Roberts v. State

Missouri Court of Appeals

Roberts v. State

767 S.W.2d 133, 1989 Mo. App. LEXIS 420, 1989 WL 28180

CourtMissouri Court of Appeals

DecidedMarch 28, 1989

DocketNo. 55495

StatusPublished

This text of 767 S.W.2d 133 (Roberts 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.

Bluebook

Roberts v. State, 767 S.W.2d 133, 1989 Mo. App. LEXIS 420, 1989 WL 28180 (Mo. Ct. App. 1989).

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Opinion

GARY M. GAERTNER, Judge.

Movant appeals from the denial of his amended Rule 29.15 motion. Movant was convicted of felony stealing in violation of RSMo § 570.030 (1986) for which he was sentenced as a persistent offender to fifteen years imprisonment. Movant alleged in his amended motion that trial counsel was ineffective for failing to raise the defense of double jeopardy. Movant further alleged that he received ineffective assist anee of counsel on a prior Rule 27.26 motion. The trial court dismissed movant’s motion without an evidentiary hearing. We affirm.

On March 23, 1987, movant filed a motion pursuant to Rule 27.26. This motion was denied in part on November 25, 1987. The trial court reserved ruling on a persistent offender issue until an evidentiary hearing could be held. On March 30, 1988, movant filed a motion to withdraw that part of his motion that related to his persistent offender allegation. On April 12, 1988, movant filed a second Rule 27.26 motion. Movant was appointed counsel and filed an amended Rule 29.15 motion. The court denied this motion without an evidentiary hearing.

Rule 29.15(m) precludes the filing of a post-conviction motion pursuant to that rule if a defendant was convicted prior to January 1, 1988, and has filed a previous motion pursuant to Rule 27.26. Movant was convicted on May 1, 1986, prior to January 1, 1988. Movant filed a previous post-conviction relief motion pursuant to Rule 27.26. Thus, pursuant to Rule 29.-15(m) movant’s motion pending before the trial court was properly dismissed. Although the trial court did not dismiss mov-ant’s motion pursuant to Rule 29.15(m), we are free to sustain the court’s dismissal on other grounds. See Shepherd v. State, 612 S.W.2d 384, 385 (Mo.App., E.D.1981).

The trial court correctly dismissed mov-ant’s motion.

GRIMM, P.J., and KAROHL, J., concur.

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GARY M. GAERTNER, Judge.

Movant appeals from the denial of his amended Rule 29.15 motion. Movant was convicted of felony stealing in violation of RSMo § 570.030 (1986) for which he was sentenced as a persistent offender to fifteen years imprisonment. Movant alleged in his amended motion that trial counsel was ineffective for failing to raise the defense of double jeopardy. Movant further alleged that he received ineffective assist anee of counsel on a prior Rule 27.26 motion. The trial court dismissed movant’s motion without an evidentiary hearing. We affirm.

On March 23, 1987, movant filed a motion pursuant to Rule 27.26. This motion was denied in part on November 25, 1987. The trial court reserved ruling on a persistent offender issue until an evidentiary hearing could be held. On March 30, 1988, movant filed a motion to withdraw that part of his motion that related to his persistent offender allegation. On April 12, 1988, movant filed a second Rule 27.26 motion. Movant was appointed counsel and filed an amended Rule 29.15 motion. The court denied this motion without an evidentiary hearing.

Rule 29.15(m) precludes the filing of a post-conviction motion pursuant to that rule if a defendant was convicted prior to January 1, 1988, and has filed a previous motion pursuant to Rule 27.26. Movant was convicted on May 1, 1986, prior to January 1, 1988. Movant filed a previous post-conviction relief motion pursuant to Rule 27.26. Thus, pursuant to Rule 29.-15(m) movant’s motion pending before the trial court was properly dismissed. Although the trial court did not dismiss mov-ant’s motion pursuant to Rule 29.15(m), we are free to sustain the court’s dismissal on other grounds. See Shepherd v. State, 612 S.W.2d 384, 385 (Mo.App., E.D.1981).

The trial court correctly dismissed mov-ant’s motion.

GRIMM, P.J., and KAROHL, J., concur.

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Bluebook (online)

767 S.W.2d 133, 1989 Mo. App. LEXIS 420, 1989 WL 28180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-state-moctapp-1989.

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