Ross v. State, No. 11552

CourtCourt of Appeal of Missouri (US)
Writing for the CourtTITUS; FLANIGAN
Citation601 S.W.2d 672
PartiesCalvin ROSS, Movant-Appellant, v. STATE of Missouri, Respondent.
Decision Date01 July 1980
Docket NumberNo. 11552

Page 672

601 S.W.2d 672
Calvin ROSS, Movant-Appellant,
v.
STATE of Missouri, Respondent.
No. 11552.
Missouri Court of Appeals, Southern District, Division One.
July 1, 1980.

Page 674

Richard D. Bender, Springfield, for movant-appellant.

John D. Ashcroft, Atty. Gen., Edward F. Downey, Asst. Atty. Gen., Jefferson City, for respondent.

TITUS, Presiding Judge.

Movant, then defendant, was convicted by a Mississippi County jury (after a change of venue from New Madrid County) of assault with intent to kill with malice aforethought (§ 559.180, RSMo 1969) and armed robbery (§ 560.135, RSMo 1969). The convictions were affirmed upon appeal. State v. Ross, 523 S.W.2d 841 (Mo.App. 1975).

Thereafter, and pursuant to Rule 27.26, V.A.M.R., movant, as an indigent prisoner, filed a pro se motion to set aside the convictions, supra, and the sentences imposed thereon. In accordance with Rule 27.26(h), V.A.M.R., the court nisi appointed counsel for movant and that attorney filed an amendment to subparagraphs 8 and 9 of the motion as originally written. As penned, the amendment is rather repetitive and prolix while covering 12 pages of the transcript on appeal. The matter comes to this court via movant's appeal from denial of his motion without an evidentiary hearing.

Let us first consider some of the ground rules pertinent to this appeal. Even if the circuit court's basis for denying relief was not correct, we must affirm that court's judgment if sustainable for any other reason. State v. Kimes, 415 S.W.2d 814, 815(2) (Mo. 1967). Also, a motion under Rule 27.26, V.A.M.R., may not be employed as a second appellate view of questions and matters which were or should have been raised in the direct appeal. Johnson v. State, 561 S.W.2d 704, 706(4) (Mo.App. 1978); Sherrill v. State, 515 S.W.2d 611, 612(1) (Mo.App. 1974). "A hearing must be held on a motion to vacate, set aside or correct a sentence '(u)nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.' Rule 27.26(e). A motion is sufficient to warrant a hearing only if it alleges facts, not conclusions, which if true, warrant relief, if its allegations are not refuted by the files and records of the case, and if the matters complained of caused prejudice to the prisoner. Haliburton v. State, 546 S.W.2d 771, 773(1) (Mo.App. 1977); Voegtlin v. State, 546 S.W.2d 40, 41(4) (Mo.App. 1977). The burden is on movant to state the facts upon which he bases his claim of ineffective assistance of counsel. Wimberly v. State, 549 S.W.2d 101, 103(3) (Mo.App. 1977)." Tollison v. State, 556 S.W.2d 455, 457(1, 2) (Mo.App. 1977).

In paragraphs I (subpar. 5) and II of movant's amended 27.26 motion, he claims he was denied effective assistance of

Page 675

counsel at the criminal trial because his lawyer failed to object to the admission into evidence of two pistols found in an automobile in which movant was riding after the crimes in question were committed. Movant said this constituted evidence of an uncharged crime, i.e., carrying a concealed weapon, and the display of the pistols was inflammatory and prejudicial. This was not ineffective assistance of counsel because the evidence was proper. Evidence which shows that, following the crime charged, defendant and his joint crime-feasor possessed weapons with which the crime was committed is relevant under an exception to the general rule that the state is not ordinarily allowed to show the commission of other crimes. State v. Kilgore, 447 S.W.2d 544, 547(3) (Mo. 1969); State v. Hindman, 543 S.W.2d 278, 287(27) (Mo.App. 1976); State v. Armbruster, 541 S.W.2d 357, 362(5) (Mo.App. 1976).

Movant asserts, in paragraph V of his motion, the claim of double jeopardy for having been convicted of both assault and armed robbery. He candidly admits that he raised this point on his direct appeal in State v. Ross, supra. As the matter was a point relied on in the direct appeal and was ruled against movant, it is not the proper subject for a Rule 27.26 proceeding. Maggitt v. State, 572 S.W.2d 870, 871(1) (Mo.App. 1978).

In paragraphs I (subpar. 1(a-g)) and III of movant's 27.26 motion, he asserts ineffective assistance of counsel because his attorney in the criminal cause failed to investigate the facts and the law regarding the selection of the petit jury panel so as to ascertain the disproportionate number of whites over blacks. If there was a variance from the statutory selection process of the panel sufficient to support a challenge to the array, such a challenge should have been...

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10 practice notes
  • Chastain v. State, No. 13790
    • United States
    • Missouri Court of Appeals
    • 21 Marzo 1985
    ...ruling on the motion or to permit ad infinitum amendments to a motion it finds lacking in entitlement for relief." Ross v. State, 601 S.W.2d 672, 677 (Mo.App.1980). The appropriate procedure for determining the sufficiency of a motion under Rule 27.26 is succinctly and decisively revie......
  • State v. Lindsey, No. 12004
    • United States
    • Court of Appeal of Missouri (US)
    • 25 Enero 1982
    ...485 S.W.2d 393 (Mo.1972); State v. Robinson, 484 S.W.2d 186 (Mo.1972); Benson v. State, 611 S.W.2d 538 (Mo.App.1980); Ross v. State, 601 S.W.2d 672 (Mo.App.1980). What was said in State v. Borden, 605 S.W.2d 88 (Mo.banc 1980), per Rendlen, J., in another context, is equally applicable "......
  • Ross v. State, No. 12094
    • United States
    • Court of Appeal of Missouri (US)
    • 9 Diciembre 1981
    ...convictions, per Rule 27.26, V.A.M.R., was denied without evidentiary hearing. The denial of the motion was affirmed in Ross v. State, 601 S.W.2d 672 (Mo.App.1980). The instant appeal is from the denial by the trial court, without evidentiary hearing, of movant's Rule 27.26 motion to set as......
  • McGrath v. State, No. 47472
    • United States
    • Court of Appeal of Missouri (US)
    • 22 Mayo 1984
    ...jury selection may not be raised in a 27.26 proceeding unless there was a timely objection before the jury was sworn. Ross v. State, 601 S.W.2d 672, 675 (Mo.App.1980); See Merritt v. State, 635 S.W.2d 27, 28 (Mo.App.1982); Benson v. State, 611 S.W.2d 538, 541 (Mo.App.1980). There was no obj......
  • Request a trial to view additional results
10 cases
  • Chastain v. State, No. 13790
    • United States
    • Missouri Court of Appeals
    • 21 Marzo 1985
    ...ruling on the motion or to permit ad infinitum amendments to a motion it finds lacking in entitlement for relief." Ross v. State, 601 S.W.2d 672, 677 (Mo.App.1980). The appropriate procedure for determining the sufficiency of a motion under Rule 27.26 is succinctly and decisively revie......
  • State v. Lindsey, No. 12004
    • United States
    • Court of Appeal of Missouri (US)
    • 25 Enero 1982
    ...485 S.W.2d 393 (Mo.1972); State v. Robinson, 484 S.W.2d 186 (Mo.1972); Benson v. State, 611 S.W.2d 538 (Mo.App.1980); Ross v. State, 601 S.W.2d 672 (Mo.App.1980). What was said in State v. Borden, 605 S.W.2d 88 (Mo.banc 1980), per Rendlen, J., in another context, is equally applicable "......
  • Ross v. State, No. 12094
    • United States
    • Court of Appeal of Missouri (US)
    • 9 Diciembre 1981
    ...convictions, per Rule 27.26, V.A.M.R., was denied without evidentiary hearing. The denial of the motion was affirmed in Ross v. State, 601 S.W.2d 672 (Mo.App.1980). The instant appeal is from the denial by the trial court, without evidentiary hearing, of movant's Rule 27.26 motion to set as......
  • McGrath v. State, No. 47472
    • United States
    • Court of Appeal of Missouri (US)
    • 22 Mayo 1984
    ...jury selection may not be raised in a 27.26 proceeding unless there was a timely objection before the jury was sworn. Ross v. State, 601 S.W.2d 672, 675 (Mo.App.1980); See Merritt v. State, 635 S.W.2d 27, 28 (Mo.App.1982); Benson v. State, 611 S.W.2d 538, 541 (Mo.App.1980). There was no obj......
  • Request a trial to view additional results

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