Opinion
No. ED 78832
October 23, 2001
Appeal from the Circuit Court of Jefferson County, Honorable Gary P. Kramer.
Henry B. Robertson, 1927 Mitchell Place, St. Louis, MO, 63139, for appellant.
John Munson Morris III, Anne E. Edgington, P.O. Box 899, Jefferson City, MO, 65102-0899, for respondents.
Bassam A. Saffaf ("Movant") pled guilty to the class D felony of non-support of a child. He was placed on probation for five years with imposition of sentence suspended. Movant filed a motion to set aside his guilty plea pursuant to Rule 29.07(d) claiming he did not knowingly and voluntarily enter his guilty plea. The trial court denied his motion, and he now appeals from the denial of his motion to withdraw his guilty plea. We dismiss the appeal.
The facts in this case are similar to the facts in State v. Shambley-Bey, 989 S.W.2d 681 (Mo.App. 1999). In Shambley-Bey, we held that no appeal lies from the trial court's order denying a motion to withdraw a guilty plea where the court did not pronounce sentence on the plea, but rather suspended imposition of the sentence. Id. at 681.
A suspended imposition of sentence in a criminal case is not a final judgment for purposes of appeal as no sentence has been entered. State v. Lynch, 679 S.W.2d 858, 860 (Mo.banc 1984). Without a final judgment, we lack jurisdiction to entertain this appeal. Id.
Further, without a final judgment, we are prohibited from reviewing whether the court abused its discretion in denying Movant's motion to withdraw his guilty plea and cannot address the merits of his claim that he did not knowingly and voluntarily enter his plea of guilty.
We acknowledge that Movant, by receiving a suspended imposition of sentence, is prevented at this time from receiving appellate review of the denial of his motion to withdraw his guilty plea. Appellate review, however, must be conferred by statute and is not a matter of right. Section 512.020 RSMo 2000; Rule 81.01; Houston by Houston v. Teter, 705 S.W.2d 64, 65 (Mo.App. 1985).
The appeal is dismissed.
George W. Draper III, P.J. concurs in result in separate opinion.
Mary K. Hoff, J., concurs in Judge Russell's opinion.
CONCURRING OPINION
While I do not believe that the appeal in this case should be dismissed, I am constrained by the state of the law at this time and thereby, must concur with the result. However, I write separately in order to highlight various pitfalls of dismissal of a case in which suspended imposition of sentence occurs.
Bassam A. Saffaf (hereinafter, "Movant") pleaded guilty to a class D felony of non-support of a child and was sentenced to five years probation with imposition of sentence suspended. Movant filed a motion to set aside his guilty plea pursuant to Rule 29.07(d). In that motion Movant claimed that he did not voluntarily enter a guilty plea as he did not fully comprehend the proceedings in the trial court because he had not discussed the consequences of pleading guilty with his attorney and his translator was removed from the courtroom. Further, Movant denied paternity of the child for which he is ordered to support. The trial court denied his motion, and Movant appeals from that denial.
In theory, if a defendent receives a suspended imposition of sentence and fulfills the requirements set forth by the trial court, the conviction would be eradicated; thereby, relieving the defendant from the stigma of a conviction. See, State ex rel. Peach v. Tillman, 615 S.W.2d 514, 517 (Mo.App.E.D. 1981). Prior to legislative changes, the suspended imposition of sentence did not act as a conviction nor was it used to impeach a witness. Id. However, the stigma, equivalent to that of a conviction, attaches to a defendant with a suspended imposition of sentence in specific instances. See, Section 491.050 RSMo (2000),State v. Lynch, 679 S.W.2d 858, 862 (Mo.banc 1984) (Blackmar, J., dissenting). No final judgment exists until the imposition of sentence, and a defendant cannot appeal without a final judgment. State v. Shambley-Bey, 989 S.W.2d 681, 681 (Mo.App.E.D. 1999).
Yale v. City of Independence, 846 S.W.2d 193 (Mo.banc 1993) overrules Lynch, in part, in that collateral consequences of a conviction do not attach as a matter of course before the sentencing and final judgment. Yale, 846 S.W.2d at 196. However, a suspended imposition of sentence is not a conviction because there has been no final judgment.Id. at 194, 195; Lynch, 679 S.W.2d at 859-61; M.A.B. v. Nicely, 909 S.W.2d 669, 671 (Mo.banc 1995). Yet, even without a conviction, the legislature has carved out exceptions to the general rule that collateral consequences do not attach following suspended imposition of sentence. See also, Section 558.016 RSMo (2000) and Section 577.051 RSMo (2000).
By maintaining that no appeal lies from the denial of a motion to withdraw a guilty plea on a suspended imposition of sentence, the defendant loses any possibility to remove the stigma of a conviction. Under this current logic, the only way Movant may seek review by this Court is to have the suspended imposition of sentence revoked by violating the conditions of his probation and have sentence imposed. Public policy dictates that the courts do not encourage defendants to violate their probation only for the purpose of having sentence imposed in order to receive a final appealable judgment. As well, Rule 29.07(d) is essentially nullified by the current case law for although a defendant may file the motion, it may be denied with or without a hearing and appellate review is foreclosed.
In this case, there is an inference that Movant did not fully understand the nature of the proceedings in the trial court without the aid of his interpreter. Movant's ability to speak and understand some English does not automatically enable him to understand the scope or language used at the trial court. Further, Movant claims that his counsel was ineffective in assisting him, so we cannot assume that the presence of counsel protected him from these adversary proceedings. Rule 29.07(d) as enacted permits the defendant to seek relief where "manifest injustice" occurs. Currently, appellate review of any such allegation shall be denied, allowing the claim to fester without review.
I would urge the appropriate body to take remedial measures to protect the rights of the citizens of this state.