State v. Miner, 34687
| Decision Date | 14 August 1973 |
| Docket Number | No. 34687,34687 |
| Citation | 498 S.W.2d 814 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Anthony MINER, Defendant-Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Jack B. Schiff, Clayton, for defendant-appellant.
John C. Danforth, Atty. Gen., Daniel P. Card, II, Jefferson City, J. Brendan Ryan, Cir. Atty., Wm. M. Fraix, Jr., Asst. Cir. Atty., St. Louis, for plaintiff-respondent.
Anthony Miner appeals from a judgment of the Circuit Court denying his motion to
Miner was originally tried and found guilty, by a jury, of robbery in the first degree by means of a dangerous and deadly weapon. He was sentenced to twelve years. Notice of appeal was filed and a transcript prepared. Miner, through his attorney, then dismissed the appeal. this was done the day after movant pleaded guilty to a charge of assault with intent to kill with malice and was sentenced to twelve years to run concurrently with the previous sentence.
In his motion to vacate movant has stated his grounds as follows:
'(a) Movant was ineffectively assisted by counsel to such a degree so as to deny him of his rights guaranteed under the Sixth and Fourteenth Amendments of the United States Constitution.
'Movant was deprived of his appellate rights with respect to the conviction for reason that he was erroneously advised by the Court upon such matter.
'Movant was denied 'due process' of law in that prejudicial evidence of an unconstitutionally suggestive lineup identification procedure was admitted in evidence against him and under circumstances the said identification procedure was made so suggestive as to deny movant of his substantial rights guaranteed him under the Sixth and Fourteenth Amendments of the United States Constitution.'
In response to question 9 of the 27.26 form movant made no additional statements of fact and stated that his witnesses and evidence would consist of the official trial transcript, his testimony and that of his attorney. The circuit court denied the motion to vacate without appointment of counsel and without evidentiary hearing. The trial court in its opinion held that 27.26 cannot be used as a substitute for appeal and that the motion failed to state sufficient facts to warrant relief under the rule. Movant complains of the trial court's failure to make specific findings of fact and conclusions of law on movant's asserted grounds to vacate and upon the failure of the trial court to appoint an attorney for movant and to hold an evidentiary hearing. If the trial court correctly concluded that the motion to vacate failed to allege sufficient facts to state a ground for relief under Rule 27.26, then the action of that court was proper and movant's contentions are without merit. Subparagraphs (e), (h), and (i) of Rule 27.26 are all couched in terms of 'issues' of fact or law raised in the motion, and we find it implicit that if no 'issues' are raised the procedures there provided are not required. 'Issues' are raised in our judicial system by allegations of fact. We agree with the trial court that the allegations of fact are insufficient, in fact, they are non-existent.
We are aware that great liberality must be exercised in passing upon the attempts of unlettered...
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Jackson v. State, 38253
...supporting facts are insufficient to raise issues and hence do not require a hearing or the appointment of counsel. State v. Miner, 498 S.W.2d 814, 815(1) (Mo.App.1973). Jackson's allegation that he was "threatened" is, in the absence of any further facts alleged to support it, a conclusion......
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Winston v. State, 36864
...7 Smith v. State, supra; Duisen v. State, 504 S.W.2d 3, 5 (Mo.1974); Loflin v. State, supra, 492 S.W.2d at 773; State v. Miner, 498 S.W.2d 814, 816 (Mo.App.1973); Betts v. State, supra, 493 S.W.2d at 362; Perryman v. State, 506 S.W.2d 480, 483 The Supreme Court of the United States has neve......
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Fisk v. State, 35366
...is entitled to an evidentiary hearing unless his motion fails to allege facts sufficient to state a ground for relief, State v. Miner, 498 S.W.2d 814 (Mo.App.1973), or unless the record conclusively shows that he is not entitled to relief. Rule 27.26(e), Loflin v. State, 492 S.W.2d 770 (Mo.......
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Wimberly v. State, 37433
...(his counsel's) ineffectiveness consisted before the trial court (was) required to * * * hold an evidentiary hearing." State v. Miner, 498 S.W.2d 814, 815 (Mo.App.1973). Appellant failed to meet that (3) Appellant misled by counsel to believe he would receive a 5-year term? The transcript r......