Davis v. State, 57184
Citation | 499 S.W.2d 445 |
Decision Date | 08 October 1973 |
Docket Number | No. 57184,57184 |
Parties | Clarence Fulton DAVIS, Movant-Appellant, v. STATE of Missouri, Respondent. |
Court | Missouri Supreme Court |
Henri J. Watson, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for movant-appellant; Paul T. Miller, Executive Director, Willard B. Bunch, Chief Defender, Kansas City, of counsel.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Appellant was charged in the Circuit Court of Jackson County, Missouri, with driving a motor vehicle without the consent of the owner, a felony. He entered a plea of guilty to the charge on March 2, 1970, and on May 7, 1970, was sentenced to four years' imprisonment. On June 2, 1971, movant filed a post-conviction relief motion under Rules 27.25 and 27.26, V.A.M.R., seeking to withdraw his plea of guilty and have the judgment and sentence vacated. Counsel was appointed and an evidentiary hearing was held. The court overruled the motion and movant appealed. The notice of appeal was filed prior to January 1, 1972. This court has jurisdiction. Art. 5, § 31, Mo.Const. 1945, as amended, V.A.M.S.
At the time of the plea of guilty movant was 17 years old, with a ninth grade education and an I.Q. of 79. He was represented by retained counsel. The record made on March 2, 1970, in connection with the plea of guilty is, in part, as follows:
The court ordered a presentence investigation and, on May 7, 1970, appellant was sentenced to four years' imprisonment. The record of the May 7, 1970, hearing contains the presentence investigation report. The report reflects that the appellant continued to assert that he did not know that the automobile he was driving was stolen, but rather that Tunley told him that it was Tunley's uncle's car. The movant said, 'So I am guilty for driving the car without the owner's permission because I was led to believe that it was his uncle's car.'
Several witnesses, including movant, testified at the 27.26 hearing. The gist of the testimony of all of them, except movant's trial attorney, was that movant's trial attorney told him that if he pled guilty he would get a parole. Movant's trial attorney testified that he did not promise him a parole nor did he threaten to withdraw if movant did not plead guilty; that he told movant he could have a trial before a jury; that movant could have an attorney even if he didn't want to follow the trial attorney's suggestions on the matter; that he could have a court-appointed attorney; that movant told him that he, movant, did not know that the car was stolen when he was arrested but that, in the opinion of the attorney, this did not constitute any defense; that he told movant he could get two to 20 years on the charge; that if he pled guilty he would get a better break than if he went before a jury.
Rule 25.04 provides, in part, that
Appellant contends that the plea was not entered voluntarily with a full understanding of the nature of the charge, and therefore he should be permitted to withdraw his plea of guilty and the judgment and sentence should be vacated.
The record of the plea proceeding on March 2, 1970, on its face, demonstrates that movant affirmatively told the court, as he had previously told his attorney and subsequently told the officer making the pre-sentence investigation, that he did not know that the car was stolen. At the sentencing proceeding on May 7, 1970, the court read into the record the pre-sentence investigation. Again, the record reflects that movant's position was that he did not know the car was stolen, but believed that he was guilty of the charged offense even though he did not know that the car was stolen; as movant stated, 'So I am guilty for driving the car without the owner's permission because 1 was led to believe that it was his (Tunley's) uncle's car.' There was no evidence at the Rule 27.26 hearing that movant, at the time he pled guilty, knew the car was stolen at the time he was driving it. The evidence continued to be to the contrary.
An essential element of an offense under § 560.175(1), RSMo 1969, V.A.M.S., is that the defendant intentionally operate the automobile without the consent of the owner, State v. McLarty, 414 S.W.2d 315 (Mo.1967); and if a person operates a car with the honest belief that he has permission to do so from the owner or from a person whom he honestly believes to be in lawful possession of the car, the statute is not...
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