Burnside v. State, KCD
| Decision Date | 31 May 1977 |
| Docket Number | No. KCD,KCD |
| Parties | Thomas E. BURNSIDE, Appellant, v. STATE of Missouri, Respondent. 28449. |
| Court | Missouri Court of Appeals |
Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Before DIXON, P. J., and WASSERSTROM and TURNAGE, JJ.
Defendant was originally charged by a two-count information with (I) rape and (II) kidnapping. On the day of trial, the trial court permitted an amended information to be filed which charged two additional counts, (III) robbery in the first degree and (IV) assault with intent to kill with malice aforethought. On a jury verdict finding defendant guilty on all four counts, he was sentenced to fifty years imprisonment on the rape charge, ten years on the kidnapping charge, ten years on the robbery charge, and life imprisonment on the assault charge, the sentences to run consecutively. He appealed to this court which set aside the convictions under Counts III and IV on the ground that the filing of an amended information on the day of trial, adding two different offenses to the original charges, was impermissible and constituted plain error. This court upheld the convictions under Counts I and II but remanded the case for resentencing in light of the then recent case of State v. Baker, 524 S.W.2d 122 (Mo. banc 1975) which had ruled that § 546.480 RSMo 1969, mandating consecutive sentences for defendants convicted under multiple count informations or indictments, permitted by Rule 24.04, unconstitutional. State v. Burnside, 527 S.W.2d 22 (Mo.App.1975).
Pursuant to the mandate of this court, the trial court resentenced defendant to fifty years for rape and ten years for kidnapping, said sentences to run consecutively. Thereafter, defendant filed a 27.26 motion seeking relief on the following grounds:
"(a) Denial of due process by trying movant when circuit court had no jurisdiction.
(b) Denial of equal protection by trying movant when circuit court had no jurisdiction.
(c) Denial of due process by joinder of counts over which circuit court had no jurisdiction, thus making trial unduly oppressive."
The facts alleged in support of these grounds were that defendant was:
The trial court overruled the appellant's motion without a hearing, and this appeal followed.
One point of error is urged on this appeal:
"The trial court erred in joining trial of Counts I with II of the amended information and Counts I and II with Counts III and IV of the amended information insofar as: (A) The rule allowing joinder Rule 24.04 is an unconstitutional enactment (B) Joining trial of Counts III and IV counts on which the trial court had no jurisdiction with Counts I and II was unduly burdensome and oppressive in violation of appellant's rights to due process of law; and (C) Joinder of Counts III and IV forced appellant to trial upon crimes which would be improperly considered by the jury."
Although only one point is set forth in the Points and Authorities section of the brief and that is subdivided into three sub-points, defendant's contentions really resolve into two distinct questions: (A) as to the constitutionality of Rule 24.04; and (B) whether the trial on the four counts was so oppressive as to deny due process. The first of those two points avails defendant nothing. It is an argument that Rule 24.04, allowing different crimes to be charged in different counts of a single information or indictment, is unconstitutional. Rule 24.04 is a procedural rule (State v. Baker, supra ) and is not unconstitutional. State v. Blaine, 528 S.W.2d 801 (Mo.App.1975); State v. McCollum, 527 S.W.2d 710 (Mo.App.1975); State v. Toney, 537 S.W.2d 586, 596 (Mo.App.1976).
The second proposition similarly avails defendant nothing for two reasons. First off, the mere claim in the 27.26 motion and on appeal that the joinder of Counts I and II with Counts III and IV was unduly burdensome and oppressive and violated defendant's due process rights is a mere conclusionary statement. There are no facts alleged in the 27.26 motion (or in defendant's brief) showing how such joinder was unduly burdensome or oppressive. A 27.26 movant must plead facts, which if true, would entitle him to relief before he is entitled to an evidentiary hearing. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974); Cruz v. State, 515 S.W.2d 610 (Mo.App.1974); Rowden v. State, 523 S.W.2d 102 (Mo.App.1975); Grisso v. State, 528 S.W.2d 158 (Mo.App.1975); Winston v. State, 533 S.W.2d 709 (Mo.App.1976). In light of his failure to plead...
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Burnside v. State, WD
...to run consecutively. That motion was overruled without an evidentiary hearing and on appeal the judgment was affirmed. Burnside v. State, 552 S.W.2d 339 (Mo.App.1977). In April, 1979, Burnside filed the present 27.26 motion. In this motion he alleged his conviction and sentence for kidnapp......