553 SW2D 317 - Shields v. State

CLEMENS, Presiding Judge.

¶1By this, his fourth Rule 27.26 motion,1 movant Charles C. Shields challenges a 1964 conviction and forty-year sentence for armed robbery.2 That sentence was imposed under the Habitual Criminal Act on the basis of seven previous convictions. Mov-ant’s present motion challenges one of them, contending that in 1955 in Scott County he was denied counsel, a free transcript and the right to appeal, and that the 1955 conviction was improperly used to enhance his 1964 conviction.

¶2The trial court granted an evidentiary hearing. Movant testified that in 1955 he represented himself because he had no money and the attorney appointed to consult with him did not do so during the trial. Court records of that conviction show that although movant had requested to represent himself, counsel was appointed to represent him.

¶3In denying movant’s motion the trial court found not only that movant’s testimony was unworthy of belief but also that the ground alleged in his motion could and should have been raised in an earlier motion.

¶4Rule 27.26(d) provides that a successive Rule 27.26 motion shall not be entertained where the ground presented in the successive motion could have been raised in a prior Rule 27.26 motion. Movant failed to meet his burden of establishing that the ground raised in this successive motion could not have been raised in a prior motion. Nolan v. State, 484 S.W.2d 273 (Mo.1972).

¶5Judgment affirmed.

DOWD and SMITH, JJ., concur.

¶6. Previous denials: State v. Shields, 441 S.W.2d 719 (Mo.1969); Shields v. State, 491 S.W.2d 6 (Mo.App.1973); and Shields v. State, denied December 21, 1973.

¶7. Affirmed, State v. Shields, 391 S.W.2d 909 (Mo.1965); cert. den., 382 U.S. 966, 86 S.Ct. 457, 15 L.Ed.2d 369.