Tippett v. State

634 S.W.2d 558, 1982 Mo. App. LEXIS 3910

• Court: Missouri Court of Appeals
• Decided: May 11, 1982
• Docket: No. 44366
• Status: Published

Opinion

CLEMENS, Senior Judge.

Movant-defendant James Tippett in this Rule 27.26 proceeding had been previously jury-convicted of possessing heroin. The trial court sentenced him to 15 years in prison. We affirmed. State v. Tippett, 588 S.W.2d 742 (Mo.App.1979).

By defendant’s Rule 27.26 motion he pleaded his conviction was based on a search by policemen who—defendant alleged—had broken into his hotel room without a warrant.

The motion court summarily denied defendant’s motion. He has now appealed, contending the court erred because he had there pleaded facts of an illegal search, which if true would entitle him to relief. The state responds that issue is not now reviewable because it had been raised and denied on appeal.

In our opinion affirming defendant’s conviction we note that at trial defendant had testified detectives searched his room after forcibly breaking down two doors. In contrast the officers testified they had entered defendant’s room through open doors and saw him trying to ditch two bags of narcotics. On this conflicting testimony the trial court denied defendant’s motion to suppress the seized narcotics. Defendant’s challenge to this ruling was squarely rebuffed on appeal. (588 S.W.2d l.c. 743)

An issue previously considered on direct appeal, as this one was, cannot be relitigat-ed on a Rule 27.26 motion. Sweazea v. State, 515 S.W.2d 499[2] (Mo.banc 1974); Lyle v. State, 617 S.W.2d 403[1] (Mo.App.1981).

Affirmed.

REINHARD, P. J., and SNYDER and CRIST, JJ., concur.