Winberry v. State

Supreme Court of Arkansas

Winberry v. State

505 S.W.2d 497, 256 Ark. 65, 1973 Ark. LEXIS 1297

CourtSupreme Court of Arkansas

DecidedFebruary 25, 1973

DocketCR 73-173

StatusPublished

Cited by7 cases

This text of 505 S.W.2d 497 (Winberry v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Winberry v. State, 505 S.W.2d 497, 256 Ark. 65, 1973 Ark. LEXIS 1297 (Ark. 1973).

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Opinion

LYLE Brown, Justice.

David Joe Winberry entered pleas of guilty to three felony charges and was sentenced to twelve years. Four months thereafter appellant filed a petition for post-conviction relief under our Rule I. The trial court denied the petition without an evidentiary hearing and on the basis of information contained in the records. One month thereafter appellant filed a second petition for post-conviction relief and set forth grounds not contained in his first petition. The trial court treated that petition as one for appeal. Appellant contends (1) that an attorney should have been appointed to represent him in presenting his first Rule I petition, and (2) that the second petition for post-conviction relief should have been heard on its merits in that appellant did not intelligently or understandably waive all grounds for relief by the filing of his first petition.

With reference to the first point, the court was not obliged to appoint counsel for appellant, when the court determined there was no necessity for an evidentiary hearing. Rule I (D) clearly indicates that counsel shall be appointed for an indigent defendant when there is to be a hearing conducted on the defendant’s petition.

With respect to the second point, appellant was not entitled to file a second petition for post-conviction relief. Rule I (H) requires all grounds for relief to be stated in the original or amended petition. Owen v. State, 249 Ark. 903, 462 S.W. 2d 469 (1971); Grayer v. State, 242 Ark. 640, 414 S.W. 2d 870 (1967).

Affirmed.

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LYLE Brown, Justice.

David Joe Winberry entered pleas of guilty to three felony charges and was sentenced to twelve years. Four months thereafter appellant filed a petition for post-conviction relief under our Rule I. The trial court denied the petition without an evidentiary hearing and on the basis of information contained in the records. One month thereafter appellant filed a second petition for post-conviction relief and set forth grounds not contained in his first petition. The trial court treated that petition as one for appeal. Appellant contends (1) that an attorney should have been appointed to represent him in presenting his first Rule I petition, and (2) that the second petition for post-conviction relief should have been heard on its merits in that appellant did not intelligently or understandably waive all grounds for relief by the filing of his first petition.

With reference to the first point, the court was not obliged to appoint counsel for appellant, when the court determined there was no necessity for an evidentiary hearing. Rule I (D) clearly indicates that counsel shall be appointed for an indigent defendant when there is to be a hearing conducted on the defendant’s petition.

With respect to the second point, appellant was not entitled to file a second petition for post-conviction relief. Rule I (H) requires all grounds for relief to be stated in the original or amended petition. Owen v. State, 249 Ark. 903, 462 S.W. 2d 469 (1971); Grayer v. State, 242 Ark. 640, 414 S.W. 2d 870 (1967).

Affirmed.

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505 S.W.2d 497, 256 Ark. 65, 1973 Ark. LEXIS 1297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winberry-v-state-ark-1973.

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