Benson v. State
| Decision Date | 14 January 1974 |
| Docket Number | No. 57655,No. 2,57655,2 |
| Citation | 504 S.W.2d 74 |
| Parties | Norman BENSON, Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Alfred L. Boisaubin, St. Louis, for appellant.
John C. Danforth, Atty. Gen., Daniel P. Card II, Asst. Atty. Gen., Jefferson City, for respondent.
This is an appeal from the denial of post conviction relief under Rule 27.26 1 wherein appellant sought to have vacated the ten-year sentence entered following his plea of guilty to a charge of murder in the second degree. Notice of appeal was filed December 27, 1971, vesting jurisdiction in this court. We affirm.
The single issue to be resolved on appeal is whether the trial court, in denying probation and sentencing appellant to imprisonment, unlawfully delegated its judicial discretion to the parole officer. 2
Originally, appellant was indicted on a charge of murder in the first degree. On April 26, 1971, he appeared with counsel and entered a plea of guilty to a reduced charge of murder in the second degree. His counsel requested the court to place appellant on probation. After interrogating appellant and hearing statements from the assistant circuit attorney and counsel for appellant, the court accepted the guilty plea, deferred sentence and ordered a presentence investigation. However, before doing so, the court stated to the appellant a reluctance to place on probation a man charged with murder, the court saying this: Appellant respondent that he did want his plea accepted, and the court proceeded to do so.
Subsequently, on June 4, 1971, appellant and his counsel again appeared in court, at which time the following occurred:
After some discussion, the court added:
On December 3, 1971, this motion was filed. Counsel was appointed immediately and later in the month an evidentiary hearing was held. Thereafter, the court filed a memorandum opinion which made findings of fact and conclusions of law and overruled the motion to vacate. The court's opinion points out that the evidence disclosed that appellant had attended a wedding party on the third floor of a building; that in a card game he had a dispute with other persons, including the hostess, who asked him to leave the apartment; that he went to the first floor of the building where he removed a knife from his pocket and opened the blade; that diregarding pleas of his wife and friends, he then returned to the second floor landing where he had an altercation in which appellant stabbed the victim, resulting in his death. The opinion stated that the evidence was sufficient to indicate premeditated murder, but that appellant was permitted to plead second degree murder. The court's opinion then concluded:
'A review of the hearing granted this movant at the time he pleaded guilty reveals that this Court, in no uncertain terms, regarded the crime as recited to the Court as a wanton and deliberate act on the part of this movant and the Court even indicated that he was hesitant in even considering a pre-sentence investigation under the evidence as detailed to the Court. This Court, however, wanted to think about the matter further and in deference to the pleas of movant's counsel ordered a presentence investigation report.
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State v. Phroper
...not required to do so, and its determination not to place a defendant on probation was not subject to appellate review. Benson v. State, 504 S.W.2d 74, 76 (Mo.1974). As Benson was decided in 1974 it merits close examination in light of certain far-reaching changes effected by The Criminal C......
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State v. Cody
...or withholding of probation is discretionary with the trial judge, McCulley v. State, 486 S.W.2d 419, 422--3 (Mo.1972). In Benson v. State, 504 S.W.2d 74 (Mo.1974), the defendant argued that the trial court, in denying probation, had delegated its judicial discretion to the parole officer w......
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State v. Geer, WD
...trial court's determination, it was not subject to appellate review. See Smith v. State, 517 S.W.2d 148, 150 (Mo.1974); Benson v. State, 504 S.W.2d 74, 76 (Mo.1974). Appellant now asks this court to overrule Phroper and rewrite the criminal code to say that a trial court (a) is required to ......
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State v. Williams, 76138
...S.W.2d 419, 423 (Mo.1972). Consequently, there is no right to appeal a trial judge's decision to grant or deny probation. Benson v. State, 504 S.W.2d 74, 76 (Mo.1974); State v. Simmons, 660 S.W.2d 319, 320 (Mo.App.1983). It follows that there is no right to appeal the terms and conditions o......