Armbruster v. State

613 S.W.2d 462, 1981 Mo. App. LEXIS 3698

Opinion

PREWITT, Presiding Judge.

Movant appeals from a denial, without an evidentiary hearing, of his motion for post-conviction relief under Rule 27.26, V.A.M.R. Movant was convicted of first degree robbery and sentenced as a second offender under § 556.280, RSMo 1969. That conviction was affirmed in State v. Armbruster, 541 S.W.2d 357 (Mo.App. 1976). His brief contends that one of the convictions upon which he was found to be a second offender should not have been considered because he was not represented by an attorney in connection with that charge and that whether he was represented was an issue of fact entitling him to a hearing on his motion.

Movant’s contention cannot be raised by a motion under Rule 27.26. A contention that a prior conviction should not be considered under the Second Offender Act because of lack of counsel cannot be made by a motion for postconviction relief except perhaps in “rare and exceptional circumstances”. Turley v. State, 571 S.W.2d 465 (Mo.App.1978). No such circumstances are shown here. Moreover, there were two convictions considered by the trial judge in determining that movant was a second offender, and the other conviction is not questioned. Only one conviction need be proven. State v. Hurtt, 509 S.W.2d 14, 16-18 (Mo.1974).

The judgment is affirmed.

HOGAN, BILLINGS and MAUS, JJ., concur.