Kirk v. State

Annotate this Case

220 Kan. 278 (1976)

552 P.2d 633

EDWARD L. KIRK, Appellant, v. STATE OF KANSAS, Appellee.

No. 47,993

Supreme Court of Kansas.

Opinion filed July 23, 1976.

Paul L. Thomas, of Arvin, Arvin, Busey & Thomas, Chartered, of Wichita, was on the brief for the appellant.

Stephen M. Joseph, Assistant District Attorney, Curt T. Schneider, Attorney General, and Keith Sanborn, District Attorney, were on the brief for the appellee.

MEMORANDUM OPINION

Per Curiam: Petitioner, Edward L. Kirk, appeals from a ruling of the trial court denying relief in proceedings under K.S.A. 60-1507.

In 1970 petitioner was convicted of first degree burglary and larceny. This conviction was affirmed in State v. Kirk, 208 Kan. 645, 493 P.2d 233. On October 2, 1974, petitioner filed a motion pursuant to 60-1507. The motion failed to allege unusual circumstances or an intervening change in the law which would justify reconsideration of points raised in petitioner's direct appeal. The motion was overruled without an evidentiary hearing and an appeal was taken. While the appeal was pending court-appointed counsel filed a motion for a rehearing. This motion was likewise denied and this appeal from both rulings followed.

On appeal petitioner specifies several points, but briefs only two. The other points must be deemed abandoned. (State, ex rel., v. Unified School District, 218 Kan. 47, 542 P.2d 664.) The points argued by petitioner relate to his alibi defense and the conduct of his attorney. Both points were considered and resolved by this court in State v. Kirk, supra. A proceeding pursuant to 60-1507 may not be utilized as a substitute for a second appeal. (Supreme Court Rule No. 121 [c] [3], 214 Kan. xxxviii; Tillman v. State, 215 Kan. 365, 524 P.2d 772.)

The judgment is affirmed.