Newman v. State, No. 56846

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM; HOLMAN, P.J., SEILER, J., and NORMILE; BARDGETT
Citation481 S.W.2d 3
PartiesJohn Henry NEWMAN, Appellant, v. STATE of Missouri, Respondent
Decision Date12 June 1972
Docket NumberNo. 1,No. 56846

Page 3

481 S.W.2d 3
John Henry NEWMAN, Appellant,
v.
STATE of Missouri, Respondent.
No. 56846.
Supreme Court of Missouri, Division No. 1.
June 12, 1972.

Page 4

Glenn A. Burkart, Springfield, Court-Appointed Attorney for appellant.

John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for respondent.

LAURANCE M. HYDE, Special Commissioner.

Petitioner, on a plea of guilty to the offense of first degree robbery, was sentenced to seven years' imprisonment. This is an appeal from a denial of relief in a second 27.26 proceeding.

Petitioner was sentenced February 21, 1969. A previous 27.26 motion was withdrawn without a hearing by petitioner and his appointed counsel on October 22, 1969 after petitioner stated he had been misled by 'jail lawyers.' The present 27.26 motion was filed February 18, 1971 and was dismissed by the court on March 31, 1971, the order of dismissal stating: 'The Court finds that previous motion under rule 27.26 filed in case No. 58185--1 did raise, or could have raised points 8(a), (b), (c) now alleged in this 27.26, V.A.M.R. motion in case No. 62946--1, and that the petitioner by virtue of Supreme Court Rule 27.26(d), as a matter of law, is barred from raising these points.' We affirm.

The previous motion stated the following grounds:

'(a) Movant's plea of guilty was entered involuantairy (sic), upon misapprehension and was coerced by promises.

'(b) Movant was denied effective representation of counsel at arraignment, plea and sentencing.

'(c) Movant was denied counsel when requested at all proceedings from arrest throughout his preliminary examination.'

The first three grounds of the present motion were as follows:

'(a) The sentencing court failed to conduct a hearing on movant's competency prior to the acceptance of the guilty plea which violated Amendment XIV, United States Constitution, and made the judgment and sentence invalid.

'(b) The plea of guilty was equivocal and involuntary due to mental defects and disturbances of petitioner.

'(c) During the acceptance of the plea of guilty and sentencing the trial court failed to advise petitioner of the range of punishment and failed to determine that the petitioner was entering his plea voluntarily.'

Page 5

The order concerning the first motion was: 'Movant asks leave to withdraw his petition 27.26 on grounds that it has no merit. Record made. Court permits withdrawal of petition subject to order that Movant may not file a new motion alleging same allegations, unless based on information not now known to the Movant.'

Rule 27.26(d) provides: 'The sentencing court shall not entertain a second or successive motion for relief on behalf of the prisoner where the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application or where the ground presented is new but could have been raised in the prior motion pursuant to the provisions of subsection (c) of this Rule. The burden shall be on the prisoner to establish that any new ground raised in a second motion could not have been raised by him in the prior motion.' (Emphasis ours.)

The purpose of this Rule is to prevent successive motions on grounds known at the time of filing a first motion although such grounds were not raised in the first motion. It is intended to apply whether or not the first motion is decided adversely to the petitioner, withdrawn or dismissed, because Rule 27.26(c) says: 'The motion shall include every ground known to the prisoner.' See Caffey v. State, Mo.Sup., 467 S.W.2d 857, 859.

Grounds (a) and (b) of the present motion may not be entirely the same as those raised on the previous withdrawn motion as argued by the State and ground (c) is partly new. However, petitioner made no allegation nor any offer of proof to establish that all of these grounds could not have been raised by him in his prior motion. Apparently petitioner's principal claim to have information not known to him, which should give him the right to a new hearing in accordance with the court's order permitting him to withdraw his previous petition, is based on his interpretation of the law rather than any new information about...

To continue reading

Request your trial
26 practice notes
  • Newman v. State of Missouri, Civ. A. No. 20441-3.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • September 30, 1974
    ...to the Missouri Supreme Court, which affirmed the decision of the Circuit Court of Greene County on June 12, 1972, in Newman v. Missouri, 481 S.W.2d 3 (Mo.Sup. 1972); that he was represented by counsel at his arraignment and sentencing; and that he was also assisted by counsel in the prepar......
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...on a prior motion. Duncan v. State, 524 S.W.2d 140, 143 (Mo.App.1975) Harkins v. State, 521 S.W.2d 9, 10 (Mo.App.1975) Newman v. State, 481 S.W.2d 3, 5 2. Matters which have already been decided on direct appeal. Mayo v. State, 524 S.W.2d 181, 182 (Mo.App.1975) Weaver v. State, 520 S.W.2d 6......
  • State v. Vansandts, No. 37115
    • United States
    • Missouri Court of Appeals
    • August 10, 1976
    ...are circumstances that cast substantial suspicion on the opinion, the trial judge must sua sponte hold a hearing. Newman v. State, Mo., 481 S.W.2d 3, at The oral protestations made at trial did not refer to the reports and did not contest the reports but rather were objections to the court'......
  • Miller v. State, No. KCD26142
    • United States
    • Missouri Court of Appeals
    • July 23, 1973
    ...the psychiatric opinion which has certified an accused fit to proceed. McCormick v. State, supra, 463 S.W.2d l.c. 790; Newman v. State, 481 S.W.2d 3, 6(2) (Mo.1972); Newbold v. State, 492 S.W.2d 809, 818(4, 5) (Mo.1973). The suspicion or actual presence of some degree of mental illness or n......
  • Request a trial to view additional results
26 cases
  • Newman v. State of Missouri, Civ. A. No. 20441-3.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • September 30, 1974
    ...to the Missouri Supreme Court, which affirmed the decision of the Circuit Court of Greene County on June 12, 1972, in Newman v. Missouri, 481 S.W.2d 3 (Mo.Sup. 1972); that he was represented by counsel at his arraignment and sentencing; and that he was also assisted by counsel in the prepar......
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...on a prior motion. Duncan v. State, 524 S.W.2d 140, 143 (Mo.App.1975) Harkins v. State, 521 S.W.2d 9, 10 (Mo.App.1975) Newman v. State, 481 S.W.2d 3, 5 2. Matters which have already been decided on direct appeal. Mayo v. State, 524 S.W.2d 181, 182 (Mo.App.1975) Weaver v. State, 520 S.W.2d 6......
  • State v. Vansandts, No. 37115
    • United States
    • Missouri Court of Appeals
    • August 10, 1976
    ...are circumstances that cast substantial suspicion on the opinion, the trial judge must sua sponte hold a hearing. Newman v. State, Mo., 481 S.W.2d 3, at The oral protestations made at trial did not refer to the reports and did not contest the reports but rather were objections to the court'......
  • Miller v. State, No. KCD26142
    • United States
    • Missouri Court of Appeals
    • July 23, 1973
    ...the psychiatric opinion which has certified an accused fit to proceed. McCormick v. State, supra, 463 S.W.2d l.c. 790; Newman v. State, 481 S.W.2d 3, 6(2) (Mo.1972); Newbold v. State, 492 S.W.2d 809, 818(4, 5) (Mo.1973). The suspicion or actual presence of some degree of mental illness or n......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT