Merriweather v. Grandison

• Decision Date: 05 July 1995
• Docket Number: No. WD,WD
• Citation: 904 S.W.2d 485
• Parties: Treva MERRIWEATHER, Petitioner, v. Thelma GRANDISON, Respondent. 50949.
• Court: Missouri Court of Appeals

Page 485

904 S.W.2d 485

Treva MERRIWEATHER, Petitioner, v. Thelma GRANDISON, Respondent.

No. WD 50949.

Missouri Court of Appeals,

Western District.

July 5, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 29, 1995.

Application to Transfer Denied

Sept. 19, 1995.

Barbara Hoppe, Office of the State Public Defender, Columbia, for petitioner.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cassandra K. Dolgin, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and BRECKENRIDGE and LAURA DENVIR STITH, JJ.

KENNEDY, Presiding Judge.

The petitioner on October 17, 1986, pleaded guilty to a charge of felony possession of cocaine, § 195.020, RSMo (1986) (repealed 1989). The Circuit Court of Cass County suspended imposition of sentence and placed her upon probation for five years. On September 8, 1992, petitioner's probation was revoked and she was sentenced to ten years' imprisonment.

The maximum sentence for petitioner's offense had been 20 years' imprisonment when the offense was committed, and that punishment provision was in effect until August 28, 1989. As of the latter date, the maximum punishment for petitioner's offense was reduced to seven years. § 195.202.2, RSMo (Cum.Supp.1989); § 558.011.1(3), RSMo (Cum.Supp.1991).

Section 1.160, RSMo (1986) (amended 1993), provides that, when the punishment is reduced or lessened after the time of commission of an offense and while a prosecution is "pending," the accused is entitled to the advantage of the less severe punishment or sentence. In Evans v. State, 779 S.W.2d 253, 255 (Mo.App.E.D.1989), it was held that "a suit is still 'pending' for purposes of § 1.160, RSMo 1986, from the time it is instituted until a final determination is made which disposes of the case."

On September 8, 1992, therefore, when petitioner was sentenced, the maximum penalty allowed by statute was seven years' imprisonment.

The prisoner filed a "Rule 29.12 motion" in the sentencing court. On the prisoner's appeal from its denial, we affirmed, holding that Rule 24.035 furnished the prisoner's exclusive remedy, and that Rule 24.035 relief was barred by lapse of time. Merriweather v. State, 884 S.W.2d 359 (Mo.App.W.D.1994).

The warden maintains that a later version of § 1.160, RSMo (Cum.Supp.1993), which was enacted after petitioner was sentenced, and which became effective August 28, 1993, should be applied. We find no support for this position.

We turn then to the issue of whether petitioner is entitled to relief by way of habeas corpus.

The warden argues that habeas corpus is not available to the petitioner as a remedy--that in failing to seek relief from the sentencing court by means of a Rule 24.035 motion, the petitioner has no remedy.

The warden's position cannot be sustained.

The question before us is whether Merriweather's sentence of imprisonment in excess of the maximum term authorized by law is a matter of the "facial validity of confinement" and is a "jurisdictional issue." If so, habeas corpus is available to the petitioner. State ex rel. Simmons v. White, 866 S.W.2d 443, 445-46 (Mo. banc 1993).

On this point our cases are uniform and clear. A sentence which is in excess of that authorized by law is beyond the jurisdiction of the sentencing court. In State ex rel. Dutton v. Sevier, 336 Mo. 1236, 83 S.W.2d 581 (1935), our Supreme Court had before it the petition of Lee Swick for a writ of habeas corpus. The facts were that Swick had pleaded guilty to assault with intent to kill C.N. Dutton and Woody Stonum, but without malice aforethought. He was sentenced to 12 years in the penitentiary, whereas the maximum punishment authorized by statute was five years. In affirming the lower court's grant of the writ, the Supreme Court said:

The maximum punishment for the offense charged being not to exceed five years' imprisonment in the penitentiary, the court was without jurisdiction to impose a sentence of twelve years' imprisonment, and for that reason its judgment is not merely erroneous, but is absolutely void and subject to collateral attack on habeas corpus. While the court had jurisdiction of the crime charged against petitioner, it did not have jurisdiction to assess punishment in excess of that provided by law.

Where, as in this case, the record shows on its face that the court did not have authority to render the particular judgment which it did render, the judgment is void and subject to collateral attack. There must be jurisdiction of the matter acted upon; the court must have power to render the particular judgment in the particular case before it can be said to have jurisdiction.

83 S.W.2d at 582 (citations omitted).

In Dutton, the court relied upon Ex parte Page, 49 Mo. 291 (1872). In that case, the prisoner had been sentenced to a term of incarceration in excess of the maximum sentence provided by statute. He sought relief by writ of habeas corpus. In granting relief in Page, the Supreme Court distinguished the case from an earlier case (Ex parte Toney, 11 Mo. 661 (1848)) in which habeas corpus relief had been denied. In Toney, a slave had been charged and convicted as if he had been a free man, and his owner petitioned by habeas corpus for his release. Said the Page court But in the case just quoted [i.e., Ex parte Toney] it will be perceived that the error was one of fact, provable by extrinsic evidence dehors the record. The record as it stood warranted the judgment, and the error of fact produced the difficulty. In such a case the court would not in a collateral proceeding undertake to revise the judgment. But in the case we are now considering, the question presented is far different. The error here does not arise out of matter of fact, but is patent on the face of the record. The record proper shows that the judgment of the court in passing sentence was illegal; that it was not simply erroneous or irregular, but absolutely void, as exceeding the jurisdiction of the court and not being the exercise of an authority prescribed by law.

49 Mo. at 294.

The language of Ex parte Page to the effect that a judgment is void which sentences a convicted person to a term of years in excess of the allowable maximum has been drawn into question in later cases. See Crow v. State, 492 S.W.2d 40, 46 (Mo.App.1973); Johnson v. State, 442 S.W.2d 41, 46 (Mo.1969); LaGore v. Ramsey, 126 S.W.2d 1153, 1154 (Mo. banc 1939). Those cases cite § 532.400 RSMo, which was enacted in 1877. That statute is copied in the margin. ¹ The statute has been considered to have been enacted to meet Ex parte Page's granting to the prisoner there a complete discharge, and not to deny the prisoner any relief at all in habeas corpus. In LaGore, 126 S.W.2d at 1154, a habeas corpus case, the court said of Ex parte Page: "On habeas corpus we held the sentence void, that we could neither amend it nor remand the cause to the trial court to do so, and discharged the prisoner. After enactment of said statute [§ 532.400], we have frequently held, under circumstances similar to those in the Page case, that we can amend an erroneous judgment or sentence as to time or place. Ex parte Bethurum, 66 Mo. 545; Ex parte Cohen, 159 Mo. 662, 60 S.W. 1031 [ (1901) ]; State ex rel. v. Sevier, 336 Mo. 1236, 83 S.W.2d 581 [ (1935) ]." In LaGore, the Supreme Court did the same thing as was done in the habeas case of Dutton, 83 S.W.2d 581; it remanded the prisoner to the trial court for resentencing within the allowable maximum.

Dutton has been followed or cited with approval throughout the years, and has never been criticized. See State v. Barnes, 492 S.W.2d 729, 730 (Mo.1973); Wright v. State, 478 S.W.2d 347, 348 (Mo.1972); State v. Powell, 433 S.W.2d 33, 35 (Mo.1968); State v. Keith, 241 S.W.2d 901, 902 (Mo.1951); State v. Hardy, 359 Mo. 1169, 225 S.W.2d 693, 695 (1950); State v. Cooper, 358 Mo. 269, 214 S.W.2d 19, 21 (1948); State v. Ferguson, 208 S.W.2d 255, 256 (Mo.1948); State v. Watson, 356 Mo. 590, 202 S.W.2d 784, 786 (1947); State v. Stroemple, 355 Mo. 1147, 199 S.W.2d 913, 914 (1947); LaGore, 126 S.W.2d at 1154; Griggs v. Venerable Sister Mary Help of Christians, 238 S.W.2d 8, 13 (Mo.App.1951). In view of the criticisms of Page, noted in the preceding paragraph, it is unlikely that the Dutton language would still be approved which declares void a judgment sentencing a prisoner to imprisonment for a term exceeding the statutory maximum. But Dutton stands unchallenged as authority for the proposition that upon habeas corpus a prisoner in Merriweather's case is entitled to remand to the sentencing court for resentencing. It is not necessary, in order to grant that relief, to declare the judgment void, but only to find that the court exceeded its jurisdiction, i.e., its authority, in assessing an excessive sentence.

Recent pronouncements of our Supreme Court confirm the continuing viability of such cases as Dutton and LaGore. Our Supreme Court had before it in State v. Carrasco, 877 S.W.2d 115 (Mo. banc 1994), a case in which a prisoner had been sentenced to a term of years in excess of the maximum provided by statute for the crime to which he had pleaded guilty. He sought relief in the sentencing court by means of a "Rule 29.12" motion. This "Rule 29.12" motion was filed outside the time for filing a Rule 24.035 motion. The Supreme Court held that neither Rule 29.12 nor Rule 24.035 afforded the prisoner any relief. The Court said in denying the prisoner's oral motion for habeas corpus relief: "The denial is without prejudice, however, and does not foreclose appellant's filing a petition for writ of habeas corpus in the circuit court having jurisdiction. Rule 91.02." 877 S.W.2d at 116. ²

In a habeas corpus case, State ex rel. Simmons v. White, 866 S.W.2d 443 (Mo. banc 1993), the court said: "Both the statutes and the rules governing the state writ of habeas corpus establish procedures similar to the traditional writ. Chapter 532, RSMo 1986; Rule 91.... Proceedings under Rule...