Wayne v. State

703 S.W.2d 601, 1986 Mo. App. LEXIS 3504

• Court: Missouri Court of Appeals
• Decided: January 21, 1986
• Docket: No. 49450
• Status: Published

Opinion

CLEMENS, Senior Judge.

Movant-defendant Larry Wayne appeals the circuit court’s judgment summarily denying his second Rule 27.26 motion. This motion, as did the first one, challenges the judgment based on a finding defendant was guilty of second degree murder and imposing a life sentence. This after federal courts had repeatedly denied defendant’s post-trial motions.

We look to our decision affirming the denial of defendant’s first Rule 27.26 motion. See Wayne v. State, 579 S.W.2d 780 (Mo.App.1979). Therein we noted defendant had escaped from custody while his motion for new trial was pending. The motion court had dismissed defendant’s motion for failure to prosecute. Affirming, we held a defendant cannot complain of counsel’s failure to perfect an appeal while defendant has escaped during the time an appeal can be taken. We concluded: “Mov-ant was in contempt of court and the law. Such trifling with justice cannot be tolerated.”

We look now to the challenged denial of defendant’s second 27.26 motion. The motion court found defendant was raising the same points raised in his first motion, denial of which our court had previously affirmed. The present motion court ruled that by escaping after his trial defendant had waived his right to appeal. In this dismissal the motion court relied on Adkins v. State, 560 S.W.2d 67[1] (Mo.App.1977) holding that Rule 27.26(d) prohibits “second motions.”

Nor does defendant show some new objectionable ground. That is permissible but only when the new ground could not, as this one was, have been raised in the original motion. Warren v. State, 637 S.W.2d 842 (Mo.App.1982); Giles v. State, 633 S.W.2d 82[1] (Mo.App.1981).

The motion court did not err in summarily denying defendant’s second Rule 27.26 motion.

KELLY, P.J., and KAROHL, J., concur.