McCulley v. State
| Decision Date | 13 November 1972 |
| Docket Number | No. 1,No. 56705,56705,1 |
| Citation | 486 S.W.2d 419 |
| Parties | Dale Howard Mc,CULLEY, Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Jimmie B. Trammell, Dexter, for movant.
John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.
Movant-appellant Dale Howard McCulley apppeals from the denial of his S.Ct. Rule 27.26, V.A.M.R., motion in which he sought to have vacated a sentence imposed on his plea of guilty to a charge of stealing over $50, a felony. Notice of appeal was filed prior to January 1, 1972, and, therefore, this court has jurisdiction. Art. V, § 3, Const. of Mo.1945, V.A.M.S.
On January 18, 1967, movant was charged by information filed in the Circuit Court of Stoddard County with stealing over $50. It alleged the offense to have been committed January 13, 1967, at which time movant was on parole from the Missouri Department of Corrections from a previously imposed five-year sentence. On January 19, 1967, movant pled guilty to the charge of stealing over $50 before Judge William H. Billings and received a sentence of two years in the Department of Corrections. Movants parole was revoked and he was returned to the Department of Corrections to serve the remainder of the five-year sentence and the two-year sentence. The movant completed service of the remainder of the five-year sentence on September 25, 1967.
On December 1, 1967, the court permitted movant, on movant's motion under Rule 27.26, to withdraw the plea of guilty to stealing over $50 and vacated the two-year sentence, and set the cause for trial. Movant filed his application for disqualification of Judge Billings, which was sustained as a matter of course, and Judge Rex Henson was designated to try the case. On September 23, 1968, movant and his counsel appeared before Judge Henson and entered a plea of guilty to the charge. Movant made oral application for probation or parole (hereafter referred to as 'parole'). Judge Henson deferred sentencing and ordered a presentence investigation report. On February 10, 1969, having received the report, Judge Henson sentenced movant to seven years in the Department of Correction and immediately placed him on parole.
Movant had been at liberty on bond pending disposition of the stealing-over-$50 charge from about December 1, 1967, to date of sentencing, February 10, 1969, and thereafter remained at liberty on parole from Judge Henson until confined on January 2, 1970, for alleged parole violation. On March 11, 1970, movant and counsel appeared before Judge Henson and admitted that the parole violation charges were true. The parole was revoked and movant committed to the Department of Corrections to serve the seven-year sentence.
On April 9, 1970, movant filed the instant Rule 27.26 motion in the Circuit Court of Stoddard County contending that the seven-year sentence was invalid under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, and Patton v. North Carolina (4th Cir.) 381 F.2d 636. Movant also contended he was entitled to credit for all time served in confinement from the date the two-year sentence was imposed--January 19, 1967.
This motion was heard by Judge Billings. The court overruled the motion to vacate the seven-year sentence, denied credit for time served from January 19, 1967, to September 25, 1967, but allowed credit for time served under the two-year sentence between September 25, 1967, and December 1, 1967, amounting to sixty-six days in addition to jail time credit previously allowed by Judge Henson.
On this appeal movant contends that the seven-year sentence imposed on the second plea violated his rights under the double jeopardy and equal protection provisions of Amendments 5 and 14, United States Constitution, citing Patton v. North Carolina, supra, and in violation of his due process rights under Amendments 5 and 14, U.S.Const., citing North Carolina v. Pearce, supra.
Double Jeopardy nd Equal Protection: Patton v. North Carolina, supra, was decided by the U.S. Court of Appeals Fourth Circuit, June 14, 1967. Patton contended that the sentencing court's action in (1) failing to give credit for all time served under the original sentence and (2) imposing a longer sentence on retrial violated his due process and double jeopardy rights. In short, the court held that either failing to give credit for time served under the original sentence or imposing a longer sentence on retrial violated both the due process and double jeopardy provisions of Amendments 5 and 14 of the United States Constitution. The court, therefore, held that (1) the prisoner must be credited on the second sentence with all of the time served under the first sentence and (2) the second sentence cannot be longer than the first.
Pearce v. State of North Carolina (4th Cir.) 397 F.2d 253, was decided on June 19, 1968, following Patton, and affirmed the U.S. District Court in a per curiam opinion stating, 'The action was taken on the authority of our decision in Patton v. State of North Carolina, 381 F.2d 636 (4 Cir. 1967), cert. den., North Crolina v. Patton, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed. 871 (1968).' The State of North Carolina then petitioned the United States Supreme Court for certiorari in Pearce which was granted, 393 U.S. 922, 89 S.Ct. 258, 21 L.Ed.2d 258. Pearce was consolidated with Simpson, Warden, v. Rice, and the two cases were decided in one opinion, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, hereafter referred to as North Carolina v. Pearce.
The United States Supreme Court held that the double jeopardy provisions of Amendments 5 and 14 guarantees against multiple punishment for the same offense and 'absolutely requires that punishment already exacted must be fully 'credited' in imposing sentence upon a new conviction for the same offense.' 89 S.Ct. at 2077.
Thus, to the extent that Patton v. North Carolina (4th Cir.), and Pearce v. North Carolina (4th Cir.), supra, held that the double jeopardy provisions of Amendments 5 and 14 of the U.S. Constitution require that full credit be given in imposing sentence upon a new conviction for the same offense, they were upheld by the Supreme Court of the United States.
However, the Fourth Circuit also held in Patton v. North Carolina and Pearce v. North Carolina that the double jeopardy provisions of the 5th and 14th Amendments of the U.S. Constitution likewise absolutely prohibit a court from imposing a longer sentence upon the second conviction for the same offense. The U.S. Supreme Court disagreed and held that 'neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction.' 89 S.Ct. at 2079. Thus to the extent that Patton and Pearce (4th Cir.) held that the double jeopardy and equal protection clauses barred a longer sentence on reconviction of the same offense, they have been disapproved by the United States Supreme Court in North Carolina v. Pearce, supra.
Movant's contention that the double jeopardy and equal protection clauses of Amendments 5 and 14 barred the instant seven-year sentence is overruled.
Due Process: Movant contends the due process clauses of Amendments 5 and 14, U.S. Constitution, as interpreted by the Supreme Court of the United States in North Carolina v. Pearce, supra, and the U.S. Ct. of Apps., 4th Cir., in Patton v. North Carolina, supra, bars the imposition of the seven-year sentence he received upon the second conviction of the same offense.
Initially, the court must answer the question: Is a sentence of seven years with a parole 'more severe' than a sentence of two years without parole? This question is presented because it is the 'more severe' sentence that falls within the ambit of Pearce, supra.
In Missouri a trial judge is afforded broad discretion with respect to the disposition he may make of a criminal case after it is determined that the defendant is guilty of the offense charged, whether that determination is made on a plea of guilty or by a finding by a judge or jury that the defendant is guilty. The trial judge may suspend the imposition of sentence or he may pronounce sentence and suspend the execution thereof. In either event, the judge may place the defendant on probation, § 549.071, subd. 1, and in some instances on parole, § 549.071, subd. 2, RSMo 1969, V.A.M.S.
The words 'probation' and 'parole' are oftentimes used interchangeably when the court, exercising its discretion under § 549.071, subd. 1, permits a defendant to remain at liberty regardless of whether sentence was imposed or not and even though the defendant was not initially confined following the sentencing. In the instant case, the court used the term 'parole'. In the context of this case, the words 'probation' and 'parole' denote the same event, to wit, the exercise of discretion by the trial court, pursuant to § 549.071, in permitting a defendant found guilty of a crime to be released without imprisonment, subject to conditions imposed by the court and subject to the supervision of a probation service. Sec. 549.058(3), V.A.M.S.
The 'sentence' that a court imposes consists of punishment that comes within the particular statute designating the permissible penalty for the particular offense. In the case of stealing over $50, the offense herein involved, the statute provides that the punishment shall be, 'imprisonment in the penitentiary for not more than ten years nor less than two years, or by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment.' Sec. 560.161, RSMo 1969, V.A.M.S. Fixing the limits of punishment is a legislative function. State v. Smith, Mo., 445 SW.2d 326, 332. In State v. Pruitt, Mo., 169 S.W.2d 399, 400, the court said, "In its technical legal sense the sentence generally constitutes and has the same meaning as judgment...
To continue reading
Request your trial
-
State v. Whitfield
...be applied retroactively. See e.g. Spidle v. State, 446 S.W.2d 793 (Mo. 1969); State v. Ussery, 452 S.W.2d 146 (Mo.1970); McCulley v. State, 486 S.W.2d 419 (Mo.1972). Two years after Griffith, the United States Supreme Court did adopt a new test for determining when federal courts will appl......
-
State Ex Rel. Michael Anthony Taylor v. Steele
...107 S.W.3d at 266, 268, citing, Spidle v. State, 446 S.W.2d 793 (Mo.1969); State v. Ussery, 452 S.W.2d 146 (Mo.1970); McCulley v. State, 486 S.W.2d 419 (Mo.1972).5 Missouri's Linkletter–Stovall retroactivity analysis requires a court to determine retroactivity by considering: “(1) the purpo......
-
State v. Lewis
... ... Thus, a sentence as a dangerous offender-as any other criminal judgment-is the essential final and solemn judicial act to culminate a criminal prosecution. 11 In that sense, the sentence is the judgment imposed-the adjudication McCulley v. State, 486 S.W.2d 419, 423(4, 5) (Mo.1972); State v. Jaeger, 394 S.W.2d 347, 352(8, 9) (Mo.1965) ... The trial court with peremptory decision found that "the jury verdict under all the circumstances was sufficient" and expressly forebore to exercise discretion to sentence the ... ...
-
Wiltz v. State
...our Court held that probation was not a part of the punishment assessed upon a defendant. 532 S.W.2d at 587; see also McCulley v. State, 486 S.W.2d 419 (Mo.1972) ("The 'sentence' that a court imposes consists of punishment that comes within the particular statute designating the permissible......