Kyseth v. State , 1978 Mo. App. LEXIS 2805 ( 1978 )

CLEMENS, Presiding Judge.

Movant (hereafter defendant) has appealed the denial of his Rule 27.26 motion. He had pleaded guilty to possession of a Schedule II controlled substance and on January 9, 1976 was sentenced to three years’ imprisonment. Defendant then filed his 27.26 motion which was denied. This appeal followed.

We note that a stipulation filed here by defendant’s and the state’s counsel declares that on September 2, 1977 defendant’s sentence was commuted by the Governor of Missouri and defendant has now been discharged from confinement.

Relief under Rule 27.26 is limited to prisoners in custody. Since defendant has been released from the sentence he seeks to vacate, he is not entitled to relief under Rule 27.26. Cook v. State, 543 S.W.2d 309[1] (Mo.App.1976).

SMITH and McMILLIAN, JJ., concur.