Opinion
No. 51219.
October 11, 1965.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, RICHARD H. KOENIGSDORF, J.
Norman H. Anderson, Atty. Gen., Jefferson City, William O. Sawyers, Jr., Sp. Asst. Atty. Gen., St. Joseph, for respondent.
Lee Vertis Swinton, Kansas City, for appellant.
On September 30, 1964, by jury verdict, defendant was found guilty of the crime of burglary, second degree. Having ten days thereafter to file his motion for new trial under Supreme Court Rule 27.20 (a), V.A.M.R., and not having been granted additional time by the trial court, defendant filed his motion for new trial on October 12, 1964. The time fixed by said rule being mandatory, State v. Murray, Mo., 280 S.W.2d 809, nothing in the motion for new trial is preserved for review, and we are precluded from consideration of matters set forth therein. State v. Parker, Mo., 310 S.W.2d 923; State v. Franklin, Mo., 379 S.W.2d 526. We limit our review to the record proper and those matters specified in Supreme Court Rules 28.02 and 28.08, V.A.M.R.
The case was tried upon an amended information charging burglary in the second degree of the residence of one Mildred L. Lloyd, in Kansas City, Jackson County, Missouri. It was also alleged that defendant had on May 3, 1962, been convicted of a prior felony of burglary in the second degree and was duly sentenced to serve a term of three years in the Missouri Penitentiary, which was served until commutation of sentence on April 7, 1964. The amended information is in due form and charges the crime within Section 560.045, RSMo 1959, V.A.M.S.; and the allegation of a prior offense is within the Habitual Criminal Act, Section 556.280, RS Mo 1959, V.A.M.S. The verdict is responsive to the issue. The court assessed defendant's punishment on the day of the verdict and later, on November 19, 1964, granted defendant allocution, then entered judgment of conviction and sentenced defendant to five years imprisonment in the Department of Corrections, State of Missouri, which is within the permissible limits of Section 560.095(2), RSMo 1959, V.A. M.S., of "not less than two nor more than ten years." We find no error in said matters which we are required to review.
The judgment is affirmed.
BARRETT and STOCKARD, CC., concur.
The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.
All of the Judges concur.