Burgin v. State, WD
| Decision Date | 15 December 1992 |
| Docket Number | No. WD,WD |
| Citation | 847 S.W.2d 836 |
| Parties | Arthur L. BURGIN, Appellant, v. STATE of Missouri, Respondent. 46067. |
| Court | Missouri Court of Appeals |
Susan L. Hogan, Appellate Defender, Kansas City, for appellant.
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
Before BERREY, P.J., and ULRICH and SMART, JJ.
Arthur Burgin appeals the denial of his postconviction Rule 29.15 motion. He contends that the motion court failed to make sufficient findings of fact and conclusions of law and that it erred in declaring his amended motion untimely filed.
The judgment of the motion court is affirmed, but the cause is remanded for the limited purpose of correcting the trial court's judgment of conviction and sentence.
Mr. Burgin was convicted of one count of rape (§ 566.030, RSMo 1978). He was sentenced as a persistent sexual offender to thirty years imprisonment without probation or parole. His conviction and sentence were affirmed on direct appeal. State v. Burgin, 654 S.W.2d 627 (Mo.App.1983).
On January 5, 1988, Mr. Burgin filed his pro se Rule 29.15 motion for postconviction relief. Mr. Burgin's pro se motion included the allegation that his trial counsel was ineffective for failing to investigate or subpoena witnesses who could have established a defense of consent. On June 10, 1988, the motion court appointed the Office of the Special Public Defender to represent Mr. Burgin. On July 13, 1988, Mr. Burgin requested an extension of time to file an amended Rule 29.15 motion. The court granted the motion, giving Mr. Burgin until August 9, 1988, to file the amended motion.
On July 14, 1988, the Office of the Special Public Defender filed a motion to withdraw due to a conflict of interest. On August 2, 1988, the Public Defender for the Sixth Judicial Circuit entered appearance as Mr. Burgin's counsel of record. On August 5, 1988, Mr. Burgin's new postconviction counsel requested an additional extension of time to file an amended Rule 29.15 motion. The court then extended the filing deadline to September 23, 1988.
On September 23, 1988, Mr. Burgin's postconviction counsel filed an amended Rule 29.15 motion and requested an evidentiary hearing. At the hearing, Mr. Burgin presented substantial evidence on only one of his claims for relief: namely, that his trial counsel had failed to investigate or subpoena witnesses who could have provided the defense of consent.
On February 14, 1992, the motion court issued an order denying Mr. Burgin's pro se and amended Rule 29.15 motions. In its order, the motion court issued findings of fact and conclusions of law which addressed the allegations raised in Mr. Burgin's pro se motion, including his claim that his trial counsel failed to investigate or subpoena witnesses to present his defense of consent. However, the motion court did not issue findings and conclusions on the allegations raised in Mr. Burgin's amended motion. In its order, the motion court ruled that, because the amended motion was filed more than sixty days after counsel was originally appointed to represent Mr. Burgin, the amended motion was untimely filed pursuant to Rule 29.15(f).
In his sole point on appeal, Mr. Burgin claims that the motion court erred when it declared his amended motion untimely filed and declined to review the claims raised in his amended motion because his amended motion was untimely filed. Mr. Burgin argues that he should not be penalized because a filing deadline was missed as a result of his case being transferred from one public defender to another.
Mr. Burgin suggests that, pursuant to Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991), this case should be remanded to the motion court for consideration of the points raised in the amended motion or for further inquiry into the untimely filing. However, a case need not be remanded for reconsideration pursuant to Sanders if the movant was not prejudiced by his lawyer's failure to timely file the amended motion. Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc), cert. denied, 502 U.S. 943, 112 S.Ct. 383, 116 L.Ed.2d 334 (1991).
The principle expressed in Pollard is applicable. Mr. Burgin was not prejudiced by the untimely filing of his amended motion because the allegations contained in the amended motion fail to merit relief as a matter of law.
The first allegation in Mr. Burgin's amended motion involves a discrepancy between the amended information and his arraignment. The original information in this case charged Mr. Burgin with the "class A" felony of rape, and Mr. Burgin was subsequently arraigned on the "class A" felony of rape. Then, after the arraignment, the State filed an amended information which charged Mr. Burgin with the ungraded felony of forcible rape and which added the allegation that Mr. Burgin was a persistent sexual offender. In his amended Rule 29.15 motion, Mr. Burgin claims that the trial court was without jurisdiction to impose a sentence upon him because the amended information charged an offense that was different from the offense cited in the arraignment.
However, an amended information which does not charge the defendant with a separate or different offense is not objectionable simply because the defendant was arraigned on the original information and not the amended information. State v. Hill, 396 S.W.2d 563, 565-66 (Mo.1965). An amended information does not charge the defendant with a different offense where, as here, the amendment merely reduces the crime charged from a "class A" felony to an ungraded felony and no new element is stated in the charge. See McKown v. State, 682 S.W.2d 38, 40 (Mo.App.1984) (). Similarly, a prior offender provision which merely enhances punishment--such as the "persistent sexual offender" allegation in the amended information in this case--does not constitute a different offense. State v. Goree, 633 S.W.2d 758, 759 (Mo.App.1982). Because the amended information did not charge Mr. Burgin with a different offense, his arraignment on the original information and not the amended...
To continue reading
Request your trial
-
State v. Carter
...Schneider v. State, 787 S.W.2d 718, 721 (Mo. banc), cert. denied, 498 U.S. 882, 111 S.Ct. 231, 112 L.Ed.2d 186 (1990); Burgin v. State, 847 S.W.2d 836, 839 (Mo.App.1992), and State v. White, 790 S.W.2d 467, 474-75 (Mo.App.1990). Claims of trial error will only be considered in a Rule 29.15 ......
-
State v. Anthony, WD
...since his two prior felonies were not committed at different times. These errors may be corrected nunc pro tunc. Burgin v. State, 847 S.W.2d 836, 839 (Mo.App.1992); State v. Harris, 817 S.W.2d 523, 525 Mr. Anthony's conviction for the sale of a controlled substance in violation of section 1......
-
State v. Foreid
...Inc., 157 Ariz. 502, 759 P.2d 648, 649 (Ct.App. 1988); State v. Jones, 587 So.2d 787, 790-91 (La.Ct.App.1991); Burgin v. State, 847 S.W.2d 836, 838 (Mo.Ct.App.1992); Terry v. Commonwealth, 253 S.W.3d 466, 476 (Ky.2007). The failure to comply with requirements for a proper arraignment is irr......
-
State v. Olney
...that appellant was found guilty of assault in the first degree without serious physical injury, a Class B felony. See Burgin v. State, 847 S.W.2d 836, 838-39 (Mo.App.1992). CONCLUSION Appellant's convictions are affirmed. We remand the case to the trial court for resentencing. The trial cou......