Davis v. State, 35094

• Decision Date: 14 January 1975
• Docket Number: No. 35094,35094
• Citation: 518 S.W.2d 467
• Parties: Alphonso Denny DAVIS, Appellant, v. STATE of Missouri, Respondent. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 467

518 S.W.2d 467

Alphonso Denny DAVIS, Appellant, v. STATE of Missouri, Respondent.

No. 35094.

Missouri Court of Appeals, St. Louis District, Division Three.

Jan. 14, 1975.

William G. Bruns, St. Louis, for appellant.

John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.

McMULLIAN, Judge.

Appellant Alphonso Denny Davis appeals from an order of the Circuit Court of the City of St. Louis, Missouri, dismissing a motion filed to vacate judgment and sentence entered by the Circuit Court in 1954 pursuant to Rule 27.26, V.A.M.R. We affirm.

Appellant's motion was filed on September 10, 1971, the offenses challenged were one count of carrying a concealed weapon and three separate counts of first-degree robbery. The Circuit Court of the City of St. Louis on pleas of guilty imposed sentence on April 22, 1954; appellant was sentenced to concurrent terms of two, ten, ten, and ten years on each count respectively. Appellant neither appealed from the judgment of conviction nor filed any motion to vacate the judgment under Rule 27.26, prior to the motion filed herein.

On March 22, 1961, appellant was discharged from the sentence imposed by the Circuit Court of St. Louis pursuant to a commutation of sentence granted by the late John M. Dalton, Governor of the State of Missouri.

On June 4, 1956, appellant pled guilty to four new charges, including rape, first-degree robbery, jail breaking, and grand larceny and the Circuit Court of Cooper County, Missouri, sentenced him to concurrent terms of ninety-nine, ninety-nine, two and ten years respectively in the custody of the Department of Corrections.

In this posture of the case, the Assistant Circuit Attorney for the City of St. Louis, Missouri, filed a motion to dismiss appellant's 27.26 motion. After having found that appellant had been unconditionally discharged on March 22, 1961, by a commutation of sentences, as to the sentence imposed on April 22, 1954, the court found further that (1) appellant was currently in prison under sentences and judgments from the Circuit Court of Cooper County, Missouri, for a total of ninety-nine (99) years, and (2) appellant was not a prisoner in custody under any sentence imposed by the Circuit Court of St. Louis City. Therefore, it sustained the state's motion to dismiss.

At the threshold, we hold that the trial court did not commit error in denying, without a hearing, appellant's motion under Rule 27.26, V.A.M.R., because appellant neither was detained nor held in custody under the sentences that he sought to vacate. In Noble v. State of Missouri, 485 S.W.2d 33 (Mo.1972), our Supreme Court held that the relief afforded a movant under Rule 27.26 is limited to a prisoner in custody under sentence claiming a right to be released from the custody imposed because of that sentence. Here, appellant has been unconditionally released from the sentences he now seeks to vacate; consequently the trial court, pursuant to Rule 27.26, had no jurisdiction to entertain his motion. See also Peterson v. State, 476 S.W.2d 608 (Mo.1972) and Howard v. State, 493 S.W.2d 14 (Mo.App.1973).

In recognition of the inherent infirmity of his position under Rule 27.26, appellant urges that the court should have disregarded the appellant assigned to it and treated it as a writ of error coram nobis, State v. Carter, 399 S.W.2d 74 (Mo.1966).

To support his position, appellant relies upon the language in United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248 (1954),...