Kopf v. State

559 S.W.2d 263, 1977 Mo. App. LEXIS 2887

• Court: Missouri Court of Appeals
• Decided: November 1, 1977
• Docket: No. 38791
• Status: Published

Opinion

SMITH, Judge.

Movant appeals from the action of the trial court denying without evidentiary hearing his motion to vacate conviction and sentence under Rule 27.26. This was movant’s second 27.26 motion. The original appeal from his conviction is State v. Kopf, 481 S.W.2d 7 (Mo.1972); the appeal from denial of his first 27.26 motion is Kopf v. State, 523 S.W.2d 114 (Mo.App.1975).

The present motion asserts lack of jurisdiction of the court in the original trial because of lack of venue and ineffective assistance of counsel because of failure to raise the venue issue. We affirm for the following reasons:

(1) The venue issue could and should have been raised on appeal from the conviction. State v. Leigh, 423 S.W.2d 690 (Mo.1968).

(2) If cognizable at all under Rule 27.26, the matter could have been raised on the original 27.26 motion and successive motions do not lie. Rule 27.26(d).

(3) The record of the original trial reflects direct testimony by a St. Louis City police officer that the offense occurred at 1974 Arsenal in the City of St. Louis. See Eichelberger v. State, 524 S.W.2d 890 (Mo.App.1975). Venue was established, and any claim to the contrary is frivolous. Counsel is not ineffective for failing to raise frivolous points.

Judgment affirmed.

CLEMENS, P. J. and DOWD, J., concur.