State ex rel. Reece v. Campbell

• Decision Date: 03 May 1977
• Docket Number: 37839,Nos. 37810,s. 37810
• Citation: 551 S.W.2d 292
• Parties: STATE ex rel. Doyle George REECE, Relator, v. Hon. Robert Lee CAMPBELL, Respondent. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 292

551 S.W.2d 292

STATE ex rel. Doyle George REECE, Relator, v. Hon. Robert Lee CAMPBELL, Respondent.

Nos. 37810, 37839.

Missouri Court of Appeals, St. Louis District, Division Three.

May 3, 1977.

Courtney Goodman, Pros. Atty., James J. Cook, Asst. Pros. Atty., Clayton, for respondent.

Kevin M. O'Keefe, St. Louis, for relator.

KELLY, Presiding Judge.

This case involves the consolidation of an appeal by the State of Missouri from the judgment of Division No. 6 of the St. Louis County Circuit Court in proceedings under the provisions of Rule 27.26 V.A.M.R. vacating a conviction in Division No. 15 of said Circuit Court and granting the movant leave to withdraw his plea of guilty in the cause State of Missouri v. Doyle George Reece, Circuit Court file No. 357049 with a petition for Writ of Prohibition filed by the movant in the 27.26 motion seeking to have the Judge of Division No. 15 prohibited from doing anything further to implement an Order of Court which had the effect of nullifying the judgment entered in Division No. 6 and ordered the movant be remanded to the custody of the Missouri Department of Corrections to serve the remainder of the sentence which the judgment entered in Division No. 6 had ordered vacated.

We make permanent the preliminary writ of prohibition heretofore issued enjoining the judge of Division No. 15 from doing anything further to implement his Order of Court of January 22, 1976, entered in Cause No. 357049 of the Circuit Court of St. Louis County aforesaid, directing that the movant be remanded to the custody of the Missouri Department of Corrections. We also affirm the judgment of the judge of Division No. 6 in the 27.26 motion vacating the sentence imposed in Cause No. 357049 and granting the defendant therein leave to withdraw his plea of guilty.

The genesis of this consolidated case is a case heretofore identified by style and cause number in the Circuit Court of St. Louis County wherein the defendant as Mr. Reece shall hereinafter be identified was charged with the offense of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon, §§ 560.120 and 560.135 RSMo.1969. That cause was assigned to Division No. 15 of the Circuit Court of St. Louis County wherein the respondent, as Judge Campbell shall hereinafter be identified in the prohibition proceeding, presides. An assistant public defender represented the defendant at his arraignment of July 1, 1974, when the defendant entered a plea of guilty before the respondent judge. After this arraignment was completed the defendant was returned to the county jail to await a pre-sentence investigation to determine his suitability for probation. Defendant remained in the county jail for two days and was then released on his own recognizance pending the completion of the pre-sentence investigation by the State Board of Probation and Parole. At his arraignment the defendant and his counsel were advised that defendant was to return to court on September 4, 1974, when he would learn whether he was to be placed on probation or be sentenced.

At some date after his release from jail on his own recognizance the record fails to reveal this date the defendant left the State of Missouri and returned to his home in Arizona and still later again, the record does not reveal when he was taken into custody somewhere in the State of New Mexico, waived extradition, and was returned to the St. Louis County Jail. It is clear from the record that defendant did not appear for sentencing on September 4, 1974, as he was directed by the judge of Division No. 15, and did not contact the State Board of Probation and Parole to aid that body in the conduct of the pre-sentence investigation ordered by the judge accepting defendant's guilty plea. On November 8, 1974, the defendant was brought before the respondent judge in Division No. 15 of the Circuit Court of St. Louis County and was sentenced to a term of 25 years in the custody of the Missouri Department of Corrections.

On February 7, 1975, defendant filed a Motion to Vacate, Set Aside or Correct Judgment pursuant to Rule 27.26. As is the custom, this motion contained numerous allegations attacking the validity of his conviction. However, the evidence in support of his motion, adduced during the evidentiary hearing thereon, was directed to two grounds: 1) that if he was denied probation on his guilty plea the sentence which would be imposed upon him would not be in excess of five years, and 2) ineffective representation by his court-appointed counsel in failing to file with the court prior to imposition of sentence a motion for leave to withdraw his plea of guilty pursuant to Rule 27.25 V.A.M.R. As is customary in the Circuit Court of St. Louis County, this motion was assigned to the judge before whom the plea was entered and the sentence imposed the respondent and simultaneously, defendant filed a motion to disqualify said judge from hearing his motion to vacate. Pursuant to defendant's motion to disqualify the 27.26 proceedings were transferred to the judge presiding in Division No. 6.

On January 14, 1976 an evidentiary hearing was had in Division No. 6 and on January 19, 1976 findings and conclusions of the trial court were filed and judgment entered sustaining defendant's motion to vacate the judgment and sentence entered on November 8, 1974 in Division No. 15, whereby defendant was sentenced to 25 years in the penitentiary, and granting defendant leave to withdraw his plea of guilty entered on July 1, 1974.

A copy of this judgment was filed of record in the file in Cause No. 357049 in Division No. 15 and this evoked the Order of Court of January 22, 1976 which is the subject of the prohibition action. This order stated that the judge of Division No. 15 found that the judgment entered in the motion to vacate proceeding was not in accord with law and decisions of the appellate courts of this State and for that reason he "declines to vacate and set aside the plea of guilty and sentence of this Court in the motion filed pursuant to Rule 27.26 . . . ," and ordered the defendant remanded to the custody of the Missouri Department of Corrections to serve the remainder of the sentence he had imposed.

On January 19, 1976, the State of Missouri filed its notice of appeal from the judgment of the judge of Division No. 6 in the motion to vacate and on January 26, 1976, the defendant filed a motion for leave to withdraw his plea previously entered in Division No. 15. At the same time he filed a motion to disqualify the judge of Division No. 15 under "Rule 30.12 V.A.M.R." from entertaining his motion to withdraw plea. Also on January 26, 1976 defendant filed his petition for Writ of Prohibition in this court. On February 11, 1976, a Preliminary Order of Prohibition issued out of this court directing the respondent to show cause why he should not be prohibited from proceeding further or from entering any orders which would in any way contradict or derogate the judgment entered in the motion to vacate proceeding in Division No. 6 of the Circuit Court of St. Louis County. The respondent made his return to the Writ on the same date the Preliminary Order was issued and, on defendant's motion, on May 27, 1976, the Writ proceedings and the appeal by the State from the judgment in the motion to vacate proceedings were consolidated.

We have concluded that the respondent was without jurisdiction to interfere with or to enter any order in derogation of the judgment entered by the Judge of Division No. 6 of the St. Louis County Circuit Court in the motion to vacate which set aside the defendant's conviction and sentence and granted him leave to withdraw his plea of guilty. We therefore order that the Preliminary Order to Show Cause heretofore issued be made permanent.

It is apparent from the Order of Court entered by respondent on January 22, 1976 that he misconstrued the legal effect of the judgment sustaining defendant's motion to vacate and set aside plea of guilty under Rules 27.26 and 27.25 V.A.M.R., and that he was of the opinion that until such time as he entered an order in the criminal case file setting aside the sentence he had imposed and granting the defendant leave to withdraw his plea of guilty, the judgment therein was still valid and binding upon the defendant.

The purpose of a motion filed under the provisions of Rule 27.26 is to afford a prisoner confined under sentence a convenient means of collateral attack on the judgment of a conviction which is void or otherwise subject to attack on one or more of the grounds enumerated in the Rule itself. The Rule was initially adopted as a substitute for writ of habeas corpus as a vehicle for post-conviction relief and was modeled after Section 2255 of Title 28 U.S.C., the federal statute providing post-conviction relief in convictions obtained under the federal judicial system. The Rule, as adopted, does not broaden the right of attack on the conviction and judgment in the criminal action nor the scope of review beyond that permitted by habeas corpus. State v. Rutledge, 317 S.W.2d 365, 366(1) (Mo.1958). Proceedings under the Rule, although collateral to the underlying criminal action, are not technically a continuation of that criminal action in which the conviction of the movant was obtained. Layton v. State, 500 S.W.2d 267, 269(4) (Mo.App.1973). Rather, they are in the nature of a civil action and the procedures at both the trial and appellate level are governed by the Rules of Civil Procedure so far as they are applicable. State v. Davis, 438 S.W.2d 232, 234(4) (Mo.1969) Rule 27.26(a). If a new trial is granted the original prosecution then continues. State v. Keeble, 427 S.W.2d 404, 407(2) (Mo.1968).

The Rule provides that, although it does not suspend the rights available by habeas corpus, it is the exclusive procedure whereby a prisoner in custody under sentence and claiming a right to be released on the ground that his sentence...