Hamilton v. State
| Citation | 548 S.W.2d 267 |
| Parties | Robert J. HAMILTON, Appellant, v. STATE of Missouri, Respondent. KCD 28690. |
| Decision Date | 28 February 1977 |
| Court | Court of Appeal of Missouri (US) |
Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
John C. Danforth, Atty. Gen., David L. Baylard, Asst. Atty. Gen., Jefferson City, for respondent.
Before Wasserstrom, P. J., and SOMERVILLE and TURNAGE, JJ.
Appeal from denial of a second motion under Rule 27.26. We affirm.
Appellant was convicted of first degree robbery on a plea of guilty in 1970. In 1971, he filed a motion to set aside the conviction under Rule 27.26 on three grounds, all of which were overruled by Judge Stubbs, by whom the conviction had been entered. That ruling was appealed, and in Hamilton v. State, Mo.App., 490 S.W.2d 363 (1973) this court affirmed the ruling by Judge Stubbs as to two of the grounds stated in the motion, but remanded the case for a consideration and finding as to "(w)hether the trial court improperly and erroneously considered another unproved charge of other offenses of armed robbery and murder." On March 8, 1973, Judge Stubbs filed additional findings to the effect that prior to sentencing appellant he did not consider untried criminal offenses. No appeal was taken from the order of March 8, 1973.
On September 4, 1975, appellant filed the present (his second) motion under Rule 27.26. This motion in greatly summarized form complained: (a) that appellant's sentence was unconstitutional for the reason that the court considered an untried criminal offense to enhance the criminal punishment; and (b) that Judge Stubbs improperly undertook to become a judge of his own credibility with respect to whether or not he had considered a different untried alleged offense in entering this sentence and that a hearing should have been held in which Judge Stubbs could have been cross-examined and contrary evidence could have been presented. Upon the filing of this second motion, Judge Stubbs disqualified himself and the cause was transferred to Judge Marsh for hearing. The order by Judge Marsh overruling the motion without an evidentiary hearing constitutes the subject of the present review.
The single point assigned as error is that the trial court (presumably meaning Judge Marsh) erred in overruling the motion without an evidentiary hearing because the allegations of the motion could not be resolved by the trial judge's (presumably meaning Judge Stubbs') unsworn, uncross-examined "statements of fact" (presumably meaning Judge Stubbs' supplemental findings of fact dated March 8, 1973). This point attempts to throw all proceedings under both 27.26 motions into one hodge-podge and is presented and argued as if the new motion filed September 4, 1975, were simply a continuation and a part of the first motion filed in 1971. This assumption constitutes an error fatal to appellant's position. His original motion came to an end...
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...apparatus to attack alleged defects in a prior post-conviction proceeding. Neal v. State, 569 S.W.2d 388 (Mo.App. 1978); Hamilton v. State, 548 S.W.2d 267 (Mo.App.1977); Duncan v. State, 524 S.W.2d 140, 142 (Mo.App.1975); Williams v. State, 507 S.W.2d 664 The judgment is affirmed. STEWART, ......
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