State v. Larrabee, KCD29360
| Decision Date | 02 October 1978 |
| Docket Number | No. KCD29360,KCD29360 |
| Citation | 572 S.W.2d 250 |
| Parties | STATE of Missouri, Respondent, v. Charles E. LARRABEE, Appellant. |
| Court | Missouri Court of Appeals |
Jeffery L. Alena, Gepford & Sears, Kansas City, for appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
Defendant, charged as a second offender, was tried to a jury for the crime of robbery in the first degree by means of a dangerous and deadly weapon (Sec. 560.120, RSMo 1969 and Sec. 560.135, RSMo Supp.1975), found guilty, and sentenced by the court to twenty years imprisonment in the Missouri Department of Corrections.
Synopsized, the evidence discloses that defendant was positively identified by the victim and his son as the person who robbed him at gunpoint on the evening of January 16, 1976, and relieved him of one hundred sixty dollars. Defendant has not challenged the sufficiency of the evidence to sustain his conviction, and it is self-evident why he has not done so.
A single point is pressed by defendant on appeal error in not granting a new trial because of ineffective assistance of counsel, all in contravention of defendant's right to the assistance of counsel as guaranteed by the Sixth Amendment to the Constitution of the United States and Art. I, § 18(a) of the Missouri Constitution (1945). For reasons hereinafter noted, defendant's single point has not been preserved for appellate review.
Chronologically, the guilty verdict in this case was returned by the jury on October 5, 1976. Defendant filed a motion for new trial on November 5, 1976, absent any record entry showing or suggesting that he applied for and the trial court granted additional time within which to do so. Rule 27.20(a), so far as here apropos, provides that "(s)uch motion (motion for new trial) shall be filed before judgment And within ten days after the return of the verdict: Provided, on application of defendant, the court may extend the time for filing such motion for an additional period of thirty (30) days: Provided further, the court shall have no power to make another or further extension of the time for filing said motion." (Emphasis added.) The transcript on appeal in this case fails to contain or mention any record entry that defendant applied for and was granted additional time within which to file his motion for new trial. Ergo, the record on appeal leaves this court no choice but to conclude that defendant's motion for new trial was required to be filed "within ten days after the return of the verdict", Rule 27.20(a), supra, which was not done. If defendant applied for and the trial court granted defendant an extension of time to file his motion for new trial it was incumbent upon him to see that any record entry doing so was included in the transcript on appeal. Rule 81.12(a), as made applicable by Rule 28.18; Jackson v. State, 514 S.W.2d 532 (Mo.1974). Defendant's failure to preserve the single point now pressed on appeal, on the precise ground hereinabove set forth, was specifically raised by the state in its brief. Notwithstanding notice given by the state's brief, defendant, to date, has never sought leave pursuant to Rule 81.12(c) to file a supplemental transcript if, in fact, an application for and an extension of time was granted by the trial court for defendant to file his motion for new trial. Defendant's continuing reliance on the transcript on appeal as originally filed in this case buttresses the conclusion that additional time within which to file a motion for new trial was never applied for by defendant or granted by the trial court.
The requirements of Rule 27.20(a), supra, pertaining to the time for filing motions for new trial, are mandatory and noncompliance therewith must be noticed on appeal, sua sponte if not raised by an opposing party, as neither the courts nor the parties can waive the requirements of the rule. State v. Tucker, 451 S.W.2d 91 (Mo.1970); State v. Rapp, 412 S.W.2d 120 (Mo.1967); State v. Maddox, 549 S.W.2d 931 (Mo.App.1977), and State v. Morse, 526 S.W.2d 432 (Mo.App.1975). Defendant's tardily...
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State v. Zeitvogel
...reviewable by direct appeal. Such an allegation is usually disposed of by a Rule 27.26 post-conviction review. State v. Larrabee, 572 S.W.2d 250, 252 (Mo.App.1978). There is an exception to this rule, however, if the trial record discloses sufficient facts have been developed to provide a m......
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State v. Linhart, WD
...presented on appeal discloses that sufficient facts essential to a meaningful review of the issues were developed. State v. Larrabee, 572 S.W.2d 250, 252 (Mo.App.1978). The record on appeal simply does not reveal sufficient facts to make a meaningful review on this point possible and theref......
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State v. Gordon
...issue is normally left for disposition in a post-conviction proceeding under Rule 27.26 to vacate judgment and sentence. State v. Larrabee, 572 S.W.2d 250 (Mo.App.1978). Only in very exceptional cases will the circumstances warrant consideration of the point on direct appeal. [State v. Hobb......
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State v. Barkwell
...defendant applied for, or that the trial court granted, an extension of time for filing the motion. Rule 27.20(a). State v. Larrabee, 572 S.W.2d 250, 251(2) (Mo.App.1978); State v. Eaton, 568 S.W.2d 541, 543 (Mo.App.1978). If a motion for new trial is not filed within the time prescribed by......