Griffin v. State, 36341
| Decision Date | 28 October 1975 |
| Docket Number | No. 36341,36341 |
| Citation | 529 S.W.2d 665 |
| Parties | Alfred GRIFFIN, Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson, City; Brendan Ryan, Circuit Atty., John C. Chancellor, Asst. Circuit Atty., St. Louis, for movant-appellant.
Crouppen, Walther & Zwibelman, Gael T. Infande, St. Louis, for respondent.
This is an appeal from the judgment of the circuit court of the City of St. Louis denying without an evidentiary hearing appellant's motion to vacate sentence filed pursuant to Rule 27.26, V.A.M.R. Because a timely notice of appeal was not filed, we are without jurisdiction and accordingly dismiss the appeal.
On March 8, 1974, appellant filed a second 27.26 motion pro se in the circuit court. On March 18, 1974, in a written opinion the trial court denied appellant's motion without conducting an evidentiary hearing. A motion filed under Rule 27.26 is an independent civil action which is governed, as far as applicable, by the Rules of Civil Procedure. Rule 27.26(a); Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974). An order overruling a 27.26 motion is deemed a final judgment for purposes of appeal. Rule 27.26(j); State v. Gullett, 411 S.W.2d 227, 228 (Mo.1967). Civil Rule 81.05 provides that a judgment becomes final 30 days after its entry, if a motion for new trial is not filed. This rule also requires the notice of appeal to be filed within ten days thereafter to be effective. The judgment of the circuit court on March 18, 1974, denying appellant's motion thus became final for purposes of appeal on April 17, 1974. The appellant had ten days from that date, or until April 27, 1974, to file an appeal. According to the official file of this court, the notice of appeal was not filed until July 1, 1974. The failure to file a timely notice of appeal from the final judgment or order in a 27.26 proceeding deprives the appellate court of jurisdiction to hear this appeal. State v. Gullett, supra, at 228; Johnson v. State, 521 S.W.2d 479, 480 (Mo.App.1975).
We note that in entering its final judgment, the trial court indicated a desire that the judgment be reviewed by a court-appointed attorney and if necessary, appealed. The official record of this court does not disclose when the trial court in fact appointed such counsel. It is possible that counsel was not appointed until after expiration of the...
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Foster v. State, 61175
...be dismissed. State v. Lindner, 498 S.W.2d 754, 756 (Mo. banc 1973); Olds v. State, 532 S.W.2d 518, 519 (Mo.App.1975); Griffin v. State, 529 S.W.2d 665, 666 (Mo.App.1975); Johnson v. State, 521 S.W.2d 479, 480 Appellant entreats us to consider his appeal ex gratia as done in Winston v. Stat......
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Reynolds v. State, 36234.
...entertain this appeal. State v. Gullett, supra, 411 S.W.2d at 228; Johnson v. State, 521 S.W.2d 479, 480 (Mo.App.1975); Griffin v. State, 529 S.W.2d 665 (Mo.App.1975). Nothing in the record indicates that an application was made to the appropriate appellate court to obtain a special order t......
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Hudson v. State
...and move for new trial requesting the court set aside the judgment and for the right to amend or similar relief, Griffin v. State, 529 S.W.2d 665, 666(4) (Mo.App.1975); State v. Gullett, 411 S.W.2d 227, 228(5) (Mo.1967). Failing so to do, appellant may not be heard to complain he was afford......
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Olds v. State, 36493
...entertain this appeal. State v. Gullett, supra, 411 S.W.2d at 228; Johnson v. State, 521 S.W.2d 479, 480 (Mo.App.1975); Griffin v. State, 529 S.W.2d 665 (Mo.App.1975). Nothing in the record indicates that an application was made to the appropriate appellate court to obtain a special order t......