Opinion
No. 22225.
Date: December 30, 1998.
APPEAL FROM: CIRCUIT COURT OF PHELPS COUNTY, HON. JOHN D. WIGGINS. AFFIRMED.
Rosalynn Koch, Counsel for Appellant. Jeremiah W. (Jay) Nixon and Anne E. Hawley, Counsel for Respondent.
Garrison, C.J., and Montgomery, J., concur.
Movant instituted this postconviction proceeding, relying upon Section 547.360, RSMo Supp. 1997. Movant had previously entered pleas of guilty and was convicted of first-degree burglary, two counts of sodomy, assault in the third degree, and armed-criminal action. Thereafter, he sought postconviction relief, pursuant to Rule 24.035. The trial court denied that motion and the denial was affirmed on appeal.
The motion in the present case was denied without an evidentiary hearing, apparently on the basis that Section 547.360 did not create a second and independent avenue for postconviction relief. The Supreme Court of Missouri recently so held in Schleeper v. State, No. 80601, slip op. (Mo.banc Dec. 22, 1998). Although none of the three movants in Schleeper had previously filed a motion under Rule 24.035, they had filed motions under Rule 29.15 or Rule 27.26. The Supreme Court, however, made its holding "also applicable to Rule 24.035." Schleeper, slip op. at 3, n.2.
The order denying Appellant's motion is affirmed.