Gallimore v. State, 13207
| Decision Date | 31 October 1983 |
| Docket Number | No. 13207,13207 |
| Citation | 660 S.W.2d 458 |
| Parties | Robert Dale GALLIMORE, Jr., Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
David Robards, Joplin, for movant-appellant.
John D. Ashcroft, Atty. Gen., David C. Mason, Asst. Atty. Gen., Jefferson City, for respondent.
Following denial of his Rule 27.26 1 motion after an evidentiary hearing, movant appealed.
Movant, then defendant, was charged in the Jasper County Circuit Court with the commission of five separate crimes, i.e., robbery, burglary, two stealings and escape from confinement. Pursuant to a plea bargaining agreement of the parties and accepted by the court, movant pleaded guilty to all charges except for one stealing charge. He was sentenced, as agreed, to 12 1/2 years for robbery, 7 years for burglary, 7 years for stealing and 5 years for escape. As per the agreement, the four sentences were ordered to run concurrently and the state dismissed the second stealing charge and agreed "not to file any additional charges now known to the State."
Via his 27.26 motion and testimony thereon, movant claimed he was denied effective assistance of counsel in the criminal causes because his then lawyer represented to him that if he did not plead guilty, as per the plea bargain for 12 1/2 years, the prosecuting attorney would run all the sentences consecutively but had movant known that the court, rather than the prosecutor, possessed the discretion to run the sentences concurrently or consecutively, he would not have entered the pleas of guilty. At trial movant expanded upon his motion by adding that his lawyer in the criminal matters further advised that if he took the plea bargain he would be out of the penitentiary in three years. Movant admitted to a conviction for felonious stealing which had occurred prior to the crimes concerned in the 27.26 proceeding.
Movant's attorney at the guilty plea proceedings, testified at the hearing on the Rule 27.26 motion. He recounted that he had explained to movant the differences between consecutive and concurrent sentencing and that should movant not take the plea bargain, the prosecutor had indicated he would file the charges involved against movant as a persistent offender and that upon conviction the court would make at least some of the sentences run consecutively. The attorney denied having told movant he would automatically be released on a 12 1/2 year sentence after...
To continue reading
Request your trial
-
O'Neal v. State, 14752
...credibility of the witnesses are matters for the trial court. Shoemake v. State, 462 S.W.2d 772, 775 (Mo. banc 1971); Gallimore v. State, 660 S.W.2d 458, 459 (Mo.App.1983). Consequently, in the instant case the motion court had the prerogative to disbelieve--as it did--the testimony of mova......
-
Brayfield v. State, 15017
...findings with respect to the credibility of Jackie's testimony at the motion hearing is entitled to deference. Gallimore v. State, 660 S.W.2d 458, 459 (Mo.App.1983). Appellate review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clear......
-
Morris v. State, 54537
...movant's counsel on appeal. 1 The motion court determines the credibility of the witnesses. Rule 73.01(c)(2); e.g. Gallimore v. State, 660 S.W.2d 458, 459 (Mo.App.1983). Movant's testimony at the hearing was contradicted by and was inconsistent with the testimony of his trial counsel. The t......
-
State v. Taylor, WD
...to the motion court's findings as to credibility of witnesses. Brummell v. State, 770 S.W.2d 379 (ED Mo.App.1989); Gallimore v. State, 660 S.W.2d 458, 459 (Mo.App.1983). Appellant next claims that he received ineffective assistance of counsel because counsel failed to introduce evidence of ......