Section 29.3 Defendant’s Right of Appeal

• Library: Criminal Practice 2012 Supp

A. (§29.3) Defendant’s Right of Appeal

In Missouri, every person who has been found guilty of a crime is entitled to appeal and to have all contentions of error that are properly preserved for appellate review considered and ruled on. Rule 30.01(a); § 547.070, RSMo 2000.

A defendant, however, may waive the right to appeal under certain circumstances. For example, a defendant may waive the right to appeal or to a post-conviction remedy as part of a plea bargain. State v. Reed, 968 S.W.2d 246, 247 (Mo. App. E.D. 1998); State v. Valdez, 851 S.W.2d 20 (Mo. App. W.D. 1993). A defendant who escapes and remains at large forfeits the right to appeal from either the trial court or the motion court. Kemper v. State, 129 S.W.3d 439 (Mo. App. E.D. 2004); Fogle v. State, 99 S.W.3d 63, 65 (Mo. App. E.D. 2003). The relevant inquiry for an appellate court applying the escape rule is whether the escape adversely affected the criminal justice system. State v. Sprester, 26 S.W.3d 603, 604 (Mo. App. S.D. 2000). The escape rule also applies to any post-conviction relief motions filed by a defendant after the defendant attempts to escape. Brown v. State, 23 S.W.3d 930, 932 (Mo. App. S.D. 2000).

A defendant may have an appeal involuntarily dismissed by the appellate court for failure to properly prosecute it in accordance with Rule 30.14. The dismissal may be done on the court’s own motion or upon motion of the respondent’s attorney. This particular rule, however, does not apply to a defendant who has been sentenced to death. Rule 30.14(c).

In general, a defendant’s right to appeal commences at the time that a final order or judgment is entered in the defendant’s case. State v. Ham, 91 S.W.3d 676 (Mo. App. E.D. 2002). In criminal cases, a judgment is final for purposes of appeal when the judgment and sentence are entered. Id. In the average criminal case, the notice of appeal must be filed within ten days after the trial court has overruled the defendant’s motion for a new trial and has granted the defendant allocution and entered a final judgment and sentence in accordance with Rules 29.07 and 29.11. Rule 30.03; State v. Harris, 863 S.W.2d 699 (Mo. App. S.D. 1993); State v. Jones, 477 S.W.2d 729 (Mo. App. E.D. 1972). Other forms of appealable orders include the following:

· A ruling on a motion to set aside a plea of guilty, Rule 29.07(d); State ex rel. House v. White, 429 S.W.2d 277 (Mo. App. W.D. 1968)

· A refusal to permit the withdrawal of a plea of guilty, Hamilton v....