Opinion
No. ED 84661
August 23, 2005
Appeal from the Circuit Court of the City of St. Louis, Honorable Julian L. Bush.
S. Kristina Starke, St. Louis, Missouri, for Appellant.
JEREMIAH W. (JAY) NIXON, Daniel N. McPherson, Jefferson City, MO, for Respondent.
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. 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.
Unless otherwise indicated, all statutory references are to RSMo 2000.
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.
Lawrence E. Mooney, J., Mary K. Hoff, Judge., Concur.