Deweese v. Commonwealth

WILLIAMS, Judge. Appellant Robert Deweese filed a motion under RCr 11.42 to vacate a judgment of the Butler Circuit Court sentencing him to life imprisonment upon a plea of guilty to a charge of murder. A hearing was had at which appellant was present and counsel was appointed to represent him. The motion was overruled on September 10, 1965. No appeal was taken but a petition for mandamus against A. J. Bratcher, Judge of the Butler Circuit Court, was filed in this Court and dismissed by order on November 9, 1965. This second motion under RCr 11.42 to vacate judgment was filed on June 14, 1966. A hearing was had on June 18, 1966, and the motion was overruled. This appeal is taken from the judgment overruling that motion. The order of the Butler Circuit Court recites that the motion is repetitious and presents no issues or grounds not heard and adjudicated on the previous motion. We held in Tipton v. Commonwealth, Ky., 398 S.W.2d 493 (1966), that final disposition of a motion under RCr 11.42 shall conclude all issues that could reasonably have been presented in the same proceeding. In a reply brief appellant now alleges he was precluded from appealing the judgment on the first motion because “the trial court refused to issue transcript of record to the Court of Appeals.” The record shows that appellant failed to perfect an appeal from the first judgment, and he cannot now avail himself of an argument that the record was not forwarded to this Court. The judgment is affirmed.