State v. Netzer

PER CURIAM. Defendant Kelly Netzer was found guilty of cultivating and growing marijuana by a Dade County jury. The jury assessed punishment at six months confinement in the county jail and three years probation. Thereafter, a motion for new trial was filed and denied. Allocution was granted. Defendant was sentenced to six months in the Dade County jail. However, this appeal cannot presently be considered upon its merits because the transcript on appeal fails to demonstrate that a judgment has been entered. The purported judgment states: “. . . Def’s motion for new trial is taken up and overruled. Allocution granted. Def. sentenced in accordance with verdict of jury to six months in the Dade County Jail. Def. announces purpose to appeal. Appeal bond set at $5000 and def. allowed to deposit $500 cash in security therefor. Def. files Notice of Appeal. DWK.” Rule 27.11, V.A.M.R., requires that “[wjhenever a judgment upon a conviction shall be rendered . . ., the clerk . shall enter such judgment and sentence thereon fully on the minutes, stating briefly the offense for which such conviction shall have been had . . . The instant docket entry fails to constitute entry of judgment as contemplated by the aforementioned rule. This court might assume that the judgment of the cause has been entered but that indicia of the clerk’s ministerial act was merely omitted from the record. However, it is not sufficient that the act has been performed. The record on appeal must demonstrate performance of the act. Therefore, the appeal shall be held in abeyance and the cause remanded for supplementation of the record. State v. Pogue, 552 S.W.2d 75 (Mo.App.1977). It is so ordered. All concur, except FLANIGAN, J., who dissents in separate opinion.