State v. Thomas

PER CURIAM.

This appeal is premature for the reason that there has been no disposition of one count of the two-count information.

Count I of the information charged the defendant with committing the Class A felony of assault in the first degree, § 565.050,¹ based upon an incident which occurred on November 5, 1988, involving injury to his daughter Erica Bland. Count II charged that the defendant, in violation of the same statute, committed a similar offense, on November 6,1988, upon his son Eric. Both counts were tried to a jury, which returned a verdict of guilty on Count II but which could not reach a verdict on Count I. The court declared a mistrial with respect to Count I which, so far as the record on appeal shows, remains pending in the trial court. The court did sentence the defendant with respect to Count II. Defendant appeals.

“After the rendition of final judgment in a criminal case, every party shall be entitled to any appeal permitted by law.” Rule 30.01(a). “In all cases of final judgment rendered upon any indictment or information, an appeal to the proper appellate court shall be allowed to the defendant....” § 547.070.

In State v. Wakefield, 689 S.W.2d 809 (Mo.App.1985), a six-count information was filed against defendant. A jury found him guilty on the first five counts, but there was no disposition of Count VI. Defendant sought to appeal. This court pointed out that on appeals in criminal cases it must inquire into its jurisdiction whether or not the parties raise the issue. The appeal was held to be premature because no disposition was made of Count VI. This court did not dismiss the appeal but held it in abeyance and remanded the cause to the trial court for disposition of Count VI.

The instant appeal is held in abeyance and the cause is remanded to the trial court for the limited purpose of disposing of Count I. Upon receipt of a judgment or docket entry showing disposition of Count I, this court will enter its order reinstating this appeal.

It is so ordered.

All concur.

1 . All references to statutes are to RSMo 1986, V.A.M.S., and all references to rules are to Missouri Rules of Court, V.A.M.R.