Rollins v. State

• Decision Date: 08 July 1986
• Docket Number: No. WD,WD
• Citation: 716 S.W.2d 810
• Parties: Jeffrey D. ROLLINS, Appellant, v. STATE of Missouri, Respondent. 37214.
• Court: Missouri Court of Appeals

Page 810

716 S.W.2d 810

Jeffrey D. ROLLINS, Appellant, v.STATE of Missouri, Respondent.

No. WD 37214.

Missouri Court of Appeals Western District.

July 8, 1986.

Motion for Rehearing and/or Transfer

to Supreme Court Denied

Aug. 28, 1986.

Application to Transfer Denied

Oct. 14, 1986.

Joseph H. Locascio, Robert A. McNemah(Certified Law Intern), Kansas City, for appellant.

William L. Webster, Philip M. Koppe, Kansas City, for respondent.

Before CLARK, C.J., and TURNAGE and KENEDY, JJ.

PER CURIAM.

Rollins appeals from the dismissal, without an evidentiary hearing, of his second Rule 27.26motion for post-conviction relief.The judgment is reversed.

Rollins was convicted of second degree robbery after he entered a guilty plea.The plea appears to have been made pursuant to a plea agreement which provided for sentencing based on a pre-sentence investigation report.A term of twelve years imprisonment was imposed.

In 1983, Rollins filed his first Rule 27.26 motion.The pro se motion presented three interrelated grounds for relief: (1) the pre-sentence investigation report contained inaccuracies, (2) which Rollins did not have adequate time to correct, (3) due to ineffective assistance of counsel.An attorney was appointed to represent Rollins in his claim but no amended motion was filed.Before the matter proceeded to an evidentiary hearing, Rollins, through his attorney, filed a motion to withdrawthe Rule 27.26 motion and to have the same dismissed without prejudice.By way of explanation, the motion stated that Rollins had been unaware of the nature and proper scope of a Rule 27.26 motion at the time he filed his pro se motion but that counsel had, through correspondence, explained such matters to him.The court sustained the motion to withdraw and ordered the Rule 27.26 motion dismissed.

In 1985, Rollins filed a second Rule 27.26 motion which, after amendment by his appointed counsel, alleged the same three grounds for relief as the earlier motion.Upon finding that the successive motion duplicated the grounds presented in the first motion, the trial court dismissed it without an evidentiary hearing.In support of its order the court cited the following cases: Newman v. State, 481 S.W.2d 3(Mo.1972);Cawthon v. State, 614 S.W.2d 262(Mo.App.1980);andSpeights v. State, 556 S.W.2d 213(Mo.App.1977).There were no further findings of fact and conclusions of law.

On appeal, Rollins contests the dismissal on the grounds that there was no ruling on the merits of either of his Rule 27.26 motions.He also reasserts the basis of his claim for post-conviction relief.Because, as Rollins correctly notes, the motion was not decided on its merits, consideration of his second point would exceed our scope of review which is limited to a determination of whether the findings, conclusions and judgment are clearly erroneous.Rule 27.26(j).Therefore, only Rollins's first point will be addressed.

Rollins argues that Rule 67.01, authorizing voluntary dismissal without prejudice of a civil action, should be applicable in Rule 27.26 proceedings.He further maintains that, in any event, he should not be precluded from litigating his claim where the original dismissal was pursuant to his motion to withdrawthe Rule 27.26 motion without prejudice and where he thus detrimentally relied on the trial court's acceptance of his motion.

In Cawthon v. State, 614 S.W.2d 262, 265(Mo.App.1980), this court found Rule 67.01 inapplicable to Rule 27.26 proceedings where counsel had been appointed.We indicated two reasons for that conclusion:

Pursuant to Fields v. State, [572 S.W.2d 477(Mo. banc 1978) ], upon motion counsel is appointed, movant is permitted to confer with counsel and to freely amend the motion.If the court determines an evidentiary hearing is required, a series of events are set in motion.The court is required to provide the forum and allocate time for the hearing.The state, as the opposing party, must prepare to meet the allegations of the motion.The state must provide transportation and other accommodations relative to the appropriate venue.There must be an opportunity for extended conference between movant and counsel, if warranted.The remaining reason is that to permit such dismissal subsequent to appointment of counsel would fail to comport with a cardinal principle announced in Fields v. State, supra, which is finality and expressed by our State Supreme Court thusly, "Finality is a central aspect of rule 27.26.If a meritorious collateral claim exists, the rule is designed to bring it to the fore promptly and cogently.No one, least of all prisoners, stand to gain from a prolonged, cumbersome, repetitive post-conviction process."Fields, supra, at 483(emphasis added)

This holding is still viable and we will continue to adhere to it, however, inasmuch as the circumstances of this case more closely correspond with those present in Lewis v. State, 700 S.W.2d 491(Mo.App.1985), Lewis will govern the outcome of this appeal.

In Cawthon, dismissal occurred when both movant and counsel advised the court of their inability to set forth facts to support the motion for post-conviction relief.In Lewis, however, a successive motion was allowed where the first motion was pro se, it was withdrawn without a record or a finding that it lacked merit, and although counsel had been appointed for movant, the record failed to disclose whether movant was afforded the opportunity to amend the original pro se motion.The same three factors also appear in the case at bar and thus distinguish it along with...