Chapter 547 Appeals, New Trials and Exceptions

547.250 - Forfeiture, where certified.

Steven Groce, Attorney Advertisement

If the forfeiture of the recognizance is taken in the supreme court, the same shall be certified back to the court in which the judgment was rendered; and the supreme court, in such case, and in case the defendant breaks jail, shall proceed to determine the cause, and issue a capias if necessary.

(RSMo 1939 § 4149)

Prior revisions: 1929 § 3759; 1919 § 4105; 1909 § 5311

547.350 - Power of marshal in executing order.

1.The marshal and his deputies, if any, while performing their official duties shall have the same power and like authority in every county of this state, in all respects, as are granted by law to sheriffs.

2.Any person executing a warrant for arrest and transportation issued by the marshal shall have the same power and like authority in all respects when executing the warrant as are granted to sheriffs.

3.The provisions of subsection 1 of this section shall only be applicable to a marshal of the supreme court certified as a peace officer as provided in sections 590.100 to 590.150.

(RSMo 1939 § 4141, A.L. 1982 S.B. 497)

Prior revisions: 1929 § 3751; 1919 § 4097; 1909 § 5303

547.150 - Stay of proceedings and writ of error to be filed.

When any order to stay proceedings shall be made by the supreme court, or by any judge in vacation, the same, together with the writ of error, if any, shall be filed with the clerk of the court in which the judgment was rendered, who shall furnish the party filing the same with a certificate thereof, together with a copy of the order.

(RSMo 1939 § 4134)

Prior revisions: 1929 § 3744; 1919 § 4090; 1909 § 5296

547.050 - Court of its own motion may arrest judgment.

Judgment shall be arrested or set aside whenever it shall be made to appear to the court that the grand jury which found the indictment had no legal authority to inquire into the offense charged; or that the facts stated do not constitute any offense under the laws of this state; and the effect of such an arrest of judgment shall be to place the defendant in the same situation in which he was before indictment was found or information filed and the court may upon its view of any of these defects, arrest the judgment without motion.

(RSMo 1939 § 4127)

Prior revisions: 1929 § 3737; 1919 § 4081; 1909 § 5287

547.340 - Duty of marshal under execution of sentence order — warrant for arrest, issuance, authority under.

1.Where the supreme court shall make an order, as directed in section 547.330, a certified copy of the order shall be given to the marshal of the court, who may without delay issue a warrant for the arrest and transportation of the convict and who shall without delay, either in person, by such deputy marshals as the court may direct, or by any peace officer, as defined in section 542.261, arrest such convict wherever he may be found in this state, transport and deliver him to the proper officer.

2.Upon the request of any district of the court of appeals and with the consent of the supreme court, the marshal of the supreme court shall issue a warrant for the arrest and transportation of a convict where the judgment the convict appealed from has been affirmed or the appeal has been dismissed by that district of the court of appeals or the appeal filed has been withdrawn.

3.A warrant for arrest and transportation may be directed to any peace officer, as defined in section 542.261, and shall authorize that officer to arrest and transport the convict as directed by the marshal.

(RSMo 1939 § 4140, A.L. 1982 S.B. 497)

Prior revisions: 1929 § 3750; 1919 § 4096; 1909 § 5302

547.240 - Recognizances, where certified.

The recognizance authorized by this chapter, if taken by the court or judge before whom the cause was tried, shall be filed with the clerk, and a transcript thereof transmitted with the record, to the supreme court, if taken by the supreme court, or any judge thereof, the clerk of the supreme court shall certify a transcript of the same to the court in which the cause was tried, and such court shall proceed thereon as on a recognizance taken in that court.

(RSMo 1939 § 4148)

Prior revisions: 1929 § 3758; 1919 § 4104; 1909 § 5310

547.040 - Motion in arrest of judgment — abolished.

The motion in arrest of judgment is hereby abolished, and hereafter all the rights which heretofore could have been saved by the defendants in a motion in arrest, and which have not been waived by failure to make timely objections, may be saved in the motion for a new trial.

(RSMo 1939 § 4126)

Prior revisions: 1929 § 3736; 1919 § 4080; 1909 § 5286

547.140 - Suspension of judgment.

If the court in which the judgment was rendered, or the judge thereof, refuse such order, he shall nevertheless suspend the execution of the judgment, except as to fine and costs, if necessary, to allow sufficient time to make application to the supreme court, or a judge thereof, for such order.

(RSMo 1939 § 4133)

Prior revisions: 1929 § 3743; 1919 § 4089; 1909 § 5295

547.060 - In cases of arrest, court may order prisoner recommitted.

When judgment is arrested in any case, and there is reasonable ground to believe that the defendant can be convicted of an offense, if properly charged, the court may order the defendant to be recommitted or admitted to bail anew to answer a new indictment or information.

(RSMo 1939 § 4128)

Prior revisions: 1929 § 3738; 1919 § 4084; 1909 § 5290

547.160 - Sheriff to keep prisoner in custody, when.

If the defendant in the judgment so ordered to be stayed shall be in custody, it shall be the duty of the sheriff, if the order were made by the court rendering the judgment, or upon being served with the clerk's certificate and a copy of the order, to keep the defendant in custody without executing the sentence which may have been passed, to abide such judgment as may be rendered upon the appeal or the writ of error.

(RSMo 1939 § 4135)

Prior revisions: 1929 § 3745; 1919 § 4091; 1909 § 5297

547.360 - Post conviction relief.

1.A person convicted of a felony on a plea of guilty or after trial and delivered to the custody of the department of corrections who claims that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this section.This section provides the exclusive procedure by which such person may seek relief in the sentencing court for the claims enumerated.The procedure to be followed for motions filed pursuant to this section is governed by the rules of civil procedure insofar as applicable.

2.A person seeking relief pursuant to this section shall file a motion to vacate, set aside or correct the judgment or sentence substantially in the form of Criminal Procedure Form No. 40.No cost deposit shall be required.If an appeal of the judgment sought to be vacated, set aside or corrected was taken, the motion shall be filed within ninety days after the date the mandate of the appellate court is issued.If no appeal of such judgment was taken, the motion shall be filed within ninety days of the date the person is delivered to the custody of the department of corrections.Failure to file a motion within the time provided by this section shall constitute a complete waiver of any right to proceed pursuant to this section and a complete waiver of any claim that could be raised in a motion filed pursuant to this section.

3.Movant shall file the motion and two copies thereof with the clerk of the trial court.The clerk shall immediately deliver a copy of the motion to the prosecutor.Upon receipt of the motion, the clerk shall notify the sentencing judge and shall notify the court reporter to prepare and file the complete transcript of the movant's trial, guilty plea and sentencing hearing if the transcript has not yet been prepared or filed.If the motion is filed by an indigent pro se movant, the clerk shall forthwith send a copy of the motion to the counsel who is appointed to represent the movant.

4.The motion to vacate shall include every claim known to the movant for vacating, setting aside, or correcting the judgment or sentence.The movant shall declare in the motion that the movant has listed all claims for relief known to the movant and acknowledging the movant's understanding that the movant waives any claim for relief known to the movant that is not listed in the motion.

5.When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant.Counsel shall ascertain whether sufficient facts supporting the claims are asserted in the motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence.If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims.If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that:

(1)All facts supporting the claims are asserted in the pro se motion; and

(2)All claims known to the movant are alleged in the pro se motion.

The statement shall be presented to the movant prior to filing.The movant may file a reply to the statement not later than ten days after the statement is filed.

6.For good cause shown, counsel may be permitted to withdraw upon the filing of an entry of appearance by successor counsel.If appointed counsel is permitted to withdraw, the court shall cause new counsel to be appointed.If an indigent movant is seeking to set aside a death sentence, successor counsel shall have at least the same qualifications as required by section 547.370 as the withdrawing counsel.

7.Any amended motion shall be signed by movant or counsel. The amended motion shall not incorporate by reference material contained in any previously filed motion.If no appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of:

(1)The date both a complete transcript consisting of the guilty plea and sentencing hearing has been filed in the trial court and counsel is appointed; or

(2)The date both a complete transcript has been filed in the trial court and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.

If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of:

(3)The date both the mandate of the appellate court is issued and counsel is appointed; or

(4)The date both the mandate of the appellate court is issued and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.

The court may extend the time for filing the amended motion for one additional period not to exceed thirty days.Any response to the motion by the prosecutor shall be filed within thirty days after the date an amended motion is required to be filed.

8.If the court shall determine the motion and the files and records of the case conclusively show that the movant is entitled to no relief, a hearing shall not be held.In such case, the court shall issue findings of fact and conclusions of law as provided in subsection 10 of this section.

9.At any hearing ordered by the court the movant need not be present. The court may order that testimony of the movant shall be received by deposition.The hearing shall be on the record and shall be confined to the claims contained in the last timely filed motion.The court may continue the hearing upon a showing of good cause.The movant has the burden of proving the movant's claims for relief by a preponderance of the evidence.

10.The court shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.If the court finds that the judgment was rendered without jurisdiction, that the sentence imposed was illegal, or that there was a denial or infringement of the rights given movant by the Constitution of Missouri or the Constitution of the United States as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and shall discharge the movant or resentence the movant or order a new trial or correct the judgment and sentence as appropriate.

11.An order sustaining or overruling a motion filed under the provisions of this section shall be deemed a final judgment for purposes of appeal by the movant or the state.If the court finds that a movant allowed an appeal is an indigent person, it shall authorize an appeal in forma pauperis and furnish without cost a record of all proceedings for appellate review.When the appeal is taken, the circuit court shall order the official court reporter to promptly prepare the transcript necessary for appellate review without requiring a letter from the movant's counsel ordering the same.If the sentencing court finds against the movant on the issue of indigence and the movant so requests, the court shall certify and transmit to the appellate court a transcript and legal file of the evidence solely on the issue of indigence so as to permit review of that issue by the appellate court.Appellate review of the trial court's action on the motion filed under this section shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.

12.The circuit court shall not entertain successive motions.

(L. 1997 S.B. 56 §§ 12 and 14)

547.260 - Attorney general and chief administrative officer to be notified of appeal, how, by whom.

If any person shall appeal to the supreme court from a conviction and sentence for a felony in any court in this state having the jurisdiction to try and determine felonies, the clerk thereof shall immediately notify the attorney general of the state of Missouri in writing by mail, giving the name of the appellant, the nature of the crime, the substance of the judgment and sentence, and the date of the order granting the appeal.In those cases wherein the appellant shall have been sentenced to suffer death, the clerk of the court in which the conviction was had shall also immediately give like notice to the chief administrative officer of the correctional facility of the department of corrections by registered mail, unless time requires a more expedient notice.In all cases where a person shall have been sentenced to suffer death in this state and shall file a petition for a writ of error in the supreme court, the clerk of the supreme court shall immediately give like notice to the chief administrative officer of the correctional facility of the department of corrections, of the issuance of the writ, the name of the plaintiff in error and the other facts above specified.The notice shall be conveyed in person by the marshal of the supreme court to the chief administrative officer.

(L. 1941 p. 343 § 1, A.L. 1990 H.B. 974)

547.035 - Postconviction DNA testing for persons in the custody of the department — motion, contents — procedure.

1.A person in the custody of the department of corrections claiming that forensic DNA testing will demonstrate the person's innocence of the crime for which the person is in custody may file a postconviction motion in the sentencing court seeking such testing.The procedure to be followed for such motions is governed by the rules of civil procedure insofar as applicable.

2.The motion must allege facts under oath demonstrating that:

(1)There is evidence upon which DNA testing can be conducted; and

(2)The evidence was secured in relation to the crime; and

(3)The evidence was not previously tested by the movant because:

(a)The technology for the testing was not reasonably available to the movant at the time of the trial;

(b)Neither the movant nor his or her trial counsel was aware of the existence of the evidence at the time of trial; or

(c)The evidence was otherwise unavailable to both the movant and movant's trial counsel at the time of trial; and

(4)Identity was an issue in the trial; and

(5)A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing.

3.Movant shall file the motion and two copies thereof with the clerk of the sentencing court.The clerk shall file the motion in the original criminal case and shall immediately deliver a copy of the motion to the prosecutor.

4.The court shall issue to the prosecutor an order to show cause why the motion should not be granted unless:

(1)It appears from the motion that the movant is not entitled to relief; or

(2)The court finds that the files and records of the case conclusively show that the movant is not entitled to relief.

5.Upon the issuance of the order to show cause, the clerk shall notify the court reporter to prepare and file the transcript of the trial or the movant's guilty plea and sentencing hearing if the transcript has not been prepared or filed.

6.If the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief, a hearing shall not be held.If a hearing is ordered, counsel shall be appointed to represent the movant if the movant is indigent.The hearing shall be on the record.Movant need not be present at the hearing. The court may order that testimony of the movant shall be received by deposition.The movant shall have the burden of proving the allegations of the motion by a preponderance of the evidence.

7.The court shall order appropriate testing if the court finds:

(1)A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing; and

(2)That movant is entitled to relief.

Such testing shall be conducted by a facility mutually agreed upon by the movant and by the state and approved by the court.If the parties are unable to agree, the court shall designate the testing facility.The court shall impose reasonable conditions on the testing to protect the state's interests in the integrity of the evidence and the testing process.

8.The court shall issue findings of fact and conclusions of law whether or not a hearing is held.

(L. 2001 S.B. 267)

547.170 - Prisoner, when let to bail.

In all cases where an appeal or writ of error is prosecuted from a judgment in a criminal cause, except where the defendant is under sentence of death or imprisonment in the penitentiary for life, or any sentence of imprisonment for a violation of sections 579.065*, 565.021, 565.050, section 566.030, 566.032, 566.040, 566.060, 566.062, 566.070, 566.100, or where the defendant has entered a plea of guilty to or been found guilty of any sexual offense under chapter 566, where the victim was less than seventeen years of age at the time the crime was committed, any sexual offense under chapter 568, where the victim was less than seventeen years of age at the time the crime was committed, or any pornographic offense involving a minor as set forth in sections 573.023, 573.025, 573.035, 573.037, and 573.040, any court or officer authorized to order a stay of proceedings under the preceding provisions may allow a writ of habeas corpus, to bring up the defendant, and may thereupon let him to bail upon a recognizance, with sufficient sureties, to be approved by such court or judge.

(RSMo 1939 § 4136, A.L. 1993 S.B. 180, A.L. 2002 S.B. 758 merged with S.B. 969, et al., A.L. 2006 H.B. 1698, et al.)

Prior revisions: 1929 § 3746; 1919 § 4092; 1909 § 5298

Effective 6-05-06

*Section 195.222 was transferred to section 579.065 by S.B. 491, 2014, effective 1-01-17.

CROSS REFERENCE:

No bail, certain defendants, certain offenses, 544.671

(1975) Unwillingness of private bondsman to underwrite petitioner's release is no basis for a writ of habeas corpus. Application of Holt (A.), 518 S.W.2d 451.

547.070 - Appeals — when granted.

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, provided, defendant or his attorney of record shall during the term at which the judgment is rendered file his written application for such appeal.

(RSMo 1939 § 4130)

Prior revisions: 1929 § 3740; 1919 § 4086; 1909 § 5292

(1951) Where no appeal was applied for within the time provided by this section and no writ of error was applied for or issued within time fixed by supreme court rule 1.34, the supreme court has no jurisdiction of the appeal. State v. Smith (Mo.), 242 S.W.2d 515.

(1952) Where record showed motion for new trial filed and overruled but failed to show allocution, sentence and judgment, appeal was premature and cause must be remanded.State v. Bledsoe (Mo.), 249 S.W.2d 457; (1952) State v. Skaggs (Mo.), 248 S.W.2d 635.

(1957) Notice of appeal procedure specified by supreme court rule 28.03 has superseded this statute. State v. Amsden (Mo.), 299 S.W.2d 498.

(1984) A suspended imposition of sentence is not a final judgment for purposes of appeal. State v. Lynch (Mo. banc), 679 S.W.2d 858.

(1994) Defendant may not appeal from conviction in which imposition of sentence was suspended, because suspended imposition of sentence is not final appealable judgment as required by section.State v. Detherage, 869 S.W.2d 293 (Mo. App. E.D.).

547.270 - No assignment, or joinder in error, necessary.

No assignment of error, or joinder in error, shall be necessary upon any appeal or writ of error, in a criminal case, issued or taken pursuant to the foregoing provisions of this chapter, but the court shall proceed upon the return thereof without delay, and render judgment upon the record before them.

(RSMo 1939 § 4150)

Prior revisions: 1929 § 3760; 1919 § 4106; 1909 § 5312

(1964) Since defendant did not file a motion for new trial alleged errors presented in defendant's brief relative to improper cross examination of defense witness and admission of certain evidence were not preserved for review. State v. Kennebrew (Mo.), 380 S.W.2d 293.

547.370 - Post conviction relief, death penalty.

1.When a motion is filed as provided in section 547.360 to set aside a sentence of death, the court shall find on the record whether the movant is indigent.If the movant is indigent, the court shall cause to be appointed two counsel to represent the movant.If movant seeks to reject the appointment of counsel, the court shall find on the record, after a hearing, if necessary, whether the movant is able to competently decide whether to accept or reject the appointment and whether the movant rejected the offer with the understanding of its legal consequences.Unless the movant is so competent and understands the legal consequences, movant shall not be permitted to reject the appointment of counsel.

2.All counsel appointed as provided in this section shall be members of The Missouri Bar or shall be admitted to practice in the particular case as provided in Missouri supreme court rule 9.At least one of the counsel shall meet the following qualifications:

(1)Have attended and successfully completed within two years immediately preceding the appointment at least twelve hours of training or educational programs on the postconviction phase of a criminal case and federal and state aspects of cases in which the death penalty is sought; and

(2)Have at least three years litigation experience in the field of criminal law; and

(3)Have participated as counsel or co-counsel to final judgment in at least five postconviction motions involving class A felonies in either state or federal trial courts; and

(4)Have participated in either state or federal court as counsel or co-counsel to final judgment in at least:

(a)Three felony jury trials; or

(b)Five direct criminal appeals in felony cases.

Counsel shall certify to the state public defender in such form as the defender may require that counsel meets the qualifications of this section prior to filing counsel's entry of appearance in the case.

3.Counsel appointed to represent the movant shall not have represented the movant at trial or on the direct appeal therefrom.

4.As to any counsel appointed as provided in this section, the state public defender shall provide counsel with reasonable compensation and shall provide reasonable and necessary litigation expenses.

(L. 1997 S.B. 56 §§ 13 and 15)

547.020 - New trials — when granted.

The court may grant a new trial for the following causes, or any of them:

(1)When the jury has received any evidence, papers or documents, not authorized by the court, or the court has admitted illegal testimony, or excluded competent and legal testimony, or for newly discovered evidence;

(2)When the jury has been separated without leave of the court, after retiring to deliberate upon their verdict, or has been guilty of any misconduct tending to prevent a fair and due consideration of the case;

(3)When the verdict has been decided by means other than a fair expression of opinion on the part of all the jurors;

(4)When the court has misdirected the jury in a material matter of law;

(5)When the verdict is contrary to the law or evidence.

(RSMo 1939 § 4124)

Prior revisions: 1929 § 3734; 1919 § 4078; 1909 § 5284

(1952) Where jurors during trial were transported by sheriff and deputy sheriffs to and were quartered in residence nineteen miles from courthouse, and doctors were called and administered "shots" to two jurors in presence of sheriff both at said residence and at courthouse and some of jurors retired to restroom while others remained outside all in presence of sheriff, there was no prejudicial error. State v. Rose (Mo.), 249 S.W.2d 324.

(1953) Where in burglary case sheriff, who was one of the state's main witnesses, was observed talking to juror about a burglary case after close of evidence but before submission and the state made no showing whatever that juror was not subjected to improper influence, the verdict against defendant should be set aside. State v. Jones, 363 Mo. 998, 255 S.W.2d 801.

(1956) Where juror on voir dire in robbery prosecution failed to disclose that accessories on his automobile had disappeared and testified that such accessories were of small value and that he had forgotten the incident, the verdict would not be disturbed. State v. Townzell (Mo.), 286 S.W.2d 785.

547.120 - Transcript prepared by appellant, when.

When the appeal or writ of error does not operate as a stay of proceedings, such transcript shall be made out, certified and returned, on the application of the appellant or plaintiff in error, as in civil cases, except that the costs of the transcript shall not be required in advance.

(RSMo 1939 § 4147)

Prior revisions: 1929 § 3757; 1919 § 4103; 1909 § 5309

(1954) Where a death penalty is imposed and appeal taken, clerk is required to make out and return transcript to Supreme Court but in other cases appellant himself must see that his appeal is duly perfected. Turner v. Eidson (C.C.A.), 215 F.2d 728.

547.320 - Cause remanded, procedure.

The court to which any criminal cause shall be remanded for a new trial shall proceed therein in the same manner as if such cause had not been removed into the supreme court.

(RSMo 1939 § 4157)

Prior revisions: 1929 § 3767; 1919 § 4113; 1909 § 5318

547.220 - Defendant to make recognizance in cases of appeal.

If an appeal be granted, the court below shall order the defendant to be committed or recognized, and the recognizance shall be to the same effect as the recognizance required when the defendant himself is appellant; and the party, if committed, shall be held in custody until the judgment of the supreme court shall have been passed on the case, to abide such judgment.

(RSMo 1939 § 4144)

Prior revisions: 1929 § 3754; 1919 § 4100; 1909 § 5306

547.130 - Stay of execution, when — exceptions.

No such appeal or writ shall stay or delay the execution of such judgment or sentence, except in capital cases, unless the supreme court, or a judge thereof, or the court in which the judgment was rendered, or the judge of such court, on inspection of the record, shall be of opinion that there is probable cause for such an appeal or writ of error, or so much doubt as to render it expedient to take the judgment of the supreme court thereon, and shall make an order expressly directing that such appeal or writ of error shall operate as a stay of proceedings on the judgment; but in capital cases the order granting the appeal shall operate as such stay absolutely.

(RSMo 1939 § 4132)

Prior revisions: 1929 § 3742; 1919 § 4088; 1909 § 5294

547.030 - Motion for new trial.

The motion for a new trial shall be in writing and must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.Such motion shall be filed before judgment and within four days after the return of the verdict; provided, on application of defendant, the court may extend the time for filing such motion for a period of thirty days; provided further, the court shall have no power to make another or further extension of the time for filing said motion.

(RSMo 1939 § 4125)

Prior revisions: 1929 § 3735; 1919 § 4079; 1909 § 5285

1952) Assignments in motion for new trial that jury verdict was against weight of the evidence and against the law and evidence present nothing for consideration on appeal. State v. Johnson (Mo.), 248 S.W.2d 654; (1952) State v. Politte (Mo.), 249 S.W.2d 366.

(1952) Assignment in motion for new trial "That the court erred in overruling and denying motion to quash search warrant, sheriff's return thereon and to suppress evidence secured thereunder" held not to preserve action of court for review.State v. Tebbe (A.), 249 S.W.2d 172.

(1953) Court could not review refusal of trial court to give instruction converse to state's main instruction where new trial motion assigned only failure to instruct upon all the law of the case. State v. Dennis (Mo.), 242 S.W.2d 534.

(1953) Assignment in motion for new trial that certain instructions "did not properly declare the law of the case" presents nothing for review. State v. Bledsoe, 254 S.W.2d 618.

(1953) Failure to specify error in giving instruction in motion for new trial, prevents consideration thereof on appeal. State v. Boyd (Mo.), 256 S.W.2d 765.

(1953) An assignment that "the verdict of the jury is against the evidence and the law in this case" is insufficient to preserve anything for review. State v. Gaddy (Mo.), 261 S.W.2d 65.

(1954) Objections to instructions on ground they conflicted and commented on evidence will be disregarded when facts on which the objections are made are not stated. State v. Hathaway (Mo.), 269 S.W.2d 57.

(1954) General assignments of error held insufficient to present anything for review. State v. McBrayer (Mo.), 269 S.W.2d 756.

(1954) Allegation in motion for new trial that court erred in giving all of state's instructions preserved nothing for review.State v. Riley (Mo.), 270 S.W.2d 741.

(1954) Allegation in motion for new trial that court erred in giving all of state's instructions preserved nothing for review.State v. Riley (Mo.), 270 S.W.2d 741.

(1955) Motion for new trial filed after the expiration of the time allowed by law for its filing is a nullity. State v. Clark (Mo.), 277 S.W.2d 593.

(1956) Assignment that court erred in "admitting evidence which was obtained by unlawful search and seizure" over objection held to preserve nothing for review where no complaint was made as to the denial of a motion to suppress. State v. Lord (Mo.), 286 S.W.2d 737.

(1958) Where judgment was rendered on May 17, 1957, and motion for new trial was not filed until May 22 and overruled Aug. 16, 1957, notice of appeal filed Aug. 17, 1957, was not timely filed and appellate court had no jurisdiction of appeal.State v. Laurisden (A.), 318 S.W.2d 511.

(1959) Where defendant objected at trial to admission of evidence as hearsay, but in motion for new trial assigned as error the admission of the same evidence only as "highly inflammatory" the alleged error was not preserved for review. State v. Hernandez (Mo.), 325 S.W.2d 494.

(1960) Where motion for new trial assigned only the giving of the principal instruction in narcotics apparatus possession case as error, a subsequent contention that court failed to instruct on the intent with which devices were possessed could not be considered on appeal. State v. Scott (Mo.), 333 S.W.2d 41.

(1960) In appeal from conviction of burglary and larceny where motion for new trial failed to set forth in detail and with particularity the specific grounds therefor the court would not review the assignments of error but would consider sufficiency of information since it was a part of the record and since assignment that "court erred in denying defendant's motion for directed verdict of acquittal at the close of all the evidence" is equivalent of claim of "no substantial evidence to support verdict" court would review sufficiency of evidence.State v. Mallory (Mo.), 336 S.W.2d 383.

(1961) Where court granted defendant thirty days from date of verdict to file motion for new trial and motion was timely filed but petition to amend motion was not filed until seventy-two days after verdict, the amended assignment was not timely filed. State v. Small (Mo.), 344 S.W.2d 49.

547.230 - State may sue out writ of error.

The prosecuting attorney may apply for and prosecute a writ of error in the supreme court, in like manner and with like effect as such writ may be prosecuted by the defendant; but in such case the defendant shall not be required to enter into any recognizance to answer further to such offense, but if the judgment of the circuit court shall be reversed, the defendant may be arrested on warrant and brought before the circuit court for judgment, or such other proceedings as the case may require.

(RSMo 1939 § 4145, A.L. 1983 H.B. 279)

Prior revisions: 1929 § 3755; 1919 § 4101; 1909 § 5307

547.330 - Affirmation of conviction or dismissal of appeal, execution of sentence, arrest of convict, when.

In all cases where the conviction of a defendant is affirmed on appeal or the appeal is dismissed or withdrawn and the defendant is to be imprisoned in any jail or by the department of corrections, the court affirming or dismissing the appeal or in which the appeal is withdrawn shall direct the sentence pronounced to be executed, and for this purpose the court shall order the marshal of the court to arrest the convict, and deliver him to the proper official.In its discretion the court may order the marshal to arrest the convict prior to the date the opinion of the court affirming the judgment in the cause is made public.

(RSMo 1939 § 4139, A.L. 1982 S.B. 497)

Prior revisions: 1929 § 3749; 1919 § 4095; 1909 § 5301

547.210 - Indictment or information insufficient, defendant held — state may appeal.

When any indictment or information is adjudged insufficient upon demurrer or exception, or where judgment thereon is arrested or set aside, the court in which the proceedings were had, either from its own knowledge or from information given by the prosecuting attorney that there is reasonable ground to believe that the defendant can be convicted of an offense, if properly charged, may cause the defendant to be committed or recognized to answer a new indictment or information, or if the prosecuting attorney prays an appeal to an appellate court, the court may, in its discretion, grant an appeal.

(RSMo 1939 § 4143)

Prior revisions: 1929 § 3753; 1919 § 4099; 1909 § 5305

(1954) Supreme Court rule as to appeals by state in criminal case does not deprive defendant of any right, and is valid since it only changes the mode of appeal, not the right. State v. Getty (Mo.), 273 S.W.2d 170.

(1963) State could not appeal from dismissal of information and discharge of defendant, in prosecution for burglary and stealing from estate of deceased, which was not based solely on failure of information to state an accusation, but was also based on stipulation by parties setting out facts in support of defendant's defense that he could not be guilty because he was a lawful heir. State v. Brooks (Mo.), 372 S.W.2d 83.

(1973) Where defendant moved to dismiss on ground that it was legally incapable of committing crime under state laws, was immune to criminal liability, not criminally liable for any criminal acts of its agents or employees and was not included within those enumerated legal entities subject to fish and game code, there was no attack upon "sufficiency of the accusation", and Court of Appeals had no jurisdiction to review, on state's appeal, grant of the motion. State v. Little River Drainage District (A.), 490 S.W.2d 675.

(1977) Held, procedure for state to appeal has been changed by Ct. Rule 28.04, and application to trial court to appeal is no longer required. State v. Adams (A.), 546 S.W.2d 550.

547.310 - Defendant ordered arrested, when.

If the defendant shall have been recognized as herein provided, and shall fail to appear and receive judgment on such appeal or writ of error, or at any new trial that may have been ordered, the supreme court or the court below in which the judgment was rendered, or any judge of either court, shall cause such defendant to be arrested, upon process to be issued for that purpose.

(RSMo 1939 § 4156)

Prior revisions: 1929 § 3766; 1919 § 4112; 1909 § 5317

547.110 - Transcript on appeal prepared by clerk, when.

When any appeal shall be taken or writ of error issued, which shall operate as a stay of proceedings, it shall be the duty of the clerk of the court in which the proceedings were had to make out a full transcript of the record in the cause including the bill of exceptions, judgment and sentence, and certify and transmit same to the office of the clerk of the proper appellate court without delay; provided, however, that any abbreviated or partial transcript of the evidence and oral proceedings, in narrative form or otherwise which the defendant or his attorney for the state may agree upon in writing as sufficiently presenting to the appellate court the issues involved on such appeal, shall be deemed and taken as sufficient on such appeal and shall by the clerk be incorporated in the transcript of the record certified and transmitted by him to the appellate court, instead of the bill of exceptions mentioned above.

(RSMo 1939 § 4146)

Prior revisions: 1929 § 3756; 1919 § 4102; 1909 § 5308

CROSS REFERENCES:

Amendment of record by trial court while cause pending on appeal, 546.090

Exceptions and transcripts, generally, 546.370

(1952) Appellant is required to furnish full transcript including judgment and sentence, but where record is certified to be a true and complete transcript by the clerk, appellant has performed his duty, and appeal will not be dismissed. State v. Skaggs (Mo.), 248 S.W.2d 635.

547.010 - New trials.

Verdicts may be set aside, and new trials awarded on the application of the defendant.A new trial is a reexamination of the issue in the same court; the former verdict shall not be used or referred to on the subsequent trial, either in the evidence or argument.

(RSMo 1939 § 4123)

Prior revisions: 1929 § 3733; 1919 § 4077; 1909 § 5283

547.300 - Effect of affirmance or reversal.

Where the appeal has been taken or writ of error sued out by the state, if the judgment of the court be affirmed, the party shall be discharged; if reversed, the supreme court shall direct the court below to enter up judgment upon the verdict rendered, or, where no verdict has been rendered, to proceed to trial on the indictment or information.

(RSMo 1939 § 4154)

Prior revisions: 1929 § 3764; 1919 § 4110; 1909 § 5315

547.200 - Appeal by state.

1.An appeal may be taken by the state through the prosecuting or circuit attorney from any order or judgment the substantive effect of which results in:

(1)Quashing an arrest warrant;

(2)A determination by the court that the accused lacks the mental capacity or fitness to proceed to trial, pursuant to section 552.020;

(3)Suppressing evidence; or

(4)Suppressing a confession or admission.

2.The state, in any criminal prosecution, shall be allowed an appeal in the cases and under the circumstances mentioned in section 547.210 and in all other criminal cases except in those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant.The supreme court shall issue rules governing such appeals.

3.The appeal provided in subsection 1 of this section shall be an interlocutory appeal, filed in the appropriate district of the Missouri court of appeals, unless the proceedings involve a charge of capital murder or murder in the first degree, pursuant to the provisions of section 565.001 or 565.003, in which case notices of appeal shall be filed in the supreme court of Missouri.

4.Notices of appeal involving appeals under subsection 1 of this section shall be filed in the appropriate court within five days of the entry of the order of the trial court.In such appeals, the time requirements of section 545.780 shall be tolled until the decision is rendered by the appropriate appellate court.

5.The supreme court shall issue appropriate rules to facilitate the disposition of such appeals, balancing the right of the state to review the correctness of pretrial decisions of a trial court against the rights of the defendant to a speedy trial, including measures to facilitate these appeals by shortening of the time to file appellant's brief under supreme court rule 30.06(K) to ten days, and eliminations of motions for rehearing or transfer under supreme court rules 30.26 and 30.27.

(RSMo 1939 § 4142, A.L. 1983 H.B. 279, A.L. 1997 S.B. 56)

Prior revisions: 1929 § 3752; 1919 § 4098; 1909 § 5304

(1956) Court rule could not change the law relating to the right of appeal, so that appeal by state from order setting aside verdict in criminal case on ground evidence was insufficient to sustain conviction would be dismissed. State v. Pottinger, 365 Mo. 794, 287 S.W.2d 782.

(1961) Where information was dismissed for the reason it was filed after the end of the term in which a previous indictment was filed and the defendant had had no preliminary examination the state had no right to appeal because the indictment was not held to be insufficient. State v. Ulmer (Mo.), 351 S.W.2d 7.

(1985) The "good faith" exception to the exclusionary rule does not apply where the invalidity of the warrant is based on state statute. State v. Berkwit (Mo.App.E.D.), 689 S.W.2d 763.

547.100 - Appeals in misdemeanor cases — procedure.

If any person taking an appeal from the circuit court on a conviction for a misdemeanor shall fail to perfect the appeal within six months from the time the appeal is granted, the prosecuting attorney may file his motion before the court in which the conviction was had, asking that the appeal may be dismissed and the order granting the appeal be set aside; whereupon the court shall make an order that the appeal be dismissed and the order granting the appeal be set aside and for naught held, unless the defendant shall show to the satisfaction of the court good cause for not perfecting his appeal, in which case the court may overrule the motion, and from the date of making such order dismissing the appeal, the judgment shall be and remain in force the same as if no appeal had been granted.

(RSMo 1939 § 4152, A.L. 1978 H.B. 1634)

Prior revisions: 1929 § 3762; 1919 § 4108

Effective 1-02-79

547.290 - Supreme court shall direct execution of sentence, when.

When the appeal is taken, or the writ of error is sued out by the party indicted, if the supreme court affirm the judgment of the court below it shall direct the sentence pronounced to be executed, and the same shall be executed accordingly; if the judgment be reversed, the supreme court shall direct a new trial, or that defendant be absolutely discharged, according to the circumstances of the case.

(RSMo 1939 § 4153)

Prior revisions: 1929 § 3763; 1919 § 4109; 1909 § 5314

547.190 - Recognizance on appeal — misdemeanor cases.

Where an appeal or writ of error is prosecuted from a judgment in case of misdemeanor, or in case the appeal is taken by the state, the recognizance shall be conditioned that the defendant shall appear in the court in which the judgment shall have been rendered at such time and place as the appellate court shall direct, and that he will render himself in execution, and obey any order or judgment which shall be made in the premises.

(RSMo 1939 § 4138)

Prior revisions: 1929 § 3748; 1919 § 4094; 1909 § 5300

547.090 - Appeals in felony cases, within what time.

If any person taking an appeal to the supreme court on conviction for a felony, other than those wherein the defendant shall have been sentenced to suffer death, shall fail to perfect the appeal within six months from the time the appeal is granted, unless good and sufficient cause for not perfecting his appeal be shown to the trial court, for which reason the trial court, or the judge of the trial court in vacation, may extend this time for the period of ninety days, the attorney general may file his motion before the supreme court asking that the appeal may be dismissed or that the judgment of the trial court may be affirmed, whereupon the court shall make an order that the appeal be dismissed, or that the judgment of the trial court be affirmed, as the case may be, unless the defendant shall show to the satisfaction of the court good cause for not perfecting his appeal.

(RSMo 1939 § 4151, A.L. 1941 p. 342)

Prior revisions: 1929 § 3761; 1919 § 4107; 1909 § 5313

(1955) Trial judge under supreme court rule 3.26 has no authority to extend time for filing of transcript beyond six months from day notice of appeal was filed. State v. Grant (Mo.), 275 S.W.2d 332.

547.280 - Errors as to time or place of imprisonment, no ground for reversal.

No judgment shall be reversed or set aside by the appellate court, for the reason that the judgment by virtue of which such person is confined, or from which he has prosecuted an appeal or writ of error, was erroneous as to time or place of imprisonment, but in such case it shall be the duty of the court or officer hearing the case to sentence such person to the proper place of confinement, and for the correct length of time, from and after the date of the original sentence, and to cause the officer or other person having such prisoner in charge to convey him forthwith to such designated place of imprisonment.

(RSMo 1939 § 4155)

Prior revisions: 1929 § 3765; 1919 § 4111; 1909 § 5316

(1951) Where fine is less than maximum required by statute it is error in favor of defendant of which he cannot complain on appeal. State v. Keith (Mo.), 241 S.W.2d 901.

(1954) Where no brief was filed and transcript contained nothing beyond record proper (prior to adoption of Rule 28.08) court on appeal could only render judgment on record.State v. Smith (A.), 268 S.W.2d 48.

(1973) Where defendant was charged with assault with intent to maim without malice but was convicted of assault with intent to maim with malice, the court was without jurisdiction to impose sentence and the judgment was absolutely void, not erroneous as to time, and defendant could not be resentenced.State v. Barnes (Mo.), 492 S.W.2d 729.

547.080 - Writs of error.

Writs of error upon any such final judgment are writs of right, and, on application therefor, shall issue of course, in vacation as well as in term, out of the court in which by law they may be made returnable.

(RSMo 1939 § 4131)

Prior revisions: 1929 § 3741; 1919 § 4087; 1909 § 5293

547.180 - Condition of recognizance — felony cases.

The recognizance shall, in case of felonies not excepted in section 547.170, be conditioned that the defendant shall appear in the supreme court at the next term thereof, to receive judgment on the appeal or writ of error, and in the court in which the trial or indictment shall have been had, if the supreme court shall so order, and at such time and place as such court shall direct, and that he will render himself in execution, and obey every order and judgment which shall be made in the premises.

(RSMo 1939 § 4137)

Prior revisions: 1929 § 3747; 1919 § 4093; 1909 § 5299

547.037 - Motion for release filed, when, procedure.

1.If testing ordered pursuant to section 547.035 demonstrates a person's innocence of the crime for which the person is in custody, a motion for release may be filed in the sentencing court.

2.The court shall issue to the prosecutor an order to show cause why the motion should not be granted.The prosecutor shall file a response consenting to or opposing the motion.

3.If the prosecutor consents to the motion and if the court finds that such testing demonstrates the movant's innocence of the crime for which he or she is in custody, the court shall order the movant's release from the sentence for the crime for which testing occurred.

4.If the prosecutor files a response opposing the movant's release, the court shall conduct a hearing.If a hearing is ordered, the public defender shall be appointed to represent the movant if the movant is indigent.The hearing shall be on the record.The movant shall have the burden of proving the allegations of the motion by a preponderance of the evidence.

5.If the court finds that the testing ordered pursuant to section 547.035 demonstrates the movant's innocence of the crime for which he or she is in custody, the court shall order the movant's release from the sentence for the crime for which the testing occurred.Otherwise, relief shall be denied the movant.

6.The court shall issue findings of fact and conclusions of law whether or not a hearing is held.An appeal may be taken from the court's findings and conclusions as in other civil cases.