Opinion
No. ED 84195
July 5, 2005
Appeal from the Circuit Court of the City of St. Louis Honorable Jimmie M. Edwards.
Michelle M. Rivera, Assistant Public Defender, St. Louis, MO, for appellant.
Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
Before: Patricia L. Cohen, P.J., Kathianne Knaup Crane J., and Robert G. Dowd, Jr., J.
Defendant Maurice Hancock ("Defendant") appeals his conviction of trafficking in the second degree, in violation of Section 195.223, R.S.Mo 2000, and misdemeanor possession of a controlled substance, in violation of Section 195.202. The trial court found Defendant to be a prior and persistent offender and sentenced him to fifteen years imprisonment without possibility or parole on the trafficking charge and to thirty days imprisonment (with credit for time served) on the possession charge.
All further statutory references are to the Revised Statutes of Missouri ("R.S.Mo") 2000, unless otherwise indicated.
Before we may consider the merits of Defendant's appeal, we must determine our jurisdiction. State v. Bain, 982 S.W.2d 706, 707 (Mo.App.E.D. 1998). Section 547.070 governs a defendant's right to appeal in a criminal case and provides as follows:
In all cases of final judgment rendered upon any indictment or information, an appeal to the proper appellate court shall be allowed to the defendant, provided, defendant or his attorney of record shall during the term at which the judgment is rendered file his written application for such appeal.
Section 547.070; Bain, 982 S.W.2d at 707.
A judgment in a criminal case becomes "final" for purposes of appeal when a sentence is entered. State v. Larson, 79 S.W.3d 891, 893 (Mo. banc 2002). Under Rule 30.01(d), the notice of appeal must be filed "not later than ten days after the judgment or order appealed from becomes final." Rule 30.01(d); Bain, 982 S.W.2d at 707.
Here, the trial court sentenced Defendant on February 13, 2004. Defendant's notice of appeal was stamped "Filed" on February 24, 2004 — eleven days after the judgment became final. Defendant did not move this Court for leave to file a notice of appeal out of time in accordance with Rule 30.03.
Defendant argues that his notice of appeal also contains a date-stamp that reads February 19, 2004 and that this Court should use this earlier date to determine the timeliness of his appeal. The only date-stamp on the face on the Defendant's notice of appeal that reads "Filed" indicates that the notice of appeal was filed on February 24, 2004. Consistent with the February 24, 2004 filing date, the trial court's docket sheets also indicate that Defendant's notice of appeal was filed on February 24, 2004. Under these circumstances, Defendant has failed to prove that the notice of appeal was filed on February 19, 2004, and not February 24, 2004, as indicated by the face of the document and the trial court record.
Defendant's notice of appeal not having been timely filed, we are without jurisdiction to consider Defendant's appeal. Bain, 982 S.W.2d at 707; see also State v. Hulsey, 534 S.W.2d 809 (Mo.App. 1976) (court was without jurisdiction to consider appeal where notice of appeal was filed eleven days after judgment became final and, thus, untimely).
Appeal dismissed.
Kathianne Knaup Crane, J., Concurs.
Robert G. Dowd, Jr., J., Concurs.