Parks v. State

Decision Date09 April 1973
Docket NumberNo. 57607,57607
Citation492 S.W.2d 746
PartiesJohn Henry PARKS, Movant-Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Supreme Court

Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, Robert A. Simons, Asst. Public Defender, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

Appellant, John Henry Parks, on October 15, 1963, entered a plea of guilty in Jackson County, Missouri, to a charge of murder in the first degree, and was sentenced to life imprisonment.

On November 24, 1970, appellant filed a motion to withdraw guilty plea and to vacate judgment and sentence under Rules 27.25 and 27.26, V.A.M.R. An evidentiary hearing was held on February 26, 1971, and, on September 20, 1971, the trial court denied relief.

On January 10, 1972, appellant was given leave to file notice of appeal out of time, and he filed his notice of appeal in the Circuit Court of Jackson County on January 11, 1972. The case was argued in Division Two of this Court on January 10, 1973. On January 11, 1973, it was transferred to the Court En Banc. It was rebriefed and reargued on March 7, 1973.

The question is whether jurisdiction is in this Court or in the Missouri Court of Appeals, Kansas City District.

Mo.Const. Art. V, § 3 (as amended at special election August 4, 1970, effective date January 1, 1972), provides, in part, that the Supreme Court shall have exclusive appellate jurisdiction '* * * in all appeals involving offenses punishable by a sentence of death of life imprisonment * * *.' On June 14, 1972, in Garrett v. State, 481 S.W.2d 225, 227, this Court held that such phrase 'embraces 'only those offenses having as alternative punishments life imprisonment or death," and noted that, on June 14, 1972, the only offense having alternative punishments of death or life imprisonment was murder in the first degree.

On June 29, 1972, the Supreme Court of the United States, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, 'ruled that the death penalty under statutes such as we have in Missouri * * * may may not now be imposed * * * (and that the) sole and only punishment for first degree murder in this state is now life imprisonment.' State v. Cuckovich, 485 S.W.2d 16, 28 (Mo. banc, Sept. 11, 1972).

We must conclude that murder in the first degree is not now an offense having alternative punishments of death or life imprisonment. This Court does not have jurisdiction of this appeal.

The cause is ordered transferred to the Kansas City District of the Missouri Court of Appeals.

HENLEY, J., concurs in separate concurring opinion filed.

SEILER and MORGAN, JJ., concur and concur in separate concurring opinion of HENLEY, J.

DONNELLY, J., concurs in separate concurring opinion of HENLEY, J.

FINCH, C.J., dissents in separate dissenting opinion filed.

HOLMAN and BARDGETT, JJ., dissent and concur in separate dissenting opinion of FINCH, C.J.

HENLEY, Judge (concurring).

I concur fully in the principal opinion. It follows faithfully, as it must, the rationale of the court's unanimous en banc decision in Garrett v. State 1 on June 14, 1972. It does not veer in the slightest degree from the path of reason of Garrett, and rightly so, despite the inclination some might have to be swayed because of the impact on the court's criminal appellate jurisdiction as a result of the decision of the United States Supreme Court abolishing the death penalty 2 on June 29, fifteen days after Garrett.

If, as my dissenting brothers believe, the court is in an untenable position with reference to jurisdiction in criminal appeals, it is there, I respectfully submit, not because of the decision in Garrett or because of the principal opinion, but because, as the dissenting opinion so clearly demonstrates, it was placed there by language used in § 3 of Article V and the recent decision in Furman.

The framers of the 1970 amendment had the foresight to draft sufficient flexibility into Section 10 of the Judicial Article as to empower the court to transfer cases before opinion by order and to decide a case the same as on original appeal.

It should be remembered that on the day Garrett was decided, the court, recognizing that the obvious intent of the people was that this court decide the most serious criminal offenses, entered an order pursuant to the authority of Section 10, directing that all appeals involving convictions wherein the death penalty is imposed be transferred immediately from the court of appeals to this court before opinion. This order remains in effect. The decision in Furman did not affect it. If the general assembly should enact legislation making an offense punishable solely by death, an appeal from a conviction which imposes that sentence would be decided by this court. With this order in effect, the court recognizes the possibility of the enactment of such legislation. One fact thus remains clear and certain: the court will not permit the affirmance of a judgment imposing the death sentence without a full review by it, the state's court of last resort.

FINCH, Chief Justice (dissenting).

I must dissent because I am of the view that the principal opinion places us in a completely untenable position with reference to jurisdiction in criminal appeals.

Art. V, § 3, Const. of Mo., presently states that this Court has exclusive appellate jurisdiction 'in all appeals involving offenses punishable by a sentence of death or life imprisonment.' The question presented herein is--what does this language mean? In which cases does this Court have jurisdiction?

Obviously, the section vests jurisdiction in cases in which the alternative punishments of death or life imprisonment are both available. This was decided in State v. Garrett, 481 S.W.2d 225 (Mo. banc 1972). At the time of that decision, first degree murder could be punished by death or it could be punished by life imprisonment. The jury (and in some cases the judge) had these two alternatives available.

Defendant was convicted of first degree murder on a plea of guilty, and the judge sentenced him to life imprisonment. Thereafter, defendant sought to withdraw his plea and when his request was denied, this appeal followed. Meanwhile, the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), was decided, resulting in a ban against enforcement of the existing statutory provision permitting imposition of the death penalty for first degree murder. The precise question presented is whether this decision in Furman deprives this Court of the jurisdiction it had in first degree murder cases under our decision in Garrett.

The purpose of Art. V, § 3, as I pointed out in my concurring opinion in State v. Garrett, supra, was to cut down substantially on the mandatory appellate jurisdiction of this Court. Under the constitutional change, the Court was to be reduced from a court of seven judges and six commissioners to a court of seven judges, which would act more as a supervising and reviewing court than previously, concentrating on deciding important cases and reconciling divergence in decisions of our various appellate courts. As a corollary, the mandatory appellate jurisdiction of this Court was reduced. With respect to criminal appeals, the framers of the amendment elected not to write in terms of the punishment actually imposed and instead used language which based jurisdiction on the punishment which could be imposed for the offense. The result was the language heretofore mentioned, namely, 'punishable by a sentence of death or life imprisonment.' However, it is obvious that the intention was to limit...

To continue reading

Request your trial
19 cases
  • State v. Wright
    • United States
    • Missouri Supreme Court
    • October 14, 1974
    ...We retain jurisdiction to decide this case on the basis of this Court's order entered April 9, 1973, following our decision in Parks v. State, 492 S.W.2d 746 (Mo. banc 1973). We On December 4, 1968, during the course of a robbery of a restaurant in St. Louis, Mike Lograsso, the proprietor, ......
  • State v. McClain
    • United States
    • Missouri Supreme Court
    • September 10, 1973
    ...was assessed at death. This Court does not have jurisdiction of this case under Art. V, § 3, Const. of Missouri, V.A.M.S. Parks v. State, 492 S.W.2d 746 (Mo.1973). We retain and decide the case under authority of Art. V, § 10, Const. of Missouri, for the reasons stated in Foremost-McKesson,......
  • Bryant v. State, 11346.
    • United States
    • Missouri Court of Appeals
    • October 15, 1980
    ...`involving' such offense, and jurisdiction is in this Court." Garrett v. State, 481 S.W.2d 225, 226 (Mo. banc 1972). Also see Parks v. State, 492 S.W.2d 746 (Mo. banc 1973); Ginnings v. State, 506 S.W.2d 422 (Mo.1974). However, the current provision no longer defines the Supreme Court's jur......
  • State v. Faught
    • United States
    • Missouri Court of Appeals
    • January 11, 1977
    ...place on April 24, 1974, was Herbert Walford ('Butch') Masters, Jr. Defendant appeals. This court has jurisdiction of the appeal. Parks v. State, 492 S.W.2d 746 (Mo. banc Defendant's first point, a valid one, is that the trial court erred in admitting into evidence, over the objection of de......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT