LaRette v. State, 54202
| Decision Date | 26 July 1988 |
| Docket Number | No. 54202,54202 |
| Citation | 757 S.W.2d 650 |
| Parties | Anthony Joe LARETTE, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Jim Lynn, Columbia, for appellant.
William L. Webster, Atty. Gen., Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, for respondent.
Movant appeals from the dismissal by the trial court of his motion for post-conviction relief pursuant to Rule 27.26. This is his second motion under that rule. The court dismissed the motion without an evidentiary hearing upon motion of the State. It did prepare findings of fact and conclusions of law addressing each of the claims for relief (22 in number) set forth in the motion. Movant was convicted of capital murder and sentenced to death. That conviction and sentence was affirmed in State v. LaRette, 648 S.W.2d 96 (Mo. banc 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246, (1983), rhg. denied, 464 U.S. 1004, 104 S.Ct. 515, 78 L.Ed.2d 702 (1983), which sets forth the facts of this grisly murder in detail. Upon denial of movant's original 27.26 motion, we affirmed in LaRette v. State, 703 S.W.2d 37 (Mo.App.1985).
Movant makes no direct attack on the trial court's findings of fact or conclusions of law. Rather he raises two other issues. The first is that the trial court erred because movant's counsel in this proceeding failed to ascertain all possible grounds for attacking the judgment and failed to amend the motion to set forth those grounds. The second attack is that the trial court failed to make findings of fact and conclusions of law on amendments to the motion made after the order of dismissal and presented to the court for the first time as part of movant's motion for reconsideration. Both points are frivolous and were we dealing with other than a death penalty case we would dispose of them by order opinion.
As to the first point, we note that the grounds set forth in the motion filed by movant pro se were articulately expressed, clear and free from confusion. Counsel did amend the motion to allege why the grounds could be considered in a second 27.26 proceeding. The record does not reflect that movant had any additional valid grounds at the time of the amendment. Appellate review of post-conviction relief is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Laws v. State, 708 S.W.2d 182 (Mo.App.1986) [2, 3]; Rule 27.26(j). The trial court could hardly be erroneous in its judgment in failing to consider facts of which it was unaware. Rule 27.26 "is not intended as a springboard for attack on prior post-conviction proceedings." Lindner v. State, 676 S.W.2d 299 (Mo.App.1984) . The thrust of movant's first point is that his counsel in this...
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LaRette v. Delo
...state court remedies. First, he filed a successive Rule 27.26 motion, which was denied primarily for that reason. See LaRette v. State, 757 S.W.2d 650 (Mo.Ct.App.1988). During the second stay, he filed motions to recall the mandate and for state habeas relief which the Supreme Court of Miss......