May v. State

732 S.W.2d 266, 1987 Mo. App. LEXIS 4339

• Court: Missouri Court of Appeals
• Decided: July 7, 1987
• Docket: No. 51636
• Status: Published

Opinion

CRIST, Judge.

Movant appeals from the denial of his Rule 27.26 motion after an evidentiary hearing. Movant was convicted by a jury of second degree robbery and first degree burglary and sentenced to twenty-five years’ imprisonment. We affirm.

Movant alleges he was abandoned by his attorney on the appeal of his conviction. He testified at the evidentiary hearing that he believed the trial attorney who had been retained by his mother was going to prosecute his appeal. His trial attorney testified she was only hired to handle the trial and she only preserved movant’s right to appeal by filing post-trial motions and a notice of appeal. She did not further prosecute the appeal. She also did not seek leave to withdraw.

In his findings of fact and conclusions of law, the Rule 27.26 judge found that neither movant nor his mother ever requested movant’s trial attorney to appeal his case. Thus, movant could not have been abandoned on appeal.

Even though movant testified he believed his trial attorney would prosecute his appeal, the Rule 27.26 court, has the right to reject movant’s uncontradicted testimony. Porter v. State, 678 S.W.2d 2 (Mo.App.1984). We cannot say the Rule 27.26 court was clearly erroneous. Rule 27.26(j); Laws v. State, 708 S.W.2d 182, 185[2] (Mo.App.1986).

Judgment affirmed.

SATZ, P.J., and KELLY, J., concur.