Lindner v. State, 39675
| Decision Date | 13 June 1978 |
| Docket Number | No. 39675,39675 |
| Citation | 571 S.W.2d 441 |
| Parties | George Frank LINDNER, Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Carr L. Woods, Asst. Public Defender, Bowling Green, for movant-appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Jess L. Mueller, Pros. Atty., Troy, for respondent.
The primary issue on this Rule 27.26 appeal is whether movant George Lindner (hereafter defendant) was entitled to an evidentiary hearing. The secondary issue is whether the trial court, having preliminarily ordered an evidentiary hearing, could thereafter change its order and deny the motion without an evidentiary hearing. The primary issue is substantive and the secondary issue is procedural.
We conclude that since defendant, as a matter of law, was not entitled to an evidentiary hearing the denial of his motion was proper, despite the preliminary order granting an evidentiary hearing.
The case is now before us on defendant's second appeal. Defendant filed his Rule 27.26 motion after having pled guilty to a three-count robbery charge and being sentenced to three consecutive ten-year terms of imprisonment. Division I of the 11th Judicial Circuit ordered an evidentiary hearing on the motion. Defendant then moved for a change of judge and the case was assigned to Division II. When it came on for hearing the court reconsidered the matter of whether defendant was entitled to an evidentiary hearing and concluded the guilty plea record refuted the contentions of defendant's motion and denied it. The court did not make findings of fact and conclusions of law and defendant appealed. 1 We did not then reach the issue of defendant's right to an evidentiary hearing because the trial court had not made findings of fact and conclusions of law; we remanded the case with directions to do so. The trial court complied and then denied defendant's motion. Defendant has again appealed.
Defendant contends the original order by Division I granting him an evidentiary hearing was improperly denied by Division II in ruling on his motion without an evidentiary hearing. Defendant's right to an evidentiary hearing depended on whether his Rule 27.26 motion alleged facts which entitled him to relief; if it did not, no evidentiary hearing was required. 2
We hold that if on the record defendant was not entitled by law to an evidentiary hearing, he had no right to the order of Division I granting one. The procedural order of Division I granting a hearing must yield to the substantive order of Division II if that division correctly denied defendant's motion.
We pass to the merits of the trial court's denial of defendant's motion. If its allegations are refuted by the guilty-plea record defendant is not entitled to an evidentiary hearing. Smith v. State, 513 S.W.2d 407(1) (Mo.banc 1974).
By defendant's Point Relied On he now contends the trial court erroneously denied an evidentiary hearing "to determine whether movant was induced to plead guilty by promises and whether he received ineffective assistance of counsel."
By his motion defendant first alleged that before he pled guilty he was led to believe he would receive one 12-year sentence; this, because the prosecuting attorney and his own counsel so agreed in open court.
Defendant was sworn before the court accepted his guilty plea, with opposing counsel present. Fifteen pages of the guilty-plea transcript show defendant answered some three-score of the court's questions, meticulously...
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Lindner v. Wyrick
...an evidentiary hearing. The Missouri Court of Appeals affirmed the trial court's denial of Lindner's Rule 27.26 motion. Lindner v. State, 571 S.W.2d 441 (Mo.Ct.App.1978). The state has conceded that Lindner exhausted available state remedies as to the issues raised in the Rule 27.26 In May ......
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Lindner v. State, 47536
...not entitled to an evidentiary hearing. Defendant again appealed to this court which affirmed the circuit court's ruling. Lindner v. State, 571 S.W.2d 441 (Mo.App.1978). On June 21, 1983, defendant filed a second Rule 27.26 motion claiming ineffective assistance of counsel both at his guilt......
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Brager v. State, 30209
...a conclusory premise that movant was denied effective assistance of counsel. Mere conclusion provides nothing for review, Lindner v. State, 571 S.W.2d 441 (Mo.App.1978). Mere trial error is not reviewable by a motion pursuant to Rule Movant is bound by Rule 27.26(d) and cannot prevail under......
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Secrease v. State, 41120
...The transcript of the proceedings show affirmatively that movant was not misled. His complaint is refuted by the record. Lindner v. State, 571 S.W.2d 441, 442-43(3, 4) We hold that the judgment of the trial court is based on findings of fact which are not clearly erroneous. No error of law ......