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10/15/86 CURTIS L. SMITH v. STATE MISSOURI

October 15, 1986

CURTIS L. SMITH, APPELLANT,
v.
STATE OF MISSOURI, RESPONDENT



APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY, MISSOURI, Honorable Max Bacon, Judge.

MOTION FOR REHEARING OVERRULED, TRANSFER DENIED NOVEMBER 6, 1986. APPLICATION TO SUPREME COURT FOR TRANSFER DENIED DECEMBER 16, 1986.

Flanigan, J., Prewitt, P.j., Hogan, J., and Maus, J. concur.

The opinion of the court was delivered by: Flanigan

GEORGE M. FLANIGAN, JUDGE

Movant Curtis Smith appeals from an order denying, without an evidentiary hearing, his Rule 27.26 *fn1 motion to set aside a judgment and sentence for murder in the second degree. (§ 565.004). In the underlying criminal proceeding the trial court accepted defendant's plea of guilty and sentenced him to life imprisonment. The murder took place on March 14, 1984, in Greene County.

Movant's initial motion, filed pro se, was supplemented by two successive motions prepared by his instant counsel. Since the last motion incorporated the contents of its predecessors, a practice frequently, as here, not consistent with good draftsmanship, the motions will be viewed, under the circumstances here, as one instrument.

"Appellate review is limited to a determination of whether the findings, Conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). In order to qualify for an evidentiary hearing, movant must meet three requirements: (1) The motion must allege facts, not Conclusions, warranting relief; (2) those facts must raise matters not refuted by the files and records in the case; (3) the matters complained of must have resulted in prejudice to the defendant." Smith v. State, 652 S.W.2d 134 (Mo.App. 1983).

Movant asserts that the trial court erred in denying him an evidentiary hearing because the motion contained a sufficient factual basis to entitle movant to an evidentiary hearing on whether movant was denied effective assistance of counsel:

(1) "when his trial attorney failed to explore possible defenses and explain the necessary elements of the charges of capital and second degree murder prior to advising movant to enter a plea of guilty," and

(2) "when his trial counsel failed to inform movant of a potential conflict of interest as required by the Missouri Ethical Rules. Counsel did not disclose to movant that he was in the prosecuting attorney's office in Cole County, Missouri at the time that movant entered a plea of guilty to a felony charge of burglary in 1980. If movant had known of the potential conflict in interest, he would not have allowed counsel to represent him on a criminal charge of murder nor would he have followed counsel's advice to enter a plea of guilty."

Movant asserts that the conduct of his trial attorney, in the foregoing particulars, rendered his guilty plea "unknowing, involuntary and unintelligent."

A proceeding under Rule 27.26 is a civil proceeding, Rule 27.26(a), and the brief on appeal must meet the requirements of Rule 84.04. Overall v. State, 540 S.W.2d 637, 638[1] (Mo.App. 1976). Whether movant was entitled to an evidentiary hearing hinged on the question of whether his motion met the requirements enumerated in Smith v. State, supra. One of those requirements is that the motion must allege facts, not Conclusions, warranting relief. Rule 84.04(c) requires that the statement of facts portion of movant's brief "be a fair and concise statement of the facts relevant to the questions presented for determination without argument." That rule also permits the statement of facts to be followed "by a resume of the testimony of each witness relevant to the points presented."

The statement of facts portion of the instant brief sets forth certain procedural events in the underlying criminal action, including the filing of the original information charging movant with capital murder, the filing of an amended information charging movant with murder in the second degree, the ...


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