Opinion
No. 10251.
April 23, 1976. Motion for Rehearing or Transfer to Supreme Court Denied May 11, 1976.
APPEAL FROM THE CIRCUIT COURT, OREGON COUNTY, WINSTON V. BUFORD, J.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
Don M. Henry, Henry, Henry Henry, West Plains, for appellant.
Appellant Robert G. Keeney prosecutes this appeal from his conviction in Oregon County of second degree murder.
The jury verdict was returned November 7, 1975. Appellant was granted 30 days to file his motion for new trial. Motion for new trial was timely filed and thereafter on December 26, 1975, the motion was overruled. Allocution, sentence and judgment followed on December 26, 1975.
Appellant's notice of appeal was lodged in the Circuit Clerk's office on January 3, 1976, but it was unaccompanied by payment of the required docket fee or a waiver thereof. On January 16, 1976, twenty days after judgment, appellant was granted leave to appeal as a poor person.
Rule 28.03, V.A.M.R., states appeals in criminal cases shall be taken "by filing a notice of appeal in the same manner and within the same time after final judgment as provided for civil cases."
Rule 81.04, V.A.M.R., provides: "No ... appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment ... appealed from becomes final."
Rule 81.04 also requires the payment of a docket fee at the time of filing of a notice of appeal and forbids acceptance by the clerk of the notice of appeal unless the docket fee is deposited therewith.
"Without payment of the docket fee or an order of court waiving the same, there can be no valid filing of a notice of appeal. State v. Worl, 531 S.W.2d 294 (Mo.App. 1975); Application of Holt, 518 S.W.2d 451 (Mo.App. 1975)." State v. Peck, 536 S.W.2d 511 (Mo.App. 1976).
The notice of appeal not being timely filed, we have no jurisdiction. State v. Brookshire, 400 S.W.2d 61 (Mo. 1966).
Appeal dismissed.
All concur.
HOGAN, J., not participating.