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State v. Ralls5/25/1999
ent because it was not signed by a Judge and, therefore, did not constitute a final appealable judgment. As such, it contends that the appeal was filed prematurely. Second, the state argues that the defendant's challenge to the constitutionality of section 478.466 was not timely in that the constitutional challenge was not raised at the earliest opportunity.
On the issue of the premature appeal, the state maintains that the defendant cannot appeal from the commissioner's January 13th "judgment," notwithstanding the circuit court Judge's order confirming the judgment dated January 26th. Since the defendant's notice of appeal was filed on January 21, 1998, five days before Judge Mauer signed the confirmation order on January 26, 1998, the state claims that the defendant's appeal should be dismissed as premature. The state first contends that because the drug court commissioner is not a Judge and cannot enter a judgment, his entries are not final appealable orders. The state refers us to the case of Slay v. Slay, which ruled that entries signed by commissioners, as opposed to Art. V Judges, are not final judgments from which appeals can be taken. 965 S.W.2d 845, 845 (Mo. banc 1998).
Understanding that Slay addresses the method of appeal of a civil case, we note there are several criminal cases in which a defendant filed a notice of appeal before a final judgment was entered. See State v. Chase, 415 S.W.2d 731, 732 (Mo. 1967); State v. Miner, 606 S.W.2d 448, 449 (Mo. App. 1980); State v. Friend, 605 S.W.2d 209, 209 (Mo. App. 1980); State v. Lance, 561 S.W.2d 445, 446 (Mo. App. 1978); City of Riverside v. Johnson, 507 S.W.2d 48, 49 (Mo. App. 1974); State v. Hendel, 468 S.W.2d 664, 665 (Mo. App. 1971).
These cases stand for the proposition that there must be a final judgment in the trial court before an appeal will lie because the entry of a judgment and sentence is the triggering event. State v. Minor, 606 S.W.2d at 449. This case has a "judgment". It was entered by the commissioner and confirmed within the allowable time by a circuit court Judge. Whether the appeal should have been taken from Commissioner Roldan's judgment or Judge Mauer's confirmation is not an issue that must be decided.
For our purposes, the facts here are similar to the principle stated in State v. Hendel, 468 S.W.2d at 665. Following a bench trial, the court found the defendant guilty of driving under the influence and assessed punishment at a fine of $300. Id. The defendant's motion for new trial was overruled by operation of law on October 23. Defendant filed a notice of appeal before judgment and sentence was pronounced on October 30. On January 7, the trial court granted allocution and sentenced the defendant to pay a fine of $300. Id. The court held that this was a final judgment. The defendant filed a second notice of appeal from the January 7th judgment and the court ruled that the appeal was properly before the court.
Likewise, in this case, the question of whether the triggering event was the judgment issued by the commissioner or the order issued by the Judge is before the court. The record on appeal not only has the commissioner's "judgment," but also the order signed by the circuit court Judge, who authenticates the conviction "as if made by the Judge on the date of its confirmation." Section 478.466.1. Whether the notice of appeal is taken from the commissioner's entry or the Judge's entry is a technical issue that we need not decide in order to reach the substantive issue in the appeal. .
Furthermore, there is no prejudice to the state because the appeal is from the substantive entry in the matter. The only action that results from the commissioner's "final"
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