DeClue v. State, No. 40382

CourtMissouri Court of Appeals
Writing for the CourtREINHARD
Citation579 S.W.2d 158
PartiesLouis Edward DeCLUE, Movant-Appellant, v. STATE of Missouri, Respondent.
Decision Date13 March 1979
Docket NumberNo. 40382

Page 158

579 S.W.2d 158
Louis Edward DeCLUE, Movant-Appellant,
v.
STATE of Missouri, Respondent.
No. 40382.
Missouri Court of Appeals, Eastern District, Division Three.
March 13, 1979.

Robert L. Carr, Potosi, for movant-appellant.

Paul Robert Otto, John M. Morris, III, Richard Thurman, Asst. Attys. Gen., Jefferson City, Albert G. Tindall, Washington County Pros. Atty., Potosi, for respondent.

REINHARD, Presiding Judge.

Movant appeals the circuit court's denial, without an evidentiary hearing, of his Rule 27.26 motion. Previously, movant sustained a jury conviction for the statutory rape of a 10 year old female and was sentenced to ten years confinement. He did not appeal the conviction. On appeal from the denial of

Page 159

his 27.26 motion he contends the court erred in denying him an evidentiary hearing. As ground for relief his motion alleged,

(M)y conviction and sentence resulted from and are grounded upon the false testimony of the alleged victim and witness to the alleged crime . . . in that she falsely testified at my trial that I had sexual intercourse with her and assaulted her and/or raped her. Facts supporting this came to my knowledge and arose after my trial and after the time for a new trial. . . .

Movant further alleged that the charges against him were based solely and chiefly on the testimony of the victim and that this victim, "had since my trial made a statement sworn to by her admitting that her before trial statements and trial testimony were false, that she made them out of fear of being beaten by her natural father, and because she did not like me as her stepfather, and because The prosecuting attorney helped her with her trial testimony and told her how to testify at the trial." (Emphasis added). He named as his witnesses the victim and four others stating that other evidence would consist of the "sworn, recorded and transcribed statement of the victim."

The state filed its motion to dismiss contending that neither a Rule 27.26 motion nor a writ of error coram nobis will lie if grounded on newly discovered evidence. The circuit court, agreeing with the state's theory, granted the state's motion to dismiss thereby denying movant the relief he sought.

On appeal, the state cites Hatfield v. State, 529 S.W.2d 180 (Mo.App.1975) in support of the proposition that newly discovered evidence is improper justification to sustain a Rule 27.26 motion. We agree that such is the law in Missouri but find it unnecessary to...

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3 practice notes
  • State v. Kelley, Nos. 19988
    • United States
    • Court of Appeal of Missouri (US)
    • July 17, 1997
    ...See Wilson v. State, 813 S.W.2d 833, 834 (Mo.banc 1991). He insists, however, that his claim falls within the purview of DeClue v. State, 579 S.W.2d 158 (Mo.App.1979). The DeClue court explained that in certain circumstances, the general rule does not "Allegations claiming the convicti......
  • State v. Mims, No. 65532
    • United States
    • United States State Supreme Court of Missouri
    • July 17, 1984
    ...520 S.W.2d 123, 124 (Mo.App.1975) (new trial); Tyler v. State, 501 S.W.2d 189, 191 (Mo.App.1973) (new trial); see also DeClue v. State, 579 S.W.2d 158, 159 (Mo.App.1979) ("post-conviction relief"); Voegtlin v. State, 546 S.W.2d 40, 41 (Mo.App.1977) ("post-conviction relief&qu......
  • Ferguson v. State Of Mo., No. WD 71264.
    • United States
    • Court of Appeal of Missouri (US)
    • August 31, 2010
    ...cognizable in a post-conviction action.” 325 S.W.3d 407 State v. Cummings, 838 S.W.2d 4, 7 (Mo.App. W.D.1992); see also DeClue v. State, 579 S.W.2d 158, 159 (Mo.App. E.D.1979) (“Allegations claiming the conviction is based upon perjured testimony which defendant contends was known to the st......
3 cases
  • State v. Kelley, Nos. 19988
    • United States
    • Court of Appeal of Missouri (US)
    • July 17, 1997
    ...See Wilson v. State, 813 S.W.2d 833, 834 (Mo.banc 1991). He insists, however, that his claim falls within the purview of DeClue v. State, 579 S.W.2d 158 (Mo.App.1979). The DeClue court explained that in certain circumstances, the general rule does not "Allegations claiming the convicti......
  • State v. Mims, No. 65532
    • United States
    • United States State Supreme Court of Missouri
    • July 17, 1984
    ...520 S.W.2d 123, 124 (Mo.App.1975) (new trial); Tyler v. State, 501 S.W.2d 189, 191 (Mo.App.1973) (new trial); see also DeClue v. State, 579 S.W.2d 158, 159 (Mo.App.1979) ("post-conviction relief"); Voegtlin v. State, 546 S.W.2d 40, 41 (Mo.App.1977) ("post-conviction relief&qu......
  • Ferguson v. State Of Mo., No. WD 71264.
    • United States
    • Court of Appeal of Missouri (US)
    • August 31, 2010
    ...cognizable in a post-conviction action.” 325 S.W.3d 407 State v. Cummings, 838 S.W.2d 4, 7 (Mo.App. W.D.1992); see also DeClue v. State, 579 S.W.2d 158, 159 (Mo.App. E.D.1979) (“Allegations claiming the conviction is based upon perjured testimony which defendant contends was known to the st......

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