Opinion
No. 10731.
July 17, 1978.
APPEAL FROM THE CIRCUIT COURT, MISSISSIPPI COUNTY, MARSHALL CRAIG, J.
John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for defendant-appellant.
Philip R. Pruett, Joslyn, Joslyn, Vaughan Pruett, Charleston, for plaintiff-respondent.
On June 10, 1977, defendant's pro se "Petition for Writ of Mandamus" was filed in this court. Said petition stated that defendant had inquired on September 14, 1976, about the status of his appeal by directing a letter to the circuit clerk of Mississippi County, Missouri. The date of the letter was the sole date mentioned in the application for mandamus. On June 13, 1977, this court denied the petition for writ of mandamus. However, the petition was treated as an application for leave to file notice of appeal out of time. V.A.M.R. 28.07.
The transcript on appeal shows that defendant was sentenced on September 9, 1975, to a term of twenty-five years for the crime of second-degree murder. Armed with the transcribed particulars of the case, it is apparent that this court had no jurisdiction to enter its order allowing the filing of a late notice of appeal because more than twelve months had passed between the entry of judgment and issuance of the aforesaid order. Furthermore, this court cannot suspend the time limitations of Rule 28.07 to defendant's benefit because the statutes (§§ 512.050 and 512.060) would then control what could be done as to the extension of time to file a late notice of appeal and the statutory time limit is more restrictive than the rules. State v. Lindner, 498 S.W.2d 754, 756 (Mo.banc 1973).
The appeal must be, and hereby is, dismissed.
All concur.