Criminal Law

Ellen H. Flottman, Esquire

Sentencing prior to the expiration of the time for filing a motion for new trial is not jurisdictional, but is error which can be waived by the defendant. State v. Jacobs, No. 32107 (Mo. App. S.D., September 13, 2013), Sheffield, J.

Defendant was convicted of failing to register as a sex offender.

Held: Affirmed
. Criminal judgment entered prior to the expiration of the time for filing a motion for new trial and without the defendant’s express waiver is not “premature and void” after J.C.W. ex rel Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009). Instead, sentencing prior to the expiration of the fifteen-day time period is mere error, which can be waived by the defendant. Here, the defendant did not object to sentencing, the error has been waived, the judgment was not void, and the appellate court has jurisdiction. 

Rosalynn Koch, Esquire

Jurors in the alternate pool cannot be compared with jurors in the petit jury pool for Batson purposes. State v. Thomas, No. 98905 (Mo. App. E.D., September 3, 2013), Hoff, J.

Defendant unsuccessfully challenged a peremptory strike under Batson, arguing that a white venire person in the alternate pool was similarly situated to the juror struck by the state.

Held: Affirmed.
For challenges under Batson, an alternate juror can only be similarly situated to another alternate juror.

Defendant lacked standing to claim violation of his Fourth Amendment rights during search of property he had stolen. State v. Woodrome, No. 75460 (Mo. App. W.D., September 10, 2013), Pfeiffer, J.

Police entered defendant’s trailer park lot to serve an arrest warrant and discovered that his RV was stolen. They then searched other stolen property on the lot. Defendant unsuccessfully moved to suppress the evidence, claiming wrongful entry upon his curtilege, and was convicted of receiving stolen property.

Held: Affirmed.
Whether framed in terms of standing or a legitimate expectation of privacy, a person cannot challenge the search and seizure of stolen property.

Three year statute of limitations for possession of child pornography. State ex rel. Greufe v. Davis, No. 76274 (Mo. App. W.D., September 10, 2013), Witt, J.

Defendant sought a writ of prohibition, claiming that the statute of limitations had expired on charges of possession of child pornography.

Held: Writ made permanent.
Possession of child pornography is not an “unlawful sexual offense” within the meaning of § 566.037. The act of possession does not involve any sexual conduct on the possessor’s part. Consequently, the general three year statute of limitations applies.