Warren v. State
| Decision Date | 08 October 1973 |
| Docket Number | No. 57852,No. 1,57852,1 |
| Citation | 501 S.W.2d 173 |
| Parties | Lee Vernon WARREN, Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Appeal from denial of relief in proceeding under Rule 27.26, V.A.M.R., to set aside conviction and sentence of life imprisonment, entered on plea of guilty to charge of murder in the first degree.
On July 9, 1968, the jury trial of Lee Vernon Warren on a charge of murder in the first degree was terminated at the request of the defendant in its second day and the defendant entered a plea of guilty to the charge and was sentenced to life imprisonment. He is now attacking such sentence. A prior attack was rejected. State v. Warren, 451 S.W.2d 30 (Mo.1970). A second motion under Rule 27.26 was dismissed on the grounds that it was a second motion, seeking similar relief to Upon remand, the court held a hearing on the second motion at which movant testified. The court denied relief and this appeal followed.
that previously denied. This court reversed and remanded with directions to consider the second motion in the light of subparagraph (d) of Rule 27.26. Warren v. State 473 S.W.2d 427 (Mo.1971).
I
DISQUALIFICATION OF JUDGE
Appellant contends that the judgment should be reversed because the trial judge erred in overruling his motion to disqualify the judge.
When the case came on for hearing, defense counsel orally moved the court for permission to withdraw the previously entered plea of guilty, which was denied. Defense counsel then requested a delay to permit filing of an affidavit for change of vanue. The trial court permitted appellant to be sworn and state his reason for wishing to disqualify the judge. After hearing the statement of appellant the trial court denied appellant's request.
On this appeal, the contention is made that appellant was entitled unconditionally to one disqualification of judge under Rule 30.12. That rule deals with disqualification of judges in criminal cases. A proceeding under Rule 27.26 is a civil proceeding, governed by the rules of civil procedure insofar as they are applicable. Rule 27.26(a). Rule 51.06 as it stood prior to the 1973 amendment was therefore applicable. Demonstrably, there was no compliance with the time requirements of that rule and no written motion, supported by affidavit, as required by that rule. Therefore, the trial court cannot be held to have erred. Kelch v. Kelch, 462 S.W.2d 161, 163(1) (Mo.App.1970); Public Water Supply District No. 7 v. City of Pevely, 437 S.W.2d 108, 114(10--12) (Mo.App.1969); Erhart v. Todd, 325 S.W.2d 750 (Mo.1959).
II
FINDINGS
Appellant attacks the trial court's judgment on the grounds that it failed to include findings of fact on the claim of 'Illegal search-void.'
The motion of the appellant asserted numerous grounds for relief including illegal search. The trial court's findings enumerated the grounds and concluded: '(T)here is no substantive (sic) evidence which shows any of the above allegations influenced the Movant to plead guilty or that they were significant factors in his decision to plead guilty.' That conclusion is in no manner attacked. However, in stating the appellant's claims, the trial court evidently overlooked the illegal search ground. It is, in any event, clear that the trial court reached the same conclusion with respect to that issue. The movant did testify that following his arrest, the police, at approximately 4:00 A.M., took him to his room, where they 'confiscated' a TV set, radio, some bloody clothes and other items. In the course of testimony pertaining to whether or not a motion to suppress was filed, the court stated:
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