Johnson v. State

553 S.W.2d 499, 1977 Mo. App. LEXIS 2850

Opinion

CLEMENS, Presiding Judge.

Movant’s Rule 27.26 motion was denied by the trial court without an evidentiary hearing and he has appealed.

Movant had been found guilty of possessing heroin and sentenced to five years’ imprisonment. We affirmed the conviction in State v. Johnson, 529 S.W.2d 658 (Mo.App.1975). Thereafter movant filed his “post-conviction motion to vacate the judgment of conviction and sentence.”

We limit our review to deciding whether the trial court’s order is clearly erroneous. Rule 27.26(j).

The only ground in movant’s motion challenges the original search and seizure of his briefcase. In McCrary v. State, 529 S.W.2d 467[3] (Mo.App.1975) we ruled that “a claim of illegal search is not cognizable in 27.26 proceedings.” Further, this point was adjudicated on appeal and cannot be reconsidered in a post-conviction proceeding. Cochran v. State, 545 S.W.2d 710[1] (Mo.App.1975).

The state’s motion to retax costs is denied.

Judgment affirmed.

DOWD and SMITH, JJ., concur.