State v. Nelson

Missouri Court of Appeals

State v. Nelson

526 S.W.2d 56, 1975 Mo. App. LEXIS 2063

CourtMissouri Court of Appeals

DecidedJuly 7, 1975

DocketNo. KCD 27194

StatusPublished

Cited by6 cases

This text of 526 S.W.2d 56 (State v. Nelson) 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. Nelson, 526 S.W.2d 56, 1975 Mo. App. LEXIS 2063 (Mo. Ct. App. 1975).

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Opinion

PER CURIAM:

On May 11, 1973, a grand jury returned an indictment against Odell Nelson, charging him with robbery, first degree. More specifically, it was charged that Nelson did, on April 24, 1973, make an assault on one Ronald McDonald with a loaded .38 caliber revolver and, by putting McDonald in fear of immediate injury to his person, robbed, stole, took and carried away $100 which was in the care and custody of McDonald. On September 20, 1973, the State was granted leave to file an amended information in lieu of this indictment. The amended information charged Kenneth W. Finley, a/k/a Odell Nelson, under the Second Offender Act with robbery, first degree in the aforementioned particulars. The jury returned a verdict of guilty, and the court, after overruling the motion for new trial and duly granting allocution, sentenced the defendant to seven years in the Missouri Department of Corrections. The defendant has appealed claiming that (1) certain evidence was inadmissible, and that (2) he was unduly prejudiced when the jury was made aware that he had an alias. We rule that these issues have not been preserved for appellate review.

Rule 27.20(a), V.A.M.R. requires that a motion for a new trial in a criminal case be filed within ten days after the verdict is returned. That rule also provides that the trial court may, upon application, extend the time a maximum of thirty additional days. The record of this case reveals that the jury verdict was returned September 24, 1973, and on the same date defendant was given thirty days in which to file a motion for new trial. No application for a further extension was made. The motion for new trial was filed on October 30, 1973, the 36th day after the verdict and order.

Compliance with Rule 27.20(a) is mandatory, and a motion for new trial not filed within the time fixed by the trial court is a nullity and preserves nothing for review. The motion for new trial in this case was not filed within the time fixed by the trial court, was not timely and, hence, preserved nothing for review. State v. Clark, 432 S.W.2d 279 (Mo.1968); State v. Hamilton, 391 S.W.2d 872 (Mo.1965); State v. Howard, 476 S.W.2d 587 (Mo.1972).

Pursuant to Rule 28.02, we have reviewed the sufficiency of the information, verdict, and judgment and sentence — matters of record which require no assignment of error.

The information is sufficient and the verdict is responsive to the offense charged. The sentence was within the statutory limits, allocution was granted, and the judgment is in proper form.

[58]*58The judgment is affirmed.

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PER CURIAM:

On May 11, 1973, a grand jury returned an indictment against Odell Nelson, charging him with robbery, first degree. More specifically, it was charged that Nelson did, on April 24, 1973, make an assault on one Ronald McDonald with a loaded .38 caliber revolver and, by putting McDonald in fear of immediate injury to his person, robbed, stole, took and carried away $100 which was in the care and custody of McDonald. On September 20, 1973, the State was granted leave to file an amended information in lieu of this indictment. The amended information charged Kenneth W. Finley, a/k/a Odell Nelson, under the Second Offender Act with robbery, first degree in the aforementioned particulars. The jury returned a verdict of guilty, and the court, after overruling the motion for new trial and duly granting allocution, sentenced the defendant to seven years in the Missouri Department of Corrections. The defendant has appealed claiming that (1) certain evidence was inadmissible, and that (2) he was unduly prejudiced when the jury was made aware that he had an alias. We rule that these issues have not been preserved for appellate review.

Rule 27.20(a), V.A.M.R. requires that a motion for a new trial in a criminal case be filed within ten days after the verdict is returned. That rule also provides that the trial court may, upon application, extend the time a maximum of thirty additional days. The record of this case reveals that the jury verdict was returned September 24, 1973, and on the same date defendant was given thirty days in which to file a motion for new trial. No application for a further extension was made. The motion for new trial was filed on October 30, 1973, the 36th day after the verdict and order.

Compliance with Rule 27.20(a) is mandatory, and a motion for new trial not filed within the time fixed by the trial court is a nullity and preserves nothing for review. The motion for new trial in this case was not filed within the time fixed by the trial court, was not timely and, hence, preserved nothing for review. State v. Clark, 432 S.W.2d 279 (Mo.1968); State v. Hamilton, 391 S.W.2d 872 (Mo.1965); State v. Howard, 476 S.W.2d 587 (Mo.1972).

Pursuant to Rule 28.02, we have reviewed the sufficiency of the information, verdict, and judgment and sentence — matters of record which require no assignment of error.

The information is sufficient and the verdict is responsive to the offense charged. The sentence was within the statutory limits, allocution was granted, and the judgment is in proper form.

[58]*58The judgment is affirmed.

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Bluebook (online)

526 S.W.2d 56, 1975 Mo. App. LEXIS 2063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nelson-moctapp-1975.

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