State of Missouri v. Hector C. Castro , 2014 Mo. App. LEXIS 29 ( 2014 )

In the
Missouri Court of Appeals
Western District
STATE OF MISSOURI, )
)
Respondent, ) WD75878
)
v. ) OPINION FILED: January 14, 2014
)
HECTOR C. CASTRO, )
)
Appellant. )
Appeal from the Circuit Court of Cole County, Missouri
The Honorable Jon E. Beetem, Judge
Before Division Three: Karen King Mitchell, Presiding Judge, Lisa White Hardwick,
Judge and Gary D. Witt, Judge
This is an appeal from a felony conviction in a court-tried case. In March of 2006,
Hector C. Castro ("Castro") was charged with felony possession of a controlled substance
(cocaine) in violation of section 195.202 (RSMo Supp. 2006). Because this appeal is
moot, we must dismiss.
Castro initially pled guilty, received a suspended imposition of sentence and was
ordered to serve five years of supervised probation. In June of 2011, Castro filed a
motion to set aside his plea of guilty. In July of 2011, Castro successfully completed the
five-year probation period. Shortly thereafter, Castro was allowed to withdraw his guilty
plea and requested a jury trial. Castro subsequently waived his right to a jury trial and a
bench trial occurred. The Circuit Court of Cole County found Castro guilty of possession
of a controlled substance and sentenced him to pay a fine of $100. Castro voluntarily
paid the fine in full the day after he was sentenced and then filed his notice of appeal one
week later.
Castro alleges one point of error based on the trial court's denial of his motion to
suppress evidence found during a search of his person and on the overruling of his
objections to that same evidence at trial. The State argues that we cannot reach the issue
presented because the appeal is moot. The legal file indicates that, following his
conviction, Castro paid the fine without first protecting his right to appeal.
Before we proceed to the merits of Castro's arguments, we must first determine
sua sponte if we have authority to review the issue presented. Westcott v. State, 361
S.W.3d 468, 471-472 (Mo. App. W.D. 2012) (citations omitted). Pursuant to State v.
Welch, an appeal must be dismissed in a criminal case in which the sentence consists
solely of the payment of a fine and court costs, where the defendant voluntarily pays the
fine before taking some steps to protect his right to appeal. 701 S.W.2d 770, 771 (Mo.
App. E.D. 1985). "Under these circumstances, the state is no longer an interested party
and the issues are moot." Id. In order to preserve any issue for appeal in a criminal case
where the sentence consists of a fine and costs, the defendant must make payment of the
fine under circumstances that record the payment as not voluntarily made, if payment
occurs before appeal. State v. Hamm, 807 S.W.2d 692, 692 (Mo. App. W.D. 1991)
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(citing Welch, 701 S.W.2d at 771)); see also State v. Brightman, 388 S.W.3d 192, 203
(Mo. App. W.D. 2012).
In response, Castro merely argues, without any citation to authority, that it would
be a manifest injustice to apply these prior cases to a felony offense. When an argument
is made without citation to any authority and no explanation is provided for the absence
of authority, the point is deemed waived or abandoned. State v. Wadlow, 370 S.W.3d
315, 321 n.6 (Mo. App. S.D. 2012).
Castro also argues that the prior cases are inapplicable because the record in this
matter reflects only that he paid his fine prior to appeal, but does not indicate that the
court costs were paid. Castro's argument overlooks the unique procedural posture of this
case, where he had previously pled guilty, received probation and paid the court costs
over five years prior to that guilty plea being set aside and this trial taking place. He
would not be required to pay the court costs a second time, when they were paid after his
prior plea of guilty.
In this matter, Castro paid the fine prior to filing his notice of appeal. He did not
request a stay on its payment from the trial court, pending appeal. He did not file an
appeal bond in lieu of the payment of the fine. He did not make any record that he was
paying the fine under protest or that his payment was anything less than voluntary.
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Having failed to take the steps necessary to protect his right to appeal, the appeal
is dismissed as moot.
__________________________________
Gary D. Witt, Judge
All concur
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