Opinion
No. 10796.
October 3, 1977.
APPEAL FROM THE CIRCUIT COURT, WEBSTER COUNTY, CHARLES V. BARKER, J.
Nicholas R. Fiorella, Springfield, for movant-appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Movant's petition for writ of error coram nobis was denied after an evidentiary hearing. No motion for a new trial was filed. Acting pro se, movant prepared and sent to the circuit clerk a notice of appeal "from the judgment . . . entered herein on July 14, 1977." Contrary to Rule 81.04, V.A.M.R., in that it was not accompanied by the requisite $20.00 docket fee and there was then no court order waiving same, appellant's notice of appeal was improvidently accepted and filed by the circuit clerk on July 20, 1977. Sixty-one days after the judgment of July 14, 1977, or on September 13, 1977, the circuit court entered an order permitting movant to appeal in forma pauperis and appointed an attorney to represent him. Sixty-four days after the judgment of July 14, 1977, or on September 16, 1977, another notice of appeal (on a printed form entirely completed by typewriter except for the deputy clerk's signature) was filed. This purports to be an appeal "from the judgment of conviction entered . . on the 14th day of July, 1977." The two notices of appeal were not received by the clerk of this court until September 20, 1977.
Rule 81.04, V.A.M.R., provides: ". . . No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final. . . . The docket fee of $20.00 in the appellate court shall be deposited with the clerk of the trial court at the time of filing the notice of appeal. No notice of appeal shall be accepted and filed by the clerk of any trial court unless said docket fee is deposited therewith."
The notice of appeal prepared pro se was timely sent to the circuit clerk. However, the notice was not accompanied with the $20.00 docket fee and at the time it was filed the court had not entered an order waiving payment of same. The filing of the notice of appeal by the circuit clerk was invalid and ineffective. State v. Keeney, 536 S.W.2d 518 (Mo.App. 1976); State v. Peck, 536 S.W.2d 511 (Mo.App. 1976); State v. Worl, 531 S.W.2d 294 (Mo.App. 1975); Application of Holt, 518 S.W.2d 451 (Mo.App. 1975). Because the filing of the first notice of appeal was invalid and the second notice of appeal was untimely, we have no jurisdiction. State v. Brookshire, 400 S.W.2d 61 (Mo. 1966).
Appeal dismissed.
All concur.