Odewahn v. Commonwealth

407 S.W.2d 137, 1966 Ky. LEXIS 145

• Court: Court of Appeals of Kentucky
• Decided: October 14, 1966
• Status: Published

Opinion

WILLIAMS, Judge.

Jacob Carl Odewahn appeals from a judgment of the Jefferson Circuit Court overruling his RCr 11.42 motion to vacate a judgment sentencing him to life imprisonment. His grounds are that his attorney failed to file a motion for a new trial although he had been requested to do so, and that his attorney failed to perfect an appeal.

This is the second RCr 11.42 motion which this appellant has filed in the Jefferson Circuit Court. (See Odewahn v. Ropke, Ky., 385 S.W.2d 163 (1964). The first motion did not include the grounds that his attorney had failed to file a motion for a new trial or perfect an appeal. Consequently, he is precluded from asserting those grounds on a second motion. Tipton v. Commonwealth, Ky., 398 S.W.2d 493 (1966); Walker v. Wingo, Ky., 398 S.W.2d 885 (1966).

There is no merit to appellant’s argument in any event since the judgment of the court shows a motion for a new trial was overruled, and since his motion to vacate does not indicate that he requested his attorney to file an appeal. Benoit v. Commonwealth, Ky., 402 S.W.2d 706 (1966).

The judgment is affirmed.