637 S.W.2d 811 | Mo. Ct. App. | 1982
Movant appeals from the trial court’s summary dismissal of his motion pursuant to Rule 27.26. A jury found movant guilty of two counts of murder in the second degree and one count of assault with intent to do great bodily harm. The court sentenced movant to a term of life imprisonment on each of the two murder counts and to a term of five years imprisonment on the assault count. The terms are to run consecutively. This court affirmed the judgment and sentence. State v. Bainter, 608 S.W.2d 429 (Mo. App. 1980).
Movant filed this pro se Rule 27.26 motion to vacate the judgment and sentence. He alleged that by reason of his counsel’s failure to timely file a motion for a new trial, he was denied effective assistance of counsel and his right to a meaningful appeal. The trial court summarily dismissed the motion without conducting a hearing and without appointing counsel. In detailed findings of fact and conclusions of law, the trial court held that, because this court had reviewed the judgment and had
Clearly, the movant here is not entitled to relief on the ground he stated in his pro se motion. His attorney’s failure to timely file a motion for a new trial did not prejudice movant because we carefully considered the case and found “no error much less plain error.” State v. Bainter, 608 S.W.2d at 432. Further, we sympathize with the trial court’s view that there must somewhere be an end to the appellate process. We must, however, reverse and remand because the trial court failed to appoint counsel to represent movant. This failure violates the mandate of Fields v. State, 572 S.W.2d 477 (Mo. banc 1978). Counsel is appointed in every 27.26 proceeding, even one initiated by defective pro se motion, so that counsel may confer with the movant, examine his case, and present every possible claim in a single proceeding. In this manner, the objective stated by the trial court here may be achieved.
This case is reversed and remanded for appointment of counsel in accordance with Fields and for such further proceedings as may be deemed necessary after counsel is appointed.
