Turley v. State ( 1978 )

SMITH, Judge.

Appellant, Ernest Turley, appeals from a judgment entered by the circuit court denying, without an evidentiary hearing, his Rule 27.26 motion for post conviction relief. On October 5, 1972, the circuit court of Warren County entered judgment of conviction upon a jury verdict finding appellant guilty of armed robbery and sentenced him as a second offender to twenty (20) years imprisonment. On appeal we affirmed this conviction. State v. Turley, 518 S.W.2d 207 (Mo.App.1975). In his 27.26 motion, appellant contends that his prior convictions were invalid because he was without assistance of counsel and therefore, he was improperly sentenced as a second offender. He requests to be sentenced without consideration of these allegedly invalid convictions. This would presumably, however, require a new trial on guilt.

The state argues that because the appellant did not raise this issue in the direct appeal of his conviction he is precluded from asserting it in his 27.26 motion.

This case is governed by Gamache v. State, 548 S.W.2d 594 (Mo.App.1977), decided by this court. The facts are almost identical to the present case. Gamache was convicted of robbery and sentenced pursuant to the Second Offender Act. In his 27.26 motion he alleged that the Act was inapplicable to him because his previous convictions were without counsel and without a voluntary waiver of counsel. The trial court denied the motion without an evidentiary hearing, because Gamache failed to raise this issue on the direct appeal of his conviction. We affirmed, relying on McCrary v. State, 529 S.W.2d 467 (Mo.App.1975). In McCrary this court stated: “. . .an issue which could have been raised on direct appeal, even though it is a constitutional claim, may not be raised in a post conviction motion, except ... in rare and exceptional circumstances. . Id. at 472.

There are no such rare and exceptional circumstances set forth in Turley’s motion. See also Montgomery v. State, 529 S.W.2d 8 (Mo.App.1975).

Judgment affirmed.

CLEMENS, P. J., concurs. McMILLIAN, J., dissents in separate opinion.