¶1Judge, dissenting.
¶2I respectfully dissent. Rule 29.15 does not afford relief to appellant Dougan because the requirements of the rule were not met, in that 1) no mandate was issued affirming the conviction after direct appeal, and 2) defendant was never incarcerated in the Department of Corrections.
¶3The relief afforded under Rule 29.15(a) to “[a] person convicted of a felony after *596trial ...” is qualified under subsection (b), which provides in pertinent part:
If an appeal of the judgment or sentence sought to be vacated, set aside or corrected was taken, the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence.
If no appeal of such judgment or sentence was taken, the motion shall be filed within 180 days of the date the person is delivered to the custody of the department of corrections.
¶4Because of these restrictions, relief under Rule 29.15 is simply not available to every person “convicted of a felony after trial.”
¶5Here, appellant was never “delivered to the custody of the department of corrections,” so relief can be afforded only if a direct appeal was taken and a mandate of the appellate court was issued affirming the conviction. This did not occur. Instead, the appellant dismissed his appeal, and the appellate court did not have occasion either to affirm or reverse the judgment or sentence. On this point, I take issue with the majority’s conclusion, made without citation to authority, that “dismissal of an appeal is treated as if the judgment were affirmed.” To the contrary, this Court has long recognized the obvious distinction between dismissing an appeal and affirming a judgment on appeal. West v. Spencer, 141 S.W. 586, 238 Mo. 65 (Mo.1911), for instance, was a case in which the Court affirmed the judgment of the trial court but declined to dismiss the appeal, holding that it could not simultaneously grant both remedies: “Even if that motion [to dismiss the appeal] were found well taken, we cannot very well both dismiss and affirm. That course would be a novel and wild exuberance of judicial power.” Id. at 588. See also Sechrist v. Hufty Rock Asphalt Co., 59 S.W.2d 767, 768 (Mo.App.1933) (suggesting that a motion to dismiss, rather than a motion to affirm the judgment, should have been filed when the appellant failed to perfect its appeal).
¶6Appellant’s reliance on State v. Kelly, 966 S.W.2d 882 (Mo.App.1998), is misplaced. Although the Court of Appeals noted, in dictum, that the Rule 29.15 motion was timely if filed within 90 days after the appellate court issued its mandate, id. at 385, the court was referring to an earlier version of Rule 29.15(b). That version did not require that the mandate affirm the judgment and sentence, but required only that the mandate be issued. Rule 29.15 (eff. January 1, 1996). Thus, the distinction between simply issuing a mandate, and issuing a mandate affirming the judgment and sentence, was n'ot at issue in Kelly.
¶7Finally, it bears mention that the limitations to relief under Rule 29.15 are consistent with the purpose of the rule, which is to serve as an effective and efficient substitute for the writ of habeas corpus, State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001), and habeas corpus, of course, is a remedy available only to those who are illegally confined, id. at 213. In other words, Rule 29.15 is designed primarily to create a remedy for incarcerated persons, not persons like appellant who is being punished solely by a fine and probation.
¶8For these reasons, I would affirm the motion court’s dismissal of appellant’s Rule 29.15 motion.