Opinion
No. 52264.
July 14, 1987. Motion for Rehearing and/or Transfer Denied August 18, 1987. Application to Transfer Denied October 13, 1987.
APPEAL FROM THE CIRCUIT COURT, PERRY COUNTY, KENNETH W. PRATTE, J.
Janet M. Thompson, Columbia, for appellant.
William L. Webster, Atty. Gen., Byrona J. Kincanon, Asst. Atty. Gen., Jefferson City, for respondent.
Movant appeals from the denial of his Rule 27.26 motion without an evidentiary hearing. We affirm.
On July 18, 1984, movant pled guilty to four counts of burglary first degree, § 569.160, RSMo 1986. He was sentenced to five years' imprisonment on each count, the first three to be served consecutively and the last to be served concurrently with the third, for a total sentence of fifteen years.
Movant filed his pro se Rule 27.26 motion on November 21, 1985. In that motion he alleged:
The petitioner is asking that the court review the herein sentence and reduce it if the court finds that, within its discretion it would do so. The petitioner is not a violent /// [sic] offender; he has a good institutional record and he has done his utmost to conform his conduct to the requirements of society. Also, the court could taken into consideration that the prison population in Missouri is overpopulated by 3,500 and there is a need for space for persons who pose a greater threat to society [sic] than me. Petitioner is not asking to withdraw his plea; he is merely asking the court to reduce the sentence.
No facts were given to support this ground for reducing movant's sentence. A public defender was appointed to represent movant and chose not to file an amended motion. On September 17, 1986, the State's motion to dismiss movant's Rule 27.26 motion was argued and ruled on. Movant's counsel was present at the hearing on the motion to dismiss. The Rule 27.26 trial court upon finding the motion stated conclusions not facts, and the motion did not state a cause of action dismissed the Rule 27.26 motion.
Movant's argument on appeal is that his Rule 27.26 counsel failed to comply with Rule 27.26(h) when he did not file an amended motion stating "all additional grounds and supporting facts." This argument sounds a lot like a claim for ineffective assistance of Rule 27.26 counsel. This is not the proper use of an appeal from the denial of a Rule 27.26 motion. Hubbard v. State, 706 S.W.2d 289, 290 [2] (Mo.App. 1986). We note that in his motion movant stated he "is not asking to withdraw his plea." An amended motion would not have been appropriate.
Judgment affirmed.
KELLY, J., concurs.
SATZ, P.J., concurs in result.