Harris v. State

• Citation: 547 S.W.2d 519
• Decision Date: 15 February 1977
• Docket Number: No. 37893,37893
• Parties: Lewis Lee HARRIS, Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division Four
• Court: Court of Appeal of Missouri (US)

Page 519

547 S.W.2d 519

Lewis Lee HARRIS, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 37893.

Missouri Court of Appeals, St. Louis District, Division Four.

Feb. 15, 1977.

Robert C. Babione, Public Defender, Jeffrey J. Shank, J. C. Jones, Asst. Public Defenders, St. Louis, for movant-appellant.

John D. Ashcroft, Atty. Gen., Preston Dean, J. Michael Davis, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas M. Daly, Asst. Circuit Atty., St. Louis, for respondent.

SIMEONE, Chief Judge.

This is an appeal by Lewis Lee Harris from a denial of his motion to vacate judgment of conviction and sentence pursuant to Rule 27.26 V.A.M.R. Movant was sentenced to two concurrent eighteen-year terms on his plea of guilty to the crimes of assault with intent to kill with malice and robbery first degree by means of a dangerous and deadly weapon. §§ 559.180, 560.120 and 560.135, RSMo.

Movant's 27.26 motion was predicated upon the allegations that his plea of guilty was involuntarily made and that he was ineffectively assisted by counsel in that (1) counsel failed to conduct an appropriate investigation to establish and develop movant's alibi defense, (2) counsel failed to interview members of movant's family even though movant informed his counsel that he was in the company of these family members at the time of the crime, (3) counsel failed to prepare an adequate defense as evidenced by counsel's failure to interview any of the state's prospective witnesses and his failure to examine the scene of the crime, and (4) counsel was not physically capable of advising and assisting movant in making a knowing and intelligent plea of guilty. ¹

The trial court denied appellant's motion after holding an evidentiary hearing at which movant, his mother, two of his sisters and his former counsel testified. In denying appellant's motion, the trial court stated:

". . . (T)he Court herein denies the defendant's 27.26 (motion), and finds that the defendant was adequately represented. . . . Mrs. Perry (movant's mother), based on what the lawyer testified, and the evidence I am denying your son's petition for new trial, for a writ for the 27.26. The lawyer had adequate time records to indicate the amount of time he spent on the case, and what he had done to prepare the case. . . ."

Then, on February 10, 1976, the trial court in a memorandum, stated:

"The Court finds the claims in (movant's) 27.26 Petition is (sic) without merit. . . ."

On this appeal appellant urges that the cause should be remanded because the trial court failed to make findings of fact and conclusions of law as required by Supreme Court Rule 27.26(i). This is the only assignment of error that need be considered. ²

Pursuant to Supreme Court Rule 27.26(i), the trial court is required to "make findings of fact and conclusions of law on all issues presented" in a motion for post-conviction relief. Appellate review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j); Crosswhite v. State, 426 S.W.2d 67 (Mo.1968). Such a review is possible only where the trial court makes adequate findings of fact and conclusions of law in accordance with the express provisions of the rule. Thomas v. State, 465 S.W.2d 513, 515 (Mo.1971); Gerberding v. State, 433 S.W.2d 820, 824 (Mo.1968). A mere recital or statement that the motion, files and records conclusively show that the movant is entitled to no relief is not a compliance with the rule. Gerberding v. State, supra, 433 S.W.2d at 824. A mere recital that the court finds that the motion should be denied is not a compliance with the rule. Keith v. State, 511 S.W.2d 896, 897 (Mo.App.1974). Specific findings of fact and conclusions of law on each issue presented are required ³; anything less presents an insufficient basis for intelligent appellate review as contemplated by the rule. THOMAS V. STATE, SUPRA, 465 S.W.2D AT 515. ⁴ Findings of fact and conclusions of law will not be supplied by implication from the trial court's ruling. Thomas v. State, supra, 465 S.W.2d at 516.

The trial court here did not make specific findings of fact and conclusions of law on all issues presented. The oral statement and the memorandum filed by the trial court...