# State v. McMillin

> Supreme Court of Missouri · February 13, 1990 · 783 S.W.2d 82

URL: https://www.frixlaw.com/law-library/cases/9761005

## Case

- **Full name:** STATE of Missouri, Respondent, v. Richard Dean McMILLIN, Appellant
- **Court:** Supreme Court of Missouri
- **Decided:** February 13, 1990
- **Citations:** 783 S.W.2d 82; 1990 WL 1136
- **Precedential status:** Published
- **Opinion:** Concurrence by Billings
- **Judges:** Anthony, Billings, Blackmar, Covington, Higgins, Holstein, Nugent, Rendlen, Robertson
- **Cited by:** 192 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Morgan v. Illinois, 504 U.S. 719 (1992).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9761005

## How later opinions describe it (automated extraction)

- 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
- rejecting claim that the personal conclusions of the probation and parole officer in the PSI and summaries of interviews were highly prejudicial and inflammatory

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761005. Public record. Not legal advice.