Burroughs v. State

Full title: ROBERT GENE BURROUGHS, APPELLANT, v. STATE OF MISSOURI, RESPONDENT

Court: Missouri Court of Appeals, Eastern District, Division Three

Date published: Aug 1, 1989

774 S.W.2d 559 (Mo. Ct. App. 1989)

Opinion

No. 56194.

August 1, 1989.

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT, JEFFERSON COUNTY, PHILIP G. HESS, J.

Michael Hardcastle, St. Louis, for appellant.

William L. Webster, Atty. Gen., Daryl R. Hylton, Asst. Atty. Gen., Jefferson City, for respondent.

HAMILTON, Judge.

Movant Robert Gene Burroughs (hereinafter, Burroughs) appeals the judgment of the motion court that denied, without an evidentiary hearing, his Rule 29.15 motion. We affirm.

On February 14, 1984, following conviction by a jury, Burroughs was sentenced to consecutive prison terms of ten years for burglary in the second degree and five years for possession of burglar tools. This court affirmed the convictions. State v. Burroughs, 682 S.W.2d 88 (Mo.App. 1984).

On March 15, 1985, Burroughs filed a motion pursuant to Supreme Court Rule 27.26. The motion court dismissed that motion without an evidentiary hearing.

On June 29, 1988, Burroughs filed the instant motion pursuant to Rule 29.15. The motion court overruled it without an evidentiary hearing. Burroughs appeals, asserting that the motion court erred in denying him relief without an evidentiary hearing. Rule 29.15(m) provides:

This Rule 29.15 shall apply to all proceedings wherein sentence is pronounced on or after January 1, 1988. If sentence is pronounced prior to January 1, 1988, and no prior motion has been filed pursuant to Rule 27.26, a motion under this Rule 29.15 may be filed on or before June 30, 1988. Failure to file a motion on or before June 30, 1988, shall constitute a complete waiver of the right to proceed under this Rule 29.15. If a sentence is pronounced prior to January 1, 1988, and a prior motion under Rule 27.26 is pending, post-conviction relief shall continue to be governed by the provisions of Rule 27.26 in effect on the date the motion was filed. (Emphasis added.)

Pursuant to the preceding language, Burroughs is ineligible to file a Rule 29.15 motion. Although his sentence was pronounced before January 1, 1988, he filed a Rule 27.26 motion prior to filing the instant Rule 29.15 motion. Thus, the terms of Rule 29.15 preclude Burroughs from obtaining post-conviction relief under that Rule. Accordingly, we affirm the judgment of the motion court.

CARL R. GAERTNER and STEPHAN, JJ., concur.