Burnett v. State, 39799
| Decision Date | 12 September 1978 |
| Docket Number | No. 39799,39799 |
| Citation | 573 S.W.2d 380 |
| Parties | Harry BURNETT, Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Huck & Kasten, James W. Huck, Thomas C. Mummert, III, St. Louis, for appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, J. Michael Davis, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
Defendant appeals from denial of his Rule 27.26 motion.
He was convicted by a jury of first degree burglary by forcibly burglarizing an occupied dwelling on October 29, 1975. His conviction was affirmed on appeal in State v. Burnette, 549 S.W.2d 352 (Mo.App.1977).
On September 14, 1977 defendant filed a Rule 27.26 motion alleging as grounds therefor (1) newly discovered evidence in the form of witnesses which he was unable to locate and was forced to trial by the trial court without them, and (2) ineffective assistance of counsel in that counsel was forced to trial by the trial court before counsel could find two alibi witnesses.
The court records show that the original information was filed on December 19, 1974, and the trial was started October 28, 1975. On April 14, 1975 defendant was granted a continuance on the ground that his witnesses were presently unavailable. He made no other request for continuance.
On October 12, 1977, the trial court denied defendant's Rule 27.26 motion without an evidentiary hearing from which order defendant takes issue.
In order to be entitled to an evidentiary hearing on a Rule 27.26 motion a defendant must: (1) Allege facts, as opposed to conclusions, warranting relief, (2) raise matters not refuted by the files and records in the case and (3) show the matters complained of resulted in prejudice to the defendant. Grant v. State, 561 S.W.2d 739 (Mo.App.1978).
Defendant's complaints in his Rule 27.26 motion are really one and the same, that is, he was unable to present two alibi witnesses by reason of action of the trial court. He states he (1) "was unable to locate them because the Court forced movant to trial while movant was still searching for them," and (2) "Movant was deprived of effective assistance of counsel . . ., in that, counsel was forced to trial in this case by the Court before counsel could adequately seek out two important witnesses who could have proven that m...
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Dickerson v. State, 39178
...Further, movant must allege and demonstrate that the matters of which he complains resulted in prejudice to his cause. Burnett v. State, 573 S.W.2d 380, 381 (Mo.App.1978); Perry v. State, 565 S.W.2d 464, 464 (Mo.App.1978); Haliburton v. State, 546 S.W.2d 771, 773 (Mo.App.1977). Finally, onc......
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Chatman v. State, 39730
...allege facts which warrant relief and are not refuted by the record and which demonstrate prejudice to the movant. Burnett v. State, 573 S.W.2d 380, 381 (Mo.App. 1978). Movant, by entering a plea of guilty has removed the issue of ineffective assistance of counsel from this court's review e......
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Home Ins. Co. v. Butler, WD
... ... inactive docket "pending the decision of appeal in State v. James Butler." Ms. Harvey and Mr. Hanson again filed a motion for reconsideration on August ... ...
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Umfleet v. State
...supra. These allegations are not sufficient to entitle movant to an evidentiary hearing on his Rule 27.26 motion. Burnett v. State, 573 S.W.2d 380, 381 (Mo.App. 1978); Zinn v. State, 588 S.W.2d 177, 178 (Mo.App. 1979); Fields v. State, 572 S.W.2d 477, 480 (Mo.banc Movant next complains that......