Wayne v. State, 40834
| Decision Date | 27 March 1979 |
| Docket Number | No. 40834,40834 |
| Citation | 579 S.W.2d 780 |
| Parties | Larry WAYNE, Movant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Robert C. Babione, Public Defender, St. Louis, for movant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Steven Scott Clark, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
Rule 27.26 motion. Movant appeals the denial of his motion without an evidentiary hearing.
On August 2, 1976, movant was convicted of second degree murder and sentenced to life imprisonment. Thereafter, movant escaped custody. His trial counsel filed a timely motion for new trial and notice of appeal. Our Court dismissed the appeal on April 25, 1977 for failure to perfect appeal and comply with the rules.
On appeal movant claims the trial court erred in not granting movant an evidentiary hearing when he alleged in his Rule 27.26 motion that he had received ineffective assistance of counsel on an aborted appeal. We must limit our appellate review to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Foster v. State, 520 S.W.2d 684, 686 (Mo.App.1975). We find they are not.
Movant's Rule 27.26 motion alleged:
(1) His escape from custody during post-trial proceedings;
(2) His indication to his attorney before his escape of his desire to appeal the conviction;
(3) His attorney's knowledge of his family's address; and
(4) His attorney's failure to contact his mother concerning the appeal.
Can a defendant complain about his attorney's failure to perfect his appeal while he is an escapee during the time in which an appeal can be taken? He cannot.
Movant alleges the denial of his constitutional right to appeal. He desired to appeal. He claims his attorney knew he wanted to appeal and points to the filing of the notice of appeal. Movant alleges his attorney refused or negligently failed to take proper steps to perfect his appeal. In support of his claim of ineffective assistance of counsel movant cites Green v. State, 451 S.W.2d 82 (Mo.1970) and Sampson v. State, 570 S.W.2d 337 (Mo.App.1978). These cases are not enough. Had movant refrained from escaping custody, things might have turned out differently.
A defendant who escapes custody during post-trial proceedings relinquishes his right to appeal. Movant "is in no position to charge his counsel with ineffectiveness for failing to pursue that...
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Wayne v. Missouri Bd. of Probation and Parole, 95-1466
...Petitioner Wayne is serving a life sentence on a 1976 Missouri conviction for murder in the second degree. See Wayne v. Missouri, 579 S.W.2d 780 (Mo.App.1979). He was eligible for parole in February 1993 but parole was denied by the Missouri Board of Probation and Parole. The parole board s......
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State v. Kearns, 15306
...Peck, 652 S.W.2d 244, 245 (Mo.App.1983). See State v. Carter, 98 Mo. 431, 11 S.W. 979 (1889); State v. Gilmore, supra; Wayne v. State, 579 S.W.2d 780, 781 (Mo.App.1979); White v. State, 558 S.W.2d 372, 375 (Mo.App.1977). In one form or another, this principle is recognized by most courts, 1......
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Wayne v. Wyrick, 80-1927
...on the ground that "(a) defendant who escapes custody during post-trial proceedings relinquishes his right to appeal." Wayne v. State, 579 S.W.2d 780, 781 (Mo.App.1979). Wayne's request for rehearing and/or transfer to the Supreme Court of Missouri was denied on June 15, 1979. He later file......
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State v. Peck, 12835
...right of appeal. Wayne v. Wyrick, 646 F.2d 1268, 1270 (8th Cir.1981); State v. Lafata, 614 S.W.2d 27, 29 (Mo.App.1981); Wayne v. State, 579 S.W.2d 780, 781 (Mo.App.1979); White v. State, 558 S.W.2d 372, 375 The appeal herein is dismissed and the judgment nisi is affirmed. FLANIGAN, P.J., GR......