Overall v. State, 37378
| Decision Date | 24 August 1976 |
| Docket Number | No. 37378,37378 |
| Citation | 540 S.W.2d 637 |
| Parties | Johnnie OVERALL, Movant-Appellant, v. STATE of Missouri, Plaintiff-Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Rita Montgomery, Whitfield, Montgomery & Walton, St. Louis, for appellant.
John C. Danforth, Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Michael L. Sullivan, Asst. Circuit Atty., St. Louis, for respondent.
A jury found petitioner guilty of robbery first degree. He was sentenced under the Second Offender Act to 20 years imprisonment. Petitioner subsequently filed a motion under Rule 27.26. In the motion it was contended that petitioner was (1) denied effective assistance of counsel; (2) was denied due process because he was 'rused to trial' although the court was informed by petitioner that counsel had not investigated the case; (3) the court was without jurisdiction to impose sentence under the Second Offender Act because the court failed to find that he had 'been imprisoned, fined, paroled or placed upon probation' for the prior crime; and (4) that petitioner was deprived of the right to have a jury to determine his punishment. The motion was amended to also allege that petitioner's rights under the 5th and 14th Amendments to the Constitution of the United States were violated because the prosecutor in closing argument referred to petitioner's failure to testify.
An evidentiary hearing was held at which petitioner was represented by counsel. The only issue presented to the court was the question of ineffective assistance of counsel. The court made findings of fact and conclusions of law and denied the motion.
Regrettably, we are once again required to dismiss an inadequate appellate brief.
A proceeding under Rule 27.26 is a civil proceeding and the brief on appeal is required to conform to the simple requirements of Rule 84.04.
Rule 84.04(c) provides:
Ancillary to Rule 84.04(c) is 84.04(h) which reads as follows:
The single page denominated 'Statement of Facts' is wholly inadequate. It is merely a history of the case. It contains none of the facts that would be relevant to the issues sought to be raised. It does not contain one reference to the transcript of the hearing held with respect to petitioner's motion. 1
The facts upon which the trial court made its determination are indispensable to our review. Devoy v. Devoy, 502 S.W.2d 428 (Mo.App.1973).
The argument further compounds the deficiencies of the brief. There is but one reference to the transcript of the hearing on the motion. This is found under the issue of ineffective assistance of counsel. Under the other points there is not one reference to the transcript of the hearing on the motion. The arguments under those points contain two references to the transcript of the original trial. The transcript was not presented to the trial court in this proceeding, nor is it before us for our consideration.
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...Walker v. Thompson, 338 S.W.2d 114, 117(8) (Mo.1960); Jacobs v. Stone, 299 S.W.2d 438, 440(1) (Mo.1957); Overall v. State, 540 S.W.2d 637, 638(2) (Mo.App.1976); Hughes v. Wilson, 485 S.W.2d 620, 621(1) (Mo.App.1972); DeCharia v. Fuhrmeister, 440 S.W.2d 182, 183(1) (Mo.App.1969).4 Page v. La......
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Knight v. State, 15560
...of the transcript of the guilty plea. The brief is so patently inadequate as to justify our dismissal of the appeal, Overall v. State, 540 S.W.2d 637, 638 (Mo.App.1976), but in the exercise of discretion we address the defendant's complaints as we are given to understand We are obliged to l......
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O'Dell v. State, 17513
...properly briefed shall not be considered in any civil appeal...." The situation here is almost identical to the appeal in Overall v. State, 540 S.W.2d 637 (Mo.App.1976). There, appellant was convicted of robbery and sentenced to twenty years' imprisonment. On appeal from denial of his Rule ......
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