Foster v. State

590 S.W.2d 912, 1979 Mo. LEXIS 377

• Court: Supreme Court of Missouri
• Decided: December 6, 1979
• Docket: 61175
• Status: Published

Opinions

RENDLEN, Judge.

Appellant by petition for writ of error coram nobis¹ seeks to vacate three prior criminal convictions entered on pleas of guilty. Following the trial court’s denial of his motion, appellant, out of time, filed his notice of appeal and when challenged by the State, conceded the notice was late.

After opinion in the Court of Appeals dismissing the appeal, we ordered the cause transferred here and consider the case as though on original appeal. Utilizing much of the Court of Appeals opinion without quotation marks, the appeal is ordered dismissed.

Though the appeal is dismissed as untimely, our review of the record discloses that the trial court correctly denied the motion on the merits.²

Turning to the question of jurisdiction, it should be first noted that a writ of error coram nobis is a civil proceeding, Peterson v. State, 476 S.W.2d 608, 611 (Mo. 1972), hence the rules of civil procedure govern. The trial court denied appellant’s coram nobis petition September 12, 1977, and thirty days later on October 12 that order became a final judgment. Rule 81.-05(a). Ten days later, October 22, 1977, appellant’s notice of appeal was due. To effectively appeal the order in this court-tried case, appellant was required to file either a notice of appeal not later than 10 days after the order became final (Rule 81.04), or a motion for new trial not later than 15 days after entry of the judgment (Rule 73.01(l)(c)). Therefore, as noted above, the relevant deadlines would have been 10 days from October 12, 1977, or 15 days from September 12, 1977. However, appellant did not file a motion for new trial until October 24, 1977, and no notice of appeal was filed until December 2, 1977. Further, no Rule 81.07(a) application was made to the Court of Appeals, Eastern District, the appropriate appellate court, nor was any order granted which would allow the late filing of notice of appeal. Consequently, neither the Court of Appeals nor this Court on transfer has jurisdiction to consider this appeal, and it must be dismissed. State v. Lindner, 498 S.W.2d 754, 756 (Mo. banc 1973); Olds v. State, 532 S.W.2d 518, 519 (Mo.App.1975); Griffin v. State, 529 S.W.2d 665, 666 (Mo.App.1975); Johnson v. State, 521 S.W.2d 479, 480 (Mo. App.1975).

Appellant entreats us to consider his appeal ex gratia as done in Winston v. State, 533 S.W.2d 709 (Mo.App.1976). However, the court in Winston dismissed the appeal for lack of appellate jurisdiction and the ex gratia appellate review was fruitless for the appellant.

Appellant contends that he was misled into his untimely appeal when the trial court granted an extension of time to file his motion for new trial beyond the 15 days, which to appellant’s dismay cannot be done in a Rule 73.01 non-jury proceeding by reason of Rule 44.01(b). However, we are involved in a jurisdictional matter which cannot be waived, even by consent of the parties. Corder v. Corder, 546 S.W.2d 798, 800 (Mo.App.1977). Hence, we are without jurisdiction to entertain the appeal and it is ordered dismissed.

DONNELLY, WELLIVER and MORGAN, JJ., and WELBORN, Special Judge, concur. BARDGETT, C. J., concurs in result in separate opinion filed. SEILER, J., concurs in separate concurring opinion of BARDGETT, C. J. HIGGINS, J., not participating because not a member of the Court when cause was submitted.

1 . Appellant employed forms prescribed for Rule 27.26 actions (see Rule 27.26 Appendix) for his petition in this action. Because he is not in custody under the judgments sought to be set aside, Rule 27.26 relief is not available to vacate the sentences previously served. Peterson v. State, 476 S.W.2d 608, 609-610 (Mo. 1972). The trial court accommodated appellant by treating his petition as one for writ of error coram nobis and we will view that pleading in the same fashion.

2 . Appellant claims that his guilty pleas were involuntary in that he was not apprised of his constitutional rights by the trial court. He was represented by counsel during those proceedings and during a period of protracted plea bargaining was informed of the consequences of his plea. Nevertheless he complains the array of rights discussed in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), was not specifically recited and this requires vacation of the judgment and sentences. However, Boykin does not mandate that a litany of constitutional rights be read in guilty-plea proceedings. McChesney v. Henderson, 482 F.2d 1101, 1110 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974). We have reviewed the record and it is evident the pleas were voluntarily made. Schellert v. State, 569 S.W.2d 735, 738 (Mo. banc 1978). Appellant further claims his sentences were illegally increased. It appears that before the originally announced sentences were finally entered, appellant while still before the court, acceded to an increase of the sentences in exchange for suspended imposition of sentence and probation. Under these circumstances it was within the trial court’s power to modify the sentences. State v. Burroughs, 559 S.W.2d 42, 43 (Mo.App.1977). Nichols v. United States, 106 F. 672, 678 (8th Cir. 1901). Here the trial court found that movant’s testimony in the “evidentiary hearing was not worthy of belief’ and that no prejudice occurred in the original criminal proceeding. Substantial evidence in the hearing record supports the trial court’s finding and conclusion.