Swenson v. State

772 S.W.2d 673, 1989 Mo. App. LEXIS 480, 1989 WL 33942

• Court: Missouri Court of Appeals
• Decided: April 11, 1989
• Docket: Nos. WD 41018, WD 41065
• Status: Published

Opinion

PER CURIAM.

In this consolidated appeal Millard L. Swenson challenges the dismissal of his second and third motions for post-conviction relief. We affirmed his underlying multiple jury convictions of kidnapping and sodomy and his sentences totaling 620 years’ imprisonment in State v. Swenson, 551 S.W.2d 917 (Mo.App.1977). In his three attempts to vacate his kidnapping and sodomy convictions, appellant alleged ineffectiveness of his trial counsel.

Appellant filed his first motion pursuant to Rule 27.26 in 1979. The trial court denied post-conviction relief in 1981 after an evidentiary hearing and we affirmed in Swenson v. State, 637 S.W.2d 275 (Mo.App.1982).

On January 4, 1988, appellant again sought post-conviction relief in a motion treated as filed under Rule 29.15 because of the repeal of Rule 27.26. The trial court summarily dismissed appellant’s second motion on July 25, 1988.

Appellant’s third motion for post-conviction relief was filed pursuant to Rule 29.15 on June 28, 1988, and dismissed as a successive motion in violation of Rule 29.15(k) on August 5, 1988.

We affirm.

In both appeals appellant presents identical legal arguments. Arguing the applicability of the provisions of repealed Rule 27.26(d), appellant asserts that his motions were improperly dismissed because he presented claims of ineffective assistance of counsel not raised in prior motions and not known to him earlier.

Appellant’s argument lacks merit. Effective January 1, 1988, Rule 27.26 was repealed and replaced by Rules 24.035 and 29.15. The new rules expressly prohibit all successive motions. Rules 24.035(k) and 29.15(k). Further, Rules 24.035(Z) and 29.-15(m) implicitly bar motions from persons, such as appellant, who were sentenced before 1988 and have completed one Rule 27.26 motion. See, Hutchins v. State, 761 S.W.2d 761, 762 (Mo.App.1988); accord Byrd v. Armontrout, 686 F.Supp. 743, 753 (E.D.Mo.1988).

Sentenced in 1975 and denied Rule 27.26 relief in 1981, appellant could not avail himself of Rule 29.15. The trial court appropriately dismissed both motions. We accordingly affirm.