holding that Rule 67.01 permitting the re-filing of a civil case after dismissal without prejudice does not apply because it conflicts with the prohibition against the filing of successive post-conviction claims
How later courts described this case
- holding that Rule 67.01 permitting the re-filing of a civil case after dismissal without prejudice does not apply because it conflicts with the prohibition against the filing of successive post-conviction claims
- holding the defendant did not establish unreasonableness by claiming he needed time to "prepare a defense" against the aggravating circumstances alleged by the State's intent to seek the 9 death penalty
- “[Assuming, arguendo, that the testimony of [witness] was improperly bolstered, evidence of McMillin’s guilt was otherwise established by strong evidence,” resulting in no prejudice to McMillin.
- rejecting claim that the personal conclusions of the probation and parole officer in the PSI and summaries of interviews were highly prejudicial and inflammatory
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Morgan v. Illinois, 504 U.S. 719 (1992)
783 S.W.2d 82, 100 (Mo. banc 1990), abrogated on other grounds by Morgan v. Illinois, 504 U.S. 719
The opinion
BILLINGS, Judge,
concurring.
I concur in the judgment and principal opinion. I write separately to emphasize the flagrant violations of the rules governing appellate review by the various public defenders in this case.
Because appellant has been represented by public defenders since the preliminary hearing, they will be referred to as trial, post-trial, and appeal defenders.
Post-trial defender made an abortive attempt to file an unsigned and non-verified “amended motion” to vacate sentence and judgment. This unauthorized document was filed 12 days after appellant filed his motion to withdraw his pro se motion. Post-trial defender also filed a request for a mental examination of appellant. The *106 question immediately arises as to the standing of the post-trial defender to file these pleadings. The record fails to reflect any authorization by appellant to post-trial defender to make such filings.
Post-trial defender’s “amended motion” consisted of 93 single-spaced pages, alleging more than 230 grounds for relief— mainly ineffective assistance of counsel.
The appeal defender filed briefs of 166 and 23 pages, asserting a host of points and sub-points. Many of the grounds asserted in the “amended motion” have been converted into alleged trial errors in this appeal even though not objected to or mentioned in the motion for new trial, and the theory for objection at trial or in the motion for a new trial changed on appeal. All of these “points” are urged as plain error.
The failure to make timely and proper objection, the failure to note the matter in the motion for a new trial, and holding appellant to the original objection is essential to orderly review. Otherwise, as here, there will be open and notorious sandbagging of the trial courts and a virtual broadside of so-called points and sub-points, all without regard to the rules.
Counsel for death penalty defendants should be held to the same standards as attorneys in all other criminal cases if there is to be an orderly appellate process. This Court should insist the rules be followed and not hesitate to declare points are procedurally barred when they have not been preserved — whether direct appeal or post-conviction appeal. And, plain error review triggered when, and only when, the court concludes “manifest injustice” or “miscarriage of justice” appears.