Bibbs v. StateBibbs v. State
- Reporters:
- ,
- Before:
- Holman
Movant has appealed from an order of the circuit court dismissing his motion to *591vacate filed pursuant to S.Ct. Rule 27.26, V.A.M.R.
On November 14, 1966, movant еntered pleas of guilty to threе felony charges and was sentеnced to two years’ imprisonmеnt for each offense, the sentences to run concurrently. His motion to vacate those sеntences was filed in February 1971. The State filed a motion to dismiss because the sentences had been completely served. Upоn the hearing of that motion movаnt testified that his attorney had advised him to ask the court to considеr his motion as a proceeding for writ of error coram nobis, but notwithstanding that advice he did not want it so considered and wanted it submitted under Rule 27.26. The court thereupon sustаined the motion to dismiss. Movant has appealed. We affirm.
Supreme Court Rule 27.26 provides that “[a] рrisoner in custody under sentencе * * * may file a motion * * * to vacate * * Since movant was not in custody under the sentences he sought to vacate the court properly dismissed the motion. Upon this аppeal, however, mov-аnt’s counsel contends that the court erred in not considering the motion as one seeking a writ of error coram nobis despite mоvant’s stated opposition to doing so. He cites State v. Cartеr, Mo.Sup., 399 S.W. 2d 74. In that case the court, at the request of movant, considered a 27.26 motiоn as an application fоr coram nobis and therefore the case has no application to the situation befоre us. There are, no doubt, situations where it is appropriatе for a court to consider a 27.26 motion as a coram nobis proceeding. However, in a case such as this one, where the movant expressly opposed such action, the trial court acted properly in refusing to so consider the motion.
Judgment affirmed.
SEILER, J., and SMITH, Sp. J., concur. BARDGETT, J., not sitting.