosecutor would recommend consecutive sentences, but Defendant could argue for something less. However, the plea and sentencing transcript refer to the State’s offer as being for “concurrent” sentences and the transcript of the oral pronouncement of sentence said the sentences were “concurrent.” However, the written sentence and judgment said they were “consecutive.” Defendant filed a 24.035 motion alleging the oral pronouncement controlled. At the evidentiary hearing on the 24.035 motion, the trial judge said he “thought” he had said “consecutive,” and his notes reflected that. Also, the plea attorney and prosecutor testified they thought it was “consecutive.” The motion court denied relief based on this.

Holding: The law is clear that where an oral pronouncement of sentence differs from the written sentence and judgment, the oral pronouncement controls. Here, the State argues that the court implicitly found that the transcript of the plea and sentencing was wrong. However, there is an established procedure for challenging the accuracy of a transcript under Rule 30.04(g), which would have required the State to file a motion to correct the transcript and have a hearing at which the court reporter could testify about the accuracy of the transcript and perhaps a backup tape recording as well. Because the procedure of Rule 30.04(g) was not followed, this Court is bound by the certified transcript of the proceedings which clearly states that the sentences are “concurrent.” Consecutive sentences vacated and remanded for entry of written sentence and judgment with concurrent sentences.
Jack v. State, No. SD30512 (Mo. App. S.D. 8/9/11):

Holding: Denial of Rule 29.07(d) motion to correct manifest injustice is appealable and is governed by rules of civil procedure; judgment becomes final 30 days after entry and notice of appeal is due not later than 10 days thereafter.
State v. Cannafax, No. SD30327 (Mo. App. S.D. 7/22/11):

Where Defendant’s sexual offenses occurred during a time span from early 2006 to 2008, but it was unclear if they occurred after August 28, 2006, and the trial court’s judgment made no findings about this, it is unclear whether the lifetime supervision requirements of Sec. 217.735 apply to Defendant, but the issue is not ripe until the Board of Probation and Parole attempts to apply them to him; at that time, he may bring a writ of mandamus to challenge their applicability.

Facts: Defendant was convicted of sexual offenses alleged to have occurred between June 7, 2006 and November 2008. The trial court did not expressly find that the offenses occurred after August 28, 2006 and did not state in its judgment that Defendant was subject to lifetime supervision under Sec. 217.735, which provides that offenders are subject to lifetime supervision for certain sexual offenses “based on an act committed on or after August 28, 2006.”

Holding: Defendant’s claim on appeal is that he is improperly subject to lifetime supervision under Sec. 217.735 because there was not sufficient evidence to prove his offenses happened after August 28, 2006. However, since the trial court made no findings about this and made no mention of it in its judgment, it is unclear if Defendant will be subjected to lifetime supervision when he completes his prison sentence. Thus, this issue is not ripe for review. However, if the Board of Probation and Parole seeks to apply Sec. 217.735 to him in the future, he may challenge that via a writ of mandamus.
Epkins v. State, No. SD30349 (Mo. App. S.D. 2/10/11):

Even though Movant’s 24.035 motion only generally alleged that counsel had “coerced” him into waiving a jury, but the evidentiary hearing evidence was that counsel told him he’d get medical treatment faster if he did this, appellate court will review the claim on the merits; general pleading sufficient.

Holding: We acknowledge Movant’s amended motion more generally refers to trial counsel’s allegedly coercive conduct and does not specifically mention Movant’s medical condition. However, during the evidentiary hearing, claims of coercion based upon counsel’s alleged inducement stemming from Movant’s medical condition was clearly presented. Since Movant’s argument on appeal was generally encompassed in Movant’s amended motion, and presented to the motion court at the hearing, we choose to review the claim on the merits.
State v. Oerly, 446 S.W.3d 304 (Mo. App. W.D. 2014):

Even though bench trial judge sentenced Defendant immediately upon finding him guilty and did not wait 15 days to allow the filing of a new trial motion under Rule 29.11(c), appellate court had power to hear appeal were Defendant requested to be sentenced the same day; a judgment entered in violation of Rule 29.11(c)’s timing requirement is not “void,” but merely voidable and the Defendant can waive noncompliance with Rule 29.11(c) where Defendant does not object in the trial court, or raise the issue on appeal.

Discussion: Prior cases had held that an appellate court lacks “jurisdiction” to hear an appeal where the trial court did not follow the timing requirement of Rule 29.11(c), which requires the trial court to wait 15 days between trial and sentencing in order to allow for a new trial motion to be filed. However, these prior cases are no longer valid after J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), regarding jurisdiction. A circuit court judgment is “void” only if the court lacked jurisdiction, but here the trial court had personal and subject-matter jurisdiction. Court Rules merely set limits on remedies but do not limit subject-matter jurisdiction. Rules merely affect the court’s authority to act. Failure to follow Rule 29.11(c)’s timing requirement does not divest a trial court of jurisdiction or render its judgment “void” but merely “voidable” if and when a defendant wishes to challenge a premature judgment. Here, Defendant waived his right to a new trial motion and requested immediate sentencing. Thus, the appellate court may hear the case.
State v. Johnston, 2014 WL 4823628 (Mo. App. W.D. Sept. 30, 2014):

Where trial court granted new trial on basis that guilty verdict was “against the weight of the evidence,” this was not a “final judgment” subject to appeal since the trial proceedings would continue; granting a new trial on this basis does not implicate double jeopardy because this is not a judgment of acquittal or finding of insufficient evidence.

Facts: Defendant was convicted of first degree murder. The trial court then granted Defendant’s motion for new trial. The court found that the guilty verdict was “against the weight of the evidence,” establishing good cause under Rule 29.11 which provides that a trial court may grant a new trial upon good cause shown. Additionally, Sec. 547.020(5) allows a trial court to grant a new trial “when the verdict is contrary to the law or evidence.” The State appealed.

Holding: There is no “final judgment” here to allow an appeal. The judgment granting a new trial did not dispose of all issues and leave nothing for future adjudication. Here, everything is left for future adjudication since a new trial is pending. The State argues that the judgment was a de facto acquittal and that the State should be allowed to appeal because double jeopardy precludes retrial. But double jeopardy precludes retrial only if a conviction is set aside for insufficient evidence to support the verdict. However, when a new trial is granted because the verdict is “against the weight of the evidence,” rather than that the evidence was insufficient to support the verdict, double jeopardy does not bar a retrial. The trial court made its own credibility determinations and assessed the evidence, which indicates a weight of the evidence rather than a sufficiency of the evidence analysis. Appeal dismissed.
State v. Wright, 2014 WL 1592530 (Mo. App. W.D. April 22, 2014), and State v. Lovett, 2014 WL 1592299 (Mo. App. W.D. April 22, 2014):

Even though trial court purported to dismiss an information against Defendants, where the trial court’s order was unclear as to whether it was a dismissal and additional counts were apparently still pending, the appellate court was unable to discern what the trial court did and the judgment was not final, so there was no jurisdiction for the State to appeal.

Facts: Defendants were charged, in relevant part, with delivering or possessing an imitation controlled substance, Sec. 195.242, and other drug charges. Defendants were possessing or selling “Sedation Incense,” claiming it had an effect “similar” to marijuana. They did not claim it was marijuana. Defendants filed motions to dismiss. Among their claims was that Sec. 195.010(21)(the definition of imitation controlled substance) was void for vagueness because it failed to give fair notice of what conduct was illegal, and alternatively, the information was insufficient for failure to charge a crime because the Defendants never represented their substance to be marijuana. In accordance with an agreement with the parties, the trial court entered Findings of Fact, Conclusions of Law. The trial court found that there were no appellate cases addressing the sufficiency of evidence in situations where a defendant is alleged to have possessed or have sold an item knowing that it was not a controlled substance, but claiming it was “similar” to a controlled substance. The trial court found that appellate cases under the statute all involved imitations which the defendants represented to be illegal drugs. The trial court concluded that “[i]t is hoped that an appellate decision will help clear up this area of law. So Ordered.” The State appealed.

Holding: The appellate court cannot conduct appellate review on this record, because the appellate court cannot determine what the trial court did, or whether its action is a final judgment. The trial court’s Findings fail to state what relief, if any, the trial court is actually granting. The Findings simply say, “So Ordered.” Although the parties seem to believe that the trial court dismissed the information, the Findings never state that. Even assuming that this was a dismissal, there are other counts on other charges that apparently are still pending. Judgments resulting in dismissal of all counts charged are final judgments from which the State can appeal. Missouri law is “unclear” as to whether the dismissal of some, but not all, counts in a multi-count information constitutes a final judgment for purposes of appeal, and Western District declines to address that issue here, because it doesn’t want to speculate on the meaning of the Findings. Lastly, the trial court appears to have wanted to enter something akin to “summary judgment” in favor of Defendants, but there is no procedure for summary judgment in a criminal case in Missouri. In passing, however, the Western District notes in Wright in footnote 12 that Rule 24.04(b)(1), which provides that “[a]ny defense or objection which is capable of determination without trial of the general issue may be raised before trial by motion,” could arguably create a procedure for dismissal of informations or indictments for insufficient evidence under an analogous federal case.
State v. Hopkins, 2014 WL 928973 (Mo. App. W.D. March 11, 2014):

Holding: Even though Defendant who pleaded guilty was denied his right of allocution at sentencing, the appellate court has no authority to hear this on direct appeal from a guilty plea, but the issue may be raised in a Rule 24.035 motion; a direct appeal of a guilty plea is limited to issues relating to subject matter jurisdiction and the sufficiency of the charging documents.
State v. Castro, 417 S.W.3d 390 (Mo. App. W.D. 2014):

Where Defendant voluntarily pays his sentencing fine prior to appeal, appellate case is moot and must be dismissed.

Facts: Defendant was convicted of a felony at trial, and sentenced to a $100 fine. He paid the fine the day after he was sentenced, and then appealed.

Holding: In order to preserve any issue for appeal in a criminal case where the sentence consists of a fine and costs, the defendant must make payment of the fine under circumstances that record the payment as not voluntarily made. Here, Defendant voluntarily paid his fine. He did not request a stay of payment from the trial court pending appeal. He did not file an appeal bond in lieu of paying the fine. He did not make any record that his payment was under protest or anything other than voluntary. The appellate court must examine its jurisdiction sua sponte. Here, there is no jurisdiction for the appeal and it is moot, because Defendant voluntarily paid his fine.
Damon v. City of Kansas City, 2013 WL 6170565 (Mo. App. W.D. Nov. 26, 2013):

(1) Claims that municipal ordinances are unconstitutional are not within the “exclusive” jurisdiction of the Missouri Supreme Court, but are also within the jurisdiction of the Court of Appeals; (2) Plaintiffs who have received a notice of violation but have not yet gone to court or paid their fine have standing to assert their claims in this action because they do not have an adequate remedy in their ordinance violation cases since Private Company which administers the red light fine collection program is allowed to act in law enforcement, prosecutorial and adjudicative roles under the ordinance (disagreeing with Eastern District cases); (3) the “notice of violation” under the ordinance appears to conflict with Rule 37 because it does not state the address of a court (but rather directs payment to a private company) and does not command appearance before a court; (4) Plaintiffs have alleged sufficient facts to survive a motion to dismiss in contending that the ordinance does not have a substantial relationship to public safety because it actually increases accidents, reduces the number of police officers, and is really a revenue collection program; (5) the ordinance conflicts with state law which requires assessment of points for moving violations; and (6) if the ordinance is “criminal” in nature, then the rebuttal presumption that the owner of the vehicle is the driver is unconstitutional because it violates the presumption of innocence as to every element of the crime and because it invades the fact-finding function of the jury.

Facts: Plaintiffs raise numerous claims about validity of City “red light” ordinance. The ordinance provides that no vehicle shall be “driven” into an intersection with a red light. The ordinance also creates a “rebuttable presumption” that the owner of the vehicle is the driver. Finally, the ordinance provides that upon filing of an information in municipal court, a summons will issue pursuant to Missouri Supreme Court Rule 37.

Holding: As an initial matter, the Court of Appeals determines that it has jurisdiction in this case because claims that municipal ordinances are unconstitutional are not within the “exclusive” jurisdiction of the Missouri Supreme Court, but may also be decided by the Court of Appeals. Additionally, contrary to rulings by the Eastern District, the Western District finds that plaintiffs who have received notices of violation but who have not paid their fines do have standing to proceed as plaintiffs here because they do not have an adequate remedy at law in their ordinance violation cases since the ordinance allows the private company which collects the fines to play law enforcement, prosecutorial and/or adjudicative roles. The Supreme Court has recognized that subjecting a defendant to criminal sanctions involving his liberty before a tribunal that has a direct, personal and substantial pecuniary interest in convicting him is a denial of due process. Further, to allow private prosecutors, employed by private citizens, to participate in the prosecution of a defendant is fundamentally unfair. On the merits, the ordinance is invalid or unconstitutional for several reasons. First, there are multiple problems with the “summons procedure” for contesting a violation under the ordinance. The “notice of violation” is not delineated a “summons” and gives confusing and conflicting instructions on how to pay a fine or contest a violation. The notice conflicts with Rule 37 because it does not state the address of a municipal court, and does not command appearance in any court. Second, Plaintiffs have alleged sufficient facts to survive a motion to dismiss in contending that the ordinance does not have a substantial relationship to public safety because it actually increases accidents, reduces the number of police officers, and is really a revenue collection program. Third, the ordinance conflicts with state law, Sec. 302.302.1(1), which requires assessment of points for moving violations. Finally, if the ordinance is “criminal” (as opposed to “civil”), then the rebuttal presumption that the owner of the vehicle is the driver is unconstitutional because it violates the presumption of innocence as to every element of the crime and because it invades the fact-finding function of the jury.
State v. Woodworth, 2013 WL 5979203 (Mo. App. W.D. Nov. 12, 2013):

Where trial court excluded certain State’s evidence on grounds of lack of proper chain of custody, the State could not appeal under Sec. 547.200 because the statute authorizes appeal only where the trial court “suppresses” evidence, which means excludes evidence that was illegally obtained. However, State may pursue appellate review via appropriate writ.