Lohman v. State

786 S.W.2d 212 | Mo. Ct. App. | 1990

DOWD, Presiding Judge.

Appellant, Robert W. Lohman, appeals from the motion court’s dismissal of his Rule 24.035 motion. We affirm.

Lohman pleaded guilty to a charge of murder in the second degree and was sentenced to life imprisonment. On September 9, 1985, appellant filed a motion for post-conviction relief under Rule 27.26. The motion was denied on February 18, 1987, by the motion court without an evi-dentiary hearing. Appellant unsuccessfully appealed the denial to this court. Lohman v. State, 737 S.W.2d 524 (Mo.App.1987).

On June 9, 1988, Lohman filed a second post-conviction motion for relief, this time under Rule 24.035. The motion court dismissed appellant’s motion without an evi-dentiary hearing. This appeal follows.

Appellant claims that the motion court erred in dismissing the 24.035 motion because appellant received ineffective assistance of counsel and was thereby prejudiced in rendering a guilty plea that was not voluntarily and intelligently made.

Under Rule 24.035 successive motions for post-conviction relief are precluded from consideration by circuit courts. Rule 24.035 provides that “[t]he circuit court shall not entertain successive motions.” Rule 24.035(k). This court has held a post-conviction motion brought subsequent to the denial of a 27.26 motion is a successive motion for the purposes of 24.035(k). McCabe v. State, 768 S.W.2d 619, 620 (Mo.App.1989) (citing, Hutchins v. State, 761 S.W.2d 761, 762 (Mo.App.1988)). This language in Rule 24.035(k) relating to successive motions is unqualified. Jackson v. State, 772 S.W.2d 779, 781 (Mo.App.1989). Therefore, since appellant’s instant motion is a successive motion, the provision of 24.035(k) precludes a motion court’s consideration of it. The motion court properly dismissed the motion.

Judgement affirmed.

SIMON, C.J., and JOSEPH J. SIMEONE, Senior Judge, concur.