Turley v. State

Missouri Court of Appeals

Turley v. State

571 S.W.2d 465, 1978 Mo. App. LEXIS 2849

CourtMissouri Court of Appeals

DecidedAugust 8, 1978

DocketNo. 38788

StatusPublished

Cited by5 cases

This text of 571 S.W.2d 465 (Turley 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

Turley v. State, 571 S.W.2d 465, 1978 Mo. App. LEXIS 2849 (Mo. Ct. App. 1978).

Pincite

Opinions

SMITH, Judge.

Appellant, Ernest Turley, appeals from a judgment entered by the circuit court denying, without an evidentiary hearing, his Rule 27.26 motion for post conviction relief. On October 5, 1972, the circuit court of Warren County entered judgment of conviction upon a jury verdict finding appellant guilty of armed robbery and sentenced him as a second offender to twenty (20) years imprisonment. On appeal we affirmed this conviction. State v. Turley, 518 S.W.2d 207 (Mo.App.1975). In his 27.26 motion, appellant contends that his prior convictions were invalid because he was without assistance of counsel and therefore, he was improperly sentenced as a second offender. He requests to be sentenced without consideration of these allegedly invalid convictions. This would presumably, however, require a new trial on guilt.

The state argues that because the appellant did not raise this issue in the direct appeal of his conviction he is precluded from asserting it in his 27.26 motion.

This case is governed by Gamache v. State, 548 S.W.2d 594 (Mo.App.1977), decided by this court. The facts are almost identical to the present case. Gamache was [466]*466convicted of robbery and sentenced pursuant to the Second Offender Act. In his 27.26 motion he alleged that the Act was inapplicable to him because his previous convictions were without counsel and without a voluntary waiver of counsel. The trial court denied the motion without an evidentiary hearing, because Gamache failed to raise this issue on the direct appeal of his conviction. We affirmed, relying on McCrary v. State, 529 S.W.2d 467 (Mo.App.1975). In McCrary this court stated: “. . .an issue which could have been raised on direct appeal, even though it is a constitutional claim, may not be raised in a post conviction motion, except ... in rare and exceptional circumstances. . Id. at 472.

There are no such rare and exceptional circumstances set forth in Turley’s motion. See also Montgomery v. State, 529 S.W.2d 8 (Mo.App.1975).

Judgment affirmed.

CLEMENS, P. J., concurs. McMILLIAN, J., dissents in separate opinion.

Free access — add to your briefcase to read the full text and ask questions with AI

SMITH, Judge.

Appellant, Ernest Turley, appeals from a judgment entered by the circuit court denying, without an evidentiary hearing, his Rule 27.26 motion for post conviction relief. On October 5, 1972, the circuit court of Warren County entered judgment of conviction upon a jury verdict finding appellant guilty of armed robbery and sentenced him as a second offender to twenty (20) years imprisonment. On appeal we affirmed this conviction. State v. Turley, 518 S.W.2d 207 (Mo.App.1975). In his 27.26 motion, appellant contends that his prior convictions were invalid because he was without assistance of counsel and therefore, he was improperly sentenced as a second offender. He requests to be sentenced without consideration of these allegedly invalid convictions. This would presumably, however, require a new trial on guilt.

The state argues that because the appellant did not raise this issue in the direct appeal of his conviction he is precluded from asserting it in his 27.26 motion.

This case is governed by Gamache v. State, 548 S.W.2d 594 (Mo.App.1977), decided by this court. The facts are almost identical to the present case. Gamache was [466]*466convicted of robbery and sentenced pursuant to the Second Offender Act. In his 27.26 motion he alleged that the Act was inapplicable to him because his previous convictions were without counsel and without a voluntary waiver of counsel. The trial court denied the motion without an evidentiary hearing, because Gamache failed to raise this issue on the direct appeal of his conviction. We affirmed, relying on McCrary v. State, 529 S.W.2d 467 (Mo.App.1975). In McCrary this court stated: “. . .an issue which could have been raised on direct appeal, even though it is a constitutional claim, may not be raised in a post conviction motion, except ... in rare and exceptional circumstances. . Id. at 472.

There are no such rare and exceptional circumstances set forth in Turley’s motion. See also Montgomery v. State, 529 S.W.2d 8 (Mo.App.1975).

Judgment affirmed.

CLEMENS, P. J., concurs. McMILLIAN, J., dissents in separate opinion.

Cite This Page — Counsel Stack

Bluebook (online)

571 S.W.2d 465, 1978 Mo. App. LEXIS 2849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turley-v-state-moctapp-1978.

Opinions

Related

Cite This Page — Counsel Stack