Meeks v. State, 9469

• Decision Date: 20 May 1974
• Docket Number: No. 9469,9469
• Citation: 512 S.W.2d 215
• Parties: Marshall Lee MEEKS, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 215

512 S.W.2d 215

Marshall Lee MEEKS, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 9469.

Missouri Court of Appeals, Springfield District.

May 20, 1974.

Weber Gilmore, Sikeston, for movant appellant.

John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.

BILLINGS, Judge.

This is a Rule 27.26, V.A.M.R., proceeding wherein Marshall Lee Meeks, serving a fifty-year prison term for second degree murder, sought credit for the time he spend in jail prior to his guilty plea and sentencing in 1969. Appellant's post-conviction motion was dismissed by the trial court, rejecting his contention that § 546.615, as amended in 1971, is retroactive. We affirm.

Appellant has heretofore sought post-conviction relief. His first Rule 27.26 motion was denied by the Supreme Court in 1972 in Meeks v. State, 484 S.W.2d 167. Federal habeas corpus was denied in 1973 in Meeks v. Swenson, 356 F.2d 1174 (E.D. Mo.). Since appellant's present contention arises from the amendment of § 546.615, effective September 28, 1971, and was not a ground available when his first Rule 27.26 was initiated in 1970, we will consider it as one permitted in a successive motion under Rule 27.26(d).

In his present motion the appellant alleged that he was denied equal protection of the law by reason of the failure of the sentencing court to grant him credit for the time he spent in the Mississippi County jail prior to his conviction, judgment and sentence. According to appellant he was so incarcerated for 189 days. Further, the appellant argues, § 546.615 makes it mandatory that he be credited with his preconviction, judgment and sentence jailtime. In support of his position appellant cites paragraph 1 of the statute which is as follows: 'A person convicted of a felony in this state shall receive as credit toward service of the sentence imposed all time spent by him in prison or jail both awaiting trial and pending transfer to the department of corrections.'

The difficulty with appellant's ground for relief is that he was sentenced under the statute prior to its amendment. In 1969 the applicable portion of § 546.615 read: 'The time spent by him in prison or jail prior to his conviction and the date on which sentence is pronounced may, in the discretion of the judge pronouncing sentence, be calculated as a part of the term of the sentence imposed upon him.' (emphasis ours). Thus, whether or not such jailtime was credited against a sentence was by the Legislature left to the discretion of the sentencing judge. State v. Brown, 502 S.W.2d 295, 306 (Mo.1973); Drew v. State, 458 S.W.2d 263, 264 (Mo.1970). And our Supreme Court has squarely ruled that § 546.615, as amended 1971, is applicable to those cases wherein the judgment has not become final prior to September 28, 1971. State v. Whiteaker, 499 S.W.2d 412, 420 (Mo.1973). Since the judgment and sentence in appellant's case was final long before the amendment of the statute the present form of the statute is of no avail to the appellant. Johnson v. Haynes, 504 S.W.2d 308 (Mo.App.1973). And, we decline appellant's invitation to apply the statute, as amended, retroactively. We find no intent, express or implied, by the General Assembly that the mandatory provisions of the amended statute are to operate retrospectively and we judicially decline to read such an intent into the language of the statute.

Appellant's arguments that a denial of credit of his pre-sentence jailtime deprives him of equal protection of the law and constitutes cruel and unusual punishment were fully answered in State v. Crockrell, 470 S.W.2d 507 (Mo.1971), at 508: 'Appellant's second argument is that the denial of a part of his jail time is a cruel and unusual punishment in that it subjects him to over five months imprisonment for no constitutionally or legally supportable reason. The argument ignores the discretion which is lodged in the trial court as to the allowance or disallowance of jail time credit prior to sentence under § 546.615(2), RSMo 1969, V.A.M.S. . . . It cannot be cruel and unusual punishment if within the statutory limits. State v. Thomas, Mo., 438 S.W.2d 441. . . . The third and last argument is that denial of a part of his jail time assessed a greater punishment for appellant on account of his indigence and inability to post bail until the time of his sentencing and is therefore a denial of equal protection...