Colbert v. State

• Decision Date: 13 November 1972
• Docket Number: No. 2,No. 57001,57001,2
• Citation: 486 S.W.2d 219
• Parties: Victor Arture COLBERT, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 219

486 S.W.2d 219

Victor Arture COLBERT, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 57001.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1972.

Patrick Horner, Auxvasse, for movant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

Appellant was charged in the Circuit Court of Callaway County, Missouri, with armed robbery, burglary and stealing.

On November 11, 1969, appellant entered pleas of guilty, and on February 16, 1970, was sentenced to twenty years on the robbery charge, five years on the burglary charge, and five years on the stealing charge, with said sentences to run concurrently.

On October 14, 1970, appellant filed in the Circuit Court of Callaway County, Missouri, his motion to vacate under V.A.M.R. 27.25 and 27.26, amended the motion on April 8, 1971, and an evidentiary hearing was held on April 8, 1971. The motion to vacate was denied and an appeal to this Court followed.

The appeal having been taken to this Court prior to January 1, 1972, the effective date of new Article V of the Constitution, we have jurisdiction pursuant to then Art. V, § 3 of the Missouri Constitution, V.A.M.S.

The essence of appellant's petition for relief is that, for various reasons stated in his motion, he should be permitted to withdraw the pleas of guilty entered and accepted on November 11, 1969. This case, because of the record made by the trial court on said date (Cf. Flood v. State, Mo.Sup., 476 S.W.2d 529, 535, 536; United States v. Cody, 8th Cir., 438 F.2d 287), presents this Court with an opportunity to eliminate from post-conviction judicial process in Missouri much unnecessary and time-consuming activity.

In State of Missouri v. Turley, 8th Cir., 443 F.2d 1313, at 1318 (cert. den., 404 U.S. 965, 92 S.Ct. 336, 30 L.Ed.2d 284), the United States Court of Appeals, Eighth Circuit, said:

'This Court has recently considered the duties of a Federal District Court Judge under Fed.R.Crim.P. Rule 11 when accepting a guilty plea. See United States v. Rawlins, 440 F.2d 1043 (8th Cir. 1971); United States v. Woosley, 440 F.2d 1280 (8th Cir. 1971); United States v. Cody, 438 F.2d 287 (8th Cir. 1971). Rule 11 is, of course, not applicable in state proceedings. Nevertheless, once it has been established that a state court has, at the time of accepting a guilty plea, elicited sufficient information from the parties so that the propriety of accepting the plea is established in a manner analogous to the dictates of Rule 11, and an adequate record is made thereof, the occasion for setting aside a guilty plea should seldom arise. United States v. Rawlins, supra. The ascertaining of such information and the recording thereof are not exercises in futility. United States v. Woosley, supra.

'It is worthy of note here that a minority of the Justices of the Supreme Court have indicated that in that minority's estimation, the Supreme Court has in effect fastened upon the states, as a matter of federal constitutional law, the requirements of Rule 11,...