State v. Kite

498 S.W.2d 756 | Mo. | 1973

HENLEY, Judge.

This is an appeal from an order and judgment denying relief to defendant who had, pursuant to § 552.040, subd. 4¹ sought his release from custody of the Director, Division of Mental Diseases, to whom he had been committed as a result of his acquittal of the offense of arson on the ground that at the time of the offense he had a mental disease or defect excluding responsibility. Section 552.030. The defendant in this case made the same attack on the constitutionality of § 552.040 as was made by the defendant in the case of State v. Lindner, 498 S.W.2d 754 (Mo.). As was noted in the Lindner case, this appeal meets the same fate for the same reasons.

The order and judgment denying defendant’s application was entered June 13, 1972. The judgment became final for purposes of appeal on July 13, 1972. The notice of appeal was filed August 10, 1972, more than ten days after the judgment became final. Because the notice of appeal was not timely filed (Rule 81.04, V.A.M.R.) this court does not have appellate jurisdiction, and the appeal must be, and is, dismissed.

DONNELLY, C. J., and MORGAN, HOLMAN, BARDGETT, and FINCH, JJ., concur. SEITLER, J., dissents.

1 . References to statutes are to RSMo 1969 and Y.A.M.S.