Moody v. State, 15574

• Court: Court of Appeal of Missouri (US)
• Citation: 767 S.W.2d 105
• Docket Number: No. 15574,15574
• Parties: Cecil MOODY, Jr., Movant-Appellant, v. STATE of Missouri, Respondent.
• Decision Date: 20 March 1989

Page 105

767 S.W.2d 105 Cecil MOODY, Jr., Movant-Appellant,
v.
STATE of Missouri, Respondent. No. 15574. Missouri Court of Appeals,
Southern District,
Division Two. March 20, 1989.

Page 106

Raymond A. Klemp, Caruthersville, for movant-appellant.

William L. Webster, Atty. Gen., William J. Swift, Asst. Atty. Gen., Jefferson City, for respondent.

HOGAN, Judge.

This appeal is taken from the denial of a motion to set aside a conviction and sentence under former Rule 27.26, now superseded. Inasmuch as sentence was pronounced before January 1, 1988, and this proceeding was pending at that time, this appeal is governed by the law applicable to former Rule 27.26. Rule 29.15(m).

A jury found the movant (defendant) guilty of second-degree murder as defined and denounced by § 565.004, RSMo 1978. Defendant's punishment was fixed at imprisonment for a term of 30 years. On direct appeal this court affirmed the conviction and sentence. State v. Moody, 645 S.W.2d 152 (Mo.App.1982). On May 16, 1986, the defendant commenced this proceeding. After a hearing, the motion court denied relief. Defendant appeals. We affirm.

It is appropriate to note the scope of our review and the limitation thereon imposed by the record before us. Our review of the judgment or ruling in a proceeding under Rule 27.26 is limited to a determination whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j), now superseded. Such findings and conclusions are deemed clearly erroneous only if, after a review of the entire record, the appellate court is left with a definite and firm impression that a mistake has been made. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Williams v. State, 760 S.W.2d 518, 519-20 (Mo.App.1988). Our review has been further limited by the defendant's failure to file a transcript of the trial proceeding. On appeal from an adverse ruling on a motion made pursuant to Rule 27.26, it is the defendant's duty to file the record of his trial, if he wishes to have it considered. Rainwater v. State, 676 S.W.2d 310, 311 (Mo.App.1984); Spencer v. State, 615 S.W.2d 660, 662 (Mo.App.1981). It is within this court's discretion to order supplementation or correction of the record on appeal, but the court is under no obligation to do so. Brand v. Brand, 245 S.W.2d 94, 96 (Mo.1951); Thummel v. Thummel, 609 S.W.2d 175, 180 (Mo.App.1980); Lange v. Baker, 377 S.W.2d 5, 7[2-4] (Mo.App.1964). We shall do the best we can with...