768 S.W.2d 619 | Mo. Ct. App. | 1989
Movant, Ronnie Lee McCabe, appeals from the denial of his second or successive Rule 27.26 motion. We affirm the motion court’s denial of his motion.
McCabe was convicted in a jury trial of receiving stolen property and sentenced to a total of thirty (80) years in the Missouri Department of Corrections. He received fifteen years for the stolen property conviction and fifteen years for violation of probation. On February 13, 1985, pursuant to a plea agreement, movant pled guilty to both a new count of burglary in the second degree, and to stealing over $150. He also waived his right to appeal the receiving stolen property conviction. In return, mov-ant was sentenced to two seven year terms to run concurrently with each other and with the thirty year sentence previously imposed. On May 30, 1985, movant filed a Rule 27.26 motion. On June 10, 1985, counsel was appointed to represent him. The motion was overruled on October 9, 1985. Movant unsuccessfully appealed the denial to this court. McCabe v. State, 721 S.W.2d 110 (Mo.App.1986).
McCabe’s motion for rehearing, or in the alternative, application for transfer to the Supreme Court was denied on December 3, 1986.
On February 5, 1988, McCabe filed a second Rule 27.26 motion. On March 4, 1988, the court, without appointing counsel and without an evidentiary hearing overruled the motion. Movant appeals from this ruling.
Rule 27.26 was repealed, effective January 1, 1988. Movant could not file for post-conviction relief under Rule 27.26 on February 5, 1988. Rule 29.15(m). Mov-ant’s motion is governed by Rule 29.15. Rule 29.15(k) provides that “the circuit court shall not entertain successive motions.” Rule 29.15(k). The same language is contained in Rule 29.15’s companion rule, Rule 24.035. 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). Hutchins v. State, 761 S.W.2d 761 (Mo.App.1988). The same reasoning applies to Rule 29.15(k). This motion is a successive motion. The motion court properly dismissed the motion.
Affirmed.
