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State v. Casebolt6/30/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of St. Clair County, Hon. William J. Roberts
Opinion Vote: APPEAL DISMISSED. Prewitt, P.J., and Parrish, J., concur.
Opinion:
APPEAL DISMISSED
The State brings this appeal from an order granting an accused a new trial in a criminal proceeding. The threshold issue confronting this court is whether the State's notice of appeal was timely.
Defendant, Buford K. Casebolt, was tried by jury on four counts of "causing to be made a false statement to receive a health care payment" in violation of section 191.905.1, RSMo 1994. On April 15, 1998, the jury found Defendant guilty of Count I but not guilty of Counts II, III and IV.
Defendant filed a timely motion for new trial as to Count I on May 4, 1998. The trial court granted the motion on May 11, 1998, or May 13, 1998.
According to the record, the State filed a notice of appeal June 14, 1998.
Defendant maintains the State's notice of appeal was filed too late. Defendant cites Rule 30.01(d), which reads, in pertinent part:
"When an appeal is permitted by law from a trial court, a party or his agent may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final."
Defendant argues that the trial court's order granting the new trial became final when entered, hence the State's notice of appeal, to be timely, had to be filed within ten days after the trial court awarded the new trial. Inasmuch as the State missed that deadline, Defendant insists this court must dismiss the appeal.
The State responds that this appeal is brought under section 547.200.2, RSMo Cum. Supp. 1997, which reads:
"The state, in any criminal prosecution, shall be allowed an appeal in the cases and under the circumstances mentioned in section 547.210[ ] and in all other criminal cases except in those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant. The supreme court shall issue rules governing such appeals."
The State proclaims its appeal is immune from dismissal, arguing:
"This court has jurisdiction to consider this appeal, because there is no clear guidance in section 547.200 . . . or an applicable Supreme Court Rule, as to when the State had to file its notice of appeal, and Missouri courts have refused to decide adversely to parties who lack such clear guidance."
In support of that premise, the State cites State v. Brown, 722 S.W.2d 613 (Mo.App. W.D. 1986), where the State appealed under section 547.200.2, RSMo Supp. 1984, from an order granting an accused's motion to dismiss an indictment on the ground that his right to a speedy trial was violated. Id. at 614. The order was entered May 3, 1985. Id. at 616. The Judge stated he felt he had jurisdiction over the order for thirty additional days. Id. The State filed its notice of appeal June 4, 1985. Id.
The appellate court in Brown recognized the crucial issue was when the order of dismissal became final for purpose of appeal. Id. Finding no statute or rule addressing that issue, Brown held:
"With no guidance by applicable rule or statute as to when the order to dismiss was final for purposes of appeal by the state under section 547.200.2, this court cannot sustain Brown's motion to dismiss the appeal on the ground it was untimel
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