State ex rel. Osowski v. Purkett, 77918
| Decision Date | 02 November 1995 |
| Docket Number | No. 77918,77918 |
| Citation | 908 S.W.2d 690 |
| Parties | STATE ex rel. Jeffery OSOWSKI, Petitioner, v. James PURKETT, Supt., F.C.C., Respondent. |
| Court | Missouri Supreme Court |
Terrence Sexton, Kansas City, for petitioner.
Jeremiah W. (Jay) Nixon, Atty. Gen., Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, for respondent.
On May 21, 1987, Jeffery Osowski pled guilty to the crime of attempted sodomy in violation of § 564.011.1, RSMo. 1 Because § 566.060(4) makes the crime of sodomy a class B felony, attempted sodomy is thus a class C felony under § 564.011.3(2). Osowski was sentenced to fifteen years in prison. However, for a class C felony, the authorized term of imprisonment cannot exceed seven years. § 558.011.1(3).
The body of the information charging Osowski erroneously stated that attempted sodomy was a class B felony. Pursuant to a plea agreement, Osowski pled guilty to attempted sodomy. Relying on the error in the information, the trial judge sentenced Osowski to fifteen years, the maximum sentence for a class B felony under § 558.011.1(2). The record shows on its face that the trial court only had authority to sentence Osowski to a term of imprisonment of seven years. Giving credit for all jail time Osowski has now served seven years imprisonment. He seeks relief by petition for writ of habeas corpus.
Here the state claims that the defendant has waived any objection as to the propriety of his sentence because he did not raise this issue within the time provided under our rules for filing his post-conviction motions. It may be true that his objections as to the effective representation of his trial counsel are waived; it may also be true that his complaints as to the voluntariness of his guilty plea are waived. However, those waivers do not affect his objection that the sentence exceeds the maximum allowed by law.
If a court imposes a sentence that is in excess of that authorized by law, habeas corpus is a proper remedy. State ex rel. Dutton v. Sevier, 336 Mo. 1236, 83 S.W.2d 581, 582-83 (1935). Dutton suggests that in that circumstance, the proper procedure is to remand the accused to the sheriff of the county where the case was pending for further proceedings upon the criminal charges. In the recent case of Merriweather v. Grandison, 904 S.W.2d 485 (Mo.App.1995), it was also held that the prisoner should be returned to the sentencing court for resentencing within the limits...
To continue reading
Request your trial
-
State v. Whitfield
...law. "If a court imposes a sentence that is in excess of that authorized by law, habeas corpus is a proper remedy." State ex rel. Osowski v. Purkett, 908 S.W.2d 690, 691 (Mo. banc 1995), citing, State ex rel. Dutton v. Sevier, 336 Mo. 1236, 83 S.W.2d 581, 582-83 (1935). In such a case, the ......
-
Renshaw v. Norris, CR
...under sentences longer than that permitted by statute. See, e.g., Manville v. Hampton, 266 Ga. 857, 471 S.E.2d 872 (1996); State v. Purkett, 908 S.W.2d 690 (Mo.1995). In Manville, the Georgia Supreme Court noted that if the petitioner was confined for a sentence longer than that permitted b......
-
Clay, v. Dormire
...sentence in question, as in the case where a court imposes a sentence that is in excess of that authorized by law, State ex rel. Osowski v. Purkett, 908 S.W.2d 690, 691 (Mo. banc 1995), or where the sentencing court utilized a repealed and inapplicable statute. State v. Edwards, 983 S.W.2d ......
-
Branch v. Cassady (In re Re)
...law. "If a court imposes a sentence that is in excess of that authorized by law, habeas corpus is a proper remedy." State ex rel. Osowski v. Purkett, 908 S.W.2d 690, 691 (Mo. banc 1995), citing, State ex rel. Dutton v. Sevier, 336 Mo. 1236, 83 S.W.2d 581, 582-83 (1935). In such a case, the ......