Opinion
No. 10174.
July 28, 1976.
APPEAL FROM THE CIRCUIT COURT, GREENE COUNTY, JAMES H. KEET, JR., J.
Devon F. Sherwood, Sherwood Bruer, Springfield, for movant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
Daniel Lee Faught was jury-convicted of first degree murder in the Circuit Court of Greene County. On June 25, 1975, he appealed from that conviction and that appeal is now pending in this Court in Case No. 10,068. Before the transcript on appeal was filed in Case No. 10,068, Faught filed in the Circuit Court of Greene County what he denominated as a "Petition for Writ of Habeas Corpus," but which in truth was a motion in the nature of a Rule 27.26 V.A.M.R. proceeding to vacate the judgment and sentence in Case No. 10,068. Following an evidentiary hearing, the Circuit Court of Greene County denied relief and this appeal followed.
Rule 27.26(b)(2) provides: "A motion to vacate, set aside or correct a sentence cannot be maintained while an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected." Because, as above noted, Faught has pending in this Court a direct appeal from the conviction he seeks to attack by his petition-motion under Rule 27.26, he cannot invoke postconviction remedies until his direct appeal is determined. Maupin v. State, 536 S.W.2d 507 (Mo.App. 1976); Gibson v. State, 536 S.W.2d 506 (Mo.App. 1976).
The appeal is dismissed.
All concur.