Sampson v. State, No. KCD

CourtCourt of Appeal of Missouri (US)
Writing for the CourtDIXON
Citation570 S.W.2d 337
PartiesDerryl SAMPSON, Movant-Appellant, v. STATE of Missouri, Respondent. 29849.
Decision Date31 July 1978
Docket NumberNo. KCD

Page 337

570 S.W.2d 337
Derryl SAMPSON, Movant-Appellant,
v.
STATE of Missouri, Respondent.
No. KCD 29849.
Missouri Court of Appeals, Kansas City District.
July 31, 1978.

Page 338

Jerry W. Venters, Asst. Public Defender, Jefferson City, for movant-appellant.

John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

DIXON, Judge.

Movant appeals denial of his Rule 27.26 motion after evidentiary hearing. Movant's underlying conviction was for two counts of robbery and concurrent 9-year sentences. The single issue raised by movant is ineffectiveness of counsel because of the failure of trial counsel to file a notice of appeal and perfect an appeal.

There is no question but that no appeal was taken from the movant's convictions. However, the mere failure to take an appeal does not constitute ineffective assistance of counsel. Coney v. State, 491 S.W.2d 501 (Mo.1973); Brown v. State, 512 S.W.2d 404 (Mo.App.1974). Only where the defendant wishes to appeal and his attorney either refuses or negligently fails to take the proper steps to appeal is there ineffective assistance of counsel. Green v. State, 451 S.W.2d 82 (Mo.1970); Brown v. State, supra. It is implicit in this rule of law that the desire to appeal must have been communicated to counsel or otherwise understood by him. See: State v. Scott, 492 S.W.2d 168 (Mo.App.1973); United States v. Neff, 525 F.2d 361 (8th Cir. 1975); McFadden

Page 339

v. United States, 312 F.Supp. 820 (E.D.Mo.1970), Aff'd, 439 F.2d 285 (8th Cir. 1971).

In a 27.26 proceeding, the allegations of the movant do not prove themselves, and the movant has the burden of proving his allegations by a preponderance of the evidence. Rule 27.26(f); McLallen v. State, 543 S.W.2d 813 (Mo.App.1976); Stroder v. State, 522 S.W.2d 77 (Mo.App.1975); Floyd v. State, 518 S.W.2d 700 (Mo.App.1975).

Applying these principles to the testimony offered at the evidentiary hearing, it is clear that the movant must show that the trial court's finding was clearly erroneous in that the evidence proved that the movant desired to appeal, that his lawyer knew by reason of a communication from the movant of that desire or in some fashion this was implied, and that the attorney failed to prosecute the appeal. Unquestionably, the evidence showed that the movant desired an appeal based on the movant's testimony and, as indicated, no appeal was taken. The...

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6 practice notes
  • Wayne v. Wyrick, No. 80-1927
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 2, 1981
    ...either refuses or negligently fails to take the proper steps to appeal is there ineffective assistance of counsel." Sampson v. State, 570 S.W.2d 337 (Mo.App.1978). This Court's standard for Page 1270 judging the competency of counsel is as follows: In order to prevail on a claim of ineffect......
  • Pinson v. State, No. 13899
    • United States
    • Court of Appeal of Missouri (US)
    • March 28, 1985
    ...in this rule of law that the desire to appeal must have been communicated to counsel or otherwise understood by him. Sampson v. State, 570 S.W.2d 337, 338 Movant's assignment of error makes it clear that his complaint against defense counsel is that he (movant) requested that Page 786 an ap......
  • Reed v. State, No. WD
    • United States
    • Missouri Court of Appeals
    • December 22, 1981
    ...He failed to meet this burden. In a Rule 27.26 proceeding, the allegations of the motion do not prove themselves. Sampson v. State, 570 S.W.2d 337, 339 (Mo.App.1978); Pickens v. State, 549 S.W.2d 910, 913-14 (Mo.App.1977). Reed's failure to introduce any evidence to support his motion precl......
  • Sanders v. State, No. 18008
    • United States
    • Idaho Court of Appeals
    • February 2, 1990
    ...have been communicated to counsel or otherwise understood by him." Pinson v. State, 688 S.W.2d 783, 785 (Mo.App.1985); Sampson v. State, 570 S.W.2d 337, 338 (Mo.App.1978). See also Davis v. State, 116 Idaho 401, 775 P.2d 1243 (Ct.App.1989) (review Here, the issue of effective assistance of ......
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6 cases
  • Wayne v. Wyrick, No. 80-1927
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 2, 1981
    ...either refuses or negligently fails to take the proper steps to appeal is there ineffective assistance of counsel." Sampson v. State, 570 S.W.2d 337 (Mo.App.1978). This Court's standard for Page 1270 judging the competency of counsel is as follows: In order to prevail on a claim of ineffect......
  • Pinson v. State, No. 13899
    • United States
    • Court of Appeal of Missouri (US)
    • March 28, 1985
    ...in this rule of law that the desire to appeal must have been communicated to counsel or otherwise understood by him. Sampson v. State, 570 S.W.2d 337, 338 Movant's assignment of error makes it clear that his complaint against defense counsel is that he (movant) requested that Page 786 an ap......
  • Reed v. State, No. WD
    • United States
    • Missouri Court of Appeals
    • December 22, 1981
    ...He failed to meet this burden. In a Rule 27.26 proceeding, the allegations of the motion do not prove themselves. Sampson v. State, 570 S.W.2d 337, 339 (Mo.App.1978); Pickens v. State, 549 S.W.2d 910, 913-14 (Mo.App.1977). Reed's failure to introduce any evidence to support his motion precl......
  • Sanders v. State, No. 18008
    • United States
    • Idaho Court of Appeals
    • February 2, 1990
    ...have been communicated to counsel or otherwise understood by him." Pinson v. State, 688 S.W.2d 783, 785 (Mo.App.1985); Sampson v. State, 570 S.W.2d 337, 338 (Mo.App.1978). See also Davis v. State, 116 Idaho 401, 775 P.2d 1243 (Ct.App.1989) (review Here, the issue of effective assistance of ......
  • Request a trial to view additional results

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