Durant v. State

• Court: Missouri Court of Appeals
• Writing for the Court: Before SWOFFORD, P.J., and WELBORN and HIGGINS; ANDREW JACKSON HIGGINS
• Citation: Durant v. State, 523 S.W.2d 837 (Mo. App. 1975)
• Decision Date: 31 March 1975
• Docket Number: No. KCD,KCD
• Parties: Winford Ray DURANT, Appellant, v. STATE of Missouri, Respondent. 26935.

Page 837

523 S.W.2d 837

Winford Ray DURANT, Appellant, v. STATE of Missouri, Respondent.

No. KCD 26935.

Missouri Court of Appeals, Kansas City District.

March 31, 1975.

Motion for Rehearing and/or Transfer Denied May 6, 1975.

Application to Transfer Denied July 14, 1975.

Willard B. Bunch, Public Defender, James W. Fletcher, Asst. Public Defender, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Donald R. Bird, Asst. Atty. Gen., Jefferson City, for respondent.

Before SWOFFORD, P.J., and WELBORN and HIGGINS, Special Judges.

ANDREW JACKSON HIGGINS, Special Judge.

Appeal from denial of motion under Rule 27.26, V.A.M.R., to vacate and set aside judgment and sentence to twenty-five years' imprisonment entered upon plea of guilty to a charge of murder, second degree.

On November 15, 1967, at about 8 p.m., Winford Ray Durant, age 14, and five other youths were assembled near Westport High School in Kansas City, Missouri. Mrs. Kinderman, a teacher at Westport, came out the front door of the school. Durant snatched her purse and ran. Primitivo Garcia came to the aid of Mrs. Kinderman, whereupon Durant obtained a pistol from one of his companions and went after Garcia. Garcia ran, Durant shot at him twice attempting to wound him in the leg, and then fired a third shot which struck and wounded Garcia in the left side.

On November 21, 1967, the Juvenile Officer of Jackson County, Missouri, filed a petition in juvenile court pursuant to Section 211.091, RSMo 1959, V.A.M.S., alleging that Winford Ray Durant, age 14, was in need of care and treatment by the juvenile court in that on November 15, 1967, he did feloniously, wilfully, on purpose and with malice aforethought make an assault with a revolver on Primitivo Garcia and wound him in the side.

On November 22, 1967, the petition was sustained by reason of proof of the allegations there asserted, and Winford Ray Durant was committed to the temporary custody of the Missouri State Board of Training Schools for an indeterminate period of time. He was delivered forthwith to the custody of the training school at Boonville, Missouri.

On November 28, 1967, Primitivo Garcia died as a result of the gunshot wound inflicted on him on November 15, 1967, by Winford Ray Durant.

On December 8, 1967, the Juvenile Court of Jackson County directed the training school to deliver the temporary custody of Winford Ray Durant to the temporary custody of the juvenile court for proceedings arising from the death of Primitivo Garcia.

On December 11, 1967, after Garcia's return to the juvenile court, a new petition in the interest of Durant came on for hearing and the juvenile court, pursuant to Section 211.071, RSMo 1959, V.A.M.S., dismissed the petition to permit prosecution of Durant under the general law.

On December 12, 1967, Winford Ray Durant was indicted for the murder, first degree, of Primitivo Garcia.

On February 5, 1968, Winford Ray Durant pleaded guilty to a charge of murder, second degree, reduced from the charge of murder, first degree, of Primitivo Garcia. The court made a record pursuant to Rule 25.04, V.A.M.R., determining that the guilty plea was voluntarily and knowingly entered, and, on May 13, 1968, following presentence investigation, rendered the judgment and sentence in question.

The motion in question was filed November 27, 1972, and it alleged, as grounds for relief: I. The plea of guilty was neither voluntarily nor intelligently entered; II. Movant was denied effective assistance of counsel; III. Discrimination and personal prejudice were permitted which denied movant equal protection of the laws.

The motion was amended March 22, 1973, to allege as grounds for relief: 1. Movant was denied effective assistance of counsel in that his attorney failed to prosecute an appeal from denial of a prior motion under Rule 27.26, denied July 9, 1969; 2. Error in allowing amendment of the charge; 3. Denial of due process in that (a) on November 22, 1967, movant was found to be under age 17 and in need of care and treatment under supervision of the juvenile court as a result of committing an assault with intent to kill upon Primitivo Garcia, (b) on December 11, 1967, after the death of Primitivo Garcia, the court found movant was not a proper subject for treatment under the Juvenile Code, (c) movant committed no further acts between November 22, 1967, and December 11, 1967, the only additional evidence being the death of Primitivo Garcia, (d) as a result, movant was denied due process of law.

Appellant no longer questions the voluntariness of his guilty plea. Notwithstanding, he now contends: I. That he was denied due process of law, asserting that 'the purported certification * * * to stand trial as an adult by the juvenile court * * * was void and beyond the jurisdiction of the juvenile court in that the court was without jurisdiction * * * after his commitment to and reception by the Missouri State Board of Training Schools for Boys as the result of his assault of November 15, 1967, of one Primitivo Garcia'; and II. That he was denied due process of law for the reason he was twice placed in jeopardy for the same offense in violation of Amendments V and XIV, United States Constitution and Constitution of Missouri, Article I, Section 19, V.A.M.S.

Appellant's argument under Point I is that under Section 211.041, RSMo 1959, V.A.M.S., a juvenile court is deprived of jurisdiction to make any orders or findings with respect to a child once he has been committed to and received by the State Board of Training Schools and that a juvenile court can be reinvested with jurisdiction only by action of the State Board of Training Schools under Section 219.220, RSMo 1959, V.A.M.S.

Section 211.041, supra, did, at the time of these proceedings, provide that jurisdiction of a child could be retained for purposes of Chaper 211 until he attained the age of twenty-one years, 'except in cases where he is committed to and received by the state board of training schools,' and Section 219.220, supra, does provide a procedure whereby the State Board of Training Schools may apply to the committing court for relief from its custody in cases where the child is in need of care which the training school is not equipped to provide.

Nevertheless, a fair reading of Section 211.041, supra, indicates that the loss of jurisdiction which results from a commitment to the State Board of Training Schools has reference to only those proceeding in which jurisdiction was initially obtained by the committing juvenile court. The obvious purpose of the statute was to prevent the juvenile court from retaining jurisdiction over a child in the original proceedings after his commitment to and receipt by the State Board of Training Schools. The statute does not purport to and may not reasonably be construed to prevent a juvenile court from acquiring anew, as distinguished from retaining jurisdiction over the child in other proceedings coming within the purview of Sections 211.021 and 211.031, RSMo 1959, V.A.M.S., as a result of jurisdictional facts arising subsequent to the original commitment of a child to and his receipt by the State Board of Training Schools.

In this case, Primitivo Garcia died subsequent to Durant's commitment to and receipt by the State Board of Training Schools for care and treatment under the first petition as a result of his felonious assault upon Garcia. Durant was returned to the jurisdiction of the Jackson County Juvenile Court by the training school, and was thereafter subject to its jurisdiction under Section 211.031, supra; a new petition was filed under Section 211.091, supra, upon which the juvenile court exercised its newly acquired jurisdiction; and the petition was dismissed to permit prosecution under the general law as provided by Section 211.071, supra.

Appellant does not question that the circuit court thereafter acquired jurisdiction of the murder charge by way of the indictment; and the voluntary plea of guilty to that...