Johnson v. State

*716ON APPELLANT’S MOTION FOR REHEARING AND, IN THE ALTERNATIVE, TO TRANSFER TO SUPREME COURT EN BANC

BARDGETT, Judge.

Appellant’s motion seeks a rehearing or transfer on alleged conflict between this opinion and prior cases of State v. Cantrell, Mo., 403 S.W.2d 647; State v. Pedockie, Mo., 391 S.W.2d 255; State v. Crow, Mo., 388 S.W.2d 817; State v. Franklin, Mo., 379 S.W.2d 526; State v. White, Mo., 439 S.W.2d 752; State v. Clark, Mo., 432 S.W.2d 279; and State v. Powell, Mo., 400 S.W.2d 183, all of which held the provisions of Supreme Court Rule 27.20(a) to be mandatory and any motion for new trial not filed within the time limits of Rule 27.20(a) to be a nullity and preserve nothing for review. The opinion in this case permits appellant to file a motion for new trial some sixteen years after verdict.

In order that it will be clear that we are not authorizing any deviation from the provisions of Rule 27.20(a), we deem it advisable to render this supplemental opinion.

All of the cases cited by appellant in support of the instant motion are cases involving direct appeals from the judgment of conviction and sentence thereon. The instant case is an appeal from the order and judgment of the trial court on appellant’s Rule 27.26 motion wherein the trial court found that appellant’s right to appeal his conviction was unconstitutionally infringed by the failure of his attorney to file a motion for new trial and that appellant did not waive his right to file a motion for new trial and take an appeal. Since the unconstitutional deprivation occurred at the motion-for-new-trial stage of the proceedings, the trial court properly reverted to that stage of proceedings and authorized the filing of the motion for new trial. In so doing the trial court acted within its discretion under Supreme Court Rule 27.26, Holbert v. State, supra, 439 S.

W.2d 507; State v. Jones, supra, 446 S.W.2d 796, and there is no conflict between this case and cases cited by appellant.

Appellant’s motion for rehearing or transfer to court en banc is overruled.

All concur.