Haynes v. State

561 S.W.2d 450, 1978 Mo. App. LEXIS 2800

• Court: Missouri Court of Appeals
• Decided: January 24, 1978
• Docket: No. 38939
• Status: Published

Opinion

SMITH, Judge.

Movant appeals from the action of the trial court in denying his motion to set aside judgment and sentence filed pursuant to Rule 27.26. Movant was tried and convicted of murder, first degree, and attempted robbery in 1973 and sentenced to life imprisonment and five years imprisonment. The convictions were affirmed on appeal. State v. Haynes, 510 S.W.2d 423 (Mo.1974).

In his motion Haynes alleged (1) ineffective assistance of counsel, (2) error in the trial instructions, (3) insufficiency of the evidence to support the verdict and (4) prejudicial argument by the prosecutor. Following an evidentiary hearing at which movant presented evidence only as to ineffective assistance of counsel, the trial court denied his motion. On appeal Haynes raises two points, i. e.: (1) the court erred in its finding that movant had failed to carry his burden of establishing ineffective assistance of counsel and (2) that the court erred in failing to make findings of fact and conclusions of law on the other three grounds alleged in his motion.

Our review of the record convinces us that the court’s finding on the counsel question was supported by the evidence. The court did not “credit movant’s testimony.” It found that movant’s attorney “made effective preparation for trial” and that the matters complained of by movant did not prejudice movant’s defense. The record supports these findings.

The other three matters all involved trial errors and were not properly cognizable in a 27.26 proceeding. Additionally, movant presented no evidence to support them. Under these circumstances we find no error in the failure of the trial court to make specific findings and conclusions concerning those allegations. Smith v. State, 513 S.W.2d 407 (Mo.1974).

Judgment affirmed.

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