Deckard v. State

• Decision Date: 13 July 1970
• Docket Number: No. 2,No. 54974,54974,2
• Citation: 456 S.W.2d 35
• Parties: John Vernon DECKARD, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 35

456 S.W.2d 35

John Vernon DECKARD, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 54974.

Supreme Court of Missouri, Division No. 2.

July 13, 1970.

Bob J. Keeter, Schroff & Keeter, Springfield, for appellant.

John C. Danforth, Atty. Gen., Dale L. Rollings, Michael L. Boicourt, Asst. Attys. Gen., Jefferson City, for respondent.

PRITCHARD, Commissioner.

On December 16, 1960, appellant was convicted of the crime of forcible rape by the verdict of a jury, and as a second offender was sentenced by the court to a term of 99 years imprisonment. That conviction was affirmed upon the original appeal. State v. Deckard, Mo., 354 S.W.2d 886. Under Bosler v. Swenson (C.A. 8th), 363 F.2d 154, inasmuch as appellant had no counsel on the original appeal and was indigent, the original conviction was set aside and the case was reinstated on the docket. Counsel was appointed, the case was briefed and submitted, and was again affirmed. State v. Deckard, Mo., 426 S.W.2d 88.

Appellant then filed a motion to vacate and set aside the judgment under Supreme Court Rule 27.26, V.A.M.R. Mr. Douglas Mahnkey was appointed to represent appellant on April 21, 1969. A hearing on the motion was had, with appellant and his counsel present, on June 6, 1969, and after findings of fact and conclusions of law, the court denied the motion.

On this appeal from the order denying the motion three points are made: 'I. The trial court erred in finding that the information filed in the case was sufficient to invoke the provisions of the Habitual Criminal Act, Section 556.280, R.S.Mo. 1959 (V.A.M.S.); II. The trial court erred in finding that appellant had effective assistance of counsel and was not denied due process of law; III. The trial court erred in finding that State's Exhibit F, a pair of blue jean trousers, was properly admitted into evidence because the admission of such evidence was prejudicial and such evidence was obtained as a result of an illegal search and seizure and violated appellant's rights under the Fourth and Fourteenth Amendments to the United States Constitution.'

The state contends that appellant's Point I was considered on the reinstated direct appeal, and the same was 'forever adjudicated against him.' At 426 S.W.2d 88, 89, the court did make the general observation: 'The Information filed charged the defendant under the Habitual Criminal Act, alleging prior convictions, and the proceedings were in accord with the provisions of that Act.' It does not appear from the opinion or the files and records in the case that appellant's specific contention was ruled that the information is defective in that it does not allege that he was imprisoned in the penitentiary within State v. Watson, Mo., 383 S.W.2d 753. The information here alleges two prior felony offenses committed in 1956 and 1950, on the first of which he was 'sentenced to Missouri State Penitentiary on June 28, 1956, received at said Missouri State Penitentiary on June 29, 1956, and discharged therefrom on June 25, 1960 by compliance with his sentence as commuted by the Governor.' On the second prior offense the information alleges appellant 'was convicted of the crime and offense of Robbery First Degree on November 22, 1950 in Jackson County, Missouri, sentenced to Missouri State Penitentiary on November 22, 1950, received at said Missouri State Penitentiary on January 10, 1951, and discharged therefrom on December 5, 1955 by compliance with his sentence as commuted by the Governor.' The transcript of the trial proceedings shows that documentary proof of both prior convictions was received in evidence without objection, and the trial court found the allegations of the information after considering this evidence outside the hearing of the jury. The jury found guilt alone, the court assessed punishment, and later sentenced him as above mentioned.

A strict construction of the Second Offender Act, § 556.280, RSMo 1959, V.A.M.S., was applied to allegations of the amended information in the Watson case, supra. It was said that allegations that the defendant was sentenced to the Federal Penitentiary at Leavenworth, Kansas, to serve a term of seven years, was thereafter received at said penitentiary on January 30, 1953, and thereafter was discharged from said penitentiary, were insufficient to invoke the provisions of the Act, because they 'do not clearly and definitely comply with the provisions of the mentioned statute and do not constitute an allegation or charge that defendant was subsequently placed on probation, paroled, fined or imprisoned for the prior offense, * * *.' It was however noted 'that, while as a question of fact an inference might possibly be drawn from the allegations that appellant was in fact imprisoned * * *' (loc. cit. 383 S.W.2d 756(2)), the court did not so find the allegations. Here, the case differs. The trial court did specifically find that appellant had been previously convicted of two felonies, sentenced and received at the Missouri State Penitentiary, and on both was subsequently discharged by compliance with his sentence as commuted by the Governor. That finding is supported by the proof and the clear and only inference therefrom that appellant was in fact imprisoned as a result of his convictions. Compare State v. Briggs, Mo., 435 S.W.2d 361, 363, where the information 'did not stop with his sentencing but proceeded to allege that defendant was committed to the California Youth Authority and subsequently discharged.' And see State v. Rentschler, Mo., 44 S.W.2d 453, 455, where the information in the Watson case was distinguished, and it was held that an information...