No. 35429 | Mo. Ct. App. | Mar 11, 1975
Appeal from an order sustaining a motion to dismiss a motion filed under Rule 27.26, V.A.M.R., to vacate judgments of conviction and concurrent 10-year sentences in a manslaughter case and a charge of assault with intent to kill, entered upon pleas of guilty.
This appeal must be dismissed for lack of jurisdiction, for the reason that the notice of appeal was not timely filed. State v. Lindner, 498 S.W.2d 754" date_filed="1973-09-10" court="Mo." case_name="State v. Lindner">498 S.W.2d 754 (Mo. banc 1973); State v. Gullett, 411 S.W.2d 227" date_filed="1967-02-13" court="Mo." case_name="State v. Gullett">411 S.W.2d 227 (Mo.1967). Nor was any application made for a special order of this Court allowing late filing of a notice of appeal as authorized by Rules 28.07 and 81.07(a), and no such special order was made.
The motion to dismiss was sustained January 30, 1973. An order sustaining a motion to dismiss is a final judgment from which a timely appeal may be taken. See cases cited in 2 Mo.Dig. Appeal & Error No. 78(4). Since no motion for new trial was filed the judgment became final for the purpose of appeal thirty days thereafter, on March 1, 1973. Rules 28.03 and 81.05(a). The notice of appeal was filed May 29, 1973, eighty-nine days after the judgment became final. Rule 81.04 provides : “ * * * No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.” We have no jurisdiction of the appeal because the time for filing the notice of appeal had expired at the time it was filed. State v. Lindner, supra; State v. Gullett, supra; State v. Brookshire, 400 S.W.2d 61" date_filed="1966-02-14" court="Mo." case_name="State v. Brookshire">400 S.W.2d 61 (Mo.1966).
Accordingly, the appeal is dismissed.