¶1concurring.
¶2I concur in the decision to reverse and remand because I find the record in this case fails to disclose that movant had a meaningful post-conviction review under Rule 27.26.
¶3The original Rule 27.26 motion was a nullity. The first timely 27.26 motion was filed pro se and no amendment by appointed counsel was made although there is an indication in the direct appeal decision of this court that an amendment was in order. The pro se motion attempts to describe a number of defects during the trial including failure of counsel to advise and effectively represent defendant. It is rambling and contains a number of grammatical errors. The issues which may be included in the motion are jumbled so that the questions of fact- and law which may have been intended are nearly impossible to decipher. It is difficult to imagine how there could have been a meaningful hearing on the pro se motion before it was withdrawn. This is in stark contrast to Caffey v. State, 467 S.W.2d 857 (Mo.1971); Newman v. State, 481 S.W.2d 3 (Mo.1972); and Speights v. State, 556 S.W.2d 213 (Mo.App.1977). In the Caffeycase the supreme court affirmed a dismissal because files, records and prior decisions in the case (on direct appeal and the appeal from the first 27.26 motion) conclusively showed defendant was not entitled relief, and therefore, no error occurred. In Newmanthe dismissal memorandum signed by movant and counsel itself recites there was a record made and the first 27.26 motion was based on grounds without merit. Further, the Newmandismissal was expressly “subject to [an] order that Movant may not file a new motion alleging same allegations, unless based on information not known to the Movant.” 481 S.W.2d at 5. The Newmanopinion makes reference to a prohibition against successive motions under Rule 27.-26 decided adversely or withdrawn or dismissed. This language presents no problem if it can be discerned that the first motion was a meaningful review and reference to the dismissal memorandum reciting that there was no merit in the first motion satisfies that requirement. In Speightsthis court had a testimonial record in the first 27.26 proceeding wherein movant testified the grounds stated in the first motion were without merit. The first motion was dismissed after this testimony.
¶4In contrast there are cases of the supreme court and this court which indicate that a meaningful Rule 27.26 hearing, on the merits or by withdrawal, must be dis-cernable from. the record. In Veneri v. State, 474 S.W.2d 833 (Mo.1971) the supreme court commented on State v. Moreland, 351 S.W.2d 33 (Mo.1961) as follows,
In Moreland, the petitioner had not received that to which he is entitled — an evidentiary hearing — and it was to recti*495fy that error that this court reversed and ordered a hearing. Here, appellants had their evidentiary hearing on their first motion and findings of fact were made and judgments entered. In these circumstances, State v. Moreland, supra, does not necessarily require the trial court to hold an evidentiary hearing on the second motion.
¶5474 S.W.2d at 837. The court then proceeded to separately decide the merits of the appeal of the first motion and the second motion. It affirmed the denial of relief on both motions. By implication the supreme court recognized that the second motion was not interdicted by the first.
¶6In Warren v. State, 473 S.W.2d 427 (Mo. 1971) the supreme court reversed and remanded a case involving an appeal from a second 27.26 motion. The trial court dismissed solely on the ground that the attempted second motion was unauthorized. The supreme court quoted Rule 27.26(d) and said:
This provision of Rule 27.26 recognizes that a defendant is not limited to a single application for relief under Rule 27.26. The trial court was obliged to consider the second application of movant in light of 27.26(d). Insofar as the record here shows, the trial court did not do so but dismissed the second motion on the grounds that it asked for similar relief as the first motion. This is not a proper basis for refusal of the second motion. In view of the nature of the review in this court, the cause must be remanded to the trial court with directions to consider the motion in light of Rule 27.26(d) insofar as it permits movant to explain the reason for the second motion. Any disposition of the motion upon reconsideration should also take into consideration the requirement of 27.26(i): ‘The court shall make findings of fact and conclusions of law on all issues presented whether or not a hearing is held.’ (emphasis ours)
¶7473 S.W.2d at 428-429.
Johnson v. State, 564 S.W.2d 266 (Mo. App.1978) was decided by this court after our opinion in Speights. The facts in the Johnsoncase are similar to our present facts. In Johnson, movant filed a pro se motion for relief under Rule 27.26. The motion was denied on a finding that on the face of the record, appellant was not entitled to relief. Movant Johnsonfiled a second motion which was denied without an evidentiary hearing. We reversed and remanded. The first motion merely alleged co-defendants had received a lesser sentence. The second motion alleged mental incompetence at the time of his guilty plea and ineffective assistance of counsel. In Johnson, we held: “Where the movant’s first pro se Rule 27.26 motion has been summarily denied, the trial court should not summarily deny a second Rule 27.26 motion simply because the movant had filed the prior motion. This should be especially true where the movant has not been afforded the assistance of counsel and the possibility of amendment of the pro se motion as provided for by Rule 27.26(h).”
¶8In Brauch v. State, 611 S.W.2d 406 (Mo. App.1981), we reversed and remanded for specific findings of fact and conclusions of law in a second 27.26 motion. This decision relied entirely on the requirements of Fields v. State, 572 S.W.2d 477 (Mo. banc 1978).
¶9I summarize all these cases to hold a movant is entitled to one meaningful 27.26 review. A withdrawal of an original 27.26 motion will not consititute such review unless there is a record from which it may be found movant had the benefit of active counsel and the first motion was without merit. A trial court can make such a record if in its discretion it permits a withdrawal or dismissal. This was done in Newmanand had the effect of an adverse decision. In the present case, there is no record to indicate the withdrawal was, in the same manner, an adverse decision. Because the pro se pleading was so deficient it appears in the first motion there was neither active participation of counsel nor a pleading on which a meaningful 27.26 review could have been held. As a result it cannot be determined from the record that *496movant received active participation of counsel, adequate pleading to present issues, a withdrawal which could be found to be adverse, or findings of fact and conclusions of law.
¶10As long as Rule 27.26 post-conviction relief remains the law, defendants should be entitled to the protection they are given by the rule and to have one meaningful review and there must be a record from which it can be found that such review has been granted. For these reasons I concur.