Malone v. State

644 S.W.2d 381, 1982 Mo. App. LEXIS 3988

• Court: Missouri Court of Appeals
• Decided: December 21, 1982
• Docket: No. 44855
• Status: Published

Opinion

CRANDALL, Presiding Judge.

Movant appeals from the trial court’s denial, without an evidentiary hearing, of his successive Rule 27.26 motion. We affirm. Movant’s conviction for murder in the first degree was affirmed in State v. Malone, 301 S.W.2d 750 (Mo.1957). The denial of mov-ant’s first Rule 27.26 motion was affirmed in Malone v. State, 461 S.W.2d 727 (Mo. 1971).

Movant, first alleges ineffective assistance of counsel in his original trial because his attorney failed to properly investigate and prepare his case. This contention was raised in Malone v. State, 461 S.W.2d 727 (Mo.1971) and will- not be reconsidered in this appeal. Rule 27.26(d).

Movant next alleges ineffective assistance of counsel in his original trial because his attorney failed to request a manslaughter instruction. Our review of the record discloses that trial counsel did request a manslaughter instruction and it was refused. The refusal of the manslaughter instruction was raised on direct appeal and ruled adversely to movant in State v. Malone, 301 S.W.2d 750, 759 (Mo.1957). It will not be reconsidered in this appeal. Rule 27.26(b)(3).

Movant finally alleges ineffective assistance of counsel in his first Rule 27.26 motion for failure to raise the two contentions that he raises in this appeal. For the reasons previously given, movant’s contention is without merit.

The order of the trial court denying mov-ant’s successive Rule 27.26 motion without an evidentiary hearing is affirmed.

REINHARD and CRIST, JJ., concur.