Culberson v. State

Missouri Court of Appeals

Culberson v. State

571 S.W.2d 488, 1978 Mo. App. LEXIS 2846

CourtMissouri Court of Appeals

DecidedSeptember 5, 1978

DocketNo. 39229

StatusPublished

Cited by4 cases

This text of 571 S.W.2d 488 (Culberson v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Culberson v. State, 571 S.W.2d 488, 1978 Mo. App. LEXIS 2846 (Mo. Ct. App. 1978).

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Opinion

SMITH, Judge.

Movant appeals from the order of the trial court dismissing his motion for relief [489]*489pursuant to Rule 27.26. Culberson originally pleaded guilty to seven offenses ranging from second degree murder to carrying a concealed weapon. He received a total of five fifteen year sentences and two five year sentences, all to be served concurrently.

In September, 1975, movant filed a motion pursuant to Rule 27.26. Counsel was appointed and in January, 1976, the court, without evidentiary hearing, denied the motion. Extensive findings of facts and conclusions of law were entered. No appeal from this action was taken. Mov-ant’s current motion was filed in January, 1977. It again alleges ineffective assistance of counsel and that a competency hearing should have been held as movant was, at the time of the guilty plea, withdrawing from narcotic addiction and was receiving methadone. The trial court dismissed the motion because the grounds stated therein could have been raised on the prior 27.26 motion (Rule 27.26(d)) and for the further reason that the record of the guilty plea affirmatively refuted the allegations. We agree with both reasons.

Movant contends that he is entitled to an evidentiary hearing to establish the reasons why he did not or could not raise the present grounds in his prior 27.26 motion. The initial burden was on movant to allege such reasons. Nolan v. State, 484 S.W.2d 273 (Mo.1972); Jones v. State, 521 S.W.2d 504 (Mo.App.1975) [1]; Evans v. State, 545 S.W.2d 674 (Mo.App.1976) [1], Not only has movant failed to allege such reasons, but his sworn motion alleges that no prior post-conviction motion was even filed.

The order of the trial court is affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.

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SMITH, Judge.

Movant appeals from the order of the trial court dismissing his motion for relief [489]*489pursuant to Rule 27.26. Culberson originally pleaded guilty to seven offenses ranging from second degree murder to carrying a concealed weapon. He received a total of five fifteen year sentences and two five year sentences, all to be served concurrently.

In September, 1975, movant filed a motion pursuant to Rule 27.26. Counsel was appointed and in January, 1976, the court, without evidentiary hearing, denied the motion. Extensive findings of facts and conclusions of law were entered. No appeal from this action was taken. Mov-ant’s current motion was filed in January, 1977. It again alleges ineffective assistance of counsel and that a competency hearing should have been held as movant was, at the time of the guilty plea, withdrawing from narcotic addiction and was receiving methadone. The trial court dismissed the motion because the grounds stated therein could have been raised on the prior 27.26 motion (Rule 27.26(d)) and for the further reason that the record of the guilty plea affirmatively refuted the allegations. We agree with both reasons.

Movant contends that he is entitled to an evidentiary hearing to establish the reasons why he did not or could not raise the present grounds in his prior 27.26 motion. The initial burden was on movant to allege such reasons. Nolan v. State, 484 S.W.2d 273 (Mo.1972); Jones v. State, 521 S.W.2d 504 (Mo.App.1975) [1]; Evans v. State, 545 S.W.2d 674 (Mo.App.1976) [1], Not only has movant failed to allege such reasons, but his sworn motion alleges that no prior post-conviction motion was even filed.

The order of the trial court is affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.

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Bluebook (online)

571 S.W.2d 488, 1978 Mo. App. LEXIS 2846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/culberson-v-state-moctapp-1978.

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