McAnulty v. State, 15655

• Decision Date: 02 August 1988
• Docket Number: No. 15655,15655
• Citation: 755 S.W.2d 24
• Parties: John Ray McANULTY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 24

755 S.W.2d 24

John Ray McANULTY, Appellant, v. STATE of Missouri, Respondent.

No. 15655.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 2, 1988.

Nancy A. McKerrow, Columbia, for appellant.

William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM.

This appeal must be dismissed for lack of jurisdiction. Movant John Ray McAnulty seeks to appeal from a judgment denying, without evidentiary hearing, his motion under Rule 27.26 ¹ to set aside a conviction for burglary in the second degree based on a plea of guilty. The order sought to be appealed from was entered on December 23, 1987. No after-trial motion was filed. On March 9, 1988, movant filed a notice of appeal with the clerk of the trial court.

The trial court's order became final at the expiration of 30 days after its entry. Rule 81.05(a). The appeal was not effective because the notice of appeal was filed more than ten days after the order appealed from became final. Rule 81.04(a). In the absence of any request to this court for a special order to appeal under Rule 30.03, and there was no such request, the untimeliness of the filing of the notice of appeal is a jurisdictional defect. Goldberg v. Mos, 631 S.W.2d 342, 345 (Mo.1982).

Appeal dismissed.

All concur.

1 All references to rules are to Missouri Rules of Court, V.A.M.R. Rule 27.26 was repealed effective January 1, 1988. The instant proceeding continues to be governed by Rule 27.26, as the sentence was pronounced prior to January 1, 1988, and movant's motion under Rule 27.26 was pending prior to that date. See Rule 24.035(l ).