Flowers v. State

618 S.W.2d 655, 1981 Mo. LEXIS 440

• Court: Supreme Court of Missouri
• Decided: July 14, 1981
• Docket: 62310
• Status: Published

Opinions

SEILER, Judge.

In 1976 appellant Flowers pleaded guilty to a charge of assault with intent to kill with malice aforethought under § 559.180, RSMo 1969 and was sentenced to a term of twenty years. Later in 1976 Flowers filed two pro se motions, which were consolidated by the trial court and treated as a motion to vacate under rule 27.26. We will refer to this as the 1976 motion. These motions alleged police beatings, refusal to allow a telephone call or access to doctor or lawyer, and failure of appointed counsel to consult with him prior to trial. After a hearing, these motions were overruled, December 2, 1976.

Flowers, pro se, filed a timely notice of appeal. He was given leave to proceed as a poor person and counsel was appointed to handle the appeal. However, nothing further was done on the appeal and in 1977 it was dismissed by the court of appeals, southern district.

In 1978, the trial court granted Flowers leave to file a successive motion under 27.-26. We will refer to this as the 1978 motion. Among the grounds raised in this motion was the charge that prior counsel had failed to perfect the appeal from the denial of the 1976 motion. It is to this charge that we address ourselves. The 1978 motion was also denied by the trial court and the denial was affirmed on appeal by the court of appeals. We granted Flowers’ application for transfer.

In Morris v. State, 603 S.W.2d 938 (Mo. banc 1980), this court discussed the different considerations involved in determining the issue of alleged ineffectiveness of counsel in proceedings before the appellate courts as contrasted to the case where counsel simply fails to perfect the appeal. The Morris case points out the unique vantage of the appellate court in the first situation, quoting from Hemphill v. State, 566 S.W.2d 200, 208 (Mo. banc 1978), that “ ‘It is there the briefs are presented, argument heard and the effect of the conduct of appellate counsel as it bears on the issue of “ineffective assistance” may best be determined,’ ” 603 S.W.2d at 940. In such cases, a motion to recall the mandate is appropriate.

However, where the claim is that counsel did not perfect the appeal, Morris points out that no special vantage resides in the appellate court, that “a question central to appellant’s 27.26 claim remains unanswered on the face of the motion: whether appellant’s counsel abandoned appellant on appeal or whether appellant indicated he did not wish to pursue the appeal?” Id. at 940. In such circumstances, jurisdiction lies in the trial court to hear and determine the 27.26 motion. An evidentiary hearing is required, which the trial court is best suited to handle.

Rule 27.26(d) forbids second or successive motions where the ground raised in the second motion was raised in the prior application or where it could have been raised in the prior motion. Neither stricture applies here. It was not possible for Flowers to have raised in his 1976 motion the ground that his lawyer would abandon him on the appeal therefrom. Permitting Flowers to have a determination of whether he should be permitted to proceed with his first and only appeal from the denial of his original 27.26 motion does not establish any unsound precedent or open the door to endless successive claims. Flowers is not asserting an absurd or patently meritless claim. It is undisputed that his appeal was dismissed and he blames it on the failure of his appointed counsel to proceed. Flowers is not attempting to raise in the 1978 motion now before us the same or essentially the same points as raised in his 1976 motion.

The judgment dismissing the 1978 motion is reversed and the cause is remanded to the trial court with directions to conduct an evidentiary hearing and to make findings of fact and conclusions of law on whether Flowers’ counsel abandoned him on appeal from the denial of the 1976 motion or whether Flowers indicated he did not wish to pursue, or waived, the appeal. If the trial court finds the former, then the court should vacate the 1976 judgment and enter a new judgment therein, with the time for appeal commencing to run from the date thereof. If the trial court finds the latter, then the 1976 judgment should remain undisturbed and the court should enter judgment against Flowers in the present case.

RENDLEN and MORGAN, JJ., concur. BARDGETT, J., concurs in separate concurring opinion filed. WELLIVER and HIGGINS, JJ., concur and concur in separate concurring opinion of BARDGETT, J. DONNELLY, C. J., dissents in separate dissenting opinion filed.