Toney v. State , 730 S.W.2d 295 ( 1987 )

CRIST, Judge.

Movant appeals the denial of his Rule 27.26 motion without an evidentiary hearing. The motion challenged his two life sentences which were imposed after mov-ant was found guilty of rape and sodomy. This court affirmed the conviction on direct appeal. State v. Toney, 680 S.W.2d 268 (Mo.App.1984). We reverse and remand.

In his Rule 27.26 motion, movant alleged: (1) he received ineffective assistance of counsel due to his trial attorney’s failure to develop a defense of mistaken identity, (2) his trial attorney provided ineffective assistance by failing to object to evidence obtained by the State as a result of mov-ant’s illegal arrest, (3) he was convicted of class A felonies after only being charged with class B felonies, (4) his trial attorney provided ineffective assistance by failing to properly cross-examine State’s expert witness about identification tests, and (5) his trial attorney was ineffective by failing to know about or advance legal defenses concerning the victim’s involvement with other men on the night in question.

In its findings of fact and conclusions of law, the trial court adopted the language of the State’s Motion to Dismiss. In pertinent part, the court stated:

4.The Court, after reviewing the trial transcripts and movant’s motion under Rule 27.26, as well as movant’s supplemental claim “E” on said motion, found that movant’s only credible issue was a sufficiency of the evidence claim. The Court further found that such issue is not a proper one to be raised and heard under Rule 27.26, as it is an appeal issue that must be raised on appeal or deemed waived.

Rule 27.26(i) in part provides: “The court shall make findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” (Emphasis added.) In Fields v. State, 572 S.W.2d 477, 483 (Mo.banc 1978), the supreme court held a mere statement that the motion and files conclusively show movant is not entitled to relief does not comply with Rule 27.26(i). The findings of fact and conclusions of law in this case are insufficient. Leady v. State, 714 S.W.2d 221 (Mo.App.1986).

Judgment reversed and remanded for adequate findings of fact and conclusions of law and whatever other action the Rule 27.26 court deems necessary.

SATZ, P.J., and KELLY, J., concur.