Halley v. State, 56691

• Decision Date: 09 October 1972
• Docket Number: No. 56691,No. 2,56691,2
• Citation: Halley v. State, 485 S.W.2d 5 (Mo. 1972)
• Parties: George Daniel HALLEY, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 5

485 S.W.2d 5

George Daniel HALLEY, Appellant, v.STATE of Missouri, Respondent.

No. 56691.

Supreme Court of Missouri, Division No. 2.

Oct. 9, 1972.

John R. Short, St. Louis, for appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

HOUSER, Commissioner.

This is an appeal by George Daniel Halley from an adverse judgment in a proceeding under Criminal Rule 27.26, V.A.M.R., filed by him to vacate or set aside a judgment of conviction and 3-year sentence entered on his plea of guilty to a charge of carrying a concealed weapon.This Court has jurisdiction under Section 3 of Article V, Constitution of Missouri, 1945, V.A.M.S., as provided by that section prior to the amendment adopted at the special election of August 4, 1970, since the notice of appeal was filed prior to January 1, 1972.Article V, § 31.

From the file in this case and appellant's brief it appears that appellant has served the sentence imposed in this case, is no longer incarcerated thereunder and was finally released on March 17, 1972, during the pendency of this appeal.Instead of disposing of the appeal, however, on the ground that the case is moot, under State v. Brookshire, Mo.Sup., 377 S.W.2d 291, we will treat the motion to vacate or set aside sentence as an application for a writ of error coram nobis to attack the conviction itself, as we have done on several occasions, Laster v. State, Mo.Sup., 461 S.W.2d 839;Holt v. State, Mo.Sup., 433 S.W.2d 265;State v. Carter, Mo.Sup., 399 S.W.2d 74, andState v. Garner, Mo.Sup., 432 S.W.2d 259, 261(4), since the requirements laid down in State v. Stodulski, Mo.Sup., 298 S.W.2d 420, 424, for availability of the writ of error coram nobis are present in this case.

The sole question is whether appellant was deprived of his liberty without due process of law in violation of constitutional requirements for failure of the court to make an order on its own motion directing a psychiatric examination of accused under § 552.020, RSMo 1969, V.A.M.S. Section 552.020 provides that whenever any judge has reasonable cause to believe that the accused has a mental disease or defect excluding fitness to proceed he shall, upon his own motion or upon motion filed by the state or by or on behalf of the accused, cause to be made a psychiatric examination of accused and a report to the court containing a medical opinion as to whether accused has a mental disease or defect and whether as a result accused lacks capacity to understand the proceedings against him or to assist in his own defense.Appellant claims that there was a bona fide doubt as to appellant's competence to proceed in the defense of the prosecution under the rulings in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, andBrizendine v. Swenson, W.D.Mo., 302 F.Supp. 1011.

In determining whether the court abused its discretion in not ordering a psychiatric examination pursuant to § 552.020we consider the transcripts of the proceedings at the time of the plea and at time of sentencing; letters written to appellant's attorney, and to the sentencing judge, by the resident psychiatrist at Malcolm Bliss Hospital; the testimony of the examining and treating physician, and the testimony of appellant's attorney.Appellant was arrested August 25, 1969.His plea of guilty was entered on May 11, 1970.He was sentenced on June 26, 1970.Appellant was an in-patient at Malcolm Bliss Hospital from April 20 to April 30, 1970 and he continued as an out-patient until his discharge on June 22, 1970.

Prior to the hearing of May 11appellant's attorney, Mr. Harris, was informed by the family that appellant had voluntarily submitted to treatment by and was under the care of a psychiatrist.At that hearing Mr. Harris informed the court that appellant had a medical condition; that he had suffered a complete nervous breakdown worrying about this case and that he was under the care of a doctor, taking treatments at Malcolm Bliss Hospital.Mr. Harris did not inform the court that appellant had a mental condition, disease or defect nor did he suggest or file a motion under § 552.020 for a psychiatric examination.At the May 11 hearing appellant appeared and answered numerous questions propounded by the court with reference to his possession and concealment of the weapon and stated that he had discussed the matter with his attorney.He answered questions eliciting that he was informed as to his rights to a jury trial; that he knew about the burden of proof and his right to confrontation and cross-examination of witnesses against him.At the request of the judge appellant narrated the facts surrounding his arrest and did so in a comprehensive and intelligent manner.He recited the dates and salient facts about his previous criminal record.When the judge refused his attorney's plea for a presentence investigation appellant entered the exchange between court and counsel, pleaded for a chance to take care of his four children and attributed his problem to alcohol.Thereupon the judge changed his mind, accepted the plea of guilty and ordered a presentence investigation.The record reveals nothing which occurred at the May 11 hearing to lead the court to the reasonable belief that appellant had a mental condition interfering with his fitness to proceed, or to raise a bona fide doubt as to his competency to proceed.

Nine days later (May 20) the psychiatrist, Dr. Schuckit, wrote a letter to attorney Harris stating that appellant'does have a mental illness'; but that 'he * * * does have the capacity to understand the proceedings against him and is able to assist in his own defense'; and that at all times he...