534 S.W.2d 111 | Mo. Ct. App. | 1976
Appellant appeals from the trial court’s denial, without an evidentiary hearing, of his motion to vacate judgment and sentence. Rule 27.26, V.A.M.R. He argues that because neither the motion, the files nor the records conclusively showed that he is entitled to no relief, the court should have held a hearing in order to determine whether the proceedings before the juvenile court conformed to prescribed standards. The question for our decision is whether, where no motion to dismiss was filed at trial challenging the waiver hearing conducted by the juvenile court pursuant to § 211.071, RSMo 1969,
In December 1969, the juvenile court, after a hearing pursuant to § 211.071 relinquished its jurisdiction over appellant and dismissed the petition therein filed, which permitted the state to proceed against the appellant as an adult. Subsequently, a circuit court petit jury found appellant guilty of the offense charged, and the court sentenced him to life imprisonment. On appeal to the Missouri Supreme Court appellant did not question the propriety of the juvenile’s court proceedings, and the court affirmed his conviction. State v. Ford, 487 S.W.2d 1 (Mo.1973), cert. den., 411 U.S. 983, 93 S.Ct. 2277, 36 L.Ed.2d 959 (1973).
In the trial court’s memorandum, it alluded to Rule 27.26(e), which provides that a hearing on such motion shall be held unless the motion, the files, and the records of the case conclusively show that the prisoner is not entitled to any relief. The trial court held that the motion presented no question of law or fact which required a hearing because appellant failed to file a motion to dismiss pursuant to Rule 25.06, V.A.M.R., citing in support of its ruling In re T. J. H., 479 S.W.2d 433 (Mo. banc 1972).
In re T. J. H. held that an order of the juvenile court dismissing a petition relinquishing jurisdiction to deal with a child under the juvenile code was not a final order from which an appeal could be taken and that the proper method to review the juvenile court’s waiver order was by filing a motion to dismiss the indictment in the circuit court.
To support the court’s summary dismissal of appellant’s 27.26 motion, the state relies upon Jefferson v. State, 442 S.W.2d 6 (Mo. 1969). In Jefferson, a juvenile, as is the case herein, contended that his constitutional rights had been violated at a § 211.071 proceedings because the court failed to grant a hearing prior to dismissal of the petition. The court held:
“He waived any objections he might otherwise have had to the proceedings in the*113 juvenile court when, after the appointment of two competent lawyers and the benefit of their advice and counsel, he failed to file a motion in the general criminal division requesting dismissal of the information, or remand to the juvenile division for the conduct of a proper hearing with counsel present and the entry of an order complying with constitutional standards. . . . ” (Emphasis added.)
In the Jefferson case, however, unlike the instant case, an evidentiary hearing was held.
In McCrary v. State, 529 S.W.2d 467 (Mo. App.1975), the defendant appealed an order of the trial court dismissing his Rule 27.26 motion without a hearing. His contention for vacation of judgment was that his conviction for possession of heroin was obtained by a violation of his constitutional rights, namely, his Miranda warning rights. We held that, where a defendant made no pretrial, trial or post-trial objection on constitutional grounds to admission of an inculpa-tory statement, he had made a deliberate bypass of orderly state procedure which precluded him from raising the Miranda issue on his 27.26 motion.
In Fields v. State, 468 S.W.2d 31 (Mo. 1971), although not factually the same as the instant case, the court held that a defendant on a 27.26 motion, could not raise a constitutional claim where he had deliberately bypassed state procedure by failing to file a motion to suppress or to object on constitutional grounds during the trial or to preserve the issue in his motion for a new trial. Moreover, the Fields court approved the ruling set forth in Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). In essence, Henry held that a litigant’s procedural defaults in state proceedings do not prevent vindication of his federal rights unless the state’s insistence on compliance with its procedural rule serves a legitimate state interest.
Valid state interests are served by any rule reasonably calculated to increase efficiency, conserve resources, protect rights or advance any other rational end.
In the instant case, the record shows that movant had counsel who was qualified to practice before our courts, and we may presume that counsel was competent, Hall v. State, 496 S.W.2d 300 (Mo.App.1973), and was aware of all of our elementary rules of practice. Neither the briefs nor our research discloses any authority which places counsel under an obligation to inform his client of our rules. In fact, counsel seldom does so.
In conclusion, we find that the procedural rules promulgated by our Supreme
All judges concur.
. All statutory references are to RSMo 1969 unless otherwise stated.
. Although the court in the T. J. H. case held that a motion to dismiss the indictment to be the exclusive remedy, the Missouri Supreme Court in the State ex rel. T. J. H. v. Bills, 504 S.W.2d 76 (Mo. Banc 1974) case held prohibition also to be an appropriate remedy to test the propriety of the juvenile court’s order if the petition and presumptive proofs showed that the order of the juvenile court waiving jurisdiction was void on its face as a matter of law. As we noted above, however, appellant filed neither a writ of prohibition nor a motion to dismiss the indictment. Nor did appellant raise on appeal the issue of the validity of the proceeding before the juvenile court.
. 75 Yale Law Journal 895, 963 (1965-66).
. Ibid., p. 969.
. Ibid., p. 969.
