Reed v. State

715 S.W.2d 24 | Mo. Ct. App. | 1986

PREWITT, Presiding Judge.

Movant’s motion under Rule 27.26 was denied without an evidentiary hearing. He appeals, contending that the dismissal was improper because his motion alleged faces stating that he was sentenced as a persist ent offender based upon a conviction which was invalid because he was not represented by counsel.

Movant pled guilty to charges of burglary and of stealing and was sentenced as a persistent offender. During the plea hearing movant acknowledged that he had been convicted of two prior felonies and, upon inquiry of the trial judge, stated that he was represented by attorneys in both proceedings.

A Rule 27.26 movant must plead facts entitling movant to relief and “must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.” Rice v. State, 585 S.W.2d 488, 492 (Mo. banc 1979). See also Green v. State, 708 S.W.2d 295, 298 (Mo.App.1986). An evidentiary hearing is required on a 27.26 motion only if the motion alleges facts, not conclusions, which warrant relief and raise matters that are not refuted by the files and records of the case. Murphy v. State, 636 S.W.2d 699, 702 (Mo.App.1982).

Here, the facts upon which mov-ant’s motion is based are refuted by his statements at the guilty plea hearing. Consequently, the trial court properly denied the motion without an evidentiary hearing.

The judgment is affirmed.

HOGAN, FLANIGAN and MAUS, JJ., concur.