State v. Johnson

PRITCHARD, Commissioner.

Defendant was convicted by a jury on November 15, 1961, of the crime of rape and his punishment was assessed at 15 years’ imprisonment. The trial court then granted defendant 30 days within which to file his motion for new trial. The motion was filed on December 15, 1961. On February 2, 1962, defendant was before the court in person and by counsel at which time the sentence assessed by the jury was by the court reduced to 8 years. Defendant’s motion for new trial was argued and submitted to the court, and on the same day, February 2, 1962, was overruled, and defendant was sentenced to eight years in the Department of Corrections with allowance of the time spent by him in jail.

On February 14, 1962, defendant filed his notice of appeal in the trial court and copies were mailed to this court and to the Attorney General. The state has moved that defendant’s appeal be dismissed because the notice of appeal was not timely filed in accordance with Supreme Court Rules 28.03 and 82.04, V.A.M.R. We must sustain the motion to dismiss appeal. The filing of the notice of appeal within ten days after the final judgment or order appealed from is necessary to vest this court with appellate jurisdiction. The notice of appeal in this case was filed twelve days after the judgment became final upon its entry on February 2, 1962, after the overruling of defendant’s motion for new trial. No special order for appeal was made herein under Supreme Court Rule 28.07, V.A.M.R. Defendant has failed to take the vital step of timely filing of his notice of appeal in order to perfect the same. State v. Lowe, Mo., 365 S.W.2d 613, 614 [3], and cases there cited.

The appeal is dismissed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

All of the Judges concur.