Lewis v. State

PUDLOWSKI, Presiding Judge,

Movant appeals from an order of the Circuit Court of the City of St. Louis dismissing his second Rule' 27.26 motion. We reverse and remand.

On March 13, 1981, the jury found the movant guilty of burglary second degree. On April 24, 1981, movant’s motion for a new trial was denied and he was sentenced by the trial court to thirteen years imprisonment. This judgment was affirmed on appeal. State v. Lewis, 637 S.W.2d 93 (Mo. App.1982).

On July 9, 1981, while his direct appeal was still pending, the movant untimely filed his first Rule 27.26 motion. The trial court dismissed this motion without a hearing as premature due to the pending appeal according to Rule 27.26(b)(2).

He subsequently filed a pro se motion on March 26,1983. Thereafter, an attorney of the Special Public Defender’s Office was appointed to represent the movant and an evidentiary hearing was set for December 20, 1983. In this motion, the movant alleged that his trial counsel had permitted the prosecutor a “field day” during his trial, that the trial court had misinterpreted a verbal indiscretion directed toward the deputy sheriff in the courtroom, and that the trial court had unconstitutionally removed the movant from the courtroom during the closing phases of his trial. His motion was nearly unintelligible, full of grammatical errors, and reflected no active participation or advice of his appointed counsel.

On the day of the hearing, the movant and his attorney were present but instead of presenting evidence, the movant filed a memorandum withdrawing his Rule 27.26 motion. -The record only discloses that the trial court accepted his withdrawal.1 This motion’s withdrawal was apparently unconditional and the reasons for its withdrawal cannot be found in the record. We do not know whether it was with prejudice nor do we know whether the movant’s appointed counsel attempted to communicate with the movant in order to amend his pro se motion to establish facts in a “lawyer like fashion” to support all his claims for relief under Rule 27.26. See Fields v. State, 572 S.W.2d 477, 483 (Mo. banc 1978); Rule 27.-26(h).

On February 3, 1984, the movant filed the instant motion. This motion was also pro se and reflected the assistance of a “legal consultant.” In addition to realleg-ing the contention that the trial court erred in removing the movant from the courtroom, the movant also raised ineffective assistance of counsel on the ground that his trial counsel failed to preserve trial errors for his direct appeal. On May 16, 1984, the state filed a motion to dismiss which was sustained by the trial court bn January 7, 1985. The court’s dismissal order simply stated: “State’s Motion' to Dismiss is hereby sustained, 481 S.W.2d 3 (Mo.1972).”2

On appeal, the movant contends the trial court failed to make specific findings of fact and conclusions of law. The movant further contends the trial court’s dismissal was based solely on the fact that he Had previously filed an earlier Rule 27.26 motion, albeit one which was ultimately withdrawn. We agree.

Rule 27.26(i) requires that “[t]he court shall make findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” A mere recital or statement that the motion, files, and records conclusively show that the movant is entitled to no relief is not sufficient. Fields, 572 S.W.2d at 483. Specific findings and conclusions are contemplated and required. Id. At no time, may findings and conclusions be supplied by implication from the trial court’s ruling. Id. These requirements must be met even where the trial court sustains a state’s *493motion to dismiss a Rule 27.26 motion. Tammons v. State, 686 S.W.2d 552, 553 (Mo.App.1985).

In the present case, the trial court’s order sustaining the state’s motion to dismiss did not comply with the requirements of Rule 27.26(i) nor did it permit this court the opportunity for meaningful appellate review.3 Fields, 572 S.W.2d at 483; McCoy v. State, 610 S.W.2d 708, 709 (Mo. App. banc 1981). Nowhere in its order did the trial court clearly articulate the basis for its ruling nor did it directly address any of the contentions raised in the movant’s motion. The order itself was merely a bald statement that the state’s motion to dismiss was sustained. We would be supplying findings of fact and conclusions of law by implication if we were to affirm on the basis of the trial court’s reference to the title page of Newman v. State. Brauch v. State, 611 S.W.2d 406, 407 (Mo.App.1981).

In reaching this result, we are not unmindful of the state’s argument that Rule 27.26(d) precludes consideration of the mov-ant’s second motion which contained grounds he alleged or could have alleged in his prior Rule 27.26 motion. Rule 27.26(d) provides:

The sentencing court shall not entertain a second or successive motion for relief on behalf of the prisoner where the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application or where the ground presented is new but could have been raised in the prior motion pursuant to the provisions of subsection (c) of this Rule. The burden shall be on the prisoner to establish that any new ground raised in a second motion could not have been raised by him in the prior motion.

We also note our Supreme Court’s observation in Newman, the case cited in the trial court’s dismissal order, that this rule is to apply whether or not the first motion was decided adversely to the movant, withdrawn, or dismissed. 481 S.W.2d at 5. In order to present a ground not previously presented in a prior Rule 27.26 motion, the movant must allege more than “lack of legal knowledge” as an explanation for his failure to raise the ground in the earlier motion. Jones v. State, 521 S.W.2d 504, 506 (Mo.App.1975).

We, nevertheless, hold where the movant’s first pro se Rule 27.26 motion has been withdrawn without a record or a finding that the earlier motion was without merit, the trial court should not summarily deny a second Rule 27.26 motion simply because the movant filed an earlier motion. This is particularly true where, as in the present case, the movant’s prior motion was pro se and the record failed to disclose whether he was afforded the opportunity to amend his earlier pro se motion as provided for by Rule 27.26(h) and suggested by our Supreme Court in Fields, 572 S.W.2d at 483. See Johnson v. State, 564 S.W.2d 266, 267 (1978) (The court of appeals held that the trial court should not have summarily dismissed the movant’s second motion simply because the movant had filed a prior motion, especially where the movant’s first motion was filed pro se without the assistance of counsel and the opportunity to amend.) Accordingly, we reverse and remand so that the trial court may consider the grounds presented in the movant’s second Rule 27.26 motion and determine whether the movant satisfied his burden of proof under Rule 27.26(c), (d).

This cause is reversed and remanded for specific findings of fact and conclusions of law.

CARL R. GAERTNER, J., dissents with separate opinion. KAROHL, J., concurs in separate opinion.

. The state contends the trial court’s acceptance of the withdrawal constituted an order dismissing the motion. This conclusion is not supported by the sparse record before us.

. The cited case is Newman v. State.

. See Huffman v. State, 668 S.W.2d 255, 256 (Mo.App.1984), for examples of cases requiring reversal and remand because of insufficient findings and conclusions made by trial courts on Rule 27.26 motions.