Opinion
No. 57011.
February 22, 1972.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, GARY M. GAERTNER, J.
Joseph A. Kirkwood, St. Louis, for appellant.
John C. Danforth, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for respondent.
Movant has appealed from an order of the circuit court dismissing his motion to vacate filed pursuant to S.Ct. Rule 27.26, V.A.M.R.
On November 14, 1966, movant entered pleas of guilty to three felony charges and was sentenced to two years' imprisonment for each offense, the sentences to run concurrently. His motion to vacate those sentences was filed in February 1971. The State filed a motion to dismiss because the sentences had been completely served. Upon the hearing of that motion movant testified that his attorney had advised him to ask the court to consider his motion as a proceeding for writ of error coram nobis, but notwithstanding that advice he did not want it so considered and wanted it submitted under Rule 27.26. The court thereupon sustained the motion to dismiss. Movant has appealed. We affirm.
Supreme Court Rule 27.26 provides that "[a] prisoner in custody under sentence * * * may file a motion * * * to vacate * * *." Since movant was not in custody under the sentences he sought to vacate the court properly dismissed the motion. Upon this appeal, however, movant's counsel contends that the court erred in not considering the motion as one seeking a writ of error coram nobis despite movant's stated opposition to doing so. He cites State v. Carter, Mo.Sup., 399 S.W.2d 74. In that case the court, at the request of movant, considered a 27.26 motion as an application for coram nobis and therefore the case has no application to the situation before us. There are, no doubt, situations where it is appropriate for a court to consider a 27.26 motion as a coram nobis proceeding. However, in a case such as this one, where the movant expressly opposed such action, the trial court acted properly in refusing to so consider the motion.
Judgment affirmed.
SEILER, J., and SMITH, Sp. J., concur.
BARDGETT, J., not sitting.