Brown v. State
Decision Date | 15 December 1980 |
Docket Number | No. WD 31499.,WD 31499. |
Parties | William BROWN, Movant-Appellant, v. STATE of Missouri, Respondent. |
Court | Missouri Court of Appeals |
Stanley L. Morris, Kansas City, for movant-appellant.
John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.
As Modified on Court's own Motion.
Motion for Rehearing and/or Transfer to Supreme Court Denied November 3, 1980.
William Brown filed a motion under Rule 27.26 to vacate sentences imposed following a plea of guilty. The trial court granted partial relief by vacating the sentence imposed, and resentenced Brown to the terms originally agreed upon after a plea bargain.
Brown appeals and contends the court erred in failing to vacate the sentence entirely because he was entitled to withdraw his guilty plea when the plea bargain was not honored by the court. Reversed.
William Brown entered a plea of guilty to robbery in the first degree and to armed criminal action. During that plea Brown was interrogated both by his counsel and by the court to demonstrate that the plea was voluntarily and intelligently made. No complaint is made on this appeal that the plea was not in fact voluntarily, intelligently and knowingly made. During that hearing Brown freely admitted a robbery by use of a knife. Brown's attorney brought out from Brown that a plea bargain had been entered into by which he was to receive a sentence of eight years on the armed robbery count and four years on the armed criminal action count with the sentences to run consecutively. The plea bargain was based upon the agreement that Brown would observe three conditions while he was free on bond pending sentencing. These were that he would commit no criminal offenses, that he would not contact the State's witness and that he would appear on the day set for sentencing. Thereafter, Brown's counsel asked:
Thereafter, on cross-examination by the prosecutor, Brown acknowledged that he accepted the conditions and that he realized if he violated any of the conditions he could possibly get two consecutive life sentences. Later, the court asked the following questions with the responses by Brown:
Brown appeared on December 27 as directed, but by agreement the sentencing was continued until January 5, 1979. Brown did not appear on January 5 and the court issued a warrant. Brown was later arrested under the warrant and appeared on March 30, 1979. At that hearing Brown acknowledged that he knew when sentencing was continued from December 27 to January 5 that the conditions he was to abide by continued in full force. Brown further acknowledged that he did not appear on January 5 and stated he had taken his family to Milwaukee because of some threats he had received. At that time the court stated:
The court continued sentencing until April 2, and at that time imposed a sentence of ten years on the robbery first degree count, and six years on the armed criminal action count, with the sentences to run consecutively.
In August, 1979, Brown filed the present motion under Rule 27.26. Counsel was appointed and a change of judge was taken from the judge who pronounced sentence. An evidentiary hearing was held and the court found that the three conditions imposed upon Brown's conduct while he was free on bond in the interim between the plea and sentencing were in reality conditions relating to his bond. The court held that Brown was entitled to the sentence agreed upon in the plea bargain, vacated the sentence imposed, and resentenced Brown in accordance with the original agreement.
Brown has appealed and now contends that under Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978) he is entitled to withdraw his plea of guilty because the trial court did not sentence him in accordance with the plea bargain. On this appeal Brown argues that his...
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