Sharp v. Commonwealth

385 S.W.2d 317

• Court: Court of Appeals of Kentucky
• Decided: November 6, 1964
• Status: Published

Opinion

WILLIAMS, Judge.

John Sharp, convicted of incest, and serving an 18-year sentence in the penitentiary at Eddyville, appeals from an order overruling his motion to vacate the judgment under RCr 11.42.

Appellant sets out numerous grounds as basis for vacating the judgment, but presents no factual evidence to support them. A motion made under RCr 11.42 must state facts to support it. Jennings v. Commonwealth, Ky., 380 S.W.2d 284.

Appellant was dissatisfied with the attorney appointed for the hearing, but makes no showing that he was incompetent. He claims he was not taken before the circuit judge on this hearing, but that the Commonwealth’s Attorney dismissed his motion. In essence he contends he was denied due process of law and equal protection of the law.

In the order overruling appellant’s motion the circuit court recited that appellant appeared in open court represented by counsel, elected to put on no proof, and through counsel stated that, after a diligent search, no evidence in support of the allegations made in the motion was discovered. That order disproves his claim that he was denied due process of law or equal protection of the law.

Judgment affirmed.