State v. Dittman

Missouri Court of Appeals

State v. Dittman

559 S.W.2d 311, 1977 Mo. App. LEXIS 2747

CourtMissouri Court of Appeals

DecidedNovember 22, 1977

DocketNo. 10568

StatusPublished

This text of 559 S.W.2d 311 (State v. Dittman) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Dittman, 559 S.W.2d 311, 1977 Mo. App. LEXIS 2747 (Mo. Ct. App. 1977).

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Opinion

PER CURIAM:

Defendant, a second offender, was found guilty of receiving stolen property. § 560.-270, V.A.M.S. On December 6, 1976, defendant’s after-trial motions were overruled and defendant was duly sentenced to imprisonment for a period of five years. Thereafter, on December 14, 1976, defendant filed his notice of appeal unaccompanied by the $20 docket fee required by Rule 81.04, Y.A.M.R. On the same date his notice of appeal was filed (December 14), defendant filed a motion to perfect the appeal as a poor person. On the twenty-first day after judgment or on the thirteenth day after the notice of appeal was filed (i. e., December 27, 1976), the trial court entered an order permitting defendant to appeal as a poor person.

“Rule 81.04 [supra] 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. . . . The docket fee of $20.00 in the appellate court shall be deposited with the clerk of the trial court at the time of filing the notice of appeal. No notice of appeal shall be accepted and filed by the clerk of any trial court unless said docket fee is deposited therewith.’ The notice of appeal . . . was timely sent to the circuit clerk. However, the notice was not accompanied with the $20.00 docket fee and at the time it was filed the court had not entered an order waiving payment of same. The filing of the notice of appeal by the circuit clerk was invalid and ineffective. State v. Keeney, 536 S.W.2d 518 (Mo.App.1976); State v. Peck, 536 S.W.2d 511 (Mo.App.1976); State v. Worl, 531 S.W.2d 294 (Mo.App.1975); Application of Holt, 518 S.W.2d 451 (Mo.App.1975). Because the filing of the . notice of appeal was invalid . . ., we have no jurisdiction. State v. Brookshire, [312]*312400 S.W.2d 61 (Mo.1966).” Keeney v. State, 556 S.W.2d 514 (Mo.App.1977).

The appeal is dismissed.

All concur.

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PER CURIAM:

Defendant, a second offender, was found guilty of receiving stolen property. § 560.-270, V.A.M.S. On December 6, 1976, defendant’s after-trial motions were overruled and defendant was duly sentenced to imprisonment for a period of five years. Thereafter, on December 14, 1976, defendant filed his notice of appeal unaccompanied by the $20 docket fee required by Rule 81.04, Y.A.M.R. On the same date his notice of appeal was filed (December 14), defendant filed a motion to perfect the appeal as a poor person. On the twenty-first day after judgment or on the thirteenth day after the notice of appeal was filed (i. e., December 27, 1976), the trial court entered an order permitting defendant to appeal as a poor person.

“Rule 81.04 [supra] 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. . . . The docket fee of $20.00 in the appellate court shall be deposited with the clerk of the trial court at the time of filing the notice of appeal. No notice of appeal shall be accepted and filed by the clerk of any trial court unless said docket fee is deposited therewith.’ The notice of appeal . . . was timely sent to the circuit clerk. However, the notice was not accompanied with the $20.00 docket fee and at the time it was filed the court had not entered an order waiving payment of same. The filing of the notice of appeal by the circuit clerk was invalid and ineffective. State v. Keeney, 536 S.W.2d 518 (Mo.App.1976); State v. Peck, 536 S.W.2d 511 (Mo.App.1976); State v. Worl, 531 S.W.2d 294 (Mo.App.1975); Application of Holt, 518 S.W.2d 451 (Mo.App.1975). Because the filing of the . notice of appeal was invalid . . ., we have no jurisdiction. State v. Brookshire, [312]*312400 S.W.2d 61 (Mo.1966).” Keeney v. State, 556 S.W.2d 514 (Mo.App.1977).

The appeal is dismissed.

All concur.

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559 S.W.2d 311, 1977 Mo. App. LEXIS 2747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dittman-moctapp-1977.

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