Lewis v. State, Nos. 35556

CourtMissouri Court of Appeals
Writing for the CourtGUNN
Citation513 S.W.2d 772
PartiesJames Farmer LEWIS, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent. . Louis District, Division Two
Decision Date27 August 1974
Docket NumberNos. 35556,35557

Page 772

513 S.W.2d 772
James Farmer LEWIS, Defendant-Appellant,
v.
STATE of Missouri, Plaintiff-Respondent.
Nos. 35556, 35557.
Missouri Court of Appeals, St. Louis District, Division Two.
Aug. 27, 1974.

Page 773

McQuie & Deiter, Daniel W. Deiter, Montgomery City, for defendant-appellant.

James G. Gregory, Pros. Atty., Montgomery City, for plaintiff-respondent.

GUNN, Judge.

Defendant appeals the denial by the Montgomery County Circuit Court of his petition for post conviction relief under Supreme Court Rule 27.26, V.A.M.R. In two separate trials, defendant was charged with and convicted of burglary and stealing. In one case, punishment was assessed six years for burglary and four years for stealing. In the second case, punishment of five years for burglary and two years for stealing was imposed, with the sentences to run concurrently. The convictions were appealed and affirmed. State v. Lewis, 482 S.W.2d 432 (Mo.1972); State v. Lewis, 482 S.W.2d 436 (Mo.1972).

The facts of the cases are detailed in the reported opinions of defendant's appeals of convictions. In brief, the cases against defendant were brought as a result of burglaries of two dwellings and the theft from them of certain items of personal property. One of the burglary victims, with his two brothers, captured defendant on the night after the burglary in a nearby woods where defendant was seeking to retrieve a television set which had been stolen in one of the burglaries and hidden by the burglar. The police were summoned, took defendant into custody and searched his car, which was parked on a side road about one-eighth mile away from the woods where defendant was apprehended. The car search disclosed four automobile titles and two fishing rods and reels taken from the dwellings of the burglary victims and two pairs of gloves and a screwdriver.

A hitchhiker, who had been picked up by the defendant earlier in the evening and who was with defendant when he was captured in the woods, testified for the State. The hitchhiker's testimony was that defendant had said that the reason for going into the woods was to pick up a television

Page 774

set and some pistols which defendant had earlier stolen. At trial, the items taken from the car were introduced. Defendant's trial counsel objected to the introduction of the gloves and screwdriver as irrelevant and to the introduction of duplicates of the car titles as not the best evidence. No objection was made to the receipt in evidence of the fishing rods and reels.

Defendant's defense to being in the woods looking for a television set was that he had been paid $50 to pickup to t.v. set by a person who had possession of defendant's car during the time that the burglaries occurred; that the defendant did not have knowledge that the television set was stolen. The circuit court, without hearing, sustained the State's motion to dismiss defendant's Rule 27.26 motion, and defendant appealed.

The major thrust of defendant's 27.26 motion is directed at the failure of his counsel to move to suppress the items seized from the...

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7 practice notes
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...822, 827 (Mo.1972); Fields v. State, 468 S.W.2d 31, 32 (Mo.1971) 3; State v. Caffey, 457 S.W.2d 657, 659 (Mo.1970); Lewis v. State, 513 S.W.2d 772, 774 Movant's claim must be denied on another ground. Under Rule 27.26(b)(3) a "proceeding under this Rule cannot be used . . . as a substitute ......
  • Toler v. State, No. 37523
    • United States
    • Missouri Court of Appeals
    • August 31, 1976
    ...S.W.2d 407 (Mo. banc 1974); Buckley v. State, 539 S.W.2d 736 (Mo.App.1976); Fisk v. State, 515 S.W.2d 865 (Mo.App.1974); Lewis v. State, 513 S.W.2d 772 The judgment is affirmed. SIMEONE, P.J., and KELLY, J., concur. --------------- 1 Despite the court's acceptance of this agreement, the def......
  • Chapman v. State, No. 40632
    • United States
    • Court of Appeal of Missouri (US)
    • April 3, 1979
    ...is not pertinent as such a motion would relate to the matter of strategy, which is not relevant in this 27.26 proceeding. Lewis v. State, 513 S.W.2d 772 (Mo.App.1974); State v. Brownridge, 506 S.W.2d 466 (Mo.App.1974). The allegation that his plea was based on the false hope of probation af......
  • Green v. State, No. KCD
    • United States
    • Missouri Court of Appeals
    • December 27, 1978
    ...62 (Mo.App.1975); and that mere errors, omissions or mistakes do not constitute ineffective representation of counsel, Lewis v. State, 513 S.W.2d 772 (Mo.App.1974). Specifically applicable to the present case, it has been held that failure by defense counsel to impeach a State witness by a ......
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7 cases
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...822, 827 (Mo.1972); Fields v. State, 468 S.W.2d 31, 32 (Mo.1971) 3; State v. Caffey, 457 S.W.2d 657, 659 (Mo.1970); Lewis v. State, 513 S.W.2d 772, 774 Movant's claim must be denied on another ground. Under Rule 27.26(b)(3) a "proceeding under this Rule cannot be used . . . as a substitute ......
  • Toler v. State, No. 37523
    • United States
    • Missouri Court of Appeals
    • August 31, 1976
    ...S.W.2d 407 (Mo. banc 1974); Buckley v. State, 539 S.W.2d 736 (Mo.App.1976); Fisk v. State, 515 S.W.2d 865 (Mo.App.1974); Lewis v. State, 513 S.W.2d 772 The judgment is affirmed. SIMEONE, P.J., and KELLY, J., concur. --------------- 1 Despite the court's acceptance of this agreement, the def......
  • Chapman v. State, No. 40632
    • United States
    • Court of Appeal of Missouri (US)
    • April 3, 1979
    ...is not pertinent as such a motion would relate to the matter of strategy, which is not relevant in this 27.26 proceeding. Lewis v. State, 513 S.W.2d 772 (Mo.App.1974); State v. Brownridge, 506 S.W.2d 466 (Mo.App.1974). The allegation that his plea was based on the false hope of probation af......
  • Green v. State, No. KCD
    • United States
    • Missouri Court of Appeals
    • December 27, 1978
    ...62 (Mo.App.1975); and that mere errors, omissions or mistakes do not constitute ineffective representation of counsel, Lewis v. State, 513 S.W.2d 772 (Mo.App.1974). Specifically applicable to the present case, it has been held that failure by defense counsel to impeach a State witness by a ......
  • Request a trial to view additional results

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