Hanes v. State

196 Kan. 409 (1966) 411 P.2d 646

CHARLES B. HANES, Appellant,
v.
THE STATE OF KANSAS, Appellee.

No. 44,380

Supreme Court of Kansas.

Opinion filed March 5, 1966.

Larry Kirby, of Wichita, argued the cause, and Russell Shultz, also of Wichita, was with him on the brief for the appellant.

R.K. Hollingsworth, Deputy County Attorney, argued the cause, and Robert Londerholm, Attorney General, and Keith Sanborn, County Attorney, were with him on the brief for the appellee.

The opinion of the court was delivered by

PRICE, J.:

This is an appeal from an order denying a second motion for relief under the provisions of K.S.A. 60-1507.

On April 7, 1958, petitioner, Charles B. Hanes, was convicted of the offenses of forgery and uttering and was sentenced to confinement in the state penitentiary. He appealed, and on December 10, 1960, the appeal was dismissed because it had not been properly perfected (State v. Hanes, 187 Kan. 382, 357 P.2d 819).

On October 28 and November 19, 1964, petitioner, by his presently retained counsel, filed a motion and a supplement thereto to vacate his conviction and sentence. He was returned to the district court of Sedgwick county for an evidentiary hearing. The hearing was held on November 19, 1964, and at the conclusion thereof the court found that petitioner was entitled to no relief and denied the motion. His counsel announced in open court that the ruling would be appealed. An appeal was taken, and our order of affirmance, is found in Hanes v. State, 196 Kan. 404, 411 P.2d 643.

On January 22, 1965, petitioner, pro se, filed a second motion to vacate his conviction and sentence. This motion alleged some of the grounds contained in the first motion and also listed several additional grounds.

On February 18, 1965, the second motion came on for hearing. Petitioner was not present in person or by counsel. The court reviewed the matters in connection with the hearing on petitioner's former motion and ruled that an examination of the second motion and the files and records in the case showed conclusively that he was entitled to no relief, and denied the motion.

Petitioner has appealed from that ruling.

Disposition of this matter is governed by what was said and held in Smith v. State, 195 Kan. 745, 408 P.2d 647, in which this court dealt with the question of a second or successive motion for similar relief on behalf of the same prisoner, under the provisions of K.S.A. 60-1507. The rule of that case is particularly applicable where, as here, petitioner's first motion for relief was prepared and filed by counsel, and an evidentiary hearing was granted. What was there said and held need not be repeated here. (Also see State v. Foulk, 195 Kan. 349, 404 P.2d 961.)

The order denying relief on petitioner's second motion was correct and is affirmed.