Newman v. State, 14242

Decision Date20 December 1985
Docket NumberNo. 14242,14242
Citation703 S.W.2d 71
PartiesJack Edward NEWMAN, Movant-Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Lew Kollias, Columbia, for movant-appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

PREWITT, Chief Judge.

Movant appeals from the dismissal of his second motion under Rule 27.26. Movant was convicted of murder in the first degree and the conviction was affirmed on appeal. See State v. Newman, 605 S.W.2d 781 (Mo.1980). He then filed a motion under Rule 27.26. That motion was denied by the trial court and affirmed on appeal. See Newman v. State, 669 S.W.2d 617 (Mo.App.1984).

Thereafter, movant filed another motion under Rule 27.26, alleging that the information on which he was tried was defective. The motion alleged that movant did not know of the error in the information until after he had filed his first 27.26 motion. Counsel was appointed for movant and an amended motion was filed. It added that movant received ineffective assistance of counsel in the criminal trial because his attorney failed to "recognize the defective information and to take action to have the defect corrected or the charges dismissed." The amended motion stated that the two grounds were not raised earlier because movant had been unaware that the information was defective.

Thereafter, a "second amended motion" was filed adding additional grounds of ineffective assistance of counsel. It stated that movant's trial attorney did not explain to him the elements of the crime that he was charged with, did not explain to movant that he could have pleaded to a lesser charge, and "did not discuss with him other alternatives as to his defense as presented."

The prosecuting attorney filed a motion to dismiss without an evidentiary hearing, stating that the second 27.26 motion was based upon grounds which should have been or could have been known to movant at the time he filed his first 27.26 motion. A hearing was held and movant's motion dismissed without an evidentiary hearing.

On appeal movant contends that the trial court erred in dismissing his motion "because written findings of fact and conclusions of law are required to support a judgment of dismissal of such a motion in that such findings and conclusions are mandated by Rule 27.26(i) to explain the reasons for such judgment and enable movant and the appellate court to engage in appellate review of the propriety of the judgment."

Rule 27.26(i) states in part that the trial "court shall make findings of fact and conclusions of law on all issues presented, whether or not a hearing is held." We construe this portion of the rule to mean that if the "issues presented" include factual issues, then findings of fact are necessary. If there is no evidentiary hearing and legal issues alone dispose of the motion, then findings of fact are not required. Although literally the rule might seem to require findings of fact, we do not understand how a court can, or why a court should, make findings of fact when no evidence is presented and the motion is disposed of on a question of law.

We believe that this matter was properly decided by the trial court on a nonfactual basis. Rule 27.26(d) states:

Successive Motions. 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 su...

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12 cases
  • Crews v. State
    • United States
    • Missouri Court of Appeals
    • November 30, 1999
    ...Guyton v. State, 752 S.W.2d 390 (Mo. App. E.D. 1988), Williams v. State, 744 S.W.2d 814 (Mo. App. E.D. 1987), and Newman v. State, 703 S.W.2d 71 (Mo. App. S.D. 1985). Separate Opinion: ...
  • Ford v. State, 53018
    • United States
    • Missouri Court of Appeals
    • March 8, 1988
    ...where the issue confronting the motion court is one of law and not of fact, findings of fact are not required. See Newman v. State, 703 S.W.2d 71, 72 (Mo.App.1985). Because the motion court was faced with a question of law, i.e., did movant's allegations meet the requirements of Thomas, 736......
  • Williams v. State, 52327
    • United States
    • Missouri Court of Appeals
    • December 15, 1987
    ...Where the issue confronting the motion court is one of law and not of fact, findings of fact are not required. See Newman v. State, 703 S.W.2d 71,72 (Mo.App.1985). No error results from a failure to make findings and conclusions on claims unsupported by substantive evidence or on claims not......
  • Holloway v. State, WD
    • United States
    • Missouri Court of Appeals
    • January 31, 1989
    ...an earlier decision by the same judge in Williams v. State, 744 S.W.2d 814, 817 (Mo.App.1987), which in turn relied upon Newman v. State, 703 S.W.2d 71, 72 (Mo.App.1985). In Newman the Southern District affirmed a dismissal of a Rule 27.26 motion because it was a successive motion in which ......
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