Noble v. State, 55938
| Decision Date | 09 October 1972 |
| Docket Number | No. 55938,No. 1,55938,1 |
| Citation | 485 S.W.2d 33 |
| Parties | Jack Lee NOBLE, Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
William R. Dorsey, Clayton, for appellant.
John C. Danforth, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for respondent.
HIGGINS, Commissioner.
Appeal (taken prior to January 1, 1972) from denial, without evidentiary hearing, of motion under Rule 27.26 V.A.M.R., to vacate and set aside three judgments of conviction of robbery, first degree, by means of a dangerous and deadly weapon.
Appellant's motion and his statement of facts show: Jack Lee Noble was arraigned in the Circuit Court of the City of St Louis, February 23, 1951, on three charges of robbery, first degree, by means of a dangerous and deadly weapon, Causes 29, 30, and 31. He entered a plea of not guilty to all three charges. In April, 1951, he was convicted by a jury in Cause 29. In May, 1951, he appeared, with counsel, and, by leave of court, 'withdrew his request to file a motion for a new trial, and requested that he be sentenced in accordance with the verdict of the jury * * *.' The court then granted allocution and sentenced Jack Lee Noble to 10 years' imprisonment in Cause 29. On the same date, Jack Lee Noble, with counsel, withdrew his former plea of guilty in Causes 30 and 31 and pleaded guilty to those two charges of robbery, first degree. The court then granted allocution and sentenced Jack Lee Noble to 5 years' imprisonment in Cause 30 to run consecutively with the sentence in Cause 29, and to 5 years' imprisonment in Cause 31 to run concurrently with the sentences in Causes 29 and 30.
Jack Lee Noble was received in the Department of Corrections May 9, 1951, to serve a total of 15 years' imprisonment on the foregoing convictions. He completed these sentences 'by way of commutation of sentence by Governor Blair on January 1, 1961, at which time he began serving a life sentence from Cole County for murder first degree.'
This motion was filed February 3, 1970, 'under Supreme Court Rule 27.26, to vacate the judgments and sentences imposed in Cause No. 29, 30, 31 * * *.' Mr. William R. Dorsey was appointed by the circuit court to represent movant on his motion. A pretrial conference was set for April 10, 1970, to determine whether an evidentiary hearing was necessary and whether the motion was in final form. The hearing was attended by counsel for movant and the State of Missouri. Counsel for movant announced that he had conferred with his client and that there was no intention to amend the motion. Two questions were isolated: whether, since movant had served the sentences attacked, he had standing to pursue his motion under Rule 27.26; and whether, having withdrawn his motion for new trial and abandoned appeal in Cause 29, he was prevented from pursuing his motion. Both parties were granted leave to brief the preliminary questions, and it was agreed that no evidentiary hearing would be set without first determining these questions.
Movant submitted his brief after which the State moved the court to dismiss subject motion on the ground movant was not 'a prisoner in custody under sentence claiming a right to be released upon the ground that such sentences referred to in the motion are in anyway defective.'
On July 6, 1970, the court dismissed movant's motion filed under Rule 27.26 for the reason set out in the State's motion to dismiss.
Appellant's sole point is that 'Movant is entitled to an evidentiary hearing on his motion to vacate judgments, even though he is not in custody under those charges, but is confined in the Penitentiary at the time of filing his motions on another charge.'
The difficulty in appellant's position is that the trial court committed no error in...
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Adams v. State, WD
...a sentence already served, rather one should seek a writ coram nobis. State v. Quinn, 594 S.W.2d 599, 603 (Mo. banc 1980); Noble v. State, 485 S.W.2d 33, 35 (Mo.1972); Johnson v. State, supra. Here the appeal process has run and the prospective sentence is Secondly, this problem is unlike t......
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Cook v. State, 37158
...in custody under sentence who claims a right to be released from the custody imposed by reason of that sentence.' Noble v. State, 485 S.W.2d 33, 35(1) (Mo.1972). The trial court had no jurisdiction to entertain a 27.26 motion in respect to a conviction for which movant was not then in custo......
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Scroggins v. State
...suggestion. However, rather than dispose of this appeal by the route of dismissal on the ground that the issues are moot (Noble v. State, 485 S.W.2d 33 (Mo.1972); State v. Brookshire, 377 S.W.2d 291 (Mo.1964)) we have concluded that we should, in this particular instance, rule appellant's a......
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Davis v. State, 35094
...V.A.M.R., because appellant neither was detained nor held in custody under the sentences that he sought to vacate. In Noble v. State of Missouri, 485 S.W.2d 33 (Mo.1972), our Supreme Court held that the relief afforded a movant under Rule 27.26 is limited to a prisoner in custody under sent......