Cruz v. State

Jan 4, 1977
No. 10247
Reporters:
,
Before:
Billings
BILLINGS, Chief Judge.

The Circuit Court of Greene County denied, without an evidentiary hearing, appellant Cruz’s postconviction motion to vacate the twenty-year ‍​​​​‌‌​​‌‌​‌‌​​​‌‌​​​​​‌‌​‌‌​‌‌​‌​‌​​‌‌​‌​​‌​​‌‌​​‌‌​‌​‌​‌‌​‌‌​‌​​‌​‌‌​‌‌​‌‌​‌​​​‌​‌‌‌​‌​‌‌‌​‌‌‌‍sentence he is serving for first degree robbery. We affirm.

Appellant’s first motion under Rule 27.26, V.A.M.R., was denied by the trial court and that judgment affirmed by this court in Cruz v. State, 515 S.W.2d 610 (Mo.App. 1974).

Appellant’s present motion charges ineffective assistance ‍​​​​‌‌​​‌‌​‌‌​​​‌‌​​​​​‌‌​‌‌​‌‌​‌​‌​​‌‌​‌​​‌​​‌‌​​‌‌​‌​‌​‌‌​‌‌​‌​​‌​‌‌​‌‌​‌‌​‌​​​‌​‌‌‌​‌​‌‌‌​‌‌‌‍of counsel and the sentencing court’s consideration of allegedly unconstitutional prior convictions.

The ineffective assistance of counsel ground was included in appellant’s first motion and ruled against him. The matter of appellant’s 1952 convictions is not new and could have been raised ‍​​​​‌‌​​‌‌​‌‌​​​‌‌​​​​​‌‌​‌‌​‌‌​‌​‌​​‌‌​‌​​‌​​‌‌​​‌‌​‌​‌​‌‌​‌‌​‌​​‌​‌‌​‌‌​‌‌​‌​​​‌​‌‌‌​‌​‌‌‌​‌‌‌‍in his initial motion.

Rule 27.26(d), V.A.M.R., prohibits successive motions where the ground presented in the subsequent application was raised and ruled adversely to the prisoner on the prior motion or where the ground presented is new but could have been raised ‍​​​​‌‌​​‌‌​‌‌​​​‌‌​​​​​‌‌​‌‌​‌‌​‌​‌​​‌‌​‌​​‌​​‌‌​​‌‌​‌​‌​‌‌​‌‌​‌​​‌​‌‌​‌‌​‌‌​‌​​​‌​‌‌‌​‌​‌‌‌​‌‌‌‍in the earlier motion. The purpose of this rule is to prevent successive motions on grounds known at the time of filing a first motion although such grounds were not raised in the original motion. Newman v. State, 481 S.W.2d 3, 5 ‍​​​​‌‌​​‌‌​‌‌​​​‌‌​​​​​‌‌​‌‌​‌‌​‌​‌​​‌‌​‌​​‌​​‌‌​​‌‌​‌​‌​‌‌​‌‌​‌​​‌​‌‌​‌‌​‌‌​‌​​​‌​‌‌‌​‌​‌‌‌​‌‌‌‍(Mo.1972); Harkins v. State, 521 S.W.2d 9 (Mo.App.1975).

The trial court did not err in denying appellant’s second motion without an evi-dentiary hearing.

Judgment affirmed.

All concur.