Lang v. State
| Decision Date | 11 March 1980 |
| Docket Number | No. 41228,41228 |
| Citation | 596 S.W.2d 739 |
| Parties | Rufus Phillip LANG, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Timothy B. Brassil, St. Louis, for appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Douglas A. Forsyth, Asst. Circuit Atty., St. Louis, for respondent.
Rufus Lang, (herein defendant) appeals from a judgment by the Circuit Court of the City of St. Louis denying, without notice or hearing, his Rule 27.26 Motion.
On July 7, 1975, defendant pled guilty to charges of burglary second degree and stealing from a dwelling house. He filed his first motion to vacate the judgment pursuant to Rule 27.26 pro se on July 20, 1977 alleging ineffective assistance of counsel. On September 6, 1977 counsel was appointed to represent him in relation to the motion. Defendant's first motion was denied on March 1, 1978. Subsequently, on March 13, 1978, defendant's appointed counsel filed a motion to vacate this judgment of denial which was granted on March 29, 1978. The Circuit Court allowed defendant sixty days in which to amend his motion. Defense counsel did not file an amended motion within the proscribed period but defendant amended the motion and filed it 243 days after leave to amend was granted. Though filed out of time the court received the motion but declined to grant the defendant any relief thereon.
Defendant now appeals, his one point relied on being that the trial court erred in summarily dismissing his Rule 27.26 motion without giving him or his attorney notice. Defendant claims that he was entitled to notice because the court dismissed his motion, not on the merits, but for failure to state a claim. 1 Defendant contends that this action by the court violated his right to due process as guaranteed by the Fourteenth Amendment of the United States Constitution and Article One of the Missouri Constitution.
We do not quarrel with defendant's contention that due process cannot be afforded in the absence of notice that a matter is pending which may or may not deprive him of life, liberty, or property. First Nat. Bank v. Cook, 74 S.W.2d 846, 851 (Mo.App.1934); Valter v. Orchard Farm School District, 541 S.W.2d 550, 557 (Mo.1976). Defendant cannot complain, however, that he had not notice of an action pending which could possible deprive him of life, liberty, or property because defendant himself initiated this action by filing the motion.
We also do not disagree with defendant's contention supported by Wheatley v. State, 559 S.W.2d 526 (Mo. banc 1977), that it is error for the trial court to dismiss a 27.26 motion for failure to state a claim without notifying counsel of the need for amendment to correct the inadequacy. Id. at 527. The requirement of notice as set out in the Wheatley case is not applicable to the instant case, however, because neither of defendant's motions were denied or dismissed for failure to state a claim. The court appointed counsel to represent the defendant after he filed his first motion pro se. The appointment of counsel is an affirmation by the court that the pro se motion is legally sufficient. Wheatley v. State, supra, 527. Further, in the memorandum opinion in which the court denied the defendant's motion the court found that ineffective assistance of counsel was immaterial except to the extent that it bears on the voluntariness of a guilty plea. The court stated that an analysis of the pleas entered by the defendant demonstrated that they were entered with a complete understanding of the proceedings and that defendant had received the sentence for which he had bargained. Pursuant to this determination the court denied the motion. This is a disposal of defendant's motion on the merits. There is nothing in the court's opinion to indicate that it was denied for failure to state a claim.
Defendant also mistakenly assumes that the court's denial of his second motion to vacate the judgment was a dismissal for failure to state a claim. This assumption is refuted by the findings of fact and conclusions of law filed in conjunction with the court's denial of the motion. Therein the court found that defendant's pleas of guilty were entered voluntarily and not as a result of being misled by his attorney. The...
To continue reading
Request your trial
-
Chastain v. State
...factual basis for relief and afford him an opportunity to further amend the motion. To support that proposition, he cites Lang v. State, 596 S.W.2d 739 (Mo.App.1980). That case incorporates language from Wheatley v. State, 559 S.W.2d 526 (Mo. banc 1977). Neither of these cases supports his ......
-
Duggar v. State, 13964
...526 (Mo. banc 1977); Remington v. State, 654 S.W.2d 280 (Mo.App.1983); Dawson v. State, 640 S.W.2d 165 (Mo.App.1982); Lang v. State, 596 S.W.2d 739 (Mo.App.1980). Notice and an opportunity to be heard on a 27.26 motion should be given whether the trial court is considering dismissing, overr......
-
Riley v. State
...to have been developed to permit review on the merits. See also Remington v. State, 654 S.W.2d 280 (Mo.App.1983). In Lang v. State, 596 S.W.2d 739, 741 (Mo.App.1980), this court stated: "We will not extend the notice rule of Wheatley to require the court to notify counsel of any and all fut......
-
Walker v. State
...notwithstanding, the fact remains that Movant's point (1) in the instant case is ruled squarely by the rule announced in Lang v. State, 596 S.W.2d 739 (Mo.App.1980). The court in Lang acknowledged the rule in Wheatley and correctly ruled that Lang did not come within the Wheatley rule. The ......