Morris v. State

611 S.W.2d 39, 1980 Mo. App. LEXIS 3533

Opinion

BILLINGS, Judge.

Appellant Robert Lee Morris filed a post-conviction motion under Rule 27.26, V.A. M.R., seeking to vacate a 30-year sentence he received in Greene County for second degree murder.¹ An evidentiary hearing was not held but the trial court did make and enter findings of fact and conclusions of law in denying appellant’s motion.

Our review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j); King v. State, 581 S.W.2d 842 (Mo.App.1979). It is only when the appellate court is left with a firm conviction that a mistake has been made that it should deem the lower court’s findings to be “clearly erroneous.” Covington v. State, 600 S.W.2d 186 (Mo.App.1980).

An evidentiary hearing in this type proceeding is required only if the postcon-viction motion alleges facts, not conclusions, warranting relief and such facts raise matters that are not refuted by the files and records in the case, and, appellant was prejudiced. Kearns v. State, 583 S.W.2d 748 (Mo.App.1979).

The trial court found appellant’s allegation directed to the jury selection procedure in Greene County had been waived [Covington v. State, supra] and was also refuted by the court’s records. The court found that appellant’s claims of ineffective assistance of counsel failed to allege requisite facts, were refuted by the record, or constituted trial strategy.

The trial court’s findings, conclusions and judgment are not clearly erroneous. An opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).

PREWITT, P. J., MAUS, C. J., and HOGAN, J., concur.

Footnotes

1

. State v. Morris, 564 S.W.2d 303 (Mo.App.1978).