¶1concurring in result.
¶2I write this opinion concurring in result only, because I am in agreement that this appeal should be dismissed but for reasons quite different than those enunciated in the principal opinion, and because the principal opinion addresses other matters which, in my opinion, ought not be decided in this case.
¶3Foster is serving consecutive sentences of fifteen years upon a conviction of sodomy and twenty years on a conviction of rape. State v. Foster, 490 S.W.2d 659 (Mo.App. 1973); State v. Foster, 490 S.W.2d 662 (Mo.App.1973). In each of these cases the trial court assessed the punishment pursuant to the second offender act, § 556.280, RSMo 1969. The second offender act proceedings were premised upon earlier convictions which became the subject of the petition for writ of error coram nobis in this case. Appellant sought, by a procedure in which he utilized the forms prescribed for filing motions under 27.26, but styled them petitions for writ of error coram nobis, to have the earlier three convictions set aside for certain irregularities which he alleged attended the sentencing in those three cases. The matter was heard by the circuit court and relief was denied.
¶4The principal opinion sets forth the facts relating to the request by Foster’s counsel for an extension in which to file a motion for a new trial and the granting of that request by the trial judge. Coram nobis is governed by the civil rules. However, it is wholly understandable to me that an attorney might think that since the problem addressed in the coram nobis proceeding is essentially one relating to the conviction of a person who is in the penitentiary, the criminal rules apply. In any event, the judge did grant the extension and so he must have shared the same view. Of course, both the attorney and the judge were mistaken in this regard; But it was not until after six months following the due date for a notice of appeal that the state suggested to the court of appeals that they had no jurisdiction in the matter because the notice of appeal was not filed in time. The case was argued and submitted in the court of appeals on October 10,1978, and on October 24, 1978, the appeal was dismissed by opinion. After an unavailing motion for rehearing or transfer in the court of ap*915peals, appellant sought transfer here, which we granted. The case was then briefed and argued in this Court. I am convinced that there is no merit to the substantive points made in the appeal and that if the appeal were entertained the trial court’s judgment denying relief should be affirmed. In my opinion, the Court should, sua sponte, consider whether or not to permit this appeal to be maintained under Rule 84.08, which allows a court in which an appeal is pending to suspend or modify the rules in a particular case upon a showing that justice so requires. The circumstances attending the late filing of the motion for a new trial and, consequently, the late filing of the notice of appeal were the result of excusable neglect which would have warranted the late filing of a notice of appeal had the possibility of doing so been brought to the attention of Foster’s attorney within the six-month period. However, having considered the entire matter, including the substantive points which have been briefed and argued, I have concluded that petitioner is not entitled to any substantive relief; that the judgment of the circuit court was correct; and therefore justice does- not require the suspension or modification of the rules so as to permit the maintenance of this appeal. For these reasons I would dismiss this appeal.
¶5For the reasons stated above, I concur in the result only.