Milner v. Commonwealth

CULLEN, Commissioner.

The Pendleton Circuit Court overruled without a hearing the motion of Roy Milner, under RCr 11.42, to vacate a 1965 judgment of conviction of rape under which Milner is serving a 10-year sentence. However, the court appointed counsel for Milner and through that counsel an appeal has been taken to this court.

The motion here in question was filed in April 1966. A previous motion filed in July 1965 was overruled in September 1965 and no appeal was taken from that ruling. The grounds asserted in the second motion either were stated in or could reasonably have been presented in the first motion. Accordingly, the court properly overruled the second motion. See RCr 11.42 and Bell v. Commonwealth, Ky., 396 S.W.2d 772.

Since the motion was such as properly could be overruled without a hearing there was no occasion for the court’s appointing counsel for the movant.

The judgment is affirmed.