Opinion
No. 11619.
July 22, 1980.
APPEAL FROM THE CIRCUIT COURT, BUTLER COUNTY, REX A. HENSON, J.
Lawrence J. Permuter, Klamen Danna, Clayton, for movant-appellant.
John D. Ashcroft, Atty. Gen., Edward F. Downey, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant Rohney Dale Carroll, also known as Ronnie Dale Carroll, filed this appeal from the order of the Circuit Court of Butler County denying postconviction relief under Rule 27.26, V.A.M.R. We affirm.
In appellant's first appeal of his conviction for forcible rape, we reversed the judgment and remanded the case to the trial court for a competency hearing. Such a hearing was conducted and appellant resentenced. Appellant's second appeal challenged the court's determination he was competent to stand trial. We affirmed the judgment of the trial court.
State v. Carroll, 543 S.W.2d 48 (Mo.App. 1976).
State v. Carroll, 555 S.W.2d 100 (Mo.App. 1977).
Appellant's Rule 27.26 motion alleged a violation of the Due Process Clause because of the retrospective hearing on his competency to stand trial. We question whether this Rule 27.26 proceeding is cognizable to raise the competency hearing issue because it was an issue in appellant's first and second appeals. Issues considered on direct appeal cannot thereafter be relitigated in a proceeding for postconviction relief. Henson v. State, 581 S.W.2d 595 (Mo.App. 1979). Nevertheless, we hold appellant's due process rights were not violated in the instant case. As we noted in appellant's first appeal, in granting him the specific relief requested, there is no per se rule against a retrospective competency hearing. State v. Carroll, 543 S.W.2d 48, 51 (Mo.App. 1976). The contention advanced by appellant has been denied by our supreme court [ Harkins v. State, 494 S.W.2d 7 (Mo. 1973)] and by the 8th Circuit Court of Appeals [ Harkins v. Wyrick, 552 F.2d 1308 (8th Cir. 1977)].
The judgment is affirmed.
All concur.