Barkwell v. State, 11994

• Decision Date: 20 July 1981
• Docket Number: No. 11994,11994
• Citation: Barkwell v. State, 619 S.W.2d 511 (Mo. App. 1981)
• Parties: Nelson Eugene BARKWELL, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 511

619 S.W.2d 511

Nelson Eugene BARKWELL, Movant-Appellant, v.STATE of Missouri, Respondent.

No. 11994.

Missouri Court of Appeals, Southern District, Division Two.

July 20, 1981.

David R. Fielder, Springfield, for movant-appellant.

John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

BILLINGS, Judge.

Nelson Eugene Barkwell was denied postconviction relief, under Rule 27.26, V.A.M.R., from consecutive sentences for stealing and filed this appeal.The trial court found that he was not prejudiced by his trial attorney's failure to timely file his motion for new trial.We affirm.

Movant alleged he had ineffective assistance of counsel because the motion for new trial was late and on direct appeal (State v. Barkwell, 590 S.W.2d 93(Mo.App.1979))we refused to review his "most meritorious point."

In movant's direct appeal three points were set forth.Even though the motion for new trial was filed late, we reviewed two of the points under former Rule 28.02, V.A.M.R. (now Rule 30.20, V.A.M.R.).¹We did decline to review the remaining point because it was directed to the trial court's ruling with respect to the admissibility of certain evidence and was not preserved for review by the untimely motion for new trial.

The test for ineffective assistance is two-pronged: First, whether counsel exercised the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstance; second, whether counsel's failure to exercise such skill and diligence resulted in prejudice to his client.Seales v. State, 580 S.W.2d 733(Mo.banc 1979).

The trial court, in a written opinion, determined that movant's trial attorney had failed to exercise the requisite skill and diligence in filing the motion for new trial out of time.However, after reviewing the claim of error as to evidence admitted, in light of the trial transcript and records, the court concluded no prejudice...