No. 39229 | Mo. Ct. App. | Sep 5, 1978
Movant appeals from the order of the trial court dismissing his motion for relief
In September, 1975, movant filed a motion pursuant to Rule 27.26. Counsel was appointed and in January, 1976, the court, without evidentiary hearing, denied the motion. Extensive findings of facts and conclusions of law were entered. No appeal from this action was taken. Mov-ant’s current motion was filed in January, 1977. It again alleges ineffective assistance of counsel and that a competency hearing should have been held as movant was, at the time of the guilty plea, withdrawing from narcotic addiction and was receiving methadone. The trial court dismissed the motion because the grounds stated therein could have been raised on the prior 27.26 motion (Rule 27.26(d)) and for the further reason that the record of the guilty plea affirmatively refuted the allegations. We agree with both reasons.
Movant contends that he is entitled to an evidentiary hearing to establish the reasons why he did not or could not raise the present grounds in his prior 27.26 motion. The initial burden was on movant to allege such reasons. Nolan v. State, 484 S.W.2d 273" court="Mo." date_filed="1972-09-11" href="https://app.midpage.ai/document/nolan-v-state-5039495?utm_source=webapp" opinion_id="5039495">484 S.W.2d 273 (Mo.1972); Jones v. State, 521 S.W.2d 504" court="Mo. Ct. App." date_filed="1975-03-03" href="https://app.midpage.ai/document/jones-v-state-1503787?utm_source=webapp" opinion_id="1503787">521 S.W.2d 504 (Mo.App.1975) [1]; Evans v. State, 545 S.W.2d 674" court="Mo. Ct. App." date_filed="1976-12-07" href="https://app.midpage.ai/document/evans-v-state-5046738?utm_source=webapp" opinion_id="5046738">545 S.W.2d 674 (Mo.App.1976) [1], Not only has movant failed to allege such reasons, but his sworn motion alleges that no prior post-conviction motion was even filed.
The order of the trial court is affirmed.