State v. Tomich

SMITH, Judge. Movant appeals from the action of the trial court dismissing without evidentiary hearing movant’s Motion to Set Aside Guilty Plea. Movant had originally entered pleas of guilty to Sodomy, Rape, and Robbery in the first degree and received concurrent 35 year sentences on each charge. On appeal movant contends that the motion to set aside his guilty pleas required an evidentiary hearing because movant’s allegations, if proven, would have rendered the guilty plea involuntary. The transcript on appeal contains neither the motion to set aside nor the State’s motion to dismiss. Movant purports to set forth both in his brief, but then asserts that certain factual allegations were made which do not appear in the motion included in the brief. Rule 81.12 provides that the “transcript on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented to the appellate court for decision . .” It is apparent that the sufficiency of movant’s motion to set aside cannot be decided in the.absence of the motion itself. Inclusion of trial documents in a brief does not satisfy the requirements of Rule 81.12. Appeal dismissed. CLEMENS, P. J., and McMILLIAN, J., concur.