State v. Brown, 11749

Decision Date13 April 1981
Docket NumberNo. 11749,11749
Citation615 S.W.2d 626
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Hubert BROWN, Defendant-Appellant.
CourtMissouri Court of Appeals

John D. Ashcroft, Atty. Gen., Suzanne M. Boersig, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Phillip J. Barkett, Jr., Dempster, Fuchs & Barkett, Sikeston, for defendant-appellant.

BILLINGS, Presiding Judge.

Defendant Hubert Brown was found guilty by a Scott County jury of stealing property of a value of more than $150 and sentenced by the court as a persistent offender to a six-year term in the custody of the Department of Corrections. We affirm.

The state's evidence was that defendant and a companion stole a motor truck. Defendant offered no evidence.

The jury verdict, arrived at in ten minutes, was returned February 27, 1980. No application for an extension of time within which to file a motion for new trial was filed by the defendant but the court announced defendant was granted until March 25 to file such a motion. Defendant's motion for a new trial was filed March 25.

Rule 29.11, V.A.M.R., effective January 1, 1980, provides that a motion for a new trial in a criminal case shall be filed within 15 days after the return of the verdict but, on application of the defendant and for good cause shown, the time for filing such motion may be extended by the court for one additional period not to exceed ten days. Thus, the maximum time period allowable under the rule for filing a motion for new trial is limited to 25 days after the return of the verdict. Defendant's motion for a new trial was untimely filed inasmuch as it was not filed until the 26th day after the return of the verdict. The trial court was without authority to extend the time beyond that mandated by the rule. State v. Crow, 388 S.W.2d 817 (Mo.1965), cert. denied, 383 U.S. 914, 86 S.Ct. 901, 15 L.Ed.2d 668 (1966); State v. Weeks, 546 S.W.2d 567 (Mo.App.1977). Neither the parties nor the court can waive the requirements of the rule. State v. Rapp, 412 S.W.2d 120 (Mo.1967); State v. Weeks, supra. Having been filed beyond the permissible length of time, defendant's motion for a new trial was unauthorized and preserved nothing for appellate review. State v. Felkins, 599 S.W.2d 955 (Mo.App.1980).

We have reviewed the trial transcript, the legal file and the briefs of the parties....

To continue reading

Request your trial
8 cases
  • State v. Ess
    • United States
    • Court of Appeal of Missouri (US)
    • September 3, 2013
    ...of plain error was facially substantial, error was cured when defendant voluntarily testified on his own behalf); and State v. Brown, 615 S.W.2d 626 (Mo. App. S.D. 1981)(although defendant filed motion for new trial one to two days late, Court reviewed transcript, legal file, and briefs, co......
  • Day v. State, s. 71357
    • United States
    • United States State Supreme Court of Missouri
    • May 16, 1989
    ...language contained in Rule 29.11(b) has been repeatedly held mandatory. State v. Tucker, 451 S.W.2d 91, 92 (Mo.1970); State v. Brown, 615 S.W.2d 626 (Mo.App.1981). Time limitations in other procedural rules have been found to be valid. See Tucker, 451 S.W.2d at 92; and State v. Jones, 643 S......
  • State v. Bailey, WD
    • United States
    • Court of Appeal of Missouri (US)
    • January 4, 1983
    ...of a new trial motion and a motion filed beyond the time which the rules allow preserves nothing for appellate review. State v. Brown, 615 S.W.2d 626 (Mo.App.1981). The points which Bailey now presents, although set out in his motion for new trial, must be considered only if it be concluded......
  • State v. McKee
    • United States
    • Court of Appeal of Missouri (US)
    • July 20, 1982
    ...to file his motion for new trial. The court was without authority to extend the time beyond that provided by the rule. State v. Brown, 615 S.W.2d 626, 627 (Mo.App.1981). Defendant's untimely motion preserved nothing for review. Id. We have discretion to consider plain errors affecting subst......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT