Jerome E. Berry v. State Missouri

Appellant was jury-convicted of two counts of forcible rape, one count of attempted robbery in the first degree and one count of kidnapping. His convictions were affirmed by this court on direct appeal in State v. Berry, 679 S.W.2d 868 (Mo.App. 1984). On November 21, 1985, appellant filed a motion, pro se, to vacate his sentence under Rule 27.26. A special assistant public defender was appointed to represent him on December 3, 1985 and a hearing on the motion was set for January 30, 1986. On January 14, 1986, the special assistant public defender filed a motion to withdraw and/or in the alternative to stay proceedings until a test case could be determined by the Missouri Supreme Court. The basis for this motion was a directive from the Missouri Public Defender Commission to refrain from further representation of 27.26 movants who alleged ineffective assistance by public defenders. The motion referred to an opinion of the Advisory Committee of the Missouri Bar Administration finding the existence of a conflict of interest in such cases. On January 30, 1986, the trial court denied this motion, but did not schedule a new date for a hearing. Also on January 30, 1986, the state filed a motion to dismiss appellant's petition without an evidentiary hearing for failure to state a claim upon which relief might be granted. The record fails to show that this motion was ever noticed for hearing, argued or submitted without oral argument. Nevertheless, on April 3, 1986, the state's motion to dismiss was sustained. The minutes of proceedings as reflected by the legal file show no activity on this matter between January 30 and April 3, 1986. We take notice that on March 27, 1986, the Supreme Court of Missouri issued its opinion in State ex rel. Public Defender Commission v. Bonacker, 706 S.W.2d 449 (Mo.banc 1986), approving the appointment of public defenders to represent movants in this type of Rule 27.26 motions.