Morse v. State

Missouri Court of Appeals

Morse v. State

539 S.W.2d 325, 1976 Mo. App. LEXIS 2790

CourtMissouri Court of Appeals

DecidedJuly 19, 1976

DocketNo. 10154

StatusPublished

Cited by1 cases

This text of 539 S.W.2d 325 (Morse v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Morse v. State, 539 S.W.2d 325, 1976 Mo. App. LEXIS 2790 (Mo. Ct. App. 1976).

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Opinion

BILLINGS, Chief Judge.

This is a post-conviction proceeding under Rule 27.26, V.A.M.R., to vacate a 1973 sentence.¹ The trial court appointed counsel, conducted an evidentiary hearing, and denied appellant’s motion. We affirm.

The record reflects that is appellant’s second motion to vacate the seven year sentence and judgment he received for felonious stealing. His present motion acknowledges his earlier motion but he avers his initial motion should be ignored because it was improperly drafted without legal assistance.

Paragraph (d) of Rule 27.26 prohibits a second or successive motion “. [Wjhere the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application or where the ground presented is new but could have been raised in the prior motion . . . .” This paragraph further places a burden on the prisoner to establish that any new ground raised in a second motion could not have been raised by him in the prior motion.

Appellant’s initial motion was filed March 25, 1975, and, inter alia, complained [326]*326of his trial counsel and the fact a subpoena for a material defense witness [David Of-futt] was withdrawn. The trial court dismissed the motion on March 26, 1975, and no appeal was taken from the judgment.

The present motion was filed May 21, 1975. It alleges appellant’s trial attorney was ineffective because of the latter’s failure to investigate the case or secure the presence of an important defense witness [David Offutt] and appellant was denied compulsory process for obtaining witnesses in his favor.

We are of the opinion that appellant’s instant motion falls squarely within the prohibition contained in paragraph (d) of Rule 27.26 and is a second or successive motion. Appellant exhausted his remedy under Rule 27.26 when his prior motion, based upon the same grounds as his present motion, was overruled and he did not appeal. Ivy v. State, 509 S.W.2d 148 (Mo.App.1974). Furthermore, if it be assumed that the present grounds are “new”, they could have been raised in appellant’s prior motion to vacate.

The judgment is affirmed.

All concur.

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BILLINGS, Chief Judge.

This is a post-conviction proceeding under Rule 27.26, V.A.M.R., to vacate a 1973 sentence.¹ The trial court appointed counsel, conducted an evidentiary hearing, and denied appellant’s motion. We affirm.

The record reflects that is appellant’s second motion to vacate the seven year sentence and judgment he received for felonious stealing. His present motion acknowledges his earlier motion but he avers his initial motion should be ignored because it was improperly drafted without legal assistance.

Paragraph (d) of Rule 27.26 prohibits a second or successive motion “. [Wjhere the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application or where the ground presented is new but could have been raised in the prior motion . . . .” This paragraph further places a burden on the prisoner to establish that any new ground raised in a second motion could not have been raised by him in the prior motion.

Appellant’s initial motion was filed March 25, 1975, and, inter alia, complained [326]*326of his trial counsel and the fact a subpoena for a material defense witness [David Of-futt] was withdrawn. The trial court dismissed the motion on March 26, 1975, and no appeal was taken from the judgment.

The present motion was filed May 21, 1975. It alleges appellant’s trial attorney was ineffective because of the latter’s failure to investigate the case or secure the presence of an important defense witness [David Offutt] and appellant was denied compulsory process for obtaining witnesses in his favor.

We are of the opinion that appellant’s instant motion falls squarely within the prohibition contained in paragraph (d) of Rule 27.26 and is a second or successive motion. Appellant exhausted his remedy under Rule 27.26 when his prior motion, based upon the same grounds as his present motion, was overruled and he did not appeal. Ivy v. State, 509 S.W.2d 148 (Mo.App.1974). Furthermore, if it be assumed that the present grounds are “new”, they could have been raised in appellant’s prior motion to vacate.

The judgment is affirmed.

All concur.

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539 S.W.2d 325, 1976 Mo. App. LEXIS 2790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morse-v-state-moctapp-1976.

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