State v. Brookshire
| Decision Date | 14 February 1966 |
| Docket Number | No. 1,No. 51440,51440,1 |
| Citation | 400 S.W.2d 61 |
| Parties | STATE of Missouri, Respondent, v. W. A. BROOKSHIRE, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Jefferson City, Atty. Atty. Gen., for respondent.
W. A. Brookshire, pro se.
This is a proceeding by motion under Rule 27.26 () to vacate and set aside a judgment entered October 16, 1961, by the circuit court of Cooper County sentencing defendant to imprisonment in the penitentiary for a term of ten years on his conviction of murder in the second degree. That judgment was affirmed by this court on April 8, 1963. See: State v. Brookshire, Mo., 368 S.W.2d 373.
Defendant's motion was filed in the trial court on November 21, 1964. On February 1, 1965, that court found on examination of the motion and the files and records of the case (1) that no claim for relief was stated in the motion and (2) that the issues raised by the motion had been adjudicated adversely to defendant by this court in State v. Brookshire, supra. Based on these findings the court entered an order on the same day overruling defendant's motion without a hearing. Only in passing do we note that but for reasons compelling other disposition of this case, the order of the court would be affirmed, primarily for the reason stated in what we have designated above as (2) of the trial court's findings.
The state has moved to dismiss the appeal for the reasons: (1) that the notice of appeal was not timely filed, and (2) that the transcript on appeal was not timely filed. There is merit in both grounds, but we need treat only with the first. As stated, the order overruling defendant's motion to vacate was entered February 1, 1965. On February 10, 1965, defendant filed a notice of appeal with the circuit clerk, but failed to deposit with the clerk the docket fee of $10. During oral argument before this court the defendant stated: The docket fee was deposited with the circuit clerk on April 1, 1965, by a person described by the clerk as Trustee for W. A. Brookshire.
Rule 27.26 provides that: 'An order sustaining or overruling a motion filed under the provisions of this Rule shall be deemed a final judgment within the purview of Rules 28.03 and 28.04.' Rule 28.03 provides: 'After the rendition of final judgment * * * (a)n appeal shall be taken by filing a notice of appeal in the same manner and within the same time after final judgment was provided for civil cases.' Civil Rule 82.04 provides: ...
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Prowswood, Inc. v. Mountain Fuel Supply Co.
...Committee on Appellate Rules, note to subdivision (e).21 Myers v. Harris, 82 Wash.2d 152, 509 P.2d 656, 657 (1973).22 State v. Brookshire, Mo., 400 S.W.2d 61 (1966). See also Kattering v. Franz, 360 Mo. 854, 231 S.W.2d 148 (1950); Keeney v. State, supra n. 13.23 American Legion Leo Brinda P......
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Winston v. State
...date of final judgment if a special order to do so has been first obtained from the appropriate appellate court.'4 Cf. State v. Brookshire, 400 S.W.2d 61, 63 (Mo.1966)--applied Civil Rule 82.07(a) (now Rule 81.07) to 27.26 proceeding; and State v. Warren, 344 S.W.2d 88, 90 (Mo.1961)--same.5......
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Holt, Application of
...until the docket fee has been paid or waived. State ex rel. Johnson v. Burks, 463 S.W.2d 586, 588(3) (Mo.App.1971); State v. Brookshire, 400 S.W.2d 61, 63(2) (Mo.1966); Alberswerth v. Lohse, 232 S.W.2d 213, 214 (Mo.App.1950); Kattering v. Franz, 360 Mo. 854, 231 S.W.2d 148, 149(2) (1950). W......
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Goldsby v. Lombardi
...occurs until the docket fee is paid."); see also State v. Mitchell, 128 S.W.3d 518, 520 (Mo. App. 2003), quoting, State v. Brookshire, 400 S.W.2d 61, 63 (Mo. 1966) ("[T]he court does not have jurisdiction over an appeal when the notice of appeal is ‘not timely filed because the docket fee, ......