Hulett v. State, 55511

• Decision Date: 28 June 1971
• Docket Number: No. 2,No. 55511,55511,2
• Parties: William Edward HULETT, Sr., Respondent, v. STATE of Missouri, Appellant
• Court: Missouri Supreme Court

Page 636

468 S.W.2d 636

William Edward HULETT, Sr., Respondent, v. STATE of Missouri, Appellant.

No. 55511.

Supreme Court of Missouri, Division No. 2.

June 28, 1971.

William E. Partee, Hannibal, for respondent.

John C. Danforth, Atty. Gen., Gene E. Voights, First Asst. Atty. Gen., Jefferson City, for appellant.

STOCKARD, Commissioner.

On February 15, 1969, William Edward Hulett, Sr., herein referred to as petitioner, entered a plea of guilty to the charge of issuing a fraudulent check and was sentenced to imprisonment for a term of four years. By his amended motion filed pursuant to Criminal Rule 27.26, V.A.M.R., he alleged that he was entitled to release from confinement because, among other things, he was misled and induced by the prosecuting attorney to plead guilty to a violation of § 561.450 (all statutory references are to RSMo 1969, V.A.M.S.) which makes it a felony to obtain money or property by means of a check drawn, with intent to cheat or defraud, on a bank in which the drawer of the check knows he has no funds. According to petitioner, he at most was guilty of a misdemeanor in that in violation of § 561.460 he issued a check in an amount less than $100 drawn on an account in which he had insufficient funds. After an evidentiary hearing on the motion, the trial court entered its findings of fact and conclusions of law and found, among other things, that petitioner's 'sentence was not imposed in violation of the Constitution and laws of this state or the United States; that the Court imposing the sentence had jurisdiction so to do and that the sentence was not in excess of the maximum sentence authorized by law.'

Following the above conclusions of law the trial court entered this order: 'However, this court believes that the sentence, under all the circumstances of this case, was more severe than the sentences usually assessed in similar cases and on like charges, and for that reason alone now amends the sentence to two (2) years, which shall revert back to February 15, 1969, the date of the original sentencing.' The State of Missouri has appealed. Petitioner did not appeal from the adverse ruling on the merits of his motion.

We conclude that the trial court was without authority to 'amend' the sentence from four years to two years. We find no statutory provision or rule authorizing the action taken unless Rule 27.26 could be so construed, and our conclusion is that it cannot. Subsection (i) of that Rule provides that the court shall make findings of fact and conclusions of law on all the issues presented by the motion. It then provides that 'If the court finds (1) that the judgment was rendered without jurisdiction, or (2) that the sentence imposed was illegal or otherwise subject to collateral attack, or (3) that there was such a denial or infringement of the constitutional rights of the prisoner as to render the judgment subject to collateral attack, the court shall (a) vacate and set aside the judgment and shall discharge the prisoner or (b) resentence him or (c) grant a new trial or (d) correct the sentence as may appear appropriate.' The numbers and letters in brackets have been added. The clear and unmistakable meaning is that before the trial court may take any of the action identified above by bracketed letters, it must first find and conclude that one or more of the incidents identified by bracketed numbers occurred, and in this case the trial court specifically found to the contrary.

This precise issue was presented in United States v. Marchese, C.A.Cal., 9 Cir., 341 F.2d 782, certiorari denied 382 U.S. 817, 86 S.Ct. 41, 16 L.Ed.2d 64, except that it pertained to the authority of the trial court to 'correct' a sentence in a...