YURK v. STATE, 215 Kan. 389 (1974)

524 P.2d 223

FRANKLIN R. YURK, Appellant, v. STATE OF KANSAS, Appellee.

No. 47,343Supreme Court of Kansas
Opinion filed July 17, 1974.


CRIMINAL LAW — Denial of Post-conviction Relief — Abuse of Remedy.

Appeal from Wyandotte district court, division No. 3, HARRY G. MILLER, judge. Opinion filed July 17, 1974. Affirmed.

Kenneth E. Holm, of Kansas City, was on the brief for the appellant.

Vern Miller, attorney general, and Nick A. Tomasic, district attorney, were on the brief for the appellee.

Per Curiam:

This is an appeal from an order denying postconviction relief. This is the fourth appeal to this court arising from petitioner’s participation in a 1967 robbery of the Save-U-More Market in Kansas City, Kansas. See Yurk Brady v. Brunk, 202 Kan. 755, 451 P.2d 230; State v. Yurk, 203 Kan. 629, 456 P.2d 11; and Yurk v. State, 208 Kan. 946, 495 P.2d 87.

Petitioner’s motion for post-conviction relief under K.S.A. 60-1507 was properly denied in summary fashion. There were no unusual or intervening changes in the law which prevented him from raising the alleged errors in the direct appeal. See Hacker v. State, 207 Kan. 195, 483 P.2d 484. In fact all but one of his present claims of error were raised and disposed of in his direct appeal. The one he now attempts to raise for the first time concerns a claim that his arrest was without probable cause. It is wholly without merit. (State v. Addington, 205 Kan. 640, 472 P.2d 225; State v. Braun, 209 Kan. 181, 495 P.2d 1000, cert. den. 409 U.S. 991, 34 L.Ed.2d 258, 93 S.Ct. 334; State v. Kearns, 211 Kan. 158, 505 P.2d 676, cert. den. 414 U.S. 841, 38 L.Ed.2d 77, 94 S.Ct. 96.)

The filing of this second successive motion under the foregoing circumstances constitutes an abuse of the remedy provided in K.S.A. 60-1507. The district court would have been entirely justified in summarily dismissing the motion on said ground. Se Hacker v. State, supra.

The order denying relief is affirmed.

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