Fulsom v. State, KCD
| Decision Date | 30 October 1978 |
| Docket Number | No. KCD,KCD |
| Citation | 573 S.W.2d 116 |
| Parties | Dennis C. FULSOM, Appellant, v. STATE of Missouri, Respondent. 29738. |
| Court | Missouri Court of Appeals |
Robert N. Adams, Kansas City, for appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Before HIGGINS, Special Judge, Presiding, and PRITCHARD, J., and WELBORN, Special Judge.
Appeal from denial, without evidentiary hearing, of motion under Rule 27.26 to vacate and set aside judgment and sentence to life imprisonment entered upon verdict of guilty on charge of murder, first degree. 1 The dispositive question is whether the court should have granted movant's request for change of judge. Reversed and remanded.
Dennis C. Fulsom filed his motion, pro se, July 13, 1977, in form provided by Appendix to Rule 27.26. He alleged ten grounds for relief and supporting facts under paragraphs 8 and 9. Immediately preceding the allegations of grounds for relief in paragraph 8 is an "Attachment * * * " in which, among other things, he requested evidentiary hearing, appointment of counsel, findings of fact and conclusions of law, and "the disqualification of the Honorable James A. Moore for reasons hereinafter described in his attached affidavit to disqualify judge * * *." He concluded his motion with a list of ten witnesses which included Judge Moore; a "Motion To Recuse the Honorable James A. Moore * * *," with affidavit in support in which he asserted "Movant cannot have a fair and impartial hearing by reason of the interest and prejudice of the Honorable James A. Moore," and "Movant desires to call the Honorable Judge Moore as a witness * * *," and a motion to appoint counsel other than the Office of Public Defender on account of his allegations of ineffective assistance of counsel and excessive case loads on the part of the Office of Public Defender.
The court, by Memorandum Opinion and Judgment of August 22, 1977, recited in denial of movant's request for change of judge, "(t)here is no indication, much less proof, of any attempt to comply with Rule 51.05 and particularly Rule 51.05(c)," and "Movant's intention to call the judge as a witness is ill-conceived," after which the court, without appointment of counsel for movant, overruled the motion on the ground,
Appellant contends, justly so, that in these circumstances, the court was required to sustain movant's application for change of judge, and was disqualified from proceeding further.
As recognized by the court's memorandum,
Rule 51.05(a) provides that a change of judge shall be ordered in a civil action upon the filing of a written application...
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Smallwood v. State
...the trial court lost jurisdiction. Consequently, a further session could not be convened to do anything. See likewise Fulsom v. State, 573 S.W.2d 116 (Mo.App.1978). Conversely, on March 18, 1988, the motion for peremptory disqualification, W.R.Cr.P. 32(d), was filed, combined with a challen......
- Thompson v. State
- Thompson v. State
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Hontz v. State
...filed. This court has recently had occasion to consider the application of Rule 51.05 to a Rule 27.26 proceeding in Fulsom v. State of Missouri, 573 S.W.2d 116 (Mo.App.1978) (No. KCD29738, filed October 30, 1978). In that case, the trial judge who received notice of the movant's claim with ......