Franklin v. State

Missouri Court of Appeals

Franklin v. State

760 S.W.2d 517, 1988 Mo. App. LEXIS 1364, 1988 WL 99415

CourtMissouri Court of Appeals

DecidedSeptember 27, 1988

DocketNo. 54269

StatusPublished

This text of 760 S.W.2d 517 (Franklin 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.

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Franklin v. State, 760 S.W.2d 517, 1988 Mo. App. LEXIS 1364, 1988 WL 99415 (Mo. Ct. App. 1988).

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Opinion

CRANDALL, Presiding Judge.

Movant appeals from the denial of his second Rule 27.26 motion after an eviden-tiary hearing. The defendant was tried and convicted of first degree murder and robbery. He was sentenced to life plus 25 years, to be served concurrently. His conviction was affirmed on direct appeal. State v. Franklin, 591 S.W.2d 12 (Mo.App.1979). The denial of his first Rule 27.26 motion was affirmed on appeal. Franklin v. State, 655 S.W.2d 561 (Mo.App.1983). There was a federal habeas corpus proceeding which was also denied. Franklin v. White, 803 F.2d 416 (8th Cir.1986).

Movant alleges in this 27.26 motion that he was denied effective assistance of counsel by reason of counsel’s failure to convey the State’s plea offer to movant. The court denied movant’s motion because it simply did not believe him when he said counsel had not conveyed the plea bargain to him. The credibility of witnesses is for the motion court’s determination. Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986).

In addition, the rule specifies that a successive motion shall not be entertained “where the ground presented is new but could have been raised in the prior mo-tion_” Rule 27.26(d). Here, the court found that movant knew about the plea offer early enough for it to have been raised in a prior motion. The findings of the motion court are not clearly erroneous. See Rule 27.26Q).

The judgment is affirmed.'

REINHARD and CRIST, JJ., concur.

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CRANDALL, Presiding Judge.

Movant appeals from the denial of his second Rule 27.26 motion after an eviden-tiary hearing. The defendant was tried and convicted of first degree murder and robbery. He was sentenced to life plus 25 years, to be served concurrently. His conviction was affirmed on direct appeal. State v. Franklin, 591 S.W.2d 12 (Mo.App.1979). The denial of his first Rule 27.26 motion was affirmed on appeal. Franklin v. State, 655 S.W.2d 561 (Mo.App.1983). There was a federal habeas corpus proceeding which was also denied. Franklin v. White, 803 F.2d 416 (8th Cir.1986).

Movant alleges in this 27.26 motion that he was denied effective assistance of counsel by reason of counsel’s failure to convey the State’s plea offer to movant. The court denied movant’s motion because it simply did not believe him when he said counsel had not conveyed the plea bargain to him. The credibility of witnesses is for the motion court’s determination. Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986).

In addition, the rule specifies that a successive motion shall not be entertained “where the ground presented is new but could have been raised in the prior mo-tion_” Rule 27.26(d). Here, the court found that movant knew about the plea offer early enough for it to have been raised in a prior motion. The findings of the motion court are not clearly erroneous. See Rule 27.26Q).

The judgment is affirmed.'

REINHARD and CRIST, JJ., concur.

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760 S.W.2d 517, 1988 Mo. App. LEXIS 1364, 1988 WL 99415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-state-moctapp-1988.

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