State v. Summers , 1972 Mo. App. LEXIS 647 ( 1972 )

477 S.W.2d 721 (1972)

STATE of Missouri, Plaintiff-Respondent,
v.
Ralph SUMMERS, Defendant-Appellant.

No. 34236.

Missouri Court of Appeals, St. Louis District.

February 23, 1972.

Michael J. Ebeling, St. Louis, for defendant-appellant.

Thomas W. Shannon, Pros. Atty., James I. Bucher, Asst. Pros. Atty., St. Louis, for plaintiff-respondent.

DOWD, Judge.

Defendant appeals his conviction following a jury waived trial. The defendant was found guilty of the failure to support "his child" who was under the age of 16 years.^[1]

After defendant rested his case, the court stated: "I'm going to find him guilty and sentence him to six months in the City Workhouse and I'll grant him probation." Defendant immediately filed a "Motion for a New Trial or for Outright Reversal and Acquittal," which was overruled. Thereafter, defendant filed his notice of appeal to this court.

There is no showing here that the defendant was ever sentenced or that a final judgment of conviction was entered after the motion for a new trial was overruled. On the contrary, the record here shows that the court attempted to sentence the defendant before the filing and ruling on defendant's motion for a new trial. This attempt sentencing was premature and void as being made prior to the filing and ruling on the motion for a new trial. State v. Jaeger, Mo., 394 S.W.2d 347 [10-14]; State v. Grimes, Mo.App., 470 S.W.2d 4; State v. Ezell, Mo.App., 470 S.W.2d 162; Criminal Rule 27.20, V.A.M.R.

We have no jurisdiction to hear this appeal in the absence of a final judgment in the trial court. There is nothing from which an appeal can be taken. State v. Chase, Mo., 415 S.W.2d 731 [1-3].

The submission of this cause on appeal must be set aside and the case remanded to the trial court with directions to properly sentence the defendant and render a final judgment. The defendant will then have the right to appeal from that judgment. State v. Chase, supra.

BRADY, C. J., and SMITH and WEIER, JJ., concur.

NOTES

[1] Section 559.353, RSMo., V.A.M.S.—a misdemeanor.