Montgomery v. State
Decision Date | 11 May 1970 |
Docket Number | No. 2,No. 54472,54472,2 |
Parties | George MONTGOMERY, Movant-Appellant, v. STATE of Missouri, Respondent |
Court | Missouri Supreme Court |
Moore & Brill, Newton C. Brill, West Plains, for appellant.
John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.
This is an appeal from the action of the trial court in overruling movant's motion under Supreme Court Rule 27.26, V.A.M.R., to vacate a judgment and sentence wherein he was sentenced to imprisonment for twenty-five years for robbery in the first degree. This case comes to the writer on recent reassignment. We reverse and remand.
Movant, sometimes referred to as defendant, originally was charged with murder in the first degree. The information alleged that he killed one Wilfred Gerald Brown while in the perpetration of robbery of Brown, thus constituting a charge under the felony-murder doctrine, § 559.010 ( ). Trial commenced on September 13, 1965, in the Circuit Court of Carter County. After the state concluded its case and a recess was taken, the judge, evidently pursuant to some indication received, inquired of defendant and his counsel whether it was true that defendant desired to change his plea from not guilty to guilty. Upon receipt of an affirmative answer, the court so informed the jury and then proceeded to ask the prosecuting attorney for the state's recommendation as to punishment. This was given and then followed remarks by the court directed to the defendant, including a discussion of his reason for being agreeable to a recommended sentence for twenty-five years. This then occurred:
'If you go there and listen to these self-made lawyers, who themselves have violated the laws of the land, and fail to follow the rules of our prison officials, you can be in there for the twenty-five years.
'Do you at this time, Mr. George Montgomery, have any legal reason to give why the Court should not at this time pass sentence upon you?
'I want that information filed, Mr. Greene, immediately, while Mr. Steelman and I are both here.
'You can be seated, young man.'
Subsequently, on that same date, after the above had occurred, the prosecuting attorney filed a new information charging defendant with robbery in the first degree. No plea was entered thereto and no sentencing occurred after the new information was filed.
On June 1, 1968, defendant filed his motion to vacate judgment and sentence under Rule 27.26. Included in the grounds for relief alleged therein were the following:
'(a) There was no Information on file for 1st degree Robbery at the time a purported plea of guilty to 1st Degree Robbery was entered.
'(b) There was never a plea of guilty to 1st Degree Robbery or to any crime after the information for 1st degree robbery was filed.'
This court on several occasions has held that an information actually on file charging defendant with the offense to which he pleads is jurisdictional. State v. Barrett, Mo., 44 S.W.2d 76; State v. Hampton, Mo., 172 S.W.2d 1; State v. Madden, 324 Mo. 877, 24 S.W.2d 1003. Obviously, a nonexistent charge cannot be read to a...
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