State v. Johnson

331 S.W.2d 551 | Mo. | 1960

COIL, Commissioner.

Eugene Johnson was convicted of obtaining property with intent to cheat and defraud by means of a check drawn on a bank in which he knew he had no funds, Sec. 561.450 RSMo 1949, V.A.M.S., and was sentenced in accordance with a jury’s verdict to two years in the penitentiary.

The transcript on appeal shows that: the jury’s verdict was returned on January 15 (all dates noted are in 1959); defendant’s motion for new trial was filed January 19; that motion was overruled and judgment and sentence pronounced on March 30; defendant’s application for leave to appeal as a poor person was filed and leave granted on June 8; defendant’s notice of appeal was filed on June 9.

The transcript does not show that the notice of appeal was filed pursuant to a special order of this court issued under the provisions of Supreme Court Rule 28.07, 42 V.A.M.S.

Unless a notice of appeal in a criminal case is allowed to be filed out of time by a special order of the appropriate appellate court, such notice of appeal must be filed not later than ten days after the judgment appealed from has become final. Supreme Court Rule 28.03; Sec. 512.050 RSMo 1949, V.A.M.S.

Inasmuch as the notice of appeal in this case was not filed pursuant to a special order of this court and was filed later than ten days, viz., 72 days, after final judgment, and inasmuch as a notice of appeal filed out of time does not vest this court with appellate jurisdiction, State v. Robbins, Mo., 269 S.W.2d 27; State v. Parker, Mo., 310 S.W.2d 923, 924 [2], the instant appeal is dismissed.

Appeal dismissed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court.

All concur.