Seltzer v. State, 49196
| Decision Date | 28 May 1985 |
| Docket Number | No. 49196,49196 |
| Citation | 694 S.W.2d 778 |
| Parties | William SELTZER, Movant-Appellant, v. STATE of Missouri, Plaintiff-Respondent. |
| Court | Missouri Court of Appeals |
Linda Vespereny, St. Louis, for movant-appellant.
John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
This appeal is from the trial court's judgment denying movant's motion for post-conviction relief under Rule 27.26. Movant was convicted by a jury of first degree assault. § 565-.050 RSMo 1978. He was sentenced to twenty-five years imprisonment to run concurrent with a previous sentence. We affirmed the conviction on direct appeal. State v. Seltzer, 655 S.W.2d 75 (Mo.App.1983). We affirm.
In this civil proceeding our scope of review is limited to a determination of whether findings, conclusions and judgment of the trial court as they appear in the record are clearly erroneous. Rule 27.26(j); Jones v. State, 604 S.W.2d 607, 609 (Mo.App.1980). Where the trial court has made findings on all issues sufficient to enable this court to review movant's contentions this constitutes compliance with Rule 27.26(i). Id. There is no need to remand for further findings and conclusions if those that appear in the record are sufficient for this court to make a determination as to the correctness of the trial court's action. Id.
Movant's first contention is that the trial court failed to specifically address any of the issues presented by movant and that the court misapplied the law in its conclusions of law. The trial court concisely summarized the issues pleaded in the motion filed by counsel on behalf of movant. Seven points related to ineffective assistance of counsel during the jury trial and two related to separate counsel's ineffective assistance during the direct appeal. The court's findings of fact included a finding that movant's trial counsel met the required standards for adequacy of counsel; that movant's appellate counsel met the same standards; that both attorneys are experienced and competent in handling criminal cases and both exceeded the required standard of competency in this case. Although the trial court's findings were not itemized to each matter pleaded they are sufficient to satisfy the requirements of Rule 27.26(i). That rule merely requires the court to "make findings of fact and conclusions of law on all issues presented." We find the generalized findings adequate in the present case because they are sufficient to enable this court to review movant's contentions. Jones, 604 S.W.2d at 609. A thorough review of the record demonstrates that the findings of the trial court were not clearly erroneous. Rule 27.26(j). Movant failed to meet his burden to show ineffective assistance of counsel. See Seales v. State, 580 S.W.2d 733, 735 (Mo. banc 1979).
In this point movant contends further that the trial court erred when it misapplied the law in its conclusions of law. The court concluded that allegations of counsel's failure to request a mistrial during closing argument or to object to portions of the closing argument were not subject to review under Rule 27.26. Movant claims these conclusions are erroneous as a matter of law.
Grounds stated in a Rule 27.26 motion concerning matters considered and rejected in direct appeal of a criminal case are not to be reconsidered in a post-conviction proceeding. Johnson v. State, 561 S.W.2d 704, 706 (Mo.App.1978). Movant seeks to avoid this rule claiming that this is a matter involving a constitutional issue. We do not agree. A motion filed under Rule 27.26 may not be employed as a second appellate review of matters which were or should have been raised on direct...
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State v. Hamilton
...fact and conclusions of law on all issues, general findings are sufficient if they allow meaningful appellate review. Seltzer v. State, 694 S.W.2d 778, 779 (Mo.App.1985). In the case at bar, the motion court held that "all of the alleged omissions and errors individually and collectively di......
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O'Neal v. State, 14752
...prisoner cannot obtain another review in a proceeding under Rule 27.26. Mooring v. State, 501 S.W.2d 7, 11 (Mo.1973); Seltzer v. State, 694 S.W.2d 778, 780 (Mo.App.1985). Movant argues, however, that Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), decided since......
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Short v. State, 55366
...raised so as to permit meaningful appellate review, that is sufficient. McCoy v. State, supra, 610 S.W.2d at 709; Seltzer v. State, 694 S.W.2d 778, 779 (Mo.App.1985); Kearns v. State, 583 S.W.2d 748, 751 (Mo.App.1979); Malone, supra, 747 S.W.2d at 688. It has been held that "generalized fin......
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Malone v. State
...that "generalized findings" may be sufficient if they enable the reviewing court to review the movant's contentions. Seltzer v. State, 694 S.W.2d 778, 779 (Mo.App.1985). And, recitation of the words "finding of fact and conclusions of law" is not required when the basis of the motion court'......