759 S.W.2d 624 | Mo. Ct. App. | 1988
Following trial by jury movant was convicted of second-degree murder and sentenced to life imprisonment. His conviction and sentence was affirmed on appeal. State v. Lohman, 707 S.W.2d 478 (Mo.App.1986).
Thereafter, movant filed a motion under Rule 27.26, seeking to set aside the conviction and sentence. The trial court made findings of fact, conclusions of law, and entered judgment denying his motion without an evidentiary hearing. Movant appeals. This appeal continues to be governed by Rule 27.26 as sentence was pronounced and the motion to vacate filed before January 1, 1988. Rule 29.15(m).
Movant contends here that the trial court erred in denying his motion without a hearing because it contained a sufficient factual basis to entitle him to an evidentiary hearing as to whether his conviction was obtained by peijured testimony which the state knew or had reason to know was false.
Our review of a decision on a Rule 27.26 motion is limited to whether the findings and conclusions of the trial court are clearly erroneous. Bailey v. State, 738 S.W.2d 577, 578 (Mo.App.1987); Rule 27.-26©. An evidentiary hearing is not required on a Rule 27.26 motion unless the movant alleges facts, not conclusions warranting relief; those facts are not refuted by the record in the case; and prejudice to the defendant likely occurred as a result. Boggs v. State, 742 S.W.2d 591, 594 (Mo.App.1987).
A motion under 27.26 contending that there was the conscious use of perjured testimony by a prosecutor must plead a factual basis by which the charge can be proved, including the source and nature of the facts, rather than mere conclusions. State v. Moore, 435 S.W.2d 8, 16 (Mo. banc 1968). See also Smith v. State, 714 S.W.2d 778, 781 (Mo.App.1986) (to prevail on such
The judgment is affirmed.
