Zinn v. State

Missouri Court of Appeals

Zinn v. State

588 S.W.2d 177, 1979 Mo. App. LEXIS 3231

CourtMissouri Court of Appeals

DecidedSeptember 21, 1979

DocketNo. 11280

StatusPublished

Cited by4 cases

This text of 588 S.W.2d 177 (Zinn 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

Zinn v. State, 588 S.W.2d 177, 1979 Mo. App. LEXIS 3231 (Mo. Ct. App. 1979).

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Opinion

BILLINGS, Presiding Judge.

Roger J. Zinn filed a postconviction motion to vacate judgment and sentence under Rule 27.26, V.A.M.R., seeking relief from a court imposed sentence of 10 years following his jury conviction for burglary. The trial court conducted an evidentiary hearing and overruled the motion. We affirm.

Appellant’s points in this appeal are as follows: that he was unlawfully sentenced under the Second Offender Act [§ 556.280, RSMo 1969]; the failure of the trial court to make findings of fact and conclusions of law on appellant’s contention that certain evidence was erroneously admitted at his trial; and his averment of newly discovered evidence.

[178]*178Appellant’s burglary conviction was affirmed by this court in State v. Zinn, 562 S.W.2d 784 (Mo.App.1978). His contention regarding his sentencing as a habitual criminal was squarely ruled against him. There, as here, he contended his prior conviction was tainted by ineffective assistance of counsel. Having been determined in his direct appeal, appellant cannot now have a second review of the matter in this postcon-viction proceeding. Sweazea v. State, 515 S.W.2d 499 (Mo. banc 1974).

In his direct appeal the appellant complained that impeachment evidence was improperly admitted. In Zinn, supra, 562 S.W.2d at 789[12], we declined review of this point because of appellant’s violation of Rule 84.04(e), V.A.M.R. The fact that we held the point was not preserved for appellate review does not alter the present situation. Any such error would fall in the category of trial error and is not reviewable in this proceeding. Cook v. State, 511 S.W.2d 819 (Mo.1974).

Newly discovered evidence is not cognizable in a motion to vacate sentence and appellant’s remaining point is denied. Hatfield v. State, 529 S.W.2d 180 (Mo.App.1975).

The judgment is affirmed.

All concur.

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BILLINGS, Presiding Judge.

Roger J. Zinn filed a postconviction motion to vacate judgment and sentence under Rule 27.26, V.A.M.R., seeking relief from a court imposed sentence of 10 years following his jury conviction for burglary. The trial court conducted an evidentiary hearing and overruled the motion. We affirm.

Appellant’s points in this appeal are as follows: that he was unlawfully sentenced under the Second Offender Act [§ 556.280, RSMo 1969]; the failure of the trial court to make findings of fact and conclusions of law on appellant’s contention that certain evidence was erroneously admitted at his trial; and his averment of newly discovered evidence.

[178]*178Appellant’s burglary conviction was affirmed by this court in State v. Zinn, 562 S.W.2d 784 (Mo.App.1978). His contention regarding his sentencing as a habitual criminal was squarely ruled against him. There, as here, he contended his prior conviction was tainted by ineffective assistance of counsel. Having been determined in his direct appeal, appellant cannot now have a second review of the matter in this postcon-viction proceeding. Sweazea v. State, 515 S.W.2d 499 (Mo. banc 1974).

In his direct appeal the appellant complained that impeachment evidence was improperly admitted. In Zinn, supra, 562 S.W.2d at 789[12], we declined review of this point because of appellant’s violation of Rule 84.04(e), V.A.M.R. The fact that we held the point was not preserved for appellate review does not alter the present situation. Any such error would fall in the category of trial error and is not reviewable in this proceeding. Cook v. State, 511 S.W.2d 819 (Mo.1974).

Newly discovered evidence is not cognizable in a motion to vacate sentence and appellant’s remaining point is denied. Hatfield v. State, 529 S.W.2d 180 (Mo.App.1975).

The judgment is affirmed.

All concur.

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588 S.W.2d 177, 1979 Mo. App. LEXIS 3231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zinn-v-state-moctapp-1979.

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