author:
HOGAN, Judge.
      BILLINGS, Chief Judge,

text:
    Douglas Wayne THOMPSON, Appellant, v. STATE of Missouri, Respondent.
    No. 10739.
    Missouri Court of Appeals, Springfield District.
    Oct. 23, 1978.
    Motion for Rehearing or Transfer Denied Nov. 8, 1978.
    Application to Transfer Denied Dec. 18, 1978.

      Gerald H. Johnson, Downs & Johnson, Cape Girardeau, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

This is a proceeding for postconviction relief under our Rule 27.26, V.A.M.R. Petitioner Douglas W. Thompson seeks to vacate a life sentence imposed by the Circuit Court of Mississippi County on December 23, 1966, after a jury had found him guilty of first-degree murder. The trial court denied an evidentiary'hearing and dismissed the proceeding upon the State’s motion. Thompson appeals.

Thompson was convicted of first-degree murder in the Circuit Court of Bollinger County in December 1961, and a death sentence was imposed. On direct appeal, the judgment and sentence were affirmed. State v. Thompson, 363 S.W.2d 711 (Mo. banc 1963). In January 1964, petitioner filed a motion to vacate the sentence pursuant to Rule 27.26. The trial court denied the motion without a hearing. An eviden-tiary hearing was ordered and was held. The trial court denied relief. On appeal our Supreme Court reversed, vacating the sentence and judgment on the grounds that the State had suppressed material evidence and had compounded the error with a misleading closing argument. Upon retrial in 1966 in the Circuit Court of Mississippi County, petitioner was again found guilty; his punishment was assessed at life imprisonment.

The proceeding now before this court was begun on September 10, 1975, nearly nine years after Thompson was sentenced for the second time. The original petition was apparently drawn pro se. Much of the matter alleged is simple diatribe and invective, and might well have been stricken as scurrilous by the trial court. The allegations of the petition are: (1) that petitioner’s conviction was obtained by the “deliberate” use of false and perjured testimony; (2) that petitioner’s conviction violates the constitutional prohibition against “double jeopardy”; (3) that petitioner was deprived of his right to trial by a jury composed of a true cross-section of the community, and was thus denied “. . . an impartial trial, due process and equal protection of the law in violation of the Sixth and Fourteenth Amendments . . . ”; (4) that the jury was not instructed upon the law of the case, in violation of the “due process clause of the Fourteenth Amendment to the United States Constitution,” petitioner further alleging that the instructions shifted the burden of proof to the defendant; and (5) that the trial court denied petitioner equal protection of the laws by refusing to furnish him a copy of the instructions given at the trial.

Counsel was appointed for the petitioner, and this proceeding lay dormant for some time. Thompson then filed a petition for a writ of habeas corpus in the Supreme Court of Missouri; the petition was denied without prejudice and another such petition was filed March 1, 1977, in the Circuit Court of Mississippi County. The second petition for the writ alleges some of the matter averred in the petition to vacate, and further avers that the hearing on the present motion under Rule 27.26 has been deliberately delayed. The petitioner also requested and was granted leave to amend his petition to vacate so as to include the allegation that the “keyman” system of jury selection was used in Mississippi County when he was tried, thus denying him due process.

On June 14, 1977, counsel for the State and appointed counsel for the petitioner appeared in the Circuit Court of Mississippi County, principally to argue the State’s motion to dismiss the petition. The State moved and was granted leave to file: (1) the trial transcript prepared after the petitioner’s original trial, and (2) an excerpt from the proceedings had upon petitioner’s second trial. The State then argued that the petition was insufficient as a pleading. Petitioner’s counsel responded by saying he had a letter from the petitioner, stating that petitioner had recently obtained a photograph which proved the State’s witnesses had perjured themselves upon the second trial. Attention was called to several other aspects of the petitioner’s motion to vacate. The general thrust of the argument made by petitioner’s counsel was that an eviden-tiary hearing should be had. At the close of the arguments, the trial court took the case under advisement. Counsel for both parties were told “[WJhatever you desire to submit you submit.” Apparently, nothing further was forthcoming and on June 22, the trial court entered findings, denied an evidentiary hearing, and dismissed the petition or motion for postconviction relief upon the State’s motion. This appeal followed.

The State and the petitioner have, for the most part, briefed the appeal in procedural terms. There is no doubt that a proceeding under Rule 27.26 is a civil proceeding; Rule 27.26(a) in terms so provides. The general rules of good pleading apply to a motion or petition for postconviction relief under Rule 27.26, and an application for relief may be held insufficient if the aver-ments consist of abstract conclusions only, leaving both the trial and appellate courts to speculate what the petitioner’s real contentions are. Smith v. State, 513 S.W.2d 407, 410-411[1] (Mo. banc 1974), cert. denied 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Hogshooter v. State, 514 S.W.2d 109, 113 (Mo.App.1974). The petition in this case is couched in such conclusory, argumentative and epithetical language that the appeal might be disposed of on the ground that petitioner’s motion is insufficient as a pleading, but we prefer to consider it upon its merits, at least to the extent we can ascertain what the nature of the petitioner’s assertions are.

To begin with, notice must be taken of petitioner’s conduct when he was sentenced in 1966. A partial transcript of the record shows that the petitioner appeared in person and with counsel before the trial court for sentencing on December 23, 1966. The following proceedings were had: (our emphasis)

“THE COURT: . . . By reason of the responsibility that is placed on me in this position where the jury has found you guilty of murder in the first degree, it becomes my duty, as I said, to fix the punishment, and that punishment will be fixed at a life term in the penitentiary. You may have a seat and I will consult with your lawyers.
THE COURT: Now, Mr. Thompson, you and your attorney in the presence of the court now, the statute provides, of course, that a motion for a new trial may be filed, and if you desire, the Court will give you a definite number of days to file that motion for new trial. We will give you such time as you want. Do you at this time feel that you would like to have additional time to file a motion for a new trial?
MR. HERD: Your Honor, speaking in behalf of the defendant, we don’t want any time for a motion for a new trial.
THE COURT: Is that your understanding, Mr. Thompson?
THE DEFENDANT: Yes, sir.
THE COURT: Your lawyer has indicated that you do not desire to file a motion for new trial or for additional time or time within which to file a motion for new trial. You understand that if we have what we call allocution and sentence then under the strict rules of the Court and of the law you would not then be permitted to file a motion for new trial. Strictly within our rules a motion for new trial cannot be filed after we have such an allocution.
MR. HERD: If the Court please, I think the record should indicate that I have discussed this matter with the defendant and that the defendant is aware of his rights in this area, and I have made that quite clear in this area, and I am sure he understands that, is that correct?
THE DEFENDANT: Yes.
THE COURT: You understand that?
THE DEFENDANT: Yes, Your Hon- or.
THE COURT: Since the jury has returned a verdict and the court has indicated the punishment, has anyone in any ways mistreated you in any way?
THE DEFENDANT: No, sir.
THE COURT: Threatened you in any way?
THE DEFENDANT: No, sir.
THE COURT: Made you any promises?
THE DEFENDANT: No, sir.
THE COURT: No one has made you any promise that would lead you to desire to waive your right or to deny your right to file a motion for new trial?
THE DEFENDANT: No, sir.
THE COURT: You fully understand your rights?
THE DEFENDANT: Yes, sir.
THE COURT: And you have discussed them with your lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: Your desire is that you do not file a motion for new trial?
THE DEFENDANT: Yes, sir.
THE COURT: Your desire is that you do not file a motion for new trial?
THE DEFENDANT: That is right, Your Honor.
THE COURT: Then you may stand. Now, having had the verdict of the jury, having had the Court indicate the punishment as being a sentence to a penal institution in Missouri, that is, the custody of the Department of Corrections for your natural life, do you now have anything to say or any lawful or legal reason to give why sentence should not be pronounced?
THE DEFENDANT: No, sir.
MR. HERD: There is no reason, Your Honor.
THE COURT: All right. The defendant having been asked if he had any lawful or legal reason to give why sentence should not be pronounced, and having given none, and in accordance with the findings of the verdict of the jury, and the indication of the Court, you are hereby sentenced to the penitentiary for your natural life and ordered committed to the custody of the Department of Corrections for your natural life. All right. You may be seated. Now there will be the further order that the defendant be forthwith placed in the custody of the warden of the penitentiary for safekeeping under his prior sentence and for the carrying out of the sentence of this court . . ."

Three of the petitioner’s grounds for relief are directed to instructional error. As nearly as we can make out, Thompson argues that he was deprived of “due process” because the jury was not instructed on all degrees of homicide, specifically murder in the second degree and manslaughter, and because one of the instructions given (it is not set out) shifted the burden of proof to the defendant. In this connection, petitioner excuses his failure to set out the instruction complained of by averring that the trial court refused to furnish him a copy of the instruction although he requested it. The obvious inquiry is whether the petitioner’s conduct and that of his counsel at the time of sentencing amounted to a deliberate bypass of petitioner’s right to appeal so as to preclude the petitioner from complaining of instructional error, including his claim that the charge to the jury did not comport with the due process requirement established in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

The doctrine that a deliberate bypass, whether for strategic, tactical or other reasons, of orderly state procedure may preclude a petitioner seeking postconviction relief from raising federal claims was recognized and applied by our Supreme Court in Nickens v. State, 506 S.W.2d 381, 386-387[1, 2][3, 4] (Mo.1974), and was subsequently discussed in scholarly detail by our colleagues at Saint Louis in McCrary v. State, 529 S.W.2d 467, 472-474[7][8] and nn. 6, 7 and 8 (Mo.App.1975). We are convinced there was a deliberate bypass of petitioner’s right of appeal after his conviction in 1966, and consequently, he may not now raise claims of error which might have been raised then. Except for such matters as may be considered “plain error,” timely filing of a motion for new trial is an indispensable prerequisite to securing orderly review of a judgment of conviction in a criminal case tried to a jury. In other words, petitioner’s waiver of his right to file a /motion for new trial amounted to a waiver of his right of appeal. Such is the law now, State v. Cluck, 451 S.W.2d 103, 104[1] (Mo.1970); State v. Rapp, 412 S.W.2d 120, 122[2] (Mo.1967), and such was the law in 1966 when the petitioner was convicted. State v. Sykes, 400 S.W.2d 57, 59[1] (Mo.1966), and see State v. Phason, 406 S.W.2d 671, 673[1] (Mo.1966). The trial court’s error, if any, in failing to instruct the jury upon lesser degrees of homicide was consequently waived when the petitioner waived his right to move a new trial upon that ground. State v. Gooch, 420 S.W.2d 283, 287[9] (Mo.1967).

We are aware that the deliberate bypass doctrine, as set out in Fay v. Noia, supra, 372 U.S. at 439, 83 S.Ct. at 849, 9 L.Ed.2d at 869-870 and n. 1, equated the term “deliberate bypass” with the conventional definition of “waiver,” specifically, the intentional relinquishment or abandonment of a known right or privilege. When Thompson appeared for sentencing on December 23, 1966, he had been once convicted of first-degree murder and had received a death sentence, which had been affirmed on direct appeal. He had applied for and obtained postconviction relief; upon retrial he had been convicted and had received a life sentence. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which suggested that the death penalty might be violative of the Eighth Amendment, had not yet been decided. So, as in Nickens v. State, supra, 506 S.W.2d 381, the death penalty was still a possibility, discretion the better part of valor, and the petitioner’s motivation in deciding to forego an appeal on the merits is obvious. This is not to say the record is silent as to the defendant’s exercise of volition; at the time of sentencing, petitioner’s counsel, who represented petitioner upon the first trial and in the postconviction proceeding and at the second trial, asked that the record show petitioner had been advised of his rights, stated that he had made petitioner’s rights “quite clear” and was “sure” petitioner understood his rights. The petitioner testified he was not threatened or promised anything which led him to waive his right of appeal. Further, although we may not attribute professional expertise to the petitioner because he had been tried before, still his knowledge-ability based on prior convictions is a factor tending to indicate a voluntary, knowing bypass of his right of appeal. The bypass was clearly knowledgeable and voluntary.

Such conclusion disposes of petitioner’s assertion that the trial court erred in failing to instruct the jury on lesser degrees of homicide. The question remains whether it disposes of his claim that one of the instructions shifted the burden of proof to him in violation of the due process requirements enunciated in Winship, supra, which was decided after petitioner’s conviction. It cannot logically be said, usually, that an applicant for postconviction relief who has waived his right of appeal is precluded from asserting federal rights established thereafter, if those rights have been made retroactive. United States v. Wilkins, 367 F.2d 990, 993[5, 6][8] (2d Cir. 1966); Nadeau v. State, 232 A.2d 82, 84-85 (Me.1967); Commonwealth v. Richardson, 433 Pa. 195, 249 A.2d 307, 311[5] (1969) (dealing with preclusion arising from procedural default). Petitioner’s due process point, as stated, is that “[his] conviction obtained herein is violative of the due process clause of the Fourteenth Amendment to the United States Constitution for the . . . reason that Missouri case law in operation at the time of [the 1966] conviction allowed the State to presume malice aforethought, and placed a burden of proof upon a defendant to prove certain reductive factors (sudden provocation, heat of passion or that the crime was not committed with deliberation) before the jury was instructed on lesser included offenses, i. e., 2d degree murder, or manslaughter . . . ” This “ground” for relief is explained by petitioner’s complaint about the trial court’s instructions and the trial court’s failure to furnish the petitioner with a copy of the whole charge to the jury.

This court is generally familiar with the line of authority, beginning with In re Winship, supra, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which holds that a criminal defendant has a due process right to require the prosecution to prove every fact necessary to constitute the crime charged beyond a reasonable doubt. Expanding this principle to some extent, the Supreme Court of the United States considered a single instruction in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and the general charge to the jury in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). In Mullaney, the court held that an instruction requiring a criminal defendant in a murder prosecution to prove that he acted in the heat of passion or upon sudden provocation by a preponderance in order to reduce the homicide to manslaughter violated the due process standard set out in Winship, supra. Perhaps Mullaney and Hankerson can be interpreted as suggesting that any instruction to the jury which shifts the burden of proof to the defendant violates due process, but both Mullaney and Hankerson are in terms so hedged about and limited by the court that the scope and impact of the two decisions remains problematic.

The point of this abstract discussion, which is probably imprudent, is this: the petitioner now complains of instructional error which might have been corrected on appeal. The petitioner committed the offense of which he was convicted in a crowd of witnesses; if in 1966, the jury was instructed that it was entitled to presume malice, or that petitioner had the burden to prove circumstances of mitigation or justification, reversible error was committed which could have been redressed on appeal. State v. Martin, 364 Mo. 258, 272, 260 S.W.2d 536, 546[11] (banc 1953); State v. Cook, 262 S.W.2d 866 (Mo.1953); State v. Strawther, 342 Mo. 618, 627, 116 S.W.2d 133, 138—139[8, 9] (1938). Indeed, in 1965 our Supreme Court condemned all instructions in criminal cases which permitted the jury to believe that a criminal defendant had any burden to prove his innocence. State v. Reeder, 395 S.W.2d 209, 210-211[1][2][4] (Mo.1965). Therefore, if the petitioner was aggrieved by an instruction shifting the burden of proof to him on any element of the crime, he had a remedy by appeal under the substantive law of Missouri without resort to federal constitutional doctrine. It follows that petitioner’s deliberate bypass of his right of appeal in 1966 precludes his assertion of instructional error on the ground that the State’s instructions (or perhaps a single instruction) shifted the burden of proof. Such ruling also disposes of petitioner’s complaint that the trial court should have furnished him “a copy of the instructions.”

Thompson’s vigorous assertion that his conviction was obtained by the use of false and perjured testimony has been addressed before. As noted, the petitioner sought and obtained postconviction relief from his first conviction. State v. Thompson, 396 S.W.2d 697 (Mo. banc 1965). In the first postcon-viction proceeding, Thompson advanced the argument that he had been convicted upon false and perjured testimony. Addressing this contention very carefully with a view to adjudicating it finally, our Supreme Court set forth the allegedly false testimony in laborious detail; the court rejected the argument that the evidence objected to was so obviously false and at variance with known physical facts as to amount to perjury. State v. Thompson, supra, 396 S.W.2d at 703-704[7][8]. The petitioner advances the identical argument here. In his petition, he recites the evidence heard upon his trial in 1966 — or his recollection of it — in great detail, arguing that the evidence indicating he shot his victim is so contrary to established physical facts [and] matters of common knowledge that it cannot be accepted as substantial evidence; therefore, he was convicted by perjury. In support of this contention, Thompson claims that a photograph of his victim, only recently discovered, conclusively establishes that his victim could not have been killed in the manner indicated by the State’s evidence at his trial in 1966. Petitioner has included a diagram of the scene of the killing as the photograph would show it to be, and has attached the diagram to his petition as an exhibit. The difficulty with the diagram is that when it is examined in connection with the evidence already twice recited in our appellate reports, it quickly appears that petitioner’s “newly discovered” evidence establishes nothing new. It merely illustrates graphically the inconsistencies already noted by our Supreme Court in 1965. See State v. Thompson, supra, 396 S.W.2d at 703-704[8].

We are aware that no evidentia-ry hearing has been had on this point, and no transcript of petitioner’s second trial was ever prepared because the petitioner waived his right of appeal. We further bear in mind that a substantial change in the material facts may bar the preclusive effect of a prior appellate adjudication in civil cases. Schell v. City of Jefferson, 361 Mo. 495, 235 S.W.2d 351, 355[2] (banc 1951); State ex rel. Bush v. Sturgis, 281 Mo. 598, 607-608, 221 S.W. 91, 95[6], 9 A.L.R. 1315, 1321 (1920), and see generally A. Vestal, Res Judicata/Preclusion 414 (1969). Nevertheless in this case, petitioner himself has averred, on oath, facts which taken as true demonstrate the factual identity of the point advanced in 1965 and the claim of error made here. There is, therefore, no necessity for an evidentiary hearing to avoid “presuming from a silent record.” We are aware further that res judicata, collateral estoppel and like doctrines of preclusion by prior adjudication do not apply with full force in post-conviction proceedings. Wilwording v. Swenson, 502 F.2d 844, 848-849[5][6, 7] (8th Cir. 1974); see A. Vestal, supra, at 270. Even so, a prior adjudication in a postcon-viction proceeding may be preclusive, even by the most exacting standards, if: (1) the same ground presented in the subsequent application was determined adversely to the petitioner on the prior application; (2) the prior determination was on the merits; and (3) the ends of justice do not manifestly require a second hearing. Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148, 161 (1963); Wilwording v. Swenson, supra, 502 F.2d at 848-849.

In this instance, the very claim of infringement of a federally protected right has been once heard and determined adversely to the petitioner after a full eviden-tiary hearing. Such appeal to the “ends of justice” as petitioner’s claim of error may have is greatly diminished when it is shorn of its “constitutional” embellishment. In reality, the petitioner’s point is only an abrasive reargument of his prior claim— that the State’s evidence against him was “inherently impossible.” It is doubtful that the “inherently impossible” rule applies in criminal cases. State v. Chamineak, 328 S.W.2d 10, 13-14 (Mo.1959). If it does, then the petitioner’s argument concerns the sufficiency of the evidence, a matter not cognizable under Rule 27.26. McCrary v. State, supra, 529 S.W.2d at 471[6].

The petitioner further claims that his second conviction violated the double jeopardy clause of the Fifth Amendment, which is applicable to state proceedings through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Kansas City v. Bott, 509 S.W.2d 42, 44 (Mo. banc 1974). This claim is wholly without merit. Petitioner’s first conviction was set aside because of trial error, specifically, prosecutorial misconduct in the suppression of and failure to disclose exculpatory evidence. State v. Thompson, supra, 396 S.W.2d at 700. Retrial to correct such a trial error does not constitute double jeopardy, and the fact that the conviction was set aside on a collateral attack under Rule 27.26 is immaterial. Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1, 11-12 (1978); United States v. Tateo, 377 U.S. 463, 465-466, 84 S.Ct. 1587, 1588-1589, 12 L.Ed.2d 448, 450-451 (1964).

We conclude that as to all the grounds for relief which we have considered, the trial court did not err in denying an eviden-tiary hearing.

The final claim of error briefed here is that petitioner “. . . was deprived of a jury composed of a true cross-section of the community, and was thus deprived of an impartial trial, due process and equal protection of the law in violation of the Sixth and Fourteenth Amendments to the United States Constitution in that there exists a systematic discrimination in the practices employed in Mississippi County, Missouri, that causes a substantial disparity between representation of cognizable groups in the jury pool and the groups [sic] representation in the entire population.”

It is readily apparent that in framing this ground for relief, the petitioner has thoroughly confused several discrete federal claims. State v. Carter, 572 S.W.2d 430 (Mo. banc 1978). We have the view that challenges to the composition of the petit jury array are subject to the rule of preclusion by failure to object timely, at least where the information indicating discriminatory selection was available, as a practical matter, at the time of trial. Arnold v. Wainwright, 516 F.2d 964, 970-971[4-6][7] (5th Cir. 1975), reh. and reh. en banc denied (1975).

Nevertheless, we have no record before us, and no method of determining what, if any objection, was presented at the time of trial. We conclude the cause should be remanded for an evidentiary hearing upon the question of constitutionally impermissible discrimination in the jury selection process. The cause is remanded for an evi-dentiary hearing upon that issue only. It is so ordered.

TITUS, J., concurs.

BILLINGS, C. J., dissents.

BILLINGS, Chief Judge,

dissenting.

I am in agreement with the principal opinion’s holdings except as to the ruling concerning appellant’s complaint regarding the jury selection process. I would hold, for reasons which follow, appellant is not entitled to an evidentiary hearing on that issue.

First of all, appellant’s motion on this ground is conclusionary and fails to plead facts in support thereof. This dereliction is, in itself, sufficient to support the trial court’s denial of a hearing on this issue.

Secondly, and of equal import, is the fact that Missouri has long followed the rule that a challenge to a jury array or panel must be timely presented or it is waived. State v. Turnbough, 498 S.W.2d 567 (Mo.1973). The trial court’s order denying appellant relief expressly found that the record in his 1966 trial showed appellant was not entitled to relief and therefore not entitled to an evidentiary hearing. Inherent in that finding is a determination that a timely challenge to the array or panel was not made by the appellant.

It is true that in Ross v. Wyrick, 581 F.2d 172 (8th Cir. 1978), a three-judge panel of the federal judiciary ruled, contrary to our ruling in State v. Ross, 530 S.W.2d 457 (Mo.App.1975), that a prima facie case of jury discrimination was demonstrated in Mississippi County, Missouri, but an examination of that opinion will disclose that the pivotal peg which the court hung its decision on was possible racial discrimination in the makeup of the jury panel in the trial of a Negro. Furthermore, in Ross, a timely motion to strike the jury panel was made.

Arnold v. Wainwright, cited in the principal opinion, squarely recognizes that in applying federal standards on federal habeas corpus, the failure to comply with state procedural law constitutes a waiver of the right to challenge the petit jury composition. The court applied the failure-to-object standard and held Florida’s procedural rule requiring a timely challenge to a jury panel precluded habeas relief.

I would affirm the judgment of the trial court.

      . We understand that one member of the court which decided McCrary, supra, has become dissatisfied with the opinion. Turley v. State, 571 S.W.2d 465 (Mo.App.1978) mandate issued October 12, 1978. With deference, we believe the vehemence of the dissent is unjustified. Our Rule 27.26 was fashioned to meet the requirements of the “triology,” including Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), see State v. Stidham, 415 S.W.2d 297, 298[2][3] (Mo. banc 1967), and it can scarcely be denied there is some degree of analogy between federal postconviction proceedings under 28 U.S.C. § 2255 and proceedings under our Rule 27.26. The views expressed in McCrary, supra, and in the concurring opinion in Turley, supra, accord with reality; the bypass doctrine enunciated in Fay has been selectively applied, depending on the magnitude of the alleged constitutional error as perceived by the particular court. See Wainwright v. Sykes, 433 U.S. 72, 94-95 and n. 1, 97 S.Ct. 2497, 2510 and n. 1, 53 L.Ed.2d 594, 613 and n. 1 (Stevens, J., concurring) (1977).

      . See Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1107 (1970).

      . The concurring opinion in Mullaney, supra, 421 U.S. at 704-706, 95 S.Ct. at 1892-1893, 44 L.Ed.2d at 522-524, suggests that a single instruction can rarely be the basis for condemning the whole charge as a denial of due process on the ground that it shifts the burden of proof, and implies marginally that instructional error shifting the burden of proof is subject to waiver by failure to make timely objection. In Hankerson, supra, the court directly held that the only question being decided was whether the Supreme Court of North Carolina erred in not holding Mullaney, supra, to be retroactive.

      . While it is not necessary to our ruling, we have the view that the presumption of malice arising out of a killing by the use of a deadly weapon upon a vital part of the body, of which defendant specifically complains, does not shift the burden of proof in an unconstitutional manner. As noted above, the giving of an instruction upon that presumption was long ago held to be reversibly erroneous where there were eyewitnesses to the crime, State v. Martin, supra, 364 Mo. at 272, 260 S.W.2d at 546(11] (banc 1953), but even when the instruction was properly given, the presumption was avoided by a showing of “some evidence” of circumstances of mitigation or justification. State v. Strawther, supra, 342 Mo. at 627, 116 S.W.2d at 138-139[8, 9]; State v. Malone, 327 Mo. 1217, 1228, 39 S.W.2d 786, 790[6] (1931). Such a requirement did not shift the burden of proof in an unconstitutional manner. Mullaney v. Wilbur, supra, 421 U.S. at 701, n. 28, 95 S.Ct. at 1891, n. 28, 44 L.Ed.2d at 521, n. 28. In this connection, it should be noted that despite the local view that footnotes in an opinion are anathema, they are significant and operative parts of a federal opinion. Phillips v. Osborne, 444 F.2d 778, 782-783[1] (9th Cir. 1971).

      . We have no occasion to consider the language or construction of Rule 27.26(d) on this appeal. This is not a second or successive motion for relief in the same case; here the petitioner has been retried because of trial error nullifying the first conviction.


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Willie MACK, Defendant-Appellant.
    No. 39271.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 21, 1978.
    Motion for Rehearing and/or Transfer to Superior Court Denied Jan. 12, 1979.

      Robert E. Ahrens, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Kathryn Marie Krause, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard Poehling, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   CRIST, Judge.

Defendant was charged with thirteen counts of stealing over $50.00 by deceit during the years 1973, 1974 and 1975. Eight counts alleged theft from Eagle Realty Company, the managing agent for the St. Louis Land Reutilization Authority. Five counts alleged theft from St. Louis Housing Authority. The State voluntarily dismissed four of the counts at the close of its evidence.

From 1973 to 1975 the St. Louis Land Reutilization Authority and St. Louis Housing Authority (hereinafter collectively referred to as “Authorities”) owned rental properties in the City of St. Louis. In the course of their business, they evicted tenants from some of these properties. After legal proceedings had been completed, the Authorities arranged for vacation of such premises. Defendant, a deputy constable in St. Louis, had knowledge of these evictions. He had a moving service, not licensed in the City of St. Louis, which had cleared, cleaned and secured evicted properties for the Authorities from time to time. He had been paid by them for this service.

The State sought to prove as to nine counts that defendant represented to Authorities that he had performed moving services for nine different housing units, and received more than $50.00 for services to each unit, when, in fact, the tenants therein had moved themselves. A jury found defendant guilty on five of the nine counts and he was fined a total of $5,000 and sentenced to a term of 2½ years in the St. Louis Medium Security Institution.

Defendant contends: (1) The thirteen count indictment should have been severed; (2) he was impermissibly restricted in his cross-examination of a witness; (3) his motion for judgment of acquittal at the close ox the State’s case should have been sustained; and (4) the admission of three prosecution exhibits offended the best evidence rule. We disagree.

Defendant’s motion for severance was overruled before the trial began. Four of the thirteen counts were dismissed at the end of the State’s case, in the presence of the jury, for the stated reason that the State was unable to locate its witnesses. There was no objection at this time although the defendant did later object to the prosecutor’s statement. Evidence was presented on nine counts showing six alleged crimes in 1975, one in 1974 and two in 1973. The jury found defendant guilty of three such crimes in 1975, one in 1974 and the other in 1973.

Rule 24.04 permits the joinder of offenses where such offenses involve “two or more acts or transactions which constitute parts of a common scheme or plan.” The general body of each count was similar with the dates, addresses, amounts and victims being the only variables. The charges occurred in three different years and involved two different victims. In addition, the jury heard evidence on nine counts and heard the prosecutor, without objection, dismiss four similar counts because he was unable to locate his witnesses. The trial judge gave the jury the cautionary MAI— CR 2.70 instruction limiting the consideration of evidence to each separate count. Under these circumstances, the trial court did not abuse its discretion in its denial of the motion for severance. Broad joinder is to be encouraged. State v. Brannom, 539 S.W.2d 747, 750 (Mo.App.1976); see also, State v. Van, 543 S.W.2d 827, 831 (Mo.App.1976).

Was defendant impermissibly restricted in his cross-examination of the president of Eagle Realty Company? The inquiry concerned the number of evictions handled by the defendant for Eagle Realty Company in 1975. Rule 84.04(h) requires that the “argument shall have specific page references to the transcript.” Defendant, in the argument portion of his brief, not only omitted all specific page references to the transcript, he misquoted the question which the trial court ruled to be objectionable. Accordingly, there is nothing preserved for review. Ward v. Johnson, 480 S.W.2d 104 (Mo.App.1972). In any event, we have read the transcript and find no merit in the contention that his right of cross-examination was unduly restricted. State v. Nebbitts, 498 S.W.2d 762, 764 (Mo.1973).

Should defendant’s motion for judgment of acquittal, filed at the end of the State’s case, have been sustained? First, we believe that the State made a submissible case on each of the five counts on which the jury found defendant guilty. Second, defendant waived any objection to the trial court’s action in overruling such motion by thereafter submitting evidence on his own behalf. State v. Hill, 438 S.W.2d 244, 247 (Mo.1969).

Did the admission into evidence of State’s Exhibits 20, 21 and 22 offend the best evidence rule? The records were admitted as business records of St. Louis Housing Authority. Section 490.680 RSMo. 1969. State v. Jones, 534 S.W.2d 556, 558 (Mo.App.1976). The exhibits consisted of St. Louis Housing Authority remittance vouchers, court papers and defendant’s invoices. They showed representations of, and disbursement of funds to defendant by St. Louis Housing Authority. For the reason that the facts sought to be proved by this evidence were the representations of, and payments to, defendant, the best evidence rule did not apply. These facts existed independently of any writing. Aviation Enterprises, Inc. v. Cline, 395 S.W.2d 306, 308 (Mo.App.1965).

The judgment is affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: CLEMENS, Judge.

text:
    Alma LANGENDOERFER, Appellant, v. Ernest HAZEL, Jr., Inc. and Bituminous Casualty Corp., Respondents.
    No. 39540.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 28, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.
    Harry J. Nichols, St. Louis, for appellant.
    Albert I. Graff, Frank J. Lahey, Jr., Graff & Lahey, St. Louis, for respondents.
   CLEMENS, Judge.

Plaintiff’s workmen’s compensation claim for accidental injury was denied by the referee, the Industrial Commission and the trial court on the ground plaintiff’s injury was not accidental. Plaintiff contends on appeal that the sudden traumatic nature of her injury ipso facto constituted a compen-sable accident. We cannot agree.

The facts are undisputed. Plaintiff was at work in her customary manner, assembling sheets of cardboard into binders. A pack of cardboard sheets, about the size and weight of a telephone book, was at floor level and had to be lifted to plaintiff’s work table. As she bent straight forward and then lifted the stack of cardboard sheets, she felt a sharp pain in her back and leg. (The injury resulted in surgery and disability.) Plaintiff had similarly lifted other stacks of cardboard just before the injury and on prior occasions had lifted similar weights without incident.

“Accident” means an unexpected event happening suddenly; “injury” means resultant violence to the body. Section 287.020, RSMo.1969. Plaintiff would equate the terms injury and accident. Not so. An accident alone is not an injury, and an injury alone is not an accident; they are separate and distinct entities. Herring v. Safeway Stores, Inc., 499 S.W.2d 538[3] (Mo.App.1973). In that case compensation was denied the claimant who injured his back while stacking milk cartons, a routine task. The court denounced the plaintiff’s contention “that injury itself connotes an accident regardless of how the injury occurred.”

Plaintiff’s contention was also refuted in Bauer v. Independent Stove Company, 417 S.W.2d 693[1-4] (Mo.App.1967), explaining: “The injury is the result produced by the accident and the cause of the injury must be accidental to be compensable.” (Our emphasis). See also, our opinion in Roux v. Dugal’s Big Star Food Store, 510 S.W.2d 810[3-6] (Mo.App.1974), holding: “Where an employee experiences an injury as a result of normal and customary duties and within the normal routine there is no compensable accident.” So it is here.

We have examined the host of cases cited by plaintiff and find none refutes our decision.

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: WEIER, Judge.

text:
    Tommy Sam GAYE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38467.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 5, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.

      Bradford A. Brett, Mexico, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, Thomas I. Osborne, Pros. Atty., Mexico, for respondent.
   WEIER, Judge.

1. Case Summary

Defendant was convicted in the Circuit Court of Audrain County for first degree armed robbery and was sentenced to fifty years imprisonment. His appeal from that conviction resulted in an affirmance, State v. Gaye, 532 S.W.2d 783 (Mo.App.1975). This appeal is from adverse rulings of the Circuit Court on a Rule 27.26 motion to vacate the judgment and an amended motion seeking the same relief. Based upon the allegations of fact in these motions the court denied them without an evidentiary hearing. We affirm.

2. Statement of Facts

A detailed statement of the facts which led up to the trial and the trial which resulted in movant’s conviction may be found in the above-referenced opinion.

3. Issues Submitted and Their Determination

On appeal movant relies on seven points for reversal of the lower court. We make disposition of these issues in the order presented to us in movant’s brief using the same Roman numerals found therein.

I. Movant first contends the trial court erred in denying a hearing on his motions to vacate because the motions present enough issues of law and fact so that counsel should have been appointed to help movant draft an amended motion or supplement his original motion. Under the case law effective when the instant motion and amended motion were filed, movant was not entitled to appointment of counsel unless his “motion presents questions of law or issues of fact.” Rule 27.26(h); Winston v. State, 533 S.W.2d 709, 715[6] (Mo.App.1976). Counsel on appeal fails to state in this point-relied-on and in the argument in support thereof “wherein and why” the motion or amended motion presented to the court sets out questions of law and issues of fact. Rule 84.04(d). Under such a general charge, we cannot say the trial court committed error and, therefore, deny this contention.

II. Were the “findings of fact and conclusions of law of the trial court insufficient and clearly erroneous”? This is mov-ant’s contention and his attack is directed toward the trial court’s conclusion that the “grounds stated by movant constitute mere conclusions and present no fact issue.” But wherein is movant’s attack on the findings of fact and conclusions of law more specific than those alleged to be made by the trial court? We find none in this point-relied-on and deny this contention. Thummel v. King, Mo.banc, 570 S.W.2d 679, filed September 12, 1978.

III. The next point-relied-on claims clear error in the trial court’s denial of a hearing because movant’s statement in paragraph 8 of his motion presents questions of law and issues of fact. Although we are again faced with a general, conclu-sional charge as to trial court error, we turn to paragraph 8 of the motion to assist us in examining the merits of this contention.

Movant’s grounds are set out in his original motion to be:

(a) Violation of his right to effective assistance of counsel by counsel’s failure to conduct a pretrial investigation. This ground is general and conclusional. It does not specify what information, facts, evidence or witnesses might have been disclosed if an investigation had been made. It does not demonstrate that the alleged neglect of counsel resulted in some prejudice to his position and deprived him of certain substantial rights that would affect the trial of his case. McKnight v. State, 497 S.W.2d 201, 204[4, 5] (Mo.App.1973). Furthermore, movant waived a claim of ineffective assistance of counsel when he sought and was allowed to represent himself. State v. Gaye, supra at 789[1]. This contention has no merit.

(b) Movant next asserts in his motion, paragraph 8, his right to a fair trial was violated because he was “on drugs” during the course of the trial hearing. The record discloses he was apprehended by officers on August 28, 1973, and he was not able to raise bail for his release. He was in custody of officers of the court until his trial commenced on March 28,1974. In the opinion of this court, in State v. Gaye, 532 S.W.2d 783, 790, supra, it is said:

“Appellant appeared before the circuit judge on November 6, November 23, December 3 and March 28. The proceedings on those four occasions occupy 67 pages of transcript. While these proceedings were not specifically designated for the purpose of making that determination, the exchange between court, appellant and counsel gave the trial court and this court an opportunity to determine appellant’s intellectual capacity to understand and appreciate his position, situation and problems, the difficulties confronting him and his need for counsel in the trial of the case. At these four sessions appellant was questioned and examined. Statements were elicited from him . His answers were responsive to questions asked. He knew what he wanted and was able to articulate his thoughts, albeit ungrammatically.”

In the face of this record which indicates alert intelligence, he states he was “on drugs.” The word “drug” has been defined in the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 321(g)(1) to mean (A) “articles recognized in the official United States Pharmacopoeia . . (B) “articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals”; (C) “articles (other than food) intended to affect the structure or any function of the body of man or other animals.” Our statute, § 196.010, subd. 1(5), RSMo.1969, contains essentially the same definition. Again movant has asserted a conclusional statement without facts indicating he was entitled to an evidentiary hearing. The phrase “on drugs” could only mean he was taking or receiving some kind of medicine but does not indicate that this affected his ability to conduct his trial. The trial record as disclosed by the opinion in State v. Gaye, supra, clearly indicates to the contrary.

(c) The third allegation in paragraph 8 of his motion asserted that he “reduced the trial to a false, shame [sic] and mockery of Justice in that he was denied effective representation of counsel for his defense.” This is followed by a “statement of facts” that again attempts to capsulize all of the trial record previously presented to us in State v. Gaye, 532 S.W.2d 783, supra, and discussed in detail in that opinion. An appellant who represents himself will not be heard to assert ineffective assistance of counsel. “The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction.” Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975).

(d) Movant’s paragraph number 8 of his amended motion asserts due process and equal protection violation of his constitutional rights in that the state suppressed favorable evidence that a “deal” had been made for the testimony of a certain witness, Mae Louise Bruner. Movant had the opportunity to cross-examine Mrs. Bruner at the trial. In fact the trial judge had suggested to him that he think about her testimony and write down what he might want to cover on cross-examination after she testified for the state. Although he decided not to ask her questions, movant brought up the matter on final argument and at that time suggested to the jury that she testified against him to save herself. State v. Gaye, supra at 788. Obviously defendant brought up the matter of an alleged “deal” at the time of his trial and had ample opportunity to expose it before the jury to affect the credibility of witness Bruner at that time. This he failed to do. This point is denied.

IV. Here movant contended violation of constitutional rights by failure to conduct a pretrial investigation. This has been answered in 111(a), supra.

V. Violation of right to fair trial by reason being “on drugs” has been answered and denied in 111(b), supra.

VI. Contended violation of constitutional rights by the trial court’s actions in depriving him of effective assistance of counsel has previously been answered in State v. Gaye, supra at 789[1].

VII. This contention repetitively submits (1) movant was entitled to an eviden-tiary hearing because “movant presented the court with questions of law and/or issues of fact” and (2) movant’s rights to due process and equal protection were prejudiced by testimony of a biased witness, Mae Bruner. These contentions have been previously answered.

4. Disposition

Movant did not allege facts which would entitle him to the relief sought. This opinion has no precedential value. The judgment is affirmed in compliance with Rule 84.16(b).

GUNN, P. J., and KELLY, J., concur.

      . A “per se rule” has now been adopted with prospective application only requiring that counsel be appointed after an indigent movant files a pro se motion under rule 27.26 so that he may communicate with movant. After this counsel will have the “opportunity and obligation to amend the motion to state factually in lawyerlike fashion the basis for all claims for relief under rule 27.26 . . . ” Fields v. Missouri, Mo.banc, 572 S.W.2d 477, filed November 6, 1978.


text:
    STATE of Missouri, Respondent, v. Ralph CHILDRESS, Appellant.
    No. 39792.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 5, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.

      Cynthia S. Holmes, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Charles D. Sindel, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Judge.

A jury found defendant guilty of first degree robbery (§ 560.120, RSMo.1969), and the court sentenced him to imprisonment for fifteen years. On appeal defendant contends that the trial court erred in admitting evidence of allegedly stolen objects not disclosed before trial, and also erred in answering a juror’s question concerning the amount of money allegedly stolen. We find no such errors.

Defendant does not challenge the sufficiency of the state’s evidence. While alighting from her car on a bank’s parking lot Mrs. Mary Bishop was robbed of her purse at knifepoint by two masked men, one wearing a green coat and the other a tan coat. Her purse contained a wallet with $212, a coin purse with spare change, hair pins and a button. A bank security guard gave chase and ultimately captured defendant. He was then wearing a green coat and a stocking cap as described by Mrs. Bishop. Police arrived and upon searching defendant found loose change, hair pins and a button, all identified by Mrs. Bishop as hers. Although the officer testified to the search and what he found, his police report did not mention these as “recovered” items.

At trial, defense counsel sought to strike the testimony about the recovered items, contending the prosecution had not disclosed the existence of this evidence before trial as required by § 25.32(A)(6), VAMR. That rule requires the state upon written request to disclose objects obtained from a defendant. The record reveals no such written request and we hold the point has not been preserved for review. State v. McCoy, 559 S.W.2d 298[1] (Mo.App.1977); State v. Harlin, 556 S.W.2d 42[3] (Mo. banc 1977).

Even considered as plain error, we find no merit to defendant’s complaint since the challenged evidence would not have been helpful to defendant; it tended to incriminate rather than exculpate him. See Rule 25.32(A)(9) and State v. Abernathy, 525 S.W.2d 414[2] (Mo.App.1975). Although Rule 25.45, VAMR, allows the trial court to redress grievances associated with disclosure, sanctions imposed are left largely to the discretion of the trial court. State v. Johnson, 524 S.W.2d 97[4] (Mo. banc 1975). The test is whether the failure to disclose resulted in fundamental unfairness. State v. Buckner, 526 S.W.2d 387[6] (Mo.App.1975). No unfairness is apparent, and we hold the trial court did not err in admitting the challenged evidence.

Finally, defendant contends the answer given by the trial court in response to a juror’s question during deliberation was error. He claims the court’s answer went beyond the scope of MAI-CR by unduly emphasizing one evidentiary fact. The jury foreman asked, “If $212.00 is not in the charge of first degree robbery, would it be a lesser crime, second or third degree? The trial court answered, “No.”

During trial there had been some dispute over the exact amount of money taken from the victim. The jury obviously wanted to know if they were to consider lesser degrees of robbery if a lesser amount than $212 had been taken. The trial court’s “No” informed the jury that the charge of first degree robbery would remain even if they found less than $212 had been taken. This answer does not go beyond the scope of MAI-CR or the instruction of first degree robbery, nor did it emphasize the $212 amount in question or defendant’s complicity in the crime. Therefore, we fail to find the jury could have been misled to the defendant’s prejudice by an answer that merely referred the jury to an instruction already given. State v. Duisen, 428 S.W.2d 169[7] (Mo. banc 1967). This is particularly true where the court did nothing to extend its direction beyond the instruction previously given. State v. Baugh, 382 S.W.2d 608[3-4] (Mo.1964).

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: GUNN, Judge.

text:
    STATE of Missouri, Respondent, v. James Madison WILSON, Appellant.
    No. 39933.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 5, 1978.
    Motion for Rehearing and/or Transfers to Supreme Court Denied Jan. 12, 1979.

      William B. Haller, Asst. Public Defender, Twenty-First Judicial Circuit, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

In a jury waived case, defendant was convicted of assault with intent to do great bodily harm without malice and was sentenced to six months’ imprisonment. His appeal charges that the trial court erred in failing to consider whether the assault was a lesser and included offense of common assault. We find no error and affirm.

The record establishes that defendant and two others were apparently tampering with the victim’s auto. When the victim requested that his auto be left undisturbed, the defendant assaulted him from behind and administered a severe beating to the head, face and neck, which resulted in the victim’s hospitalization for injuries incurred. The victim’s wife, who witnessed the beating, observed defendant remove something from his pocket and place it in his right hand before the assault. The victim also related that he was struck with something harder than merely the defendant’s fist. Police recovered no weapon from defendant. Defendant was arrested, charged and tried for assault with intent to do great bodily harm with malice. After considering the evidence, the trial court found him guilty of the lesser and included offense of assault with intent to do great bodily harm without malice. A pre-sen-tence investigation was ordered, and about five weeks after the finding of guilt the trial court imposed the sentence and made the following comment which forms the basis of this appeal:

“. . . although you’re charged with Assault with Intent to do Great Bodily Harm Without Malice, the Court told Mr. Haller [defendant’s counsel] that you [defendant] will be sentenced under the Common Assault range, not under that charge, because the Court had no authority to change the charge.” (emphasis added)

Defendant interprets the foregoing statement as meaning that the trial court in an obvious error believed that it could not reduce defendant’s charge from assault without malice to common assault. Of course, common assault is a lesser and included offense of assault without malice. State v. Hammond, 571 S.W.2d 114 (Mo. banc 1978). It is to be given consideration where the evidence supports the lesser offense. State v. Harris, 556 S.W.2d 468 (Mo.App.1977). But there is substantial evidence to support the trial court’s finding of guilt of assault with intent to do great bodily harm without malice, for an attack by the use of fists in the manner here will support the charge of assault with intent to do great bodily harm. State v. Seemiller, 558 S.W.2d 212 (Mo.App.1977). And, too, there was evidence here that some object was used in defendant’s hand to effectively aid him in his pummeling of the victim.

The trial court in its sentencing procedure made specific reference to defendant’s unprovoked attack on the victim with resulting injuries. It is clear that the trial court fully intended to find the defendant guilty of assault without malice — not common assault as contended; that having found defendant guilty of assault without malice, the court could not sentence defendant on another charge although the sentence fell within the common assault range.

There is no error, and we affirm the judgment.

REINHARD, P. J., and CLEMENS, J., concur.


author: SMITH, Judge.

text:
    Michael H. MERRILL, Appellant, v. STATE of Missouri, Respondent.
    No. 38072.
    Missouri Court of Appeals, St. Louis District, Division One.
    Dec. 12, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.

      Cundiff, Turken & Londoff, Michael A. Turken, St. Charles, for appellant.
    John Ashcroft, Atty. Gen., Larry R. Marshall and Philip M. Koppe, Asst. Attys. Gen., Jefferson City, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by the Court for sale of a controlled substance and resultant 5 year sentence. We affirm.

Initially defendant challenges the information as fatally defective because it fails to state into which schedule the controlled substance belongs. The information charged an unlawful sale of a controlled substance “to wit: methylenedioxy-amphet-amine.” The test of the sufficiency of an information is whether it states the essential elements of the offense charged, adequately notifies defendant of the charge against him and constitutes a bar to further prosecution for the same offense. State v. Adams, 546 S.W.2d 550 (Mo.App.1977). Section 195.020 R.S.Mo. Supp. 1971 prohibits the sale of any controlled substance except as authorized in certain other sections of the statute. A “controlled substance” is defined in Sec. 195.010(6) as a substance in Schedules I through V. The schedule to which the drug belongs determines only the punishment. Section 195.017(2)(4)(a) includes in Schedule I “3,4 methylenedioxy amphetamine.” The words “methylenedi-oxy amphetamine” do not appear in any other schedule. Defendant offers no authority, and there appears to be none, for his proposition that since the penalties vary with the schedule to which the drug belongs the schedule must be specified in the information.

This information was sufficient to apprise defendant of the charge against him and bar further prosecution for the same offense.

Defendant also contends that since the prefix “3,4” was omitted from the drug listed in the information “[T]he State failed to establish beyond a reasonable doubt a critical element of the offense charged, the nature of the controlled substance and that possession of said substance was illegal.” The State’s evidence established that the substance sold by defendant to an undercover sheriff’s deputy was “3,4 methylene-dioxy amphetamine,” a substance listed in Schedule I. Defendant admitted in his testimony that he sold “MDA” “a drug” or “narcotic” to the deputy. The test to be applied is whether the average person reading the list would conclude that the substance sold by defendant was a proscribed amphetamine. See State v. Crump, 454 S.W.2d 519 (Mo.1970); State v. McIntosh, 500 S.W.2d 45 (Mo.App.1973) [2-4], Defendant relies upon State v. Boggs, 49 S.W.2d 269 (Mo.App.1932) and State v. Bridges, 398 S.W.2d 1 (Mo. banc 1966). Both of those cases involve sale or distribution of a substance clearly different in appellation from the substance charged in the information (Boggs —com whiskey vis-a-vis moonshine whiskey; Bridges —metamphe-tamine hydrochloride or amphetamine sulfate vis-a-vis amphetamine hydrochloride). In Bridges the cause was reversed but remanded to allow the state to establish that the substance contained a proscribed substance or was the same as a proscribed substance. We find the present case more nearly analogous to State v. McIntosh, 500 S.W.2d 45 (Mo.App.1973) in which we held that the description of a drug as soluble secobarbital was insufficient to lead the average person to believe the drug was chemically different than plain secobarbital. Here the substance involved was described at trial interchangeably by the “3,4” prefix, without the prefix, and by the initials, “M.D.A.” No question was raised during the trial that all three appellations were descriptive of the same drug. We find no merit to this point.

Defendant’s next point is that the State failed to introduce sufficient evidence to rebut defendant’s evidence of entrapment and therefore failed to establish beyond a reasonable doubt defendant’s guilt. Defendant claims he was entitled to judgment of acquittal as the State failed to rebut his evidence of entrapment. It is well established that when defendant presents substantial evidence of entrapment the State has the burden of showing substantial evidence of predisposition to commit the crime. State v. Weinzerl, 495 S.W.2d 137 [7-10] (Mo.App.1973); State v. Devine, 554 S.W.2d 442 [4, 5] (Mo.App.1977). We do not interpret the usage of the term “rebut” in those cases to mean that the evidence refuting entrapment must be presented after the evidence raising the entrapment issue. Rather, those cases hold that where entrapment is an issue the State bears the burden of establishing that the criminal intent originated with defendant. This burden may be met by sufficient evidence introduced at any point in the trial.

Vincent Garufi, Jr., testified that he was an undercover narcotics agent, had known defendant since 1971 and was formerly his employer. Garufi, defendant, Tom Scholle and Tom Heisler were in a car on February 26, 1975. The other men were smoking marijuana and defendant began talking about how he could purchase narcotics. Ga-rufi expressed interest and gave him $55 for a “taste” of M.D.A. Defendant said he would make contact and get back in touch with Garufi. Defendant sold him the “taste” on March 6, 1975 and said he could make available great quantities of drugs. The drug was analyzed and determined to be 3,4 methylenedioxy amphetamine.

The testimony of defendant and Tom Scholle differs greatly from Garufi’s. They recall that Garufi smoked marijuana with them and initiated all conversations about drugs. Garufi first inquired about purchasing drugs in early February, 1975. Defendant refused to become involved. Not long after this defendant and Scholle were arrested for having 5% beer where only 3.2% was permitted. Garufi, who was with another man, came to the police station and told them he had pulled some strings to get them out. They left with him and he told them they owed him a favor. He also mentioned Sam whom they understood to be a member of organized crime who owned restaurants and businesses and was involved in drug dealings. The man with Garufi was understood to be Sam’s right hand man. About two weeks later Garufi met them at Scholle’s house. He mentioned that Sam had given him $150 to buy drugs but that he was having trouble getting them. He was also having problems supporting his wife and four children and was worried about this and about what might happen to him if he couldn’t get the drugs. He offered defendant money to buy drugs but defendant refused, saying he didn’t know where to get them. Garufi contacted defendant later, saying he had had to spend $95 of Sam’s money for groceries and was afraid Sam would “come down” on him. Defendant refused to take the remaining $55 at that time but did take it a few days later, believing Garufi to be in danger. About a week and a half later Garufi met with defendant at a ear lot, saying he feared for his life since he did not have drugs for Sam. Defendant offered to return the money but Garufi refused and defendant agreed to try to find drugs. Defendant bought M.D.A. on the street for $55 and gave it to Garufi. He made no profit on the transaction. He had never sold drugs before although he used them.

In his testimony, Garufi admitted referring to a fictitious friend named Sam who wanted to set him up in drugs but denied saying or implying that Sam was in organized crime or that he was afraid of Sam. He got Scholle and defendant out of trouble when they were arrested but did not tell them Sam got them out. He never offered $150 to buy drugs but only gave defendant $55. Garufi testified that defendant did not try to return the money and get out of the deal. He later said defendant met him at a car lot and spoke of difficulty in getting the drugs. He said Garufi could wait a few days or could have the money back. Garufi denied smoking marijuana although he has put it to his lips.

Evan Thebeau, Chief of Detectives in St. Charles, testified for the State. He knew Garufi made reference to Sam who is either “Uncle Sam” or Thebeau. Sam was used only in this case and Garufi referred to him as a man with power and connections and involved with organized crime. Garufi was trying to impress these people by getting them out of jail and played a role that he had to pay someone to get them out. He told them Sam pulled strings to get them out but Thebeau was not aware Garufi said they owed him anything. Thebeau has never known Garufi to use drugs.

Defendant contends that the State’s evidence was contradictory and inadequate to establish the absence of entrapment. We disagree. Sufficient evidence of entrapment was adduced to place upon the State the burden of establishing predisposition to commit the crime by defendant. It is true that certain inconsistencies existed between the testimony of the State’s witnesses Garufi and Thebeau. These inconsistencies, however, did not involve the direct evidence concerning defendant’s willingness to participate in the sale of a controlled substance. Thebeau’s testimony cast doubt upon the testimony of Garufi, and could properly be considered by the trial court for that purpose. But it did not directly contradict Garufi’s testimony of his individual dealing with defendant. Garufi’s testimony, if believed was sufficient to establish that the original criminal intent arose in the mind of defendant. Thebeau’s contradictions went to the weight of the evidence and was for the trial court to resolve. See State v. Smart, 328 S.W.2d 569 (Mo.1959). The State carried its burden of establishing the absence of entrapment.

Defendant next contends that the trial court committed plain error in admitting into evidence the controlled substance because of an absence of sufficient chain of custody. Our review of the evidence convinces us that the chain was sufficiently established. State v. Rose, 428 S.W.2d 737 (Mo.1968); State v. Day, 506 S.W.2d 497 (Mo.App.1974).

Defendant’s last point is that the trial court erred in not granting a continuance on the day of trial in order that the public defender could withdraw in favor of private counsel. We find no abuse of discretion in the trial court’s denial of this belated request.

Judgment affirmed.

WEIER, C. J., and SNYDER, P. J., concur.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Leon LEWIS, Defendant-Appellant.
    No. 39628.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 12, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 12, 1979.

      David M. Johnson, Hayes & Heisler, Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Michael W. Flynn, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   REINHARD, Presiding Judge.

Defendant appeals from his conviction by a jury for second degree burglary and stealing. Under the Second Offender Act the court assessed his punishment at seven years imprisonment for burglary and five years for stealing, the sentences to run concurrently. On appeal, defendant asserts that the trial court erred in two instances:

(1) in denying defendant’s motion for a directed verdict of acquittal, because the state failed to make a submissible case; and
(2) in admitting over defendant’s objection hearsay evidence that the Harris Cab stand was dealing in stolen property. We affirm.

On the evening of September 15, 1976, Dr. and Mrs. Maurice Collins returned home after dining out and discovered that their home had been burglarized and ransacked. They noted that a color T.V., fur stole, camera, silver candlesticks, and several other items had been stolen.

At approximately 9:20 p. m. that same evening, Detectives Dehntjer and Jablonski of the St. Louis Police Department had a Harris Cab stand under surveillance when they observed a car carrying three men approach the cab stand, discharge one rider, and then park. When the discharged rider returned from the cab stand building, the defendant got out of the car and proceeded to the trunk where he handed the other man a set of keys. After opening the trunk, these two men began to remove shopping bags from the car. At that time the two detectives approached the car, identified themselves as police officers, and observed the defendant return his bag to the trunk and step back from the trunk. The officers noted a fur stole in one of the bags, several other items in the trunk, and a T.Y. set in the back seat of the car. When questioned as to the ownership of these items, all three of these men denied knowing anything about the property. After these men and the property were taken to the police station, all but four items of property—three tire-tools and a pair of gloves—were identified by Mrs. Collins as having been taken from her home.

Defendant denied to the officers that he had any knowledge of the stolen property and claimed that he had not arrived at the cab stand with the others. Other than being apprehended as described above, there was no other tangible evidence linking the defendant to the scene of the crime.

At trial, when asked why he and his partner were conducting a surveillance of the Harris Cab stand, Detective Dehntjer testified, over objection, “We received information from our Intelligence Unit advising us that the Harris Cab stand was dealing in stolen property and gambling.” Defendant’s objection to the question on the basis of relevancy was overruled, as was defendant’s objection to the answer as hearsay.

In his first point on appeal, defendant asserts that the court should have granted his motion for directed verdict of acquittal, because the state showed only joint possession of recently stolen property, which is not, by itself, sufficient to support a conviction for the stealing of that property. State v. Farmer, 490 S.W.2d 72 (Mo.1973); State v. Watson, 350 S.W.2d 763 (Mo.1961); State v. Potter, 560 S.W.2d 29 (Mo.App.1977). Our review of defendant’s contention requires us to consider whether on the basis of the evidence offered a jury could reasonably have found defendant guilty, viewing the evidence in the light most favorable to the state. State v. Thompkins, 515 S.W.2d 808, 812 (Mo.App.1974).

If joint rather than exclusive possession is shown, there must be some evidence of defendant’s guilt other than the inference of guilt raised by the possession, in order for the conviction to be sustained. State v. Farmer, 490 S.W.2d 72 (Mo.1973); State v. Watson, 350 S.W.2d 763 (Mo.1961). We believe that there was such other evidence to make a submissible case.

The evidence showed not simply that defendant was found in an automobile containing stolen property, but rather that defendant had in his possession the keys to the trunk (though he was not driving), that he was holding one of the shopping bags in his personal possession as the police approached, that the contents of the bag were visible to defendant, and that as the police announced themselves, defendant placed the bag back in the trunk and “kind of stepped away from the trunk area.” We need not decide whether the simple lifting of the bag from the trunk is sufficient to support a finding of exclusive possession; clearly the state presented a clear case of joint possession which when coupled with the other circumstances of the case was sufficient to support a conviction of guilt. This is not a case of mere passive presence with stolen property; the defendant was actually handling the property and exercising affirmative action toward it. Compare State v. Watson, 350 S.W.2d at 767, and State v. Gonzales, 533 S.W.2d 268, 273 (Mo.App.1976). We rule this point against defendant.

We also reject defendant’s second point in which he asserts that the court improperly admitted Detective Dehntjer’s statement that he and his partner had received information that the Harris Cab stand was the locus of transactions in stolen property. Defendant contends that this statement was hearsay and its admission prejudicial. However, this statement was not offered to prove the truth of the matter asserted therein—that the cab stand was a fencing location—but rather as background of the subsequent activities of the officers. State v. Bright, 269 S.W.2d 615, 623 (Mo.1954). Such evidence offered to show the basis for the police conduct was not hearsay and was not subject to exclusion on that basis. State v. McRoberts, 485 S.W.2d 70, 72-73 (Mo.1972); State v. Kern, 447 S.W.2d 571, 577 (Mo.1969).

Judgment affirmed.

CLEMENS and GUNN, JJ., concur.

      . Although defendant also objected on the grounds of relevancy to the state’s question preceding Detective Dehntjer’s statement, he did not raise this relevancy ground on appeal.


text:
    Joan A. DICKERSON, Plaintiff-Respondent, v. John M. DICKERSON, Defendant-Appellant.
    No. 39966.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 9, 1979.
    Mark M. Wenner, Flynn & Parker, St. Louis, for defendant-appellant.
    Anthony J. Coultas, St. Louis, for plaintiff-respondent.
   CRIST, Judge.

Marriage dissolved after thirteen years, with custody of two children, aged 11 and 12, awarded to wife. We affirm.

Husband complains of division of property, maintenance, and attorney fee awards.

The total net worth of the parties was approximately $16,000.00. Wife was awarded a $27,000.00 home, but charged with a mortgage of approximately $17,-000.00 ($171.33 monthly payment) and all other property except property valued at approximately $1,100.00 awarded to husband.

Husband was ordered to pay child support in the sum of $80.00 weekly, maintenance in the sum of $100.00 monthly, and an attorney fee of $500.00. Husband’s monthly gross income was approximately $1,500.00, while wife’s monthly gross income was approximately $640.00.

There was evidence of marital misconduct on the part of the husband.

Under Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), we cannot, under the evidence, disagree with the judgment of the trial court. See In Re Marriage of Burris, 557 S.W.2d 917 (Mo.App.1977); In Re Marriage of Vanet, 544 S.W.2d 236 (Mo.App.1976); and Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App.banc 1977).

We hold that the judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence; that no error of law appears; and that an opinion would have no precedential value.

The judgment is affirmed in accordance with Rule 84.16(b).

DOWD, P. J., and STEWART, J., concur.


text:
    Mary Ann CONNERS, Appellant, v. MISSOURI DIVISION OF FAMILY SERVICES, Respondent.
    No. 40175.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 9, 1979.

      Kim C. Brown, Legal Aid Society of City of St. Louis & County of St. Louis, St. Louis, for appellant.
    Paul T. Keller, Mo. Div. of Family Services, Jefferson City, for respondent.
   CRIST, Judge.

Administrative proceeding. Respondent’s Medical Review Team (hereinafter “M.R. T.”) denied claimant’s application for general relief and Medicaid. After an appeal hearing, respondent’s director found that claimant was neither unemployable nor disabled, the respective criteria for the two assistance programs. This appeal from the director’s decision followed.

The scope of our review is governed by V.A.M.S. § 208.100(5), directing us to inquire into “whether or not a fair hearing has been granted the applicant,” and by V.A.M.S.Const. Art. V, § 22, requiring a determination of whether the director’s decision is “supported by competent and substantial evidence upon the whole record,” Hill v. State Dept. of Public Health & Welfare, 503 S.W.2d 6, 11 (Mo. banc 1973). This latter provision requires a determination of whether, considering all the evidence adduced on both sides of a disputed issue, the administrative body could reasonably have reached the challenged decision. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo.App.1975).

Claimant’s first contention is that she was denied a fair hearing due to the “bias” of the hearing officer. This “bias” is allegedly revealed by the hearing officer’s comment on the record that she lacked the power to recommend a final decision to the director. Such conduct does not constitute denial of a fair hearing. See Cummins v. State Dept. of Public Health & Welfare, 481 S.W.2d 639, 642 (Mo.App.1972).

Claimant also contends that she was denied a fair hearing in that the physician member of the M.R.T. was not present for cross-examination purposes, even though the M.R.T. decision was admitted into evidence. Claimant’s failure to subpoena the physician as provided for in 13 C.S.R. 40-2.-160(3)(C) precludes her from now complaining of a deprivation of the right to cross-examine the doctor. Richardson v. Perales, 402 U.S. 389, 404-5, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

Claimant also complains that the M.R.T. decision was erroneously admitted into evidence in that it was hearsay. The admission of hearsay evidence does not automatically demonstrate that a fair hearing was not granted, Garrard v. State Dept. of Public Health & Welfare, 375 S.W.2d 582, 587 (Mo.App.1964). The M.R.T. decision itself consists of a one-page, pre-printed form containing the bare conclusion that claimant is not sufficiently disabled to be eligible for assistance. In view of the extensive and voluminous medical, psychological, social data supplied by claimant and introduced at her hearing, the prejudicial effect of the M.R.T. decision, if any, was at best negligible. Claimant was clearly not thereby deprived of a fair hearing.

Claimant also urges reversal on the ground that the M.R.T. was improperly constituted of unqualified personnel. This appeal is taken from the decision of the director, which is required to be independently based on the record generated at the appeal hearing, V.A.M.S. § 208.080(3), and which is thus presumably free of any inadequacy which might have earlier tainted the proceeding. Whether the M.R.T. measured up to the applicable guidelines is not a question for our consideration. Tillman v. Wedge Mobile Serv. Station, 565 S.W.2d 653, 658 (Mo.App.1978).

Finally, claimant maintains that the director’s decision is not supported by competent and substantial evidence when the record is viewed as a whole. A complete resume of the medical and other expert evidence would be pointless. It is sufficient to note that the medical and psychological evaluations submitted by claimant are virtually unanimous in concluding that claimant was neither severely nor permanently disabled. The only evidence to the contrary is the conclusion of one vocational counselor that claimant was temporarily unemployable due to emotional fragility.

Claimant having received a fair hearing, and the director’s decision being supported by competent and substantial evidence on the whole record, that decision should be, and is, affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. James GRANDBERRY, Defendant-Appellant.
    No. 39800.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 9, 1979.
    Robert C. Babione, Public Defender, James B. Ashwell, Blair K. Drazic, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John D. Ashcroft, Paul Robert Otto, Steven S. Clark, Jefferson City, George A. Peach, Circuit Atty., Jeffrey A. Cowin, St. Louis, for plaintiff-respondent.
   CRIST, Judge.

Defendant was convicted of operating a motor vehicle without the owner’s consent. There was evidence of a prior conviction, and the court assessed punishment at five years in the Department of Corrections.

Defendant claims that the evidence was insufficient to prove that he operated the motor vehicle. We agree.

Joseph Hoeing, a police officer, was the only witness for the State to testify regarding the operating of the automobile. He stated that while on patrol he stopped the automobile in question. He did not know how many occupants were in the car. The defendant was one of the occupants. He arrested the defendant for operating a motor vehicle without the owner’s consent. No other evidence on this issue was adduced by the State on direct examination.

We initially hold that the State’s evidence, the arresting officer’s testimony, did not establish that defendant was operating the car. It did establish that defendant was one among an unknown number of occupants in the car and that he was placed under arrest for the offense charged. That was not enough.

The next issue presented is whether defendant’s cross-examination of the police officer filled this gap and produced evidence that defendant was operating the car. We hold that it did not. Throughout most of the examination, the questions posed and the answers elicited were with obvious reference to the operator of the vehicle, but that individual was never identified.

The officer testified that he did not have to chase him. He pulled right over. I asked him to disconnect the connection. He made a statement to me. Defendant’s counsel then inquired whether the officer questioned him as to the ownership of the car. There was an objection followed by several other questions to which objections were made. Defendant’s attorney, not in the presence of the jury, told the court that he wanted to ask if the police officer conducted any further investigation as to the ownership of the car and as to where Mr. Grandberry, the defendant, received the car. The court permitted defendant’s attorney to inquire of the police officer about the ownership of the car and we quote from the transcript:

“Q (By Mr. Ashwell) After you talked to Mr. Grandberry about the ownership of the car and after anything he may have said to you, did you conduct any investigation?
A Yes, I did.”

The State concedes that the references to “he” and “him” were “obscure as to referent” but that the question and answer set out above clarified the reference. The attorney’s question above did not fill the evi-dentiary gap. “A question is not evidence, and may be considered only as it supplies meaning to the answer.” MAI-CR 2.02. A question may only supply meaning to an answer if it has been asked prior to the answer. The issue then is whether the police officer’s response to that question supplied meaning to his previous answers.

We hold there was insufficient evidence to establish that defendant was operating the vehicle at the time of his arrest. A jury cannot be permitted to speculate as to whom a witness is referring to in order to establish a key element in a criminal case. State v. Tolliver, 562 S.W.2d 714, 720 (Mo.App.1978) and State v. Talbert, 524 S.W.2d 58 (Mo.App.1975).

An allegation that the State has not made a submissible case is cognizable under the plain error review standard. State v. Dayton, 535 S.W.2d 479, 491 (Mo.App.1976). The judgment must then be reversed under controlling rulings on former jeopardy. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978).

The judgment is reversed and the defendant discharged.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: BEN F. PYLE, Special Judge.

text:
    Russell Dean FELLERS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10795.
    Missouri Court of Appeals, Southern District.
    Jan. 15, 1979.

      David R. Fielder, Fielder & Jones, Springfield, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before FLANIGAN, P. J., STONE and TITUS, JJ., and MOORE, KENNEDY, PYLE and CAMPBELL, Special Judges.
   BEN F. PYLE, Special Judge.

On February 28, 1977, Appellant-Movant entered a plea of guilty to an amended charge of first-degree robbery. He was sentenced by the trial court to a term of 15 years in the Department of Corrections. Movant’s motion under Rule 27.26, V.A. M.R., was filed May 2, 1977. Movant appeals from the trial court’s denial of his motion to vacate the sentence following an evidentiary hearing on August 22, 1977.

In his first point on appeal, movant contends that the trial court erred in denying his motion because the judgment was entered on an involuntary guilty plea induced by his believing that if he pleaded guilty he would receive a sentence of from 7 to 13 years and possibly probation.

This court’s review in a post conviction proceeding is limited to determining whether the findings, conclusions and judgment of the trial court are “clearly erroneous.” Rule 27.26(j), V.A.M.R.; Brown v. State, 495 S.W.2d 690, 694[2] (Mo.App.1973); Pickens v. State, 549 S.W.2d 910, 912 (Mo.App.1977); State v. Vitale, 566 S.W.2d 836[1] (Mo.App.1978). The decision of the trial court is “clearly erroneous” only if, after review of the entire record, this court is left with the definite and firm impression that a mistake has been made. Crosswhite v. State, 426 S.W.2d 67, 70-71 (Mo.App.1968); Bennett v. State, 549 S.W.2d 585[1] (Mo.App.1977).

In support of his first point, mov-ant testified at his 27.26 hearing that his attorney Stephen P. Seigel, told him, prior to his pleading guilty that if he pleaded guilty he would receive a sentence of no more than 13 years and possibly probation. Movant also testified that his attorney told him to answer the questions of the sentencing judge in the negative in order for the court to accept his guilty plea. Movant’s attorney, however, testified that he told his client that the State would, on his pleading guilty, recommend to the court a sentence of 13 years, but that the judge was not bound by the State’s recommendation and could sentence him from five years to life imprisonment. In regard to possible probation, Attorney Seigel stated that he advised the movant that the judge always had the option to grant a parole but that he didn’t feel that in this case movant could expect a parole because of his past record and the nature of this charge. Movant’s stepbrother, Robert Cook, testified in behalf of the movant at the 27.26 hearing. Cook did, under cross-examination, admit that he had overhead some conversation between mov-ant and his attorney prior to the plea of guilty being entered, and that his attorney didn’t specifically state that movant would be sentenced to 13 years because he didn’t know what the judge would do, that it could be less or it could be more. An examination of the transcript of movant’s guilty plea reveals that the trial court fully complied with Rule 25.04, V.A.M.R., which provides that the court shall not accept a plea of guilty without first determining that the plea is made voluntarily with an understanding of the charge. The trial court here was very thorough in its questioning of the movant at the time of his plea. Movant was fully advised of his rights, the nature of the charge, the range of punishment that could be imposed, the fact that the court was not bound by the recommendation of the State and could give him more or less than that recommended. Movant also, at the time of his plea, admitted that no threats or promises had been made to him to get him to enter his plea of guilty. Clearly, the record of movant’s guilty plea refutes the allegations he now makes that he believed he would only receive a sentence of 13 years. Likewise, his claim of possible probation is refuted by the entire record. The credibility of the movant at the 27.26 hearing is an issue for the trial court and the court is not required to believe movant’s testimony. Movant’s credibility should not be considered either on appeal or in a hearing to set aside a conviction. Cooper v. State, 520 S.W.2d 666[9] (Mo.App.1975); Parton v. State, 545 S.W.2d 338[4] (Mo.App.1976). This court does not believe that the findings made by the trial court that movant’s plea was entered freely and voluntarily and not as a result of coercion or promises were “clearly erroneous.” This point is ruled against the movant.

It should be noted that the case of Schellert v. State, 569 S.W.2d 735, recently decided by the Supreme Court of Missouri, could have been the basis for this case being remanded back to the trial court for the entry of a new plea. That case holds that a trial court should afford a criminal defendant the opportunity to withdraw a plea of guilty in any case in which the trial judge determines not to follow the plea agreement or recommendation of the State. The Supreme Court, however, specifically provided that its decision in Sehellert was to apply to that case and prospectively only.

In his second point on appeal, mov-ant contends that the trial court erred in denying his 27.26 motion because he was denied effective assistance of counsel. Movant alleges that he informed his attorney prior to his guilty plea of certain alibi witnesses and that his attorney failed to properly investigate and determine the propriety of an alibi defense. Movant further alleges that he told his attorney that he was not guilty of this robbery charge and that his counsel had the responsibility to thoroughly investigate his case which he failed to do.

Inasmuch as the judgment and sentence are based upon a plea of guilty, the issue of counsel’s adequacy is material only to the extent that it bears on the voluntariness and understanding of the plea. Barylski v. State, 473 S.W.2d 399, 402 (Mo.App.1971); Bennett v. State, supra. Here the movant is bound by his plea unless he can allege and prove serious dereliction on the part of his counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.

The movant testified at his 27.26 hearing that he told his attorney that he was not guilty and he wanted his step-mother, Marcella Fellers, called as a witness to establish his alibi that he was home at the time of the robbery. Movant denied that he told anyone that he was guilty. In contradiction to this testimony, Attorney Seigel stated that the movant did admit at all times that he had committed the robbery but that he had used a blank gun and would not plead guilty to robbery by means of a dangerous and deadly weapon. Seigel further testified that movant at no time ever mentioned any alibi witness, but in fact told him that he had no alibi and was guilty of the amended charge. Robert Cook, mov-ant’s witness, testified that he heard his step-brother say he wanted to plead guilty because he was guilty. In addition, the transcript of the guilty plea clearly indicates that movant admitted committing the robbery. Here again, the trial court, faced with conflicting testimony, found movant’s testimony not to be credible and in its findings held that movant did not advise his attorney of any witnesses to his alleged alibi defense until the subsequent hearing on the motion to vacate. Movant’s contention that he had ineffective assistance of counsel is completely refuted by the entire record. The findings of the trial court are not clearly erroneous. This point is also ruled against the movant.

The judgment is affirmed.

FLANIGAN, P. J., STONE and TITUS, JJ., and MOORE, KENNEDY and CAMPBELL, Special Judges, concur.

      . It should be noted that the movant was charged in the amended information as a second offender and entered a plea of guilty thereto. His previous conviction was for felonious stealing in 1958.

      . The State did amend the original charge from first-degree robbery by means of a dangerous and deadly weapon to first-degree robbery, to which the defendant pled guilty.