Boykins v. State

¶1Movant (defendant) has appealed from an order denying her Rule 27.26 motion to vacate sentence without a hearing. We affirm.

¶2A jury found defendant guilty of possession of a Schedule I controlled substance. Section 195.017,195.020, RSMo.1975 Supplement. The court entered judgment and sentenced defendant to 15 years’ imprisonment. Her conviction was upheld on appeal. See State v. Boykins, 541 S.W.2d 90 (Mo.App.1976). Thereafter, defendant filed a pro se motion to vacate, alleging: “I was not represented by counsel at my preliminary hearing. 6th Amendment grounds. I could not defend myself at my preliminary hearing. If my right to counsel had been observed, the charges against me might have been dismissed. My lawyer could have prepared a much better defense at this hearing.”1 The trial court found the motion was vague, conclusory and indefinite, and denied it without an evidentiary hearing and without appointing counsel. On appeal, defendant contends the trial court erred in failing to appoint counsel immediately upon the filing of her Rule 27.26 motion and that she was thereby denied due process.

¶3Although we agree defendant’s motion was conclusory there is a more basic reason for denying it.2 The state tried defendant on a substitute information in lieu of indictment. Rule 23.02 specifically provides no preliminary hearing is required in such an instance. That obviated the need to appoint counsel.

¶4Judgment affirmed.