Shive v. State

Missouri Court of Appeals

Shive v. State

771 S.W.2d 381, 1989 Mo. App. LEXIS 821, 1989 WL 60898

CourtMissouri Court of Appeals

DecidedJune 7, 1989

DocketNo. 16036

StatusPublished

This text of 771 S.W.2d 381 (Shive 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

Shive v. State, 771 S.W.2d 381, 1989 Mo. App. LEXIS 821, 1989 WL 60898 (Mo. Ct. App. 1989).

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Opinion

FLANIGAN, Presiding Judge.

Movant appeals from a denial, after evi-dentiary hearing, of his Rule 29.15, V.A. M.R., motion to set aside a judgment and sentence for robbery in the first degree. The conviction, entered after jury trial, was affirmed by this court. State v. Shive, 622 S.W.2d 769 (Mo.App.1981).

Movant’s sole point is that he was entitled to relief on his motion, and the trial court erred in ruling otherwise, because “the sentencing court acted without authority in enhancing movant’s sentence for robbery in the first degree from 22 years to 30 years imprisonment pursuant to § 558.016 in that the court should have acted pursuant to § 557.036, to enhance movant’s sentence.” The statutory references are to RSMo 1978, and each of those statutes has since been amended.

The same point, advanced on a somewhat different theory, was raised and rejected on direct appeal. State v. Shive, supra, at 771[1, 2]. “A matter decided on an earlier appeal cannot be subjected to another review by subsequent post-conviction relief proceeding, even though the litigant has a different theory to suggest.” Medley v. State, 639 S.W.2d 401, 404[6] (Mo.App.1982). To similar effect see Choate v. State, 659 S.W.2d 354, 355[2] (Mo.App.1983). Moreover, there is no merit in mov-ant’s contention, advanced only in his argument as distinguished from his point, that the information was defective in citing § 558.016 instead of § 557.036. See State v. Stapleton, 661 S.W.2d 620, 622[3] (Mo.App.1983), and State v. Robinson, 694 S.W.2d 748, 751[11] (Mo.App.1985).

The judgment is affirmed.

MAUS and PREWITT, JJ., concur.

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FLANIGAN, Presiding Judge.

Movant appeals from a denial, after evi-dentiary hearing, of his Rule 29.15, V.A. M.R., motion to set aside a judgment and sentence for robbery in the first degree. The conviction, entered after jury trial, was affirmed by this court. State v. Shive, 622 S.W.2d 769 (Mo.App.1981).

Movant’s sole point is that he was entitled to relief on his motion, and the trial court erred in ruling otherwise, because “the sentencing court acted without authority in enhancing movant’s sentence for robbery in the first degree from 22 years to 30 years imprisonment pursuant to § 558.016 in that the court should have acted pursuant to § 557.036, to enhance movant’s sentence.” The statutory references are to RSMo 1978, and each of those statutes has since been amended.

The same point, advanced on a somewhat different theory, was raised and rejected on direct appeal. State v. Shive, supra, at 771[1, 2]. “A matter decided on an earlier appeal cannot be subjected to another review by subsequent post-conviction relief proceeding, even though the litigant has a different theory to suggest.” Medley v. State, 639 S.W.2d 401, 404[6] (Mo.App.1982). To similar effect see Choate v. State, 659 S.W.2d 354, 355[2] (Mo.App.1983). Moreover, there is no merit in mov-ant’s contention, advanced only in his argument as distinguished from his point, that the information was defective in citing § 558.016 instead of § 557.036. See State v. Stapleton, 661 S.W.2d 620, 622[3] (Mo.App.1983), and State v. Robinson, 694 S.W.2d 748, 751[11] (Mo.App.1985).

The judgment is affirmed.

MAUS and PREWITT, JJ., concur.

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Bluebook (online)

771 S.W.2d 381, 1989 Mo. App. LEXIS 821, 1989 WL 60898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shive-v-state-moctapp-1989.

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