Opinion
No. 10165.
April 21, 1976. Motion for Rehearing or Transfer to Supreme Court Denied May 10, 1976.
APPEAL FROM THE CIRCUIT COURT, GREENE COUNTY, JAMES H. KEET, JR., J.
Scott B. Tinsley, Springfield, for movant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant Harrison Gibson and Frank W. Maupin were convicted in Greene County of attempted second degree burglary. They appealed their convictions and their appeal is pending in this Court in Case No. 9992.
Judgment of conviction was entered March 13, 1975. Notice of Appeal was filed March 20, 1975. Motion to vacate was filed August 27, 1975. Transcript was filed September 16, 1975, briefs have been filed, and the direct appeal is docketed for argument and submission at our June Term, 1976.
Prior to the filing of the trial transcript in No. 9992 the appellant filed a motion to vacate the judgment and sentence under Rule 27.26, V.A.M.R. Following an evidentiary hearing the trial court denied appellant relief and this appeal followed. The respondent has filed a motion to dismiss this appeal, citing Rule 27.26(b)(2), which is as follows:
"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." (emphasis added)
As noted, appellant's direct appeal is currently pending in this Court. Appellant's motion to vacate discloses on its face he had an appeal pending at the time the motion was filed. The trial court would have been warranted in summarily dismissing the motion by reason of the provision of Rule 27.26 as above set forth.
Respondent's motion is sustained and the appeal is dismissed.
All concur.