Lawson v. State, 37360
| Decision Date | 19 October 1976 |
| Docket Number | No. 37360,37360 |
| Parties | Bobby Lee LAWSON, Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Brett & Erdel, Bradford A. Brett, Mexico, for movant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Thomas I. Osborne, Pros. Atty., Mexico, for respondent.
Bobby Lee Lawson appeals the denial of his Rule 27.26 motion seeking to vacate judgment of jury conviction and consecutive sentences totaling twenty-one years on charges of first degree robbery, felonious assault and breaking jail. We find the trial court was not clearly erroneous in denying movant's motion and therefore affirm the judgment. Rule 27.26(j), V.A.M.R.
Movant asserts two grounds for relief: (1) the information filed September 28 1971, was fatally defective in that Count II (breaking jail and escaping before conviction) failed to allege the offense was 'feloniously' committed; and (2) movant was denied equal protection under the law because he was deprived of any possibility of receiving concurrent rather than consecutive sentences.
Movant's first contention is that the information was fatally defective as to Count II in that it failed to allege that the acts were performed 'feloniously.' Movant was charged with five separate offenses in a single indictment. The introductory paragraph stated that movant 'willfully and feloniously committed the offenses hereinafter stated . . .' In addition each of the five counts, except Count II, separately alleged that the acts were committed 'feloniously' or with 'felonious intent.' In State v. Vondereau, 438 S.W.2d 271, 272 (Mo. banc 1969) the court stated: 'In charging a felony . . . the use of the word 'feloniously' is necessary, for the very sufficient reason that its use informs the accused of the nature or grade of crime he is alleged to have committed.' (Emphasis ours.) See State v. Davis, 510 S.W.2d 790, 792(1) (Mo.App.1974). Given that the purpose for requiring the use of the word 'felonious' in an information is to inform the defendant of the degree or seriousness of the offense charged, the trial court here correctly concluded that its use in the opening paragraph sufficiently performed that function and it was unnecessary to repeat this language in each count. The point is denied.
Movant's second contention is also without merit. Movant argues the consecutive nature of his sentences was required by § 546.480, RSMo 1969, V.A.M.S., which was declared unconstitutional in State v. Baker, 524 S.W.2d 122, 129--131(5--6) (Mo. banc 1975), and therefore movant's case must be remanded for resentencing. We disagree. In State v. Brown, 525 S.W.2d 565, 568(6) (Mo.App.1975), the court stated: ...
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State v. Garrett
...not cause the information to be subject to the appellant's attack. Such allegation in the first clause is sufficient. Lawson v. State, 542 S.W.2d 796 (Mo.App.1976). Furthermore, the charge of shooting and killing Bundy in the language used clearly implies that act was unlawful. State v. Wil......
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Cole v. State, 37968
...of § 546.480, RSMo 1969. A trial judge still retains the discretion to impose consecutive sentences, see, e. g., Lawson v. State, 542 S.W.2d 796, 797 (Mo.App.1976) and State v. Brown, 525 S.W.2d 565, 568 (Mo.App.1975). In the present case, the record reveals that the trial judge had two ind......
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State v. Tilley
...the court failed to exercise its discretion there exists no error. Cole v. State, 553 S.W.2d 877, 882 (Mo.App.1977); Lawson v. State, 542 S.W.2d 796, 797 (Mo.App.1976); Spencer v. State, 534 S.W.2d 598, 599 (Mo.App.1976). See State v. Baker, 524 S.W.2d 122, 129 (Mo. banc Judgment affirmed. ......
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Turner v. State, 39250
...whether sentences would run consecutively or concurrently. State v. Baker, 524 S.W.2d 122, 131 (Mo. banc 1975); Lawson v. State, 542 S.W.2d 796, 797 (Mo.App.1976). Accordingly, judgment is CLEMENS, P. J., and SMITH, J., concur. ...